Open access, 5G, zero-rating, roaming and the Electronic Communications Code: the telecoms sector remains highly regulated

Bas Braeken & Jade Versteeg & Demi van den Berg / 09 Sep 2021

On 21 December 2020, the first part of the European Electronic Communications Code (“EECC”) was implemented in the Dutch Telecommunications Act. The EECC modernises the European regulatory framework for the telecommunications sector in light of the European Commission‘s (“Commission”) Digital Single Market strategy. In 2020, online communications services provided via the Internet (so-called ‘Over-The-Top’ (“OTT”) services) such as Skype, WhatsApp and Facebook Messenger also fall within the scope of the telecoms regime. The EECC establishes a set of updated rules for electronic communications networks and services to promote competition and increase connectivity for all citizens and businesses. This blog discusses (new) economic regulation and other competition law developments in the telecoms sector.

Access regulation to telecommunications networks

One of the most important changes brought about by the EECC is the broadening of the powers of national regulatory authorities (“NRAs”) to impose access obligations on network operators. Previously, the imposition of such obligations was subject to a market analysis procedure and the determination of (joint) significant market power (“SMP”). On 27 September 2018, the Netherlands Authority for Consumers and Markets (“ACM”) adopted the decision Wholesale Fixed Access (“WFA”) and found that without regulation, KPN and VodafoneZiggo have joint SMP in the fixed networks market. Because of this duopoly they had to grant alternative providers without an own network access to their networks. On 17 March 2020, the Trade and Industry Appeals Tribunal (“CBb”) however ruled that the ACM had failed to sufficiently substantiate the existence of joint SMP and annulled the decision. The ACM announced that VodafoneZiggo withdrew its access offer after the ruling. KPN has continued to offer access to its network, but has adjusted various access conditions.

New powers of ACM

The EECC continues and specifies the existing powers, but also creates additional powers. Firstly, the amended Telecommunications Act allows the ACM to impose ex officio obligations regarding the access conditions and prices applied by the network providers, for example regarding transparency and non-discrimination.

In addition, the ACM may, upon reasonable request, impose obligations on network providers to provide access to their networks. Article 6.3 of the Telecommunications Act provides that access can be inflicted to cables or associated facilities within buildings, or, if the point of convergence closest to the network connection point is outside the building, the cables or associated facilities to that point. Access should allow efficient operators to provide their services in an economically viable manner. If such passive access proves insufficient to ensure the interests of end-users, active or virtual access may also be imposed. The concept of access is therefore interpreted broadly and can for example include the provision of space to install equipment, the supply of power for and cooling of the equipment, but also the resale of certain services such as the use of unencrypted channels or a TV platform.

Regulation in case of replication barriers: old wine in new bottles

Upon the implementation of the ECC, the Dutch legislator considered that a request must be necessary in order to qualify as reasonable. The network elements must be actually necessary in order for alternative providers to be able to offer the services themselves. Article 6.1 of the Telecommunications Act also contains an obligation for providers to try to reach a negotiated solution without government intervention. The ACM will therefore also have to take into account the existence of voluntarily offered access and the conditions attached to it.

In addition, the new Article 6.3 of the Telecommunications Act requires that the construction of a new network alongside the existing network (replication) would be economically inefficient or physically impracticable. The EECC designates NRAs and the Body of European Regulators for Electronic Communications (“BEREC”) to give further effect to this criterion. In its guidelines, BEREC considers replication barriers to be obstacles which create a level of risk that deters efficient network operators from replicating (part of) a network, and which are unlikely to disappear or significantly diminish in the short term. In particular, such obstacles may include:

  • significant (possibly sunk) costs associated with the construction of civil infrastructure works, accompanied by a low prospect of eventual cost recovery;
  • technical, legal or administrative requirements and restrictions; and
  • the impossibility to gain physical access to buildings or soil.

As KPN and VodafoneZiggo are the only two operators of fixed networks with national coverage, it is conceivable that replication barriers may be significant. The construction of a local loop is very costly and replication may therefore be difficult and economically inefficient. Possible regulation of providers such as KPN and VodafoneZiggo through these new possibilities is therefore certainly conceivable.

Ongoing ACM investigation

A request for access seems to have been made by T-Mobile earlier this year. The ACM subsequently re-investigated the price-quality ratios for internet, television, fixed telephony and data connections. On the basis of these investigations the ACM acknowledged that the access conditions of KPN constitute a competitive risk for its competitors. Therefore, the ACM has announced that it will prepare a new market analysis decision in order to assess whether the fixed networks need to be regulated and if so, in which way. The publication of the draft decision is scheduled for autumn 2021, after which telecom providers can submit their views. ACM invites (telecom) companies with similar wishes to come forward.

The ACM also aims to enable new and/or small providers such as Fiber, Tele2 and XS4all to compete by stimulating the roll-out of new fibre networks. In its market study of May 2021, the ACM emphasised the importance of open access to newly deployed fibre optic networks. It indicates that it will continue to monitor the market for the roll-out of fibre and to intervene in the event of anti-competitive behaviour.

Lowering switching barriers for bundles

The EECC also aims to promote competition between providers by lowering switching barriers. More and more often, consumers purchase a bundle of internet, telephony and television (all-in-one package). This increases the barriers to switch to another provider, as it is often not possible to switch for a single service. Article 106 of the EECC requires NRAs to ensure the efficiency and simplicity of the switching process for internet services for the end user. To that extent, Article 7.2c of the Telecommunications Act requires the transferring and receiving providers to jointly ensure the continuity of the internet service, for example by offering the consumer to terminate the contract with the old provider. These rules should make it relatively easier for small and/or new providers to compete with the fixed/mobile bundles of KPN and VodafoneZiggo.

Terminal equipment; more freedom of choice

The ACM also aims to lower the switching barriers for consumers by providing freedom of choice in terminal equipment. The EECC briefly mentions the bundling of services and terminal equipment. Rules on terminal equipment such as telephones, satellites and modems have been further described in Directive 2008/63/EC and implemented in Dutch legislation since 2016. The purpose of this framework is to promote competition in the markets for terminal equipment. In that context, the ACM published the Policy Rule regarding Enforcement of the Decision on Terminal Equipment on 27 July 2021, in which it provides clarity on which part of the network is owned by the telecom provider and which part is the consumer’s free choice. In practice, it means that consumers and companies will be able to choose their own modem and/or router. By offering a free choice of modem, the ACM expects to stimulate competition between providers and manufacturers of terminal equipment. In its policy rule, it has followed the opinion of the Disputes Committee for Telecommunications Services, which previously determined that customers must be able to use their own modem or router. VodafoneZiggo has opposed this opinion of the Disputes Committee and has brought the case before the court.

Net neutrality; a nuance of the permissibility of zero-rating

Another hot topic surrounding telecom regulation is net neutrality. Since 2016, the European Net Neutrality Regulation is in force. The regulation ensures that internet providers offer free and open access to the internet. For example, internet providers may not discriminate in internet traffic and may not block or unnecessarily restrict access to internet services. Following a public consultation, BEREC published its new guidelines for the application of the Net Neutrality Regulation last year. It pays a lot of attention to the application of so-called zero rates for certain services (‘zero-rating’), which may be in breach of the prohibition of discrimination laid down in the Regulation. In that context, the Rotterdam District Court ruled in 2019 that T-Mobile’s Data free Music service, which excluded certain music streaming services from data usage, did not violate the European net neutrality rules.

In recent judgments, the European Court of Justice seems to think differently about this. In September 2020, the Court issued an interesting judgment on net neutrality and zero-rating. When offering data bundle packages, Hungarian provider Telenor applied a zero rate for the use of Facebook, Facebook Messenger, WhatsApp, Instagram, Viber and Twitter, so that customers could continue to use these services unrestrictedly after consuming the data volume. Other applications and services were blocked or slowed down after the full data consumption. The Court ruled that such data bundle packages with a selective zero rate could infringe the net neutrality rules if they are based on commercial considerations.

On 2 September 2021, the Court seemed to go a step further. In three similar rulings, the Court determined that zero-rating options for certain partner services, such as those of ‘Vodafone Pass’ and Deutsche Telekom’s ‘Stream On’ service, are in fact based on commercial considerations. As the data traffic to applications of certain partner companies is not charged at the basic rate, the Court found that the two providers infringe the principle of non-discrimination laid down in Article 3 of the regulation. The selective offering of free internet services is therefore certainly not always compatible with the Net Neutrality Regulation.

Fixed and mobile telephony; 5G, roaming and tariff regulation

The past year, the ACM and the Commission have also been active as regards the quality and (tariff) regulation of mobile networks.

  • Earlier this year, the ACM decided that telecom providers are allowed to cooperate for the rapid roll-out of mobile networks. In order to increase the capacity, quality and coverage of mobile networks and to accelerate the roll-out of 5G, telecom providers are allowed to cooperate by sharing their infrastructure. In its Guideline on Mobile Network Sharing, the ACM stipulates that telecom providers may use the network of another provider via (national) roaming. With a maximum of 40% of frequencies that one operator can use, the ACM believes that competition between operators will not be endangered.
  •  In February 2021, the Commission proposed a new Roaming Regulation. The current Roaming Regulation, which expires in 2022, has abolished roaming charges within the EU. In that context, the Court of Justice ruled last year that all roaming providers must automatically apply the regulated roaming tariff from the moment the regulation entered into force, also in relation to customers who had previously chosen a different roaming tariff. The new proposal aims to increase the quality and speed of mobile networks by enhancing the ‘roam like at home’ For example, consumers will be better informed about possible additional costs of calling numbers that allow access to services. It also lowers wholesale price caps to allow operators to break even.
  •  On 1 July 2021, the Delegated European Regulation on fixed and mobile voice termination entered into force. In this regulation, the Commission sets a single maximum rate that operators can charge each other to establish a connection. The new regulation sets a maximum rate of 0.2 euro cents per minute for mobile calls and 0.07 euro cents per minute for fixed calls across the Union. The regulation provides for an initial period to allow for gradual alignment. For fixed operators, the maximum charge of 0.07 euro cents per minute will apply from 2022 on.

Conclusion

The end of (ex ante) regulation in the telecom sector has been discussed for at least more than a decade. The selection of recent developments discussed above nevertheless makes it clear that the telecoms sector remains one of the most regulated sectors to this day. Yet, a shift is clearly visible. In addition to an increasing role for competition law in the roll-out of fibre optic and 5G networks, rules to protect consumers (roaming, net neutrality) are increasingly gaining the upper hand. The access provisions of the EECC are a notable and important exception to this. The possibility of gaining access to a network via a dispute resolution procedure (and therefore not on the basis of a market analysis decision) will bring many telecom lawyers back to the many dozens of interconnection disputes that were settled at the time. It will nonetheless not happen overnight, if only because the market has consolidated considerably in the past twenty years.

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