The operators’ association says legal analysis shows it favours larger operators and is superfluous
The European Competitive Telecommunications Association (ecta) represents smaller operators. It commissioned lawyers Jones Day to analyse the Draft Recommendation on the regulatory promotion of Gigabit connectivity when it was released by the European Commission on 23 February.
Jones Day concluded that, besides procedural issues, the Draft Recommendation infringes the provisions and principles in the European Electronic Communications Code (EECC), in that it:
- restricts the discretionary powers of national regulatory authorities (NRAs) to impose price control obligations in favour of wholesale price flexibility for operators with significant market power (SMP);
- restricts the discretionary powers of NRAs to impose remedies other than access to civil engineering infrastructure and gives higher priority to this access over other remedies, contrary to what was foreseen by Art. 72 and Art. 73 of the EECC;
- discourages regulated wholesale price control in low-populated areas; and
- promotes wholesale price increases in the context of copper switch-off.
Citing these concerns, the multiple scenarios regarding very high capacity network development and competition in EU Member States and the extensive experience of NRAs with ex-ante [that is, seeking to prevent harmful conduct] regulation, ecta is calling on the Commission to think again.
Specifically, it wants the Commission to consider repealing the 2010 NGA [next generation access networks] and 2013 NDCM Recommendations [non-discrimination obligations and costing methodologies] and withdraw the Draft Recommendation.
ecta’s Director General, Luc Hindryckx, commented, “The EECC has determined the framework, and the experience of the NRAs is suitable and sufficient to address the objectively different situations existing within the different Member States. It is therefore no longer necessary to issue a Recommendation.”