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1 Functional and Structural Separation Models TAIEX Workshop on regulatory framework and further development of electronic communications Belgrade, 8, 9 April 2010 Lina Rainiene, Communications Regulatory Authority of the Republic of Lithuania The opinions expressed in this presentation are the personal views of the author and do not prejudge decisions of the RRT 1
2 Table of contents Imposition of the remedies current methods to limit discriminatory behaviours Separation Functional Structural Case studies Concluding summary 2
3 Imposition of the remedies EU regulatory framework empowers national regulators to use a broad set of remedies to facilitate the development of competition Nevertheless these measures sometimes are not sufficient in preventing discrimination of alternative operators 3
4 Current methods to limit discriminatory behaviours (I) Wholesale price controls Accounting separation Non-discrimination rules Ex-post competition law 4
5 Current methods to limit discriminatory behaviours (II) Wholesale price controls Typically cost based charges required for prices that would apply if there were a competitive market for access to bottleneck facilities Cost-based pricing can effectively price discrimination behaviour such as vertical price squeezes But It is very difficult and costly to apply it in practise 5
6 Current methods to limit discriminatory behaviours (III) Accounting separation Requiring incumbent to separate the financial reporting for its wholesale access line of business from the financial reporting of its competitive, retail operations Ensures parity of access pricing between that paid by the competitor and the notional accounting price paid by the incumbent But The complex allocation of costs and revenues between the different parts of the incumbents business can make it difficult for the regulator to monitor accounting information The amount of time required to interpret accounting information means that discrimination can occur but remain undetected for long periods 6
7 Current methods to limit discriminatory behaviours (IV) Non discrimination rules Rules requiring incumbent to treat competitors in a nondiscriminatory way, with regard to accessing bottleneck assets To apply equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provide services and information to others under the same conditions and the same quality as it provides for its own services But It can be difficult to identify when there has been a breach of these rules It can even be difficult for incumbent to identify when it has violated them A time lag between discriminatory behaviour and when it is investigated enough time to cause damage to competitor 7
8 Current methods to limit discriminatory behaviours (V) Ex-post competition law Ex-post competition law remedies are also available to control anti-competitive forms of discriminatory behaviour But Ex-post mean that the behaviour already has occurred It can be difficult to identify when there has been a breach of these rules A time lag between discriminatory behaviour and when it is investigated enough time to cause damage to competitor Complex to enforce, costly and time-consuming to pursue ant uncertain of outcome 8
9 Functional and structural separation (I) Incumbent can/has an obligation to set separate: Network operations division network access and support services Wholesale services division which can purchase access to the bottleneck assets and resell them to retail operators In this way wholesale access and services are made available to the competitors and the incumbent`s retail operations on an equal basis 9
10 Functional and structural separation (II) The access services [network operations] division (or network operator) can offer access based on the physical assets under its control (such as trough LLU). Competitors and the incumbent`s retail division can then add their own electronics to produce a retail service (broadband, internet access). The wholesale services division may also acquire access to the physical assets from the access services [network operators] division and add its own electronics to produce a service (bit-stream access) that can be resold by competitors and the incumbent`s retail divisions. 10
11 Functional and structural separation (III) Functional (operational) separation separate unit within the same legal body Structural separation legally separate body Structural separation is less institutionally damaging than functional separation - it is not necessary to define, monitor, and enforce all of the internal behavioural rules required in functional separation Completely separate entities usually has no incentive of favouring each other But it is heavier remedy from the perspective of incumbent (loss of legal and corporate control) 11
12 Why Functional separation (I) Regulators are concerned about the potential destructive impact of anti-competitive, discriminatory behaviour by incumbents that provide wholesale access to bottleneck assets. This behaviour can be difficult to identify but can be very damaging to competitors Difficult identify because there may be no conclusive evidence of anticompetitive intent. 12
13 Why Functional separation (II) Discriminatory behaviour is damaging because: It can sabotage competition by increasing the competitors` and reducing quality at the wholesale level therefore giving a relative advantage to the integrated operator`s retail business It causes delay and uncertainty for the competitor as well as erodes confidence in the regulator`s ability or willingness to combat discriminatory behaviour Leads competitors to delay or hold back potential investment Hinders downstream competition, leading to increased prices, less innovation, and a reduction of service quality and quantity 13
14 Why Functional separation (III) Practice in many different countries - Incumbents often have both the incentive and the ability to frustrate competition. Therefore Functional separation seeks to address vertical integration Discrimination can take two basic forms: Price discrimination the incumbent prices access for competitors at a level that makes it difficult for any competitor even an efficient one to compete with the incumbent Non-price discrimination the incumbent sets access terms and conditions that are less favourable to its competitors than those it provides to itself 14
15 Why Functional separation (IV) Examples of price discrimination: Cross subsidies from product or service markets where the incumbent has market power into product/service markets where the incumbent faces competition Vertical price squeezes between the incumbent`s retail price and wholesale access price Using the relative price of different wholesale products to hinder the type of competition that the incumbent faces for example, reducing the wholesale price of bit-stream access relative to LLU prices in order to discourage LLU 15
16 Why Functional separation (V) Examples of non-price discrimination: Undue delays of processing competitors` orders for access Providing more information on access to the incumbent`s retail business than to an unaffiliated competitor Favouring the incumbent`s business when developing the network or the means of access to bottleneck assets When an incumbent wholesale or access provider receives confidential, sensitive information from an competitor as part of providing that access, then passes that information on to the incumbent`s retail service provider to give a competitive advantage Providing access to a competitor at a lower quality of service than what is provided to the incumbent`s retail operations 16
17 Why Functional separation (VI) David Currie, Chairman of OFCOM on harmful effect of discriminatory behaviour: It does not even require active non-price discrimination. All that is needed is for the incumbent not to try their hardest to achieve reliability, timeliness and predictability to disrupt significantly the launch by competitors of a rival retail proposition. A significant mismatch between the promise of a marketing campaign and consumers` actual experience of waiting weeks or even months to get what is promised can do significant and lasting damage to a competitors` market entry 17
18 Why Functional separation (VII) Regulatory holidays - Relaxation of other regulation Implementing Functional separation can reduce the need for other forms of regulation of incumbent`s activities For example retail price controls may become unnecessary if Functional separation fosters vibrant competition on the retail level 18
19 EU legislation Access Directive Functional separation Art. 13a (Dir. 2002/19/EC amended by 2009/140/EC) An exceptional measure, that the NRA may consider When the imposition and enforcement over a reasonable timeframe of appropriate available obligations have not succeeded in ensuring stable and effective competition And the national market of electronic communications is characterised by little or no prospect of infrastructure-based competition 19
20 EU legislation Compulsory elements of the separation measure: The precise nature and level of separation Identification of the assets of the separate business entity, and the services to be supplied by this entity Arrangement to ensure the independence of the staff of the separate business entity Rules for ensuring Compliance with the obligations Transparency of operational procedures Monitoring programme to ensure compliance 20
21 Features of functional separation (I) The aim of Functional separation is to reduce the incentive and ability of an incumbent to engage in discriminatory behaviour using bottleneck assets Virtual separation Equivalence requirements Monitoring and enforcement 21
22 Features of functional separation (II) Virtual separation The incumbent remains intact both from a legal and ownership perspective, but it is require to restructure itself into distinct divisions The business division providing access to bottleneck network assets is separate and distinct from downstream retail and wholesale business divisions But it is still owned and controlled by the incumbent as part of the same legal and corporate entity 22
23 Features of functional separation (III) Virtual separation Because the split is virtual various mechanisms to create and preserve a distinct an independent business unit are needed Various measures can be used: Management and staff remuneration may be linked to the performance of the division they belong (rather then a company as a whole) Management and staff can be physically separated in different offices Separate brand names can be attached to each division (Openreach in UK, Chorus in New Zeland) 23
24 Features of functional separation (IV) Equivalence requirements Requirements for access services division to treat competitors in a manner to how it treats its own downstream divisions Equivalence of inputs (UK, New Zealand) equivalent wholesale products and services should be provided to both downstream divisions of the incumbent and to competitors Offerings must be: On the same time scales and terms and conditions (including price and service levels) With the same service, system and process reliability and performance With the same commercial information provided By means of the same systems and processes 24
25 Features of functional separation (V) Equivalence requirements Equivalence of outputs (UK) the systems and processes used to provision services to competitors are approximations of the systems or procedures used for the incumbent`s retail provider, rather then identical system or processes The last requirement of equivalence of inputs by means of the same systems and processes for full system and process equivalence may require considerable modification of existing information technology systems and transaction flows. It is the most burdensome element of the equivalence requirement. These processes are usually integrated with various parts of the incumbents businesses that fall outside the access services division. Therefore full-system equivalence may not be possible for access services with a short life span (for example services using technology that is being phased out). It may be preferable to built equivalence into the next generation of network equipment and processes. So there can be exceptions when it is necessary for the efficient operation of the incumbent. 25
26 Features of functional separation (VI) Monitoring and the enforcement Functional separation involves a series of promises by the incumbent, therefore there must be effective monitoring and enforcement of these promises by the regulator NRA can delegate enforcement to an independent oversight group to ensure compliance with the separation and equivalence obligations (UK, New Zealand): Mandatory reporting requirements Delegation of strong investigatory powers Protection of whistle-blowers who report violations Enforcement directly performed by NRA or Through the courts Authorities should have the power: To direct incumbents to correct their behaviour Substantial remedies (fines and potential cancellation of licences) 26
27 Countries already dealing with separation Great Britain New Zealand Australia Sweden Italy Poland Ireland France Mongolia 27
28 Countries already dealing with separation Great Great Britain (I) Ofcom accepted (on the basis of agreement) more than 230 Undertakings offered by BT New and operationally separate business division established (under the basis of BT division previously responsible for the operation and development of BT local access networks Senior managers are rewarded solely based on the success of Openreach, not of BT Group 28
29 Countries already dealing with separation Great Great Britain (II) Aim to achieve equality of access. BT`s competitors should benefit equally from Openreach`s wholesale products, prices and processes Creating an Equality of Access Board that monitors BT`s compliance with the Undertakings As part of the agreement, Ofcom has the power to direct BT to remedy any violation; Ofcom can bring an action against BT in the High Court for any breach of Undertakings 29
30 Countries already dealing with separation New Zealand A law was past in 2006 requiring the functional separation Incumbent should be split into three divisions: retail wholesale access network operations Separate divisions were prohibited from giving preference to an internal division 30
31 Countries already dealing with separation Australia Functional separation light Autonomous retail, wholesale and network units Separated wholesale division to provide products and services to competitors Autonomy included a separation of personnel and premises The rest remained fully integrated wholesale and retail operator 31
32 Countries already dealing with separation Sweden NRA recommended creating a new regulatory tool to allow imposition of both functional and structural separation At a minimum separate unit would offer LLU and ancillary services, and would include fibre access networks Recommended that functionally separated unit would be legally independent set up as a limited liability company Recommendations came as a response to competition issues arising from the incumbents actions 32
33 Countries already dealing with separation Italy (I) One of the first applied separation (2002) Administrative separation - aim to allow non-discriminatory access to network services of the incumbent Establishment of separate commercial units: Retail Wholesale provides services for competitors Field Services serves Wholesale Technology serves Wholesale 33
34 Countries already dealing with separation Italy (II) Safeguards to enforce separation of the units Annual independent audits Separate information systems with individual password levels A code of business practise Differences from other countries the core network and access services are both within the same division this separated division includes both replicable and non-replicable assets Moving towards more heavy model separate Technology and Operations division: separate Open Access unit 34
35 Countries already dealing with separation Poland NRA proposed functional separation of the incumbent Resistance of the owners of the incumbent European Commission agreed on the imposition NRA and incumbent negotiated behaviour Meanwhile NRA not accepted legality of functional separation 35
36 Countries already dealing with separation Ireland Incumbent negotiated a voluntary full structural separation plan with NRA Full legal separation between retail and network divisions by selling off retail customer base and mobile phone unit Incumbent discussed separation plan with NRA because looked for pricing certainty and stability Test of the hypothesis that increased competition after separation will expand wholesale division 36
37 Countries already dealing with separation France (I) In 1996 ARCEP imposed accounting separation on FT; renewed in 2006 rules required FT to treat its separate divisions individually in its accounts and to create equivalence for wholesale services between its retail arm and competitors ARCEP has been unwilling to expand Accounting separation to functional separation, concerning over difficulties 37
38 Countries already dealing with separation France (II) ARCEP has concerned over difficulties: Increased network costs imposed on all operators by the newly separated access services division The loss of incentives to invest in the network The long-term nature of functional separation in a fast moving market Difficulties in setting the boundaries between the separated divisions 38
39 Countries already dealing with separation Mongolia NRA implemented a structural separation of all network assets from its retail divisions in 2007 The network assets were placed in the hands of state owned company The partially privatized incumbent now owns and operates only the retail division 39
40 Concluding summary FS recent response by NRA and Governments Implementation limited to a small number of countries It remains relatively untested Once implemented, probably cannot be reversed FS will not eliminate the need for continuing regulatory control over the access services division Other alternatives should be considered before moving to more drastic measure FS If FS is considered its better to start from negotiations 40
41 References Trends in Telecommunications reform 2008, Six degrees of sharing, The emergence of functional separation, ITU ERG opinion on Functional separation ERG (07)44 41
42 Thank you Lina Rainien Tel.: Functional and Structural Separation Models Lina Rainiene
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