COMISIÓN DEL MERCADO DE LAS TELECOMUNICACIONES

Transcription

1 DRAFT MEASURE CONCERNING THE IMPLEMENTACION OF WHOLESALE LINE RENTAL OBLIGATION ON THE RELEVANT MARKET FOR CALL ORIGINATION IN THE FIXED PUBLIC TELEPHONE NETWORK This summary notification form relates to a draft decision of the Comisión del Mercado de las Telecomunicaciones (hereafter: CMT) regarding the implementation of wholesale line rental obligation on the relevant market for call origination in the fixed public telephone network (market 8). In accordance with article 7 (3) of Directive 2002/21/EC, CMT hereby notifies the European Commission of its draft measure which main conclusions are set out in the attached summary notification form. Under article 6 of the Directive 2002/21/EC, CMT is conducting a national consultation at the same time. Responses to this consultation are due to be sent to the CMT within twenty days after publication in the Spanish Official Journal. C/ Marina, Barcelona CIF: Q D Página 1 de 6

2 I. Introduction This section contains a short summary of the previously taken market analysis decision on call origination in the fixed public telephone network, and a description of the decision on the implementation of a new obligation that is now being notified. I.1. Market definition 1.1 The affected relevant product/service market. Is this market mentioned in the Recommendation on relevant markets? Call origination on the public telephone network provided at fixed location. This market is the same to that quoted in the Recommendation. 1.2 The affected relevant geographic market Spain 1.3 A brief summary of the opinion of the National Competition Authority where provided. 1.4 A brief overview of the results of the public consultation to date on the proposed market definition (for example, how many comments were received, which respondents agreed with the proposed market definition, which respondents disagreed with it) 1.5 Where the defined relevant market is different from those listed in the Recommendation on relevant markets, a summary of the main reasons which justified the proposed market definition by reference to Section 2 of the Commission s Guidelines on the definition of the relevant market and the assessment of significant market power 1, and the three main criteria mentioned in Recitals (9) to NCA agrees with the Decision. Comments from 7 operators were received. 3 operators agreed with the Decision. The main comments of the consultation were: - Inclusion of certain services in the relevant market (i.e. resale); - TESAU: geographic scope of relevant market due to the existence of different barriers to entry at regional level.. 1 Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications and services, OJ C 165, , p.6 2 Commission Recommendation of on Relevant Product and Service Markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services, C (2003)497 C/ Marina, Barcelona CIF: Q D Página 2 de 6

3 (16) of the Recommendation on relevant markets and Section 3.2 of the accompanying Explanatory Memorandum 2. I.2. Designation of undertakings with SMP 2.1 The name(s) of the undertaking(s) designated as having individually or jointly significant market power. Telefónica de España, S.A.U. (TESAU) Where applicable, the name(s) of the undertaking(s) which is (are) considered to no longer have significant market power. 2.2 The criteria relied upon for deciding to designate or not an undertaking as having individually or jointly with others significant market power. Market share; Control of infrastructure no easily duplicated; Barriers to entry (sunk costs, economies of scale, scope and density); Countervailing buyer power and Vertical integration. 2.3 The name of the main undertakings (competitors) present / active in the relevant market TESAU does not face any competitor in the provision of call origination services. 2.4 The market shares of the undertakings mentioned above and the basis of their calculation (e.g., turnover, number of subscribers) 2.5 The opinion of the national competition authority where provided. Turnover: - TESAU: 97% - Others operators: less than 1% Minutes: - TESAU: 97% - Others operators: less than 1% NCA agrees with the Decision. 2.6 The results of the public consultation to date on the proposed designation(s) as undertaking(s) having significant market power (e.g., total number of comments received, numbers agreeing/disagreeing) Comments from 7 operators were received. 6 operators agreed with the Decision, but they wanted to insist that TESAU had super dominant position. The main comments of the consultation C/ Marina, Barcelona CIF: Q D Página 3 de 6

4 were from TESAU: - Operators with access network has SMP in their own network; - Impose over others operator similar obligations in new loops (access obligation); - Withdraw obligations in places where colocations exist (effective competition). I.3. Regulatory obligations 3.1 The legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 9 to 13 of Directive 2002/19/EC (Access Directive)) 3.2 The reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC (Framework Directive). Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found 3.3 If the remedies proposed are other than those set out in Articles 9 to 13 of Directive 2002/19/EC (Access Directive), please indicate which are the «exceptional circumstances» within the meaning of Article 8 (3) of thereof which justify the imposition of such remedies. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found The following obligations were proposed: - Access (Art. 12) - Price control and cost accounting (Art. 13) (cost oriented prices) - Accounting separation (Art. 11) - Transparency (Art. 9) - Non discrimination (Art. 10) See chapters II.5.2 and chapter II.5.3 of the previous notification I.4. Compliance with international obligations C/ Marina, Barcelona CIF: Q D Página 4 de 6

5 4.1 Whether the proposed draft measure intends to impose, amend or withdraw obligations on market players as provided for in Article 8(5) of Directive 2002/19/EC (Access Directive) 4.2 The name(s) of the undertaking(s) concerned 4.3 Which are the international commitments entered by the Community and its Member States that need to be respected II. Summary of the notified decision II.1. Previous considerations The affected relevant market is call origination in the fixed public telephone network (market 8 of the Recommendation). In the previous notification 3, TESAU was designated as having individually significant market power and, according to the potential competition problems identified, CMT proposed to impose obligations which are set out in table above. The draft measure that is now being notified does not introduce any modification in market definition and undertaking designated as having SMP. Nevertheless, CMT has identified new potential competition problems and therefore it proposes to impose new remedies to address them. II.2. Potential competition problems and remedies In a situation where wholesale access in the markets for calls is regulated without corresponding regulation in the markets for access, undue bundling of calls and access services in TESAU s retail services may be a potential competition problem. This applies especially to the customers who are not offered access to fixed telephony via alternative access network operators. However, if wholesale access in calls and access markets is regulated, such bundling will not be a big potential competition problem, since TESAU s competitors are given the chance to offer the same bundled products in the retail markets. According to this potential competition problem, CMT proposes to impose on TESAU an obligation to meet all reasonable requests for access in the form of Wholesale Line Rental (WLR). To ensure the effectiveness of this remedy, CMT proposes additional remedies such as: Access; 3 Case ES/2006/0355: Call origination on the public telephone network provided at a fixed location in Spain. C/ Marina, Barcelona CIF: Q D Página 5 de 6

6 Price control and cost accounting; Accounting separation; Non discrimination; Transparency. C/ Marina, Barcelona CIF: Q D Página 6 de 6