Roaming: “Seek not excess”

Posted on June 29, 2007 | Filed Under communication technologies

It’s the law!Today, the Roaming Regulation, pride of the European Commission’s ad hoc-regulation efforts, was published in the Official Journal - so tomorrow, when the Regulation enters into force, the walls will come tumbling down as “the last border in Europe’s internal market” (copyright: Viviane Reding) will finally be abolished.

In fact, things might well be less spectacular, since the regulation in effect boils down to old-style price-regulation (on the retail and wholesale level, € 0.49 and 0.30 per minute resp. in the first year - for details see Art 3 and 4 of the Regulation), dressed up in new-style rhetoric (to avoid the term newspeak).

A complex mechanism involving NRAs, operators and customers will offer options, choices, transparency, and a few other buzzwords, so that everyone - NRAs, operators and customers - is kept busy, and by the end of the day “community-wide roaming” will have become cheaper in the course of August this year, the exact time depending on how the operators (and to some extent the customers) will act, and also depending somewhat on how the NRAs will interpret the regulation (some indication of the ERG’s position here).

Following the example of Advocate General Dámaso Ruiz-Jarabo Colomer, whose opinions regularly include literary quotes (for instance: Proust in C-64/06, Zola in C-195/06, Cervantes in C-262/06), I have recently started to quote Shakespeare here on this blog - but Shakespeare might not be the best source for quotes concerning the Roaming Regulation - still, here is Shakespeare on Roaming:

  • O mistress mine, where are you roaming? (Twelfth Night)
  • Five summers have I spent in furthest Greece,
    Roaming clean through the bounds of Asia (Comedy of Errors)
  • Daphne roaming through a thorny wood (The Taming of the Shrew)

However, I did find a rather interesting quote on roaming in the (once) famous poem “The Golden Journey to Samarkand” by James Elroy Flecker (quoted here from my 1972 version of the The New Oxford Book of English Verse):

“Seek not excess: God hateth him who roams”

The setting, by the way, is Bagdad, and the travellers - as the poem’s title promises - are heading off towards Samarkand (now in Uzbekistan). Neither Iraq nor Uzbekistan, of course, are affected by the Roaming Regulation - and, according to my provider’s website, as of today I would be charged € 4.40 (Uzbekistan) or € 4.20 (Iraq) for a one minute roaming-call from there.

About this Post
author: hans peter | Permalink | | Print This Article | 1 Comment

ECJ: the holiday season is coming

Posted on June 22, 2007 | Filed Under communication technologies

justice “Regulatory holidays” meet judicial vacation: while the European Court of Justice has just published the schedule for the remaining three weeks before retreating for judicial vacation (from 16/07/2007 until 02/09/2007), the European Commission is getting ready to bring the German “regulatory holidays” to the Court before the summer. The deadline set by the Commission in its reasoned opinion has now expired, and Germany is definitely not going to amend its Telecommunications Act. So within the next few days, the Commission is expected to file infringement proceedings with the ECJ.

In the Commission’s view, Section 9a of the German Telecommunications Act as amended in February 2007 violates Community law (German Text here, the English version of the Act available from the server of the Federal Ministry of Economy and Technology has not yet been updated to include the amendment). Under the headline “new markets”, Section 9a states that “new markets” in principle are not subject to regulation. New markets are defined as markets for services or products that differ substantially (in fact the text says “not just insubstantially”) from services and products that were already available and which do not merely replace them. Without explicitely stating it, the definition was drawn up with VDSL-roll out of the Deutsche Telekom in mind. Deutsche Telekom has repeatedly threatened it would not invest in new infrastructure for VDSL if it isn’t granted a “regulatory holiday”, meaning there would not be any mandated access for third parties or regulated wholesale or retail prices. The text of the amendment as it was finally adopted tried to reduce the fear of alternative operators and also of the Commission that there would not be any regulation under any circumstance. So the Act now states that the markets could be regulated if otherwise the development of a competitive market would be strongly obstructed. Still, at least outside Germany, it is hard to see how the Act can be reconciled with the provisions of the Framework and Access directives, which basically state that the national regulatory authorities have to have the full range of regulatory options as provided for in these directives available - without interference from the legislator.

We will see - after the (judicial) holidays. Before the Court will retreat, we can look forward to decisions on the VAT with regard to the UMTS-auctions and to two opinions of the Advocate General:

On 26 June 2007 the Grand Chamber will serve the decisions in the cases C-369/04 Hutchison 3G and Others and C-284/04 T-Mobile Austria and Others, both dealing not with questions of the electronic communications directives, but rather with value added taxes. The issue is basically whether or not the allocation of spectrum to the operators should be subject to VAT.

On 28 June 2007 the Advocate General will deliver the opinion in the case C-262/06 Deutsche Telekom, on questions of the transitory regime.

And finally, on 18 July 2007, the Advocate General will present the opinion in the case C-55/06 Arcor, on questions concerning cost orientation under the Regulation (EC) No 2887/2000 (Unbundling Regulation).

Most notably missing in the list of cases to be decided before the judicial vacation is the case C-426/05 Tele2UTA, concerning the legal standing of other operators in market analysis-cases before the national regulatory authorities. We’ll have to wait a few more months before this issue will be clarified by the Court.

About this Post
author: hans peter | Permalink | | Print This Article | 6 Comments

Towards a European FCC?

Posted on June 15, 2007 | Filed Under communication technologies, national regulatory authorities, spectrum policy

logo_agencies.JPGIn her presentation of the European Commission’s 12th report on the EU’s telecom market commissioner Vivian Reding pointed out the lack of a real level-playing field in the telecommunications sector and made a case for consolidating the internal market further, an EU-wide approach to managing spectrum and scarce resources as well as strengthening consumer protection. All these issues will therefore be part of a reform taking place in 2007, which shall also encompass a proposal for a “European FCC”.
Read more

About this Post
author: gregor | Permalink | | Print This Article | 1 Comment

ECJ: Another simple answer to a complicated question?

Posted on June 14, 2007 | Filed Under communication technologies

The Advocate General said in his opinion (not yet available in English) in the case C-64/06 that the Czech court requesting a preliminary ruling from the European Court of Justice would need an answer more simple than one could imagine reading its heterogenous questions ( in the original Spanish: “una respuesta más sencilla de lo que permite conjeturar el abigarrado conjunto de preguntas que ha formulado.”) .

In telecommunications law, the Court has some experience with simple answers, especially in rejecting a request for a preliminary ruling by the Austrian Regulatory Authority, when the Court stated - more or less in passing - that a decision by the European Commission in an “Article 7″ procedure was “just an answer” to a question (”Par ailleurs, la Commission n’a fait que répondre à l’autorité nationale.”) - a very interesting view of one of the core aspects of the regulatory framework for electronic communications (Case C-256/05 Telekom Austria).

So today the Court itself had to come up with a simple answer, as the Advocate General had proposed. The case touches on the issue of the transitional regime between the old to the new framework, especially the transition from the ONP interconnection directive (97/33/EC) to the new Access Directive (2002/19/EC)Â and the Framework Directive (2002/21/EC).

Article 27 (Transitional measures) of the Framework Directive states:

Member States shall maintain all obligations under national law referred to in Article 7 of Directive 2002/19/EC (Access Directive) and Article 16 of Directive 2002/22/EC (Universal Service Directive) until such time as a determination is made in respect of those obligations by a national regulatory authority in accordance with Article 16 of this Directive.

Operators of fixed public telephone networks that were designated by their national regulatory authority as having significant market power in the provision of fixed public telephone networks and services under Annex I, Part 1 of Directive 97/33/EC or Directive 98/10/EC shall continue to be considered “notified operators” for the purposes of Regulation (EC) No 2887/2000 until such a time as the market analysis procedure referred to in Article 16 has been completed. Thereafter they shall cease to be considered “notified operators” for the purposes of the Regulation.

In the light of these tranistional provisions, the Court came to the conclusion that the Czech regulatory authority

was entitled to consider the obligation, on the part of a telecommunications company with significant market power within the meaning of Directive 97/33/EC … to conclude a contract for the interconnection of its networks with that of another operator, subsequent to 1 May 2004, within the context of the provisions of Directive 97/33, as amended.

In other words: as long as the “new” framework has not yet been implemented, the old obligations can still be enforced and there is no room for a direct effect of Article 16 of the Framework Directive (so that the regulatory authority would have to conduct a market analysis of its own initiative even in the absence of national laws transposing the Framework Directive).

There is one more case touching on Article 27 of the Framework Directive still pending at the ECJ: C-262/06 Deutsche Telekom - we’ll see if the German Federal Administrative Court will also get such a simple and straightforward answer as the district court of first instance of Prague’s third district got in the case decided today.

About this Post
author: hans peter | Permalink | | Print This Article | 1 Comment

Regulators or Monitors? The role of NRAs in implementing the Roaming Regulation

Posted on June 13, 2007 | Filed Under communication technologies

Guess who said that

“in a longer term, in order to develop more effective solutions in the provision of information on IR [international roaming] tariff transparency (and to fine tune existing solutions), NRAs [national regulatory authorities] may run a market survey to get a clearer picture on the main problems experienced by end users while using the roaming service.”

It was the ERG (European Regulators Group) in October 2005 - less than two years ago. Reading these words, it is not hard to understand why the European Commission was not convinced that the ERG could be relied upon for quickly fixing the issue of excessive roaming charges. And while I personally doubt the wisdom of the Roaming Regulation as it was recently agreed upon (go here for the text of the political agreement in the Council), I have to concede that the Commission scored a victory on this issue - a victory that will also have a significant impact on the role of the ERG and national regulators.

The Regulation itself has a clear role for the NRAs: not to regulate, but to monitor. 

Read more

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

Talk is cheap …

Posted on June 8, 2007 | Filed Under communication technologies, public services

Talkingwhile broadband data remains expensive and, sometimes, elusive. This may well be the essence of the roaming regulation (which was approved by the Council yesterday - the formal decision is scheduled for 25 June 2007), once all the hot air will be gone. More on the roaming regulation will be posted here shortly, and so we look forward to this summer, when we will all have “something else to smile about while on holidays thanks to the new EU roaming Regulation”, as Commisisoner Reding promises us (by explicitly stressing “something else“ I am sure what the Commissioner refers to are her own press releases, which give us something to smile each time we read them: take, for instance, Reding’s joy about Europe’s internal market becoming “truly borderless, even for mobile phone bills”, just as if up to now phone bills were prohibited from moving around Europe).

But talk is cheap might also have been the catch phrase for a conference that took place in May: “Bridging the Broadband Gap” was addressed by four Members of the EU Commission - you can read their speeches here:

  • Mariann Fischer Boel - Quote: “So with regard to rural policy and broadband, we have launched the boat, and we will see where it goes.” (Sounds a lot like Shakespeare: “Mischief thou art afoot, Take thou what course thou wilt!” [Julius Caesar])
  • Danuta Hübner - Quote: “We have to foster building relationship capital, through increasing the communities’ capacity to cooperate and to mobilise all the available expertise, and, finally, through building relations founded on trust and mutual confidence.” (Or, as Shakespeare put it: “One feast, one house, one mutual happiness.” [The Two Gentlemen of Verona])
  • Viviane Reding - Quote: “Diversity is one of Europe’s competitive advantages - broadband can make it fly.” (Shakespeare: “your consent gives strength to make it fly.” [Romeo and Juliet”]).
  • Neelie Kroes - Quote: “This event should be a practical example of ‘bringing Europe closer to its citizens’, so I hope for a real debate on the real issues.” (Shakespeare: “it is not to be question’d that they had gather’d a wise council to them of every realm, that did debate this business” [King Henry VIII])

Basically, Reding said broadband was important, then she praised competition and advertised the upcoming reform of the telecommunications regulatory framework. However, the one concrete information packaged in her speech was the delay in addressing reform of the Universal Service Obligation. In last years’s Communication on the Review, a Green Paper on universal service was promised for 2007. In her speech this May, Reding put that off for another year; the legislative proposals (if any) will not be brought forward before 2009 (”This could in turn lead to legislative proposals in 2009.”).

It’s a polite way of saying: Universal Service reform has been called off - at least it will not be part of “tomorrow’s framework” .

PS: here you find the Communication “Bridging the Broadband Gap” of March 2006 and the Conference Conclusions of the May 2007-conference.

About this Post
author: hans peter | Permalink | | Print This Article | 6 Comments

“If we can’t restrict free speech, Hollywood might use it”

Posted on June 6, 2007 | Filed Under digital content

Of course, FCC Chairman Kevin J. Martin used slightly different words in his reaction to the Fox v FCC ruling handed down by the US Court of Appeal for the 2nd Circuit on June 4th; what he did say was: “If we can’t restrict the use of the words ‘fuck’ and ’shit’ during prime time, Hollywood will be able to say anything they want, whenever they want.”

The court had found the FCC’s application of its indecency rules to be “arbitrary and capricious”, and concluded that the FCC was “divorced from reality” in its view that every use of the f- or s-word referenced “sexual or excretory organs or activities”.

Not so, says Mr Martin, in his press release: In his view it is the Court that is “divorced from reality in concluding that the word ‘fuck’ does not invoke a sexual connotation.” (It would be intresting to know how Mr Martin would qualify the remark of Vice President Cheney, quoted in the Court’s ruling with his “widely-reported ‘Fuck yourself’ comment to Senator Patrick Leahy on the floor of the U.S. Senate”).

Read more

About this Post
author: hans peter | Permalink | | Print This Article | 3 Comments

Reding’s Review: some indication of the timetable

Posted on June 5, 2007 | Filed Under communication technologies

Small talk while the clock keeps ticking“Let me now give you all some indication of the timetable in relation to the review. … My intention is to be able to come with a legislative proposal to the European Parliament and the Council at the end of 2006.”

Viviane Reding in a Speech on “The review of the regulatory framework for e-Communications”, 15 September 2005.

“I intend to conclude the Review by the end of this year [2006] with concrete legislative proposals … I also propose, in close cooperation with Commissioner Kroes, to revise, by the end of the year [2006], the markets listed in the Commission Recommendation on Relevant Markets of 2003.”

Viviane Reding, Speech “The Review 2006 of EU Telecom rules”, 27 June 2006

“Dies wird dann in die Vorschläge zur Änderung des Rechtsrahmens einfließen, die ich in der ersten Jahreshälfte 2007 vorlegen möchte.” (This will then be reflected in the legislative proposals that I intend to submit in the first half of 2007)

Viviane Reding, Speech “Zur Reform des EU-Rechtsrahmens”, Berlin, 23 Nov 2006

“At the end of October [2007], I will publish concrete legislative proposals …”

Viviane Reding, Speech “Why Greece needs broadband, Athens, 1 June 2007

So much for the timetable in the Commissioner’s own words. In her speech in Athens last week she finally acknowledged publicly that the plan to come forward with the concrete legislative proposals before the summer will not be met. In the meantime, the direction of the proposals becomes clearer:

  • “functional” (not: “structural”) separation will be introduced as an additional remedy that regulators can choose if all the present remedies cannot ensure effective competition;
  • the one and only “truly independent and supranational European institution”, the European Commission (I am not making this up, these are Commissioner Reding’s words, taken from her Speech in Athens), will have increased powers (what a surprise!) - enhanced veto-powers for the Commission in the “Article 7 procedures” are to be expected, so that the Commission can have the final word on all remedy-decisions;
  • and in addition there will be some sort of “federal” European regulatory body, maybe similar to the system of the European Central Bank, where the “talking heads” of national regulators may find their own niche to be important.

At present, of course this is only guesswork - but still there are already a few people said to be “actively waiting” for interesting jobs at the “Euro-regulator”. Well, if it didn’t work out at the ITU, why not go for the European level!

About this Post
author: hans peter | Permalink | | Print This Article | 1 Comment