COUNCIL OFBrussels, 16 November 2007
THE EUROPEAN UNION
15416/07
TELECOM 155 MI 300 COMPET 394 CONSOM 135 DATAPROTECT 53 CAB 47
COVER NOTE
from:
Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director
date of receipt: 16 November 2007
to: Mr Javier SOLANA, Secretary-General/High Representative
Subject: Commission Staff Working Document IMPACT ASSESSMENT accompanying document to the : Proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directives 2002/19/EC, 2002/20/EC and 2002/21/EC Proposal for a Directive of the European Parliament and the Council amending European Parliament and Council Directives 2002/22/EC and 2002/58/EC Proposal for a Regulation of the European Parliament and the Council establishing the European Electronic Communications Markets Authority
COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, 13.11.2007 SEC(2007) 1472
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT
Accompanying document to the
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL
amending European Parliament and Council Directives 2002/19/EC, 2002/20/EC and
202/21/EC
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL
amending European Parliament and Council Directives 2002/22/EC and 2002/58/EC
TABLE OF CONTENTS
I INTRODUCTION AND OVERVIEW........................................................................ 6
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1.The Review of the Regulatory Framework for electronic communications ................ 6
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2.Consultation and expertise ......................................................................................... 10
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3.The Main Objectives in the context of the i2010 Initiative ....................................... 11
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4.Setting the scene - The e-Communications market in the EU ................................... 12
4.1. The overall benefits of telecoms liberalisation .......................................................... 12
4.2. Recent market developments: broadband .................................................................. 13
4.3. Consumer benefits and digital divide......................................................................... 15
I BETTER REGULATION.......................................................................................... 18
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5.Competition, investment and innovation ................................................................... 18
5.1. Identifying the problem.............................................................................................. 18
5.1.1. Background - Current framework: ensuring a level playing field for all operators... 18
5.1.2. Deregulation under the current framework ................................................................ 20
5.1.3. Challenge: to what extent does the framework encourage investment and innovation?
.................................................................................................................................... 21
5.1.4. Evidence base for the problem................................................................................... 23
5.1.5. Summarising the problem .......................................................................................... 26
5.2. The objective .............................................................................................................. 28
5.3. Policy options and assessment of impacts ................................................................. 28
6.1.2. Policy response to the identified problem so far ........................................................ 53
6.1.3. Summarising the problem .......................................................................................... 54
6.2. The objective .............................................................................................................. 54
6.3. Initial Policy options (June 2006) .............................................................................. 54
6.4. Results of the public consultation .............................................................................. 55
6.5. Revised policy options ............................................................................................... 56
6.5.1. Option 1 adapt the regulatory framework by introducing the principle of technology and service neutrality and co-ordinated spectrum trading....................... 56
6.5.2. Option 2 no change to the regulatory framework ................................................... 58
6.6. Assessment of impacts ............................................................................................... 58
6.6.1. Three spectrum management models......................................................................... 59
6.6.2. Quantitative modelling of impacts using scenarios ................................................... 60
6.7. Asessment of options and impacts ............................................................................. 60
6.8. Conclusion.................................................................................................................. 64
III Completing the single market in electronic communications .................................... 64
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7.Regulatory consistency and effectiveness: institutional and procedural issues ......... 65
7.1. Identifying the problem.............................................................................................. 65
7.1.1. Institutional design ..................................................................................................... 65
7.1.2. Inconsistency in remedies imposed by NRAs............................................................ 66
7.1.3. Barriers to provision of services with pan-European potential, particularly those needing numbers and/or frequencies.......................................................................... 69
7.6. Conclusion.................................................................................................................. 85
IV CONNECTING WITH CITIZENS............................................................................ 86
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8.Users' rights and consumer protection ....................................................................... 86
8.1. Identifying the problem.............................................................................................. 86
8.1.1. Transparency and publication of information ............................................................ 87
8.1.2. Users with disabilities ................................................................................................ 88
8.1.3. Emergency services: access to 112 and caller location.............................................. 89
8.1.4. Basic connectivity and quality of service ('network neutrality and freedoms') ......... 90
8.2. The Objective ............................................................................................................. 93
8.3. Policy options and assessment of impacts ................................................................. 93
8.3.1. Option 1 Encourage more industry self-regulation................................................. 93
8.3.2. Option 2 Update and strengthen the current provisions.......................................... 95
8.3.3. Option 3 No change to the regulatory framework .................................................. 97
8.4. Results of the public consultation .............................................................................. 98
8.5. Comparison of options and impacts........................................................................... 99
8.6. Conclusion................................................................................................................ 102
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9.Privacy and security ................................................................................................. 102
9.1. Identifying the problem............................................................................................ 102
9.1.1. Main issues and challenges ...................................................................................... 102
9.1.2. Divergence of national approaches to network and information security................ 106
9.6. Comparison of options and impacts......................................................................... 117
9.7. Conclusion................................................................................................................ 120
V OVERALL IMPACT ............................................................................................... 120
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10.Overall effect and synergies of the legislative package ........................................... 120
10.1. Synergies between different areas of analysis ......................................................... 120
10.2. Simplification and reduction of administrative burdens .......................................... 121
10.3. Environmental impacts............................................................................................. 122
10.4. Synthesis of the preferred options............................................................................ 123
VI MONITORING AND EVALUATION ................................................................... 126
Annex I: Econometric modelling of the impact of spectrum reform ..................................... 128
Annex II: Assessment of Administrative Burdens ................................................................. 136
Annex III: Evaluation of costs and benefits of the European Authority with advisory role in
Electronic Communications ..................................................................................... 147
Commission Agenda planning number: 2007/INFSO/001
I INTRODUCTION AND OVERVIEW
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1.THE REVIEW OF THE REGULATORY FRAMEWORK FOR ELECTRONIC
COMMUNICATIONS
Background
The EU's regulatory framework for electronic communications networks and services (eCommunications) was adopted by the European Parliament and Council in 2002 and became applicable in Member States in 2003. The framework provides a common set of rules for all communications that are transmitted electronically, whether wireless or fixed, data or voice, Internet-based or circuit switched, broadcast or personal
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1.It comprises five Directives:
the Framework Directive (2002/21/EC), the Access Directive (2002/19/EC), the Authorisation Directive (2002/22/EC), the Universal Service Directive (2002/22/EC) and e-Privacy Directive (2002/58/EC)
2.
In 2006, the Commission undertook a review of the framework, and this has culminated in the current proposals for its revision. This impact assessment explores alternative policy options that have been considered as part of this review, and analyses the impact of the Commission's legislative proposals.
The current report builds upon the analysis undertaken in the first impact assessment3 on the
Commission's Communication of 29 June 20064, which outlined the main proposals for
changes in the five Directives of the framework. That Communication and its associated documents were subject to a public consultation that ran from June to October 2006. The consultation also covered a proposed revision
5 of the 2003 Commission Recommendation on
relevant markets, which is a supplementary measure defining those markets where economic ex ante regulation may be justified in the sector
Purpose of the Review
The purpose of the review was to examine:
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-How well the regulatory framework had achieved its objectives, namely promoting competition, contributing to the development of the internal market, and promoting the interests of citizens;
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-How the framework could be changed in the light of technological and market developments
7 so that it continues to meet the needs of the sector and consumers
over the coming decade.
The review also took into account policy developments that had taken place since the framework was adopted that needed to be incorporated into the EU legal framework.
The population affected by the proposed changes are business, society, government departments, institutions and every consumer and citizen in Europe, since all are users of electronic communications. In particular, the key players who will be affected by the review proposal are:
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-Operators, service providers, broadcasters and others who may be directly affected by changes to the framework. This is not a homogeneous group: its members may often have conflicting interests; and
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-National regulatory authorities, who have responsibility for applying EU rules at the national level.
Assessment at two stages
The first, initial impact assessment report of June 2006 aimed "to inform stakeholder debate on the main issues and options, and their implications, in a form accessible to a broad public and decision-making constituency." To this end it identified broad policy options for the main issues considered under the review, and provided a preliminary, mostly qualitative set of impacts of the different policy options.
Even by concentrating the evaluation on the main issues, the breadth and complexity of the issues under review is too great for a single set of evaluation options covering the whole package to address the issues at stake in sufficient depth. The report is therefore divided into five main areas of analysis (Chapters 5 to 9) each with its own set of options and impact analysis. These chapters fall under three broad themes: `Better regulation', 'Completing the single market' and `Connecting with citizens', which are reflected in the two proposed Directives amending the current set of Directives
8 and a proposal for a regulation creating a
European Communications Authority.
In more detail the structure is as follows:
· Part II addresses `Better regulation' in the context of ex ante regulation, competition and
investment (Chapter 5), and better management of radio frequency spectrum in the EU (Chapter 6).
· Part III addresses 'Completing the single market in eCommunications' to create an internal
market for consumers and businesses though a more effective regulatory model (Chapter 7).
· Part IV addresses the theme of `Connecting with citizens', and assesses the impact of the
changes to strengthen users' rights and consumer protection (Chapter 8), and those dealing with privacy and security (Chapter 9).
The proposals however do also constitute a single regulatory package; thus, whilst each option has to be examined on its own merits, some combinations of measures create important synergies. These synergies are further described in Part V Overall Impacts.
Alongside its legislative proposals, the Commission is updating the Recommendation on Relevant Markets that defines which markets are susceptible to ex-ante regulation. This Recommendation provides a flexible tool to roll-back ex-ante regulation in areas where competition has successful been established. The evaluation has therefore examined the scope for reducing substantially the number of markets (see Chapter 4) and also the options of restricting, or even entirely removing ex ante regulation (Chapter 5).
In its opinion of 26 July 2007, the Impact Assessment Board recommended the following improvements to the draft document:
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-'The IA report needs to explain better the changes in the regulatory environment that the new initiative is to bring. In particular, changes to Commission powers, and/or changes to procedures regarding Commission instruments in the field of privacy and security need to be clarified. Similarly, changes to the current functioning of the national regulatory authorities regarding the infrastructure (section 5 and 7) and the spectrum management (section 6 and 7) could be better explained.
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-The relation between the actions proposed in the 5 main problem areas needs to be clarified. Should there be no trade-offs or synergies between them, it must be explained why they are bundled together in one impact assessment report.
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-Environmental impacts should be better analysed. Whereas it might not be feasible to assess in detail environmental impacts for all policy options, their analysis should be improved. Discussion about consequences for waste generation and energy consumption on the one hand and replacing transport and travel with e-communication services on the other hand needs to be added to the IA report.
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-The simplification resulting from proposed changes requires further clarification. Some of the elements (such as disclosure of security breaches) seem to create additional obligations for operators, whereas others (decrease in the number of markets) seem to aim at their reduction. Since the initiative is part of Simplification Rolling Programme, overall simplification effects need to be made more explicit. The report should state more clearly whether an assessment of the impact on the administrative burden will be carried out at a later stage, during the implementation process.
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-The impacts of the various options (in the relevant sections) should be compared to the respective baseline scenario(s), in line with the IA guidelines. Therefore, the baseline scenarios in the comparison tables should not be marked with impact qualifiers (+/-); but only indicate the effect of the proposed changes with the baseline scenario as benchmark.
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2.CONSULTATION AND EXPERTISE
The Commission's review proposals draw upon an extensive consultation process that was launched by a public call for inputs in November 2005, which resulted in over 150 written submissions and a public hearing of over 440 participants in January 2006. This was followed by several discussions with Member States and regulatory authorities
10 prior to the adoption
of the Communication of June 2006 presenting the Commission's initial proposals.
At the second stage of the review, the Commission undertook another set of consultation
activities:
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-A public consultation that ran four months between June and October 2006. A total of 315 responses in eleven different languages were received from a broad range of
stakeholders: Member States, regulators, network operators and service providers, broadcasters, users and consumers. 220 of the submissions concerned the regulatory review of the five directives, and 95 the consultation on the draft Recommendation
on relevant markets
11;
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-A public workshop was held on 13 July 2006 in which the Commission services presented the initial proposals for the review and responded to questions;
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-A public workshop was also held on 10 October 2006 for all interested stakeholders to provide their comments to the Commission. Both of these workshops attracted several
hundred participants. A number of national authorities also
consulted/discussed with the stakeholders on the review at national level before submitting their response to the Commission's consultation;
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-Discussions with Member States in High Level meetings with ministries in September 2005 and in March and November 2006, and June 2007, and in the Communications Committee and the Radio Spectrum Committee; and
("Article 7 procedure") in particular13; as well as studies and surveys commissioned from the
external consultants for the review14. The current report has particularly benefited from a
study the Commission commissioned on the issues relating to spectrum management15. In
addition, the Commission conducted a questionnaire on administrative costs among the national regulatory authorities and markets players, the results of which are given in this document.
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3.THE MAIN OBJECTIVES IN THE CONTEXT OF THE I2010 INITIATIVE
The Commission's i2010 initiative16 stresses the crucial role of information and
communication technologies (ICT) in achieving the growth and jobs objectives of the renewed Lisbon strategy. In the area of eCommunications, the i2010 initiative aims to create a Single European Information Space by 2010 that offers affordable and secure high bandwidth communications, rich and diverse content and digital services.
These objectives are underpinned by the current EU's electronic communications regulatory framework, which is designed to drive competition in the market, bringing investment and innovation, with choice, quality and lower prices for the consumer. This review has, accordingly, aimed at enhancing the ability of the framework to deliver on its objectives and supporting the i2010 policy, by proposing adaptations that build on experience to date and anticipate future market and technological changes.
A major aspect of the IA is therefore to assess the extent to which the main objectives of the regulatory framework had been met, i.e.:
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1)to create an open and competitive single market for electronic communications services and networks in Europe, and thereby
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2)to encourage innovation in communications networks and services, by both new entrants and existing operators, for the benefit of European businesses and citizens.
More specific objectives of the review are to examine:
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-the possibilities to increase the consistency of regulatory actions in line with the i2010 objective to create a single e-communications market in Europe;
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-ways to reduce red-tape and administrative costs associated with market reviews;
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-the reinforcement of user rights and consumers protection; and
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-ways to improve network security.
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4.SETTING THE SCENE - THE E-COMMUNICATIONS MARKET IN THE EU
4.1. The overall benefits of telecoms liberalisation
This section will show that although a great deal of progress has been made through the current framework, there continues to be structural imperfections in competition which will perpetuate themselves in new markets and services unless appropriate regulatory steps are implemented.
The telecommunications industry in the EU has evolved very far over the past two decades, from state-run telephone monopolies to open competitive services that underpin Europe's capacity for innovation and technological change. Overall, progress has been steady, starting with the freeing up of terminal equipment (1988), extending into network and service markets (1998)
17 and culminating in the harmonised European regulatory framework (2002)18 that is
currently under review.
Price developments give a good indication of the extensive impact of liberalisation of telecommunications
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19.Figure 1 compares the price development telecommunications against
other 'network industries' (i.e. electricity, gas, transport and postal services)20, all of which are
characterised by bottleneck networks assets. It shows clearly that the market opening and competition combined with technological advances - have pushed down telecommunications prices. In 2006, consumers in the EU15 spent around 27 % less for the same telecoms services than 10 years ago - in real terms this represents a 40% decrease
Figure 1. Evolution of network industry price indices relative to the all-items HICP* since 1996, EU-25
150
140
130
120
110
100
90
80
70
60
50
97
Jan-96
Jul-96
Jan-
Jul-979 1
Jan-98
Jul-98
Jan-99
Jul-9
Jan-
Jul-0
Jan-01
Jul-0
Jan-0204406
Jul-02
Jan-03
Jul-03
Jan-
Jul-0
Jan-05
Jul-05
Jan-
Jul-06
ElectricityGasPassenger transport by railway
Passenger transport by airPostal servicesTelephone and telefax services (EU15)
Services (overall index excluding goods)
Note: The telephone and telefax services price index refers to the EU15 only.
*) HICP = Harmonised Index for Consumer Prices
Source: Evaluation of the performance of network industries providing services of general economic interest 2006 Report Commission Staff Working Paper, SEC(2007) 1024, (Commission calculations based on Eurostat)
4.2. Recent market developments: broadband
Accompanying and driving forward the process of market opening has been a revolution in information and communication technologies that has brought affordable digital communication technologies and services to the vast majority of citizens and businesses. These processes have shifted the emphasis away from fixed voice towards mobile and data, and in particular towards internet and audio visual services.
Figure 2 shows that several EU countries are now world-leaders with broadband penetration rate exceeding the 20%
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24.With the rate of reaching 35%, two EU Member States had
surpassed Korea, which has traditionally ranked in the top of the league25. By July 2007, the
average take-up reached 18.2% of the EU population (over 90 million lines), up from 14.9%
in the previous year. Between July 2006 and July 2007, more than 21.5 million broadband lines were taken, an increase of over 31%
26.
Figure 2. OECD broadband subscribers per 100 inhabitants (by technology), June 2007
35
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Source: OECD
Further examination of these figures assists the analysis of opening up competition in e- communications markets. In short, the highest levels of broadband penetration in the world are where there is effective competition. Both inside and outside the EU, the countries with the highest penetration rates either have a healthy cable television industry that is competing on internet services, (e.g. Netherlands and Denmark, or Switzerland and Canada) or there are new market entrants who have capitalised on easy access to facilities through strict unbundling requirements (UK and France, or South Korea and Japan).
Switzerland 5.8% and US 4.7%)27. The expert estimates forecast that by 2012, the EU15 with
66% household rate will near that of Korea's at 69%28.
As regards competition modes, there is relatively little full infrastructure competition in Europe due to the low and patchy coverage of cable. This compares badly with the USA, South Korea, and Canada, where broadband over cable is well developed. For Europeans, over 80% of broadband connections are DSL running via the fixed telephone line. This means that the vast majority of consumers are using the local access network of the traditional incumbent.
As far as new infrastructures are concerned, fibre-to-the-home (FTTH) networks are very little developed in Europe. This situation contrast strongly with the world leader, Japan, with 8.8 million fibre broadband subscribers in 2006
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29.The high Japanese take-up of fibre seems to
be driven by relatively low costs (overhead cables are permitted) and intense local competition (in particular with electricity utilities). There is also strong evidence of demand for more bandwidth among consumers
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30.The USA also has higher levels of FTTH
development in areas where cable and telephone companies are engaged in strong competition for market share.
4.3. Consumer benefits and digital divide
Consumers have gained many benefits from the liberalisation of eCommunications in recent years
31.
Lower communications prices: Competition has more than halved communications prices since liberalisation. On fixed lines, the EU weighted average charge of a 3 minute call has fallen by 65% and the cost of a 10 minute call by 74% since 2000. Prices for mobile services are now starting to fall as well, reducing almost 14% between 2005 and 2006
32.
Better access and choice: By end 2006, 95% of EU27 households had access to telephone services (fixed and/or mobile). In just eight years (1998 2006), overall mobile penetration grew from 13% to 103%
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33.Around 81% of EU27 households had at least one mobile phone
and 72% had fixed lines. Today over one fifth (22%) of EU households have a mobile phone but no fixed line
Figure 3. Telephone access, EU25 households, 2006-07
Source: Special Eurobarometer eCommunications household survey, April 2007
Broadband: On average 29% of the EU households used broadband at the end of 2006 compared to 5% in 2002. Around 23% of households have broadband access, against 16% of households with a narrowband access
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35.By comparing the broadband price development
worldwide, it can also be observed that, although Japan and Korea have the lowest consumer prices (measured by kbit/s), some EU countries are already among the cheapest, and that the prices in the EU have been generally falling much more rapidly than the global average (Fig 4).
Figure 4. International comparison of broadband prices
market is still at an early stage, VoIP on public broadband already accounts for more than 5%
of Europe's fixed telephone traffic, up from 2% in 2005. In some countries VoIP is particularly popular, totalling 18% of fixed telephony traffic in France and 12% in Sweden. Forecasts indicate that VoIP might increase by an average 47% a year, by-passing traditional fixed calls by 2012 with 30% of overall telephony traffic (fixed and mobile)
37.
The Information Society for all: Broadband is now a fundamental indicator of an (information) society that is "universal, ubiquitous, equitable and affordable". The ITU's Digital Opportunity Index (DOI) measures the ability for citizens to benefit from access to information based on 11 internationally agreed indicators (including broadband). The index ranges from 1 (complete digital opportunity) to 0. The average DOI score 2005/06 worldwide was 0.40. Europe's average was 0.58, ahead of the Americas (0.45), Asia Pacific region (0.45) and Africa (0.22) as reported in the The World Information Society Report 2007
38 (see Figure
5). According to the report, "Europe has achieved the largest overall gain in digital opportunity over the last two years."
Figure 5. Digital Opportunity, top 25 countries, 20005/06
I BETTER REGULATION
Introduction
Better regulation is a central policy objective of the EU under the Lisbon Strategy for growth and jobs. A range of initiatives have been launched to cut-red tape by consolidating, codifying and simplifying existing legislation and improving the quality of new legislation through better ex-ante impact evaluations. The aim is to better define and justified public policy initiatives and to evaluate the costs and benefits of policy actions
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39.The regulatory
environment should create incentives for business, cut unnecessary costs, remove obstacles to adaptability and innovation and ensure legal certainty. Better regulation also demands that policy should be applied efficiently at both EU and national level. The overall aim of better regulation therefore is effectiveness and efficiency of outcomes, not just fewer rules or fewer powers for regulators
40.
The existing regulatory framework for e-communications is already the product of a process of better regulation. Already in 2002 it involved the modernisation, consolidation and simplification of rules by replacing 22 legal measures by a streamlined set of five directives.
It is also founded on the principles of technological neutrality, thus providing a flexible regulatory tool in the face of the fast technological change in the e-communications sector.
The aim of the current review is to apply again the principles and tools of better regulation in order to achieve a higher level of public policy efficiency and effectiveness of outcomes. Part II of this report therefore focuses on two areas where changes have been identified that could achieve increased efficiency simplification and legal certainty. These are: i) competition, investment and innovation; and ii) spectrum management.
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5.COMPETITION, INVESTMENT AND INNOVATION
5.1. Identifying the problem
5.1.1. Background - Current framework: ensuring a level playing field for all operators
provide telephone and internet, or through new-build fibre-to-the-home services. The term 'ladder of investment' has been coined to describe how the regulatory model works: having gained access to the network, market entrants start generating revenue, climb up the 'ladder of investment' and in the process, roll out their own infrastructures
41.
The framework is inherently deregulatory because it foresees a progressive rolling back of ex ante regulation, to be replaced by general competition law intervention ('ex post regulation'). However, ex-ante regulation can only be discarded once sustainable competition has been established. For example, for the vast majority of European fixed line subscribers, the traditional copper cable that links their premises to the network is the dominant if not the only - means of connection. This "local loop" which in most cases was installed in the days of state run monopoly telephony -represents an essential and often non-replicable asset which is in most cases fully in the hands of the incumbent telecommunications operator. Ex-ante regulation of such bottleneck assets ensures a level playing field for alternative operators
42.
Overview of the regulatory process under the framework
The framework requires the national regulatory authorities (NRAs) to encourage efficient investment and promote competition
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43.NRAs can impose ex ante regulation only after conducting a thorough
market review.
Starting point: Recommendation on Relevant Markets
The national regulators must first examine those markets where competitive conditions are likely to be imperfect, starting from a list of markets in the 2003 Commission's Recommendation on Relevant Markets
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44.That Recommendation includes 18 wholesale and retail markets. To identify a market, three
criteria must be met: 1) There are structural or regulatory entry barriers in the market; 2) The market has characteristics such that it will not tend towards effective competition; and 3) competition law is not sufficient to address the problem. Only exceptionally may a NRA consider regulating outside the listed markets. It should be noted that even if the Recommendation identifies a market, regulation will not be warranted if there is effective competition on that market. The Recommendation constitutes an important part of the overall design of the framework, because it allows the Commission to adapt ex ante regulation to technological and market trends.
Assessing competition in each market
After defining the relevant markets, NRA must assess competition in each market and particularly whether any firms in those markets have significant market power (SMP, i.e. a dominant market position that would allow them to operate independently of their competitors). If the markets are found not to be competitive - and when national and Community competition law is not sufficient to address
the problem - then the operators with SMP are subject to ex ante regulatory obligations (remedies), in order to stimulate competition. These remedies must be based on the nature of the problem identified, proportionate and justified
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45.Furthermore, ex ante access and price regulation must be set up in such a
way that it does not negatively influence investment incentives for market players and encourages companies to 'ascend the investment ladder'
46.
Remedies: flexible 'toolbox' for national regulators
The EU framework provides the NRAs with a `toolbox' of remedies, allowing for the flexibility to design appropriate measures to tackle market failures and achieve intended regulatory objectives in each Member State. These market failures might include excessive pricing, denial of access, delay for subscribers switching to alternative operators, limitations on providing wholesale service and other discriminatory treatment. If, however, the market is found to be competitive, then the NRA must remove existing SMP designations and any accompanying regulatory requirements
47.
Local loop unbundling
An important means of the market opening and competition in the sector is the unbundling of the local loop (LLU)
48, which requires incumbent operators to offer third parties access to their local loop at a
cost-orientated price. This physical wire connection between customer and operators is normally in the hands of the incumbent. LLU allows the use of this bottleneck asset by multiple operators in a way that allows them considerably greater flexibility in configuring their service offer than if they have to use the configuration offered by the incumbent.
5.1.2. Deregulation under the current framework
As already noted, the Recommendation on Relevant Markets is an inherent instrument of better regulation as it allows the Commission to adapt ex ante regulation in response to technological and market changes (without the need to change the underlying EU legislation).
Indeed, in the consultation documents of June 2006, the Commission indicated its intention to take such a deregulatory step by removing a number of retail markets from the list of markets susceptible to ex ante regulation on the grounds that once there is effective wholesale regulation, retail regulation becomes unnecessary.
The system of defining markets in a Recommendation provides further scope for deregulatory flexibility in that, although it provides common guidelines, it does not prevent national regulators from making (well substantiated) departures from the list of markets. For example, geographical markets can be defined at a sub-national scale if justified by normal competition law assessment. Depending on the precise competitive conditions, this could result in rolling back regulation in some sub-national zones whilst continuing regulation in others. The
existing consultation mechanism in Article 7 Framework Directive gives the Commission the necessary instruments to give guidance and to ensure consistency of the regulatory approach.
5.1.3. Challenge: to what extent does the framework encourage investment and innovation?
Investment in ICT is now the key driver of growth in an advanced economy because it increases productivity, generates new consumer services and creates jobs. There is strong statistical evidence that the overall performance gap between the USA and the EU in the past ten years has been due to lower investments and less efficient use of ICT in Europe. This is clearly illustrated by those countries that have achieved the fastest growth in per capita GDP over last ten years (Finland, Ireland, Sweden and the UK), which have all recorded considerably high growth rates in information technology investment and productivity
49.
Investment in ICT and its greater use have also clearly helped new EU Member States to catch up with the `EU-15'
50.
Communications networks and services have meanwhile become the nervous system of the economy, which is why it so important that an open, competitive and innovative eCommunications market should be the centrepiece of EU regulatory policy
-
51.Moreover,
broadband penetration and investment in ICT infrastructure are nowadays generally seen as part of the structural factors necessary for innovation to take place
52.
eCommunications and growth
ICT represents over 5% of the total GDP driving about 40% of productivity growth and one quarter of overall growth in the EU. Of ICT sector revenues of approximately 649 billion in 2006, 289 billion were derived from eCommunications (fixed telephony, mobile telephony, fixed data services and cable), accounting for 44.5% of the total value
53.
Competition and innovation in eCommunications
Competition in communications infrastructure can be measured both at the infrastructure and at the service level (see further in Chapter 5.3.3). Service-based competition has brought lower prices over
49 See ICT and Europe's Productivity Performance; Industry-level Growth Account Comparisons with the United States, Review of Income and Wealth, vol. 51 no. 4, December 2005, pp. 505-536:
the short term but infrastructure competition offers a more sustainable basis for long term competition and innovation
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54.Investments in competing infrastructures are more easily justified for business
clients than for residential subscribers, because they spend more on communications services.
The opening up of competition has encouraged the emergence of new players not only new operators but also service providers such as internet companies providing IP-based telephony, which are leveraging their rapidly growing customer bases to gain competitive advantages. The increased competitive pressure constitutes a challenge for traditional operators to continue to increase revenues and maintain profitability. They are meeting this challenge through cost-cutting measures and efforts to retain customers through innovative flat rate pricing models. Both objectives are being achieved through substantial new investments in Next Generation Networks (NGN), that involves modernisation of both the 'core' network (i.e. moving to an all IP architecture), and the 'access' components of the network (i.e. rolling out optical fibre all or part of the way to the customers premises).
NGN core networks
The move to IP architectures in core networks increases flexibility and efficiency of network operation, since it allows multiple services to be offered over a single infrastructure. Subscribers will not only receive upgraded versions of existing services but also new content rich services
55.
For example, BT estimates that the reduced cost of upgrading its core network to a full-IP will bring around one billion pounds savings a year by 2008 / 2009 against an investment of £10 billion. Next generation access networks also bring financial advantages in the long term through greater reliability and lower maintenance costs. This is an especially important efficiency gain for incumbent operators, which had developed a variety of networks dedicated to the provision of different services, and which are still dependent for approximately 60% of their earnings
56 on their 'traditional' voice and access
businesses57. In general new entrants have more modern core networks and many are already IP based.
NGN access networks
Most existing local access lines in Europe are copper (or metallic) loops from the operator's central office that connects the core network to the local access network. The cost of modernising these legacy copper networks by fibre links is very high in Europe. Generally, European planning rules require cables to run underground. Thus re-cabling the local access network calls for substantial civil engineering works, not least because only around half of the existing copper cables are in ducts, with the other half being buried in the ground
fibre to either the cabinet or the home are challenging, in particular where it is not possible to make use of existing underground duct space.
As a way to reduce the costs of upgrading to access networks, several incumbents are implementing plans to extend fibre only as far as the street cabinet and then to deploy VDSL over the existing copper sub-loop between the street cabinet and the customer premises. In this way, fibre is brought closer to the subscribers allowing a higher speed service, whilst the costs of the upgrade are spread across all subscribers served by the street cabinet. Estimates indicate that the costs for incumbents to roll out VDSL would be around 200 per household and for FTTH between 500 and 2000 per household in the European metropolitan areas. This approach however is not viable where the local loop is long, which is the case in some European markets, and in those countries Next Generation Access can only proceed via a full deployment of FTTH (fibre to the home).
Competition has clearly been the main driver of investment in the sector in recent times. However, particularly as regards the large investments required to upgrade to high bandwidth and all-IP networks, regulation has to balance the immediate gains for consumers of fierce price competition (that keeps margins in the sector very sharp), and the long term stability of revenue that investors seek when making large commitments to infrastructural renewal.
More precisely, the question for this review is whether in this sector where technologies develop quickly and demands for higher speed and capacity of networks are always on the rise, the current EU framework has found the right balance between encouraging investment and innovation and promoting price-orientated service competition.
5.1.4. Evidence base for the problem
Chapter 4 has already described how broadband development in the EU measures up against other major regions in the world. This section discusses further the available evidence concerning the impact of regulation, competition and investment on broadband networks. It considers first, the situation regarding ex ante regulation and competition in the eCommunications markets, followed by an overview of investments in the sector.
EU framework as a factor for investment
The literature on regulation, investment and innovation has not yet been able to confirm an unambiguous empirical relationship between the current framework and investment. This would require a longer timeframe over which to conduct the analysis
period for which investment data was available, i.e. 2001-2004. Although, given the short time over which the empirical observations run, its findings might be considered as preliminary
62, the results
suggest that effective national regulation under the EU framework is associated with higher levels of investment in the sector alongside other positively correlated factors such as GDP per capita, market scale and population density. It is worth noting that larger firms tend to invest more due to their ability to spread investments across a number of markets, and that incumbents generally remain the largest players on the market.
-
1)Competition and ex ante regulation: situation in markets
Based on NRA analyses of national markets (as notified to the Commission under the Article 7 procedure), it is possible to compile an overview of the current situation of ex ante regulation and competition in eCommunications markets across the EU (Figure 6). 'No effective competition' means that NRAs are imposing obligations on operators with significant market power, whereas 'effective competition' means that no ex ante regulation is
in place.
This shows that while a number of markets have already become effectively competitive, the overall picture is of market failures (especially dominance) across most markets. It is especially noteworthy that NRAs in all Member States have found that there is no effective competition in relation to retail fixed access services (markets 1 and 2). This reflects the lack of infrastructure competition over the 'last mile' (see further discussion below)
Figure 6. Overview of market analysis under the framework, June 2007*
Source: European Commission64
*) In the table, 1 to 7 inclusive relate to fixed retail market, and markets 8 to 18 are wholesale markets, which comprise fixed services market (markets 8 to 14), mobile services (markets 15 to 17), and broadcasting (market 18).
-
2)Investment trends in eCommunications
The current EU framework became applicable in 2003, when the sector was just starting to recover from the financial crisis caused by the burst of the "internet bubble". From 1997 to 2001, increases in investments in the sector in Europe have been estimated as ranging from 50% to 100%. In the following years investment declined, levelling off in 2003 and rising in 2004 to slightly above the investment level in 1997
The typical incumbent firm in the fixed or mobile sector invested approximately 13% of its revenues in 2006. This percentage is slightly below the levels seen in the late 1990s, although they are in line with long-run historical averages for the sector. As noted above, incumbents being larger and present in a wider range of markets continue to outspend their competitors in absolute (though not always in relative) terms.
The EU average telecommunications expenditure as percentage of GDP was 3.03 % in 2006. The highest figures are witnessed in fast growing EU Member States whose infrastructures have been undergoing a major renewal, such as Latvia (7.55%), Bulgaria (7.11%) and Estonia (6.8%). The average in the EU15 was 2.92%, moderately ahead of the USA (2.14%) but well behind Japans (4.2%)
68.
As for telecommunications expenditure per capita in 2006, the EU25 average was 709 (EU15 826), with the highest expenditures in Sweden ( 1.196), Denmark ( 1.155) and Ireland ( 990) followed by the Netherlands ( 984) the UK ( 990). This is again comparable with the USA ( 769) but well behind Japan ( 1.228)
69.
Investments in next generation networks
Both incumbents and alternative operators have on-going or announced investments in new generation core and access networks (NGAs). In absolute terms, according to publicly available data, the largest investment in next generation core networks in the EU is the 15 billion investment in the UK by the incumbent. As for access networks, the largest investment announcements have been by the Italian and German incumbents, 6.5 billion and 3 billion respectively. In the Netherlands and Belgium the incumbents are to invest around 900 million and 300 million, respectively.
As regards new entrant investments, announcements include: a German city network operator planning to invest 250 million in fibre; three French DSL operators (with announcements summing to 1.6 billion) plus the cable operators with large scale fibre deployments. The French incumbent has yet to make major announcements. Cable companies elsewhere in the EU including Belgium and the Netherlands have also announced fibre deployment projects.
Besides private projects, there are also several public and public-private partnership projects, often backed by EU funding. For example, in Greece a major public-private partnership project of 210 million is co-financed by the European Fund for Regional Development
times faster than those currently available in Europe, the EU risks being outperformed by other major economies (such as Japan, Korea and the US) where such developments are already well underway. There is a potential risk here to Europe's competitiveness, as well as having detrimental effects to innovation, consumer benefits, digital inclusion and creation of a more sustainable knowledge-based economy.
In policy terms, the issue is to strike a regulatory balance between, on the one hand, allowing incentives for investors in new core and access networks in the face of considerable uncertainty over the evolution of demand for these services and, on the other hand, avoiding the immediate foreclosure of new markets by sanctioning the reassertion of monopoly privileges by the dominant market players over these new infrastructures
71.
A particular focus of debate has been the extent to which new generation networks in themselves constitute new markets
-
72.Recital 27 of the Framework Directive notes that in
newly emerging markets the market leader is de facto likely to have a substantial market share, and thus should not be subjected to inappropriate ex ante obligations. As already noted, however, new generation networks provide a technological platform for both more efficient delivery of existing services as well as the addition of new services. Thus, a new infrastructure cannot be considered, a priori, as equivalent to a new market. Indeed, new infrastructure investments can even be used to reinforce the dominance of the lead player in existing markets.
Nevertheless, the large investments involved in high-speed networks do require regulators to take into account the risks involved in making these investments and permit adequate returns on investments. Incumbents, in particular, criticise mandated access to their infrastructure and the price at which this is imposed (which they usually consider to be too low) arguing that it provides disincentives to investment, especially the major investments needed for next generation access. On this basis, some incumbents have called for a firm date to be set for the withdrawal of sector-specific ex ante regulation; whilst others for 'regulatory holidays' for major new investments. By contrast, alternative operators fear that the removal of access obligations in particular the obligation to unbundle local loops and to provide backhaul connections to the alternative operators' network - would inhibit the emergence of infrastructural competition by undermining their growing investments in core networks. They argue therefore for their part that ex ante regulation and open access provisions on incumbents' networks are strongly correlated with increased investment and innovation.
5.2. The objective
The overall objective is to ensure that the EU's regulatory environment promotes competition, investment and innovation in electronic communications, so that user needs are met and consumer interests are protected.
The specific aims within this overall objective are:
-
-Ensure effective competition which brings tangible benefits to consumers in particular through greater choice of services and lower prices; and
-
-Promote investment and innovation in high-speed communications infrastructures and new services.
5.3. Policy options and assessment of impacts
Three main policy options73 are explored:
Option 1: Adopt an `open access' model for new network infrastructure (i.e. separating infrastructure provision from service provision to a greater or lesser extent);
Option 2: No regulation: remove or restrict sector-specific regulation ('regulatory holidays'); and
Option 3: Maintain the current model of the framework.
5.3.1. Option 1 Adopt 'open access' model for new infrastructure: separate infrastructure from service provision
This option addresses the problem of trying to ensure fair competition in a market where some operators are vertically integrated, owning the network infrastructure and providing services, and others are not.
Network industries require a specific regulatory approach because the dominant players control access to infrastructures that are essential for competitors to provide services in the market place. These facilities are described as "non replicable assets" both because the costs of duplicating cannot be justified by any reasonable business case and also in may cases because there is no public will to see multiple physical networks serving the same purpose. They are therefore often described as "natural monopolies" and as such are subject to ex ante regulation in order to make sure that access to them is maintained on an equal footing in order to encourage competition.
Where such access problems have a significant and enduring impact on competition, further regulatory intervention may be justified to require a transparent separation between the parts of the incumbent controlling the bottleneck assets and the other divisions. These interventions can be carried in a graduated way, which can be presented in simplified form as:
-
-Accounting separation means the keeping of separate revenue and cost accounts for different activities, in order to achieve a detailed and accurate statement of the cost and profits made by an operator for a specific activity.
-
-Functional Separation means the establishment of an operationally separated entities, the ownership of which remains with the parent company. The separate entities have separate accounts but they are not legally independent entities.
-
-Structural separation or 'ownership unbundling' or 'divestiture' means that some or the entire network is placed in a separate legal entity and is placed under different ownership.
Accounting separation can be seen as a complement to behavioural remedies in that it permits more accurate application of price control measures, in order to avoid price discrimination. However, it does not address non-price discrimination, such as delays in switching over customers to competitors, limits on wholesale product offers, differential service quality, etc.
In addition, policing obligations for non-discrimination in vertically integrated undertakings are notoriously difficult
-
74.For example, operators with obligations of accounting separation
have incentives to obscure any anti-competitive behaviour in the accounts.
Thus, where discrimination is found to be a continuing impediment to competition, more fundamental separation measures might be warranted that not only increase the transparency of prices but also remove incentives to discriminate or deny access or use cross-subsidisation to compete unfairly by addressing the underlying motive for discrimination - the internal profit motive of the firm. In theory, both structural and functional separation of bottleneck network assets and network services would give the access provider an incentive to grant all access seekers (service providers) non-discriminatory terms and conditions. This is the fundamental aim of functional and structural separation in network industries
Figure 7. Vertical separation cases and projects in main OECD countries
Source: IDATE, 200777.
A detailed analysis undertaken for the recent proposals for unbundling the energy sector in the EU concludes that "the option of full ownership unbundling has a number of positive impacts on the market, in particular by stimulating investment in particular in interconnectors, reducing market concentration and bringing down prices". At the same time, there is no indication that ownership unbundling would harm credit ratings, share prices, R&D activity or the relationship with external suppliers. The proposals for ownership unbundling ensure that EU energy networks cannot be owned by non-EU supply companies, or by EU supplier
78.
At an overall level in sectors such as telecoms, water, electricity and gas, the benefits of preventing foreclosure and the scope for innovation if competition is strong seem to be relatively high, whereas the costs in these sectors in terms of dis-economies of coordination and the costs of the split can be seen as moderate to low
-
79.This goes someway to explain the
problems that have been experienced in the case of structural separation of railways, where the net benefits of separation can be expected to be rather low
double marginalisation - can be overcome through effective regulatory and private contracting arrangements
81.
Assessment of impacts of Option 1
-
a)General
It is evident from the above that not all sectors are the same as regards the application of vertical separation and that therefore the benefits and drawbacks of the two basic forms of vertical separation must be further analysed in the context of the specific techno-economic characteristics of the eCommunications sector.
Under the current framework, NRAs can already impose accounting separation and cost accounting in order to calculate appropriate wholesale access charges and to avoid price discrimination to operators designated having significant market power
82.
Structural separation cannot be imposed under the legal basis of the regulatory framework, but could in principle be imposed under competition law instruments (Council Regulation (EC) No 1/2003 permits the break-up of a company found to have infringed competition law, if it can be shown that no alternative behavioural remedy is equally effective)
83.
Techno-economic characteristics of eCommunications vs. other network industries
Although the eCommunications and other network industries share many similar characteristics,
there are also a number of differences. The energy sector, for instance, is not as technologically dynamic as telecommunications networks, the services transmitted can be considered as commodities and there are fewer examples of competing network infrastructures because liberalisation and competition has not been achieved to the same degree. In energy networks the main bottleneck is long distance transmission networks rather than the local access networks that form the key remaining bottlenecks in telecommunications. Nevertheless, telecommunication networks are still characterised by strong market dominance which is based upon direct ownership of bottleneck assets by vertically integrated incumbents. Thus whilst the problems of discrimination are endemic to all network industries, the remedies cannot a priori assumed to be the same.
It should be noted that vertical separation does not remove the need for regulatory oversight of the dominant entity. If implemented effectively it resolves the problem of discrimination but it raises new demands for regulatory oversight such as controlling a tendency for excessive pricing by the infrastructure provider and ensuring that investment in the network infrastructure is adequate. These problems can be rather difficult to tackle, and some have argued
economies of scope in the coordination of investments in services and infrastructures. That is
why, as noted in the Impact Assessment of June 2006, it is essential that a careful cost benefit
analysis is carried out in any serious consideration of vertical separation84.
Regulatory developments in energy sectors and the issue of ownership separation
The Commission has recently proposed changes to the legal framework for the energy sectors. Its sector inquiry into competition in gas and electricity markets published at the beginning of 2007 found that despite the EU liberalisation directives, there are several sector-specific problems such as high levels of market concentration, vertical integration of supply, generation and infrastructure leading to a lack of equal access to, and insufficient investment in infrastructure
85.
The expert study commissioned for the regulatory review found stakeholder support for the notion that ownership separation ('full TSO
86 ownership unbundling') "could remove the fundamental conflict of
interest in a network owner affiliates and would contribute to ensuring non-discriminatory access. It was also felt that the creation of network-only businesses probably would make regulation easier. However, many respondents pointed out that there would be strong opposition to full ownership unbundling and that the benefits were not self-evident or possible to qualify"
87.
Following these findings, the Commission has proposed ownership unbundling (i.e. structural separation) as the most effective means to ensure choice for energy users and to encourage investment
-
88.In certain cases, where ownership unbundling is not practicable, a second option
establishing an independent system operator (ISO) to carry out the operational management of the transmission has also been tabled, but under strict conditions. These conditions include, inter alia, that the candidate operator has at its disposal the required financial, technical and human resources to carry out its tasks; that it has committed to complying with a ten year network development plan proposed by the regulatory authority; and that it has demonstrated its ability to comply with its obligations on conditions for access to the network for cross-border exchanges in electricity
89.
-
b)Structural Separation
Structural separation has the advantage of providing a clear-cut regulatory response to serious competition problems in network industries.
There are practical examples of structural separation
being successfully implemented in telecommunications.
Structural separation of AT&T in the USA
The most famous example of divestiture in telecommunications and which is also generally considered a success - is the separation of AT&T from the Regional Bell Operating Companies (RBOCs) in the United States in 1984
-
90.With the divestiture, not only were the local operations of
AT&T structurally separated from its long distance and international operations, but ownership of the two groups of companies was separated by means of a share swap. With their ownership separate from AT&T, the RBOCs (or "Baby Bells") no longer had an incentive to favour AT&T over its long distance competitors. Therefore, all long distance competitors obtained access to local telecommunications services from RBOCs on similar, non-discriminatory terms. The divestiture also eliminated concerns about anti-competitive cross-subsidies between AT&T's local and long distance operations.
However, structural separation also carries with it a number of significant regulatory difficulties. First, it makes it difficult to coordinate infrastructure investment with service development, which is particularly acute in the communications industry, where technological change is rapid. Furthermore, the pressing demands for investments in next generation networks (NGN) blur the split between competitive and bottleneck assets. As fibre is extended out from the central office to the street cabinet or to the home to enable fast broadband access (see Chapter 5.1.3), investment coordination is likely to become more important, not least due to the uncertainty of demand for new services and higher bandwidths.
Secondly, it is difficult to define the best way to split the operation into its component parts. The coming of next generation networks has been seen by some as creating a logical separation between the infrastructure that carries electronic communications and the services that that they comprise
-
91.Indeed, next generation networks can in principle be completely
blind as to the types of services and content that they carry, which is the ultimate commodification of telecommunications traffic.
However, a perfect split between the transport and the service layers may by no means as straightforward as it appears in theory. Rather, it is argued, networks will continue to be hybrids of different legacy systems which makes it difficult to identify an appropriate boundary at which to apply structural separation, given the uncertainties surrounding new network architectures. Moreover, once implemented, such separation is not easy to adapt afterwards. There is therefore a risk of an inappropriate market structure being imposed and becoming entrenched
divestiture of network assets from the service layer may actually create rather than destroy shareholder value, as is seen in the interest of the Irish incumbent to voluntarily separate its network from its service operations (see below).
Examples of estimated implementation costs of structural separation in telecoms
The implementation costs of structural separation include several components: branding (stationary, vehicles etc.), buildings, communications, and advertising (PR/media relations, website etc.), financial and management reporting systems, hardware and software, information systems, legal, office equipment, recruitment and transition planning
-
93.Publicly reported estimates of structural separation
of the last years include for instance the following (note that these estimates should be treated with caution, as they cannot be confirmed):
Australia: In 2003, Telstra (Australian incumbent operator) estimated that its full structural separation would cost AUD 2 billion in 2003 (around 1.23 billion), and would require an annual incremental operating cost of AUD 80 million (around 49 million) per year
94.
USA (Florida): In 2001, it was estimated that total economic costs of the proposed structural separation of BellSouth in Florida would have been USD 1.2 billion, including an estimate for additional costs of structural separation. The study concluded that: "Thus, the cost of structural separation exceeds the supposed benefit of local competition (in Florida, estimated to be as high as USD 248 million per year)"
95.
In summary, an OECD study on structural separation in telecoms notes that "The impact on end-user consumers is uncertain. If competition strengthens significantly, it is possible that prices could fall, with innovation and quality of service improving. But there is inadequate evidence to generate confidence that this would necessarily happen. Prices could also rise significantly"
96.
Moreover, a recent US study examined the issues of separation and monopoly in telecoms by using data from 67 countries that privatised the dominant telephone firm in the period 1984- 2003. It found that mandatory vertical separation reduces international telephony usage and the number of fixed lines in service. The study concludes that "monopoly and vertical separation harm those consumers that they were precisely designed to help: the downstream (business) users of international telephony and the upstream users of residential local telephony"
-
c)Functional separation
The risks associated with structural separation in the e-communications sector encourage a search for alternatives ways of correcting persistent discriminatory behaviour. Functional separation would be a less radical intervention but still hold out the prospect of the creating new incentives for access to be supplied on an equal basis to all services operators. Functional separation within an operator entails changes to its organisation and incentive structure, including setting up information barriers between the access and services part of the business, but it does not force the operator to sell off assets.
Functional separation has several advantages: Because it impacts several access markets at the same time, functional separation could address in a single remedy some of the difficulties that arise from compartmentalised analysis of individual markets. It also reduces needs for detailed enforcement of remedies and therefore contributes to better regulation. It has been seen therefore to give greater legal certainty to both incumbent and new market entrants, which can encourage investment in the market.
Functional separation can also help to unblock the problem whereby dominant carriers can delay investments in access upgrades to avoid cannibalising existing downstream revenues, as is the case, for example, with broadband in countries where local loop unbundling is not available on a non-discriminatory basis.
On the other hand, there are risks associated with functional separation: it may reduce incentives for new entrants to invest in alternative local loop infrastructures, and thereby inhibit infrastructure based competition in the access network as all market players would share the same infrastructures under exactly the same conditions. It is not necessarily the case however that functional separation will in itself lead to an under spend on next generation access. In a market driven situation, operators make investment choices based on their evaluation of the evolution of demand on the market. With functional separation, it is the regulator, through controlling the rate of return allowed to the incumbent's access division, who has to balance incentives for investment in new infrastructures against keeping wholesale prices at a competitive level. This means that, depending on the skill of the regulator and the cooperation of the incumbent, functional separation could as easily lead to over as under investment in the infrastructure.
The undertakings given by BT98 to the NRA (Ofcom) devise in particular managerial incentives,
which should guarantee non-discriminatory separation of the new division. For example, the management team running Openreach has to be in a separate building from the rest of BT; managerial incentives depend only upon the performance of Openreach, not of BT Group as a whole. There are a number of rules and procedures to prevent the flow of sensitive information from BT Wholesale (including Openreach) to BT Retail. Openreach must provide separate financial statements and regulatory reports, and use the Openreach brand, which must be separated from the rest of BT. These arrangements are monitored by a complaints body called the Equality of Access Board (comprising five members, two from the BT Group and three independent members)
99.
As for costs, BT has reported that the one-off costs of setting up Openreach in 2006 were £ 70 million (around 103 million)
100, which are an order of magnitude lower than the estimated costs of structural
separation cited above. In addition, the Openreach decision is thought to have increased confidence in BT corporation as a whole that has lifted its stock market valuation substantially in the past 2 years. Some analysts suggest that this is because investors are now valuing BT shares in the same terms as utility stocks, which typically trade at much high ratios than mixed service and infrastructure firms.
The UK experience with Openreach is still rather recent and it is too early to assess its final outcome. However, it has been reported that when Openreach went into operation at the beginning of 2006, only 200,000 phone lines had been unbundled in the UK over the years. The number of unbundled lines has grown to over 3.3 million by October 2007
101.
The functional separation model has lately attracted attention in the other Member States. The Italian NRA (Agcom) is studying the possibility of Telecom Italia separating Telecom Italia's retail and network operation (Telecom Italia's network business would be placed into a new unit similar to Openreach). Also the Swedish regulator NRA (PTS) has indicated that in order to increase access to TeliaSonera's (a Swedish-Finnish incumbent) access network, it sees that `"the most suitable model is one based on TeliaSonera being functionally separated" following the Openreach example
102.
Despite these positive early signs from the UK situation, the drawbacks in terms of the level of intervention and the scale of costs involved indicate that it should be reserved for situations where there is an enduring problem of non-price discrimination that cannot be otherwise resolved. This clearly requires a thorough cost benefit assessment. In places such as the Netherlands, where infrastructure competition is highly developed, imposing functional separation on KPN could be disproportionate and could possibly harm infrastructure
competition103. Similarly, in France where accounting separation and other behavioural
remedies backed by effective sanctions seem to have resolved many of the problems of discrimination, functional separation may not even be a consideration
104.
-
d)Voluntary arrangements of separation
For the operators, there are potential advantages for undergoing some form of ownership separation. For example, it is reported that the Irish incumbent, eircom (which was recently purchased by a private equity fund) is currently considering a voluntary structural separation between retail division (which would be taken over by eircom's employee share ownership trust) and network infrastructure (which would be placed in the equity fund)
-
105.This move is
expected to increase the overall value of the entity (by better matching assets with investors)
as the potentially high-growth retail division would be separated from the more stable and cash-generating wholesale division.
Another example comes outside Europe: in August 2006, Telecom Corp. of New Zealand announced plans to separate its wholesale and retail businesses
-
106.However, in September
2007, the New Zealand government ordered Telecom Corp. of New Zealand to split into three operating divisions ( wholesale, retail and network )
107.
Voluntary arrangements by operators, or between operators and government agencies, are not dependent on the EU framework for implementation. Nevertheless, there is an obligation on the Member States not to act against the provisions of the framework, and so it would be necessary for the Member State to ensure that any undertakings accepted are compatible with the framework.
5.3.2. Option 2 - No regulation: remove or restrict sector-specific regulation ('regulatory holidays')
Option 2 captures two related arguments in favour of the lifting of ex ante regulation in the eCommunications markets. The first argument is based on the inherently deregulatory character of the current framework in that it requires ex ante regulation of markets to be lifted when effective competition has been established. Some stakeholders, particularly incumbents, have argued that the level of competition on the market is now sufficiently stable for a fixed date to be set for the removal of ex ante regulation. This, it is argued, will provide greater regulatory predictability and thus give network operators a clearer financial incentive for investing in new infrastructures.
A second, distinct but parallel argument concerns new generation infrastructures, which are seen as introducing new markets in which first movers have a de facto dominance as a direct result of their investments. This argument, which pleads in favour of "regulatory holidays", argues that such ground-breaking investors should not be disincentivised by being immediately subjected to ex ante regulation.
Assessment of impacts of Option 2
This option sets a clear deadline for the removal of ex ante regulation or exempts certain investments from regulation (at least temporarily). The supporters of this option are mainly incumbent operators who claim that they need a certain period of time without ex ante regulation of next generation infrastructures in order to be able to exploit the 'first mover advantage', which would enable them to recover the high and risky capital expenditure.
It is important to note that removing ex-ante EU telecoms regulation would not mean "no regulation". Investment projects would still be subject to national sector-specific rules, and EU and national competition law, i.e. ex post regulation, would be still applicable.
Instead of progressive deregulation based on how far sustainable competition has been established, the first variant of the option proposes a fixed date for total deregulation. The problem with this approach is that it essentially undermines the pro-competitive intent of the existing regulatory system. Experience shows that competition progresses at different rates in different markets, thus a blanket removal of regulation introduces a strong risk of the reassertion of monopolistic behaviour in those market where an incumbent operator retains its dominant position. This would have a considerable potential impact on the development of sustainable competition and consumer welfare.
As far as the second option regulatory holidays on new fibre investments - is concerned, there is both empirical and theoretical evidence to call upon. As regards empirical evidence, some market players have supported their claim for 'regulatory holidays' by referring to the US broadband market where regulated access to new fibre investment by telecom operators is the exception, and where according to this claim the companies are therefore investing more and there is a faster roll out of high-speed fibre networks (see results from the public consultation in Chapter 5.5).
Figure 8. DSL and cable markets shares in the USA and the EU
USAEU 25
7%20
38%DSL
CableDSL
55%Other Cable & Other
80
Source: OECD, European Commission
The above figure also illustrates the reason why the regulatory approaches to broadband are different in the EU and US. The advanced infrastructural competition in the US led the Federal Communications Committee (FCC) to decide not to apply the unbundling provisions of the US Communication Act of 1996 to the broadband markets, relying predominately on inter platform competition between the telecom (xDSL) and the TV-cable networks
108.
The US experience does lend some plausibility to the argument that a "regulatory holiday"
where there is infrastructural competition will stimulate investment in new networks. However, in the EU given the different network geographies, it cannot be assumed that this will result directly in massive fibre investments. Moreover, there are indications that the US regulatory approach to rely solely on infrastructure competition might be detrimental to consumer choice. The lack of access competition on the 'last mile' means that consumers are only offered what the "cable and telephone broadband duopoly" provide
-
109.This issue is
closely linked to the US debate on "net neutrality", which is further discussed in Chapter 7.
5.3.3. Option 3 - No change to the regulatory framework: maintain the current model
As described above, the current framework is based on regulation of markets. This market based approach is a response to convergence; it allows inter-platform competition to be fully taken into account, and avoids technology-specific regulation. The same regulatory principles apply regardless of which kind of existing or potentially new technology is involved. Regulation must be lifted when there is effective competition.
Maintaining the current regulatory framework (Option 3) provides continuity and the opportunity to build on existing achievements. The attraction of the current system is that it provides a consistent regulatory framework, but national regulators still have sufficient flexibility and possibility to design their interventions to suit the realities of the markets - including unbundling and wholesale broadband access markets - in each Member State. In essence, the NRAs have the flexibility to introduce measures to foster both infrastructure and service-based competition.
The recent market data provides evidence on the effects of option 3, by examining the results achieved so far under the current framework. As noted above, competition in broadband can be measured both at the infrastructure (local loop unbundling + other technologies, mainly cable modem) and at the service level (bitstream and resale of DSL lines). Take-up in the EU has been particularly strong in those countries where infrastructure-based competition has been effective, which allows consumers to choose between different modes of broadband access.
Thus, all leading Member States in terms of penetration, notably the Netherlands, Denmark, Finland and Sweden (see below figure), have also a high roll-out of cable and have arrangements in place which allow alternative operators to gain access to the existing telecoms networks
110.
Figure 9. Broadband penetration rate in the EU, July 2006-2007
As can be seen from the figure below, there has been also a move from resale to local loop unbundling and shared access, which are crucial for the competitive supply of triple play services.
Figure 10. New entrants' DSL lines by access type, Jan 2004 Jan 2007, EU 25
New entrants' DSL by type of access
16.000.000
14.000.000
12.000.000
10.000.000
8.246.139
8.000.000
6.000.000
4.000.000
2.000.000
January 2004January 2005January 2006January 2007
LLU (F.U.L. + shared access)BistreamResale
Source: Commission services
In January 2007 there were more than 5.6 million unbundled local loops (LLU) lines compared to January 2006. This can be seen as a positive structural change as the alternative operators are replacing bitstream wholesale access with fully unbundled or shared access lines. Successful wholesale access regulation has also contributed to the strong growth of resale, which grew by 3.5 million lines in 2006, as low entry barriers allow potential market players (who usually have low investment incentive) to enter the market.
engineering works, i.e. the time it takes to be granted rights of way and to dig up roads and pavements to lay ducts.
In this regard, it is worth noting that duct sharing or joint duct usage would drastically reduce the costs for the roll out of parallel cable or fibre networks, thereby facilitating infrastructure based competition. It is already the case that NRAs can under the framework adapt remedies to facilitate sharing of passive infrastructures (ducts, inspection chambers, street cabinets, etc). Indeed, in one Member State duct sharing has been already imposed on the incumbent. The practical feasibility of this approach, however, varies considerably from place to place. For example, duct sharing appears to be feasible in greenfield situations where ducts have been installed relatively recently and are not congested
114.
As regards existing ducts there is no overall picture of the level of congestion and the physical condition in the EU, although it can be assumed from their age that many will be in poor shape and it is estimated that about 50% of local loops are buried directly in the ground. Passive infrastructure sharing in the EU therefore, while attractive in principle, requires a detailed local mapping of local loop networks to gauge its practicability.
5.4. Results of the public consultation
In general, the public consultation showed support for the current model of the framework that was seen to promote competition and investment. Especially new entrants saw that effective pro-competitive ex ante regulation and open access provisions on incumbents' networks are strongly correlated with increased investment and innovation
115.
As for the alternative options, only a limited number of stakeholders expressed their views. The new entrants and the European Regulatory Group as well as couple of Member States supported 'open access model' in its more limited form, i.e. functional separation. However, operators generally saw that this should be based on voluntary action. Several Member States preferred no change, whereas incumbents were clearly against forced structural or functional separation.
Critics of the current approach, in most cases the incumbent operators, argued that the framework does not promote future investment and innovation. Reference was made specifically to the NGNs, which in their opinion merit regulatory forbearance, as they should be considered new investments and therefore be treated as new and emerging markets. The argument is based on the fact that developing new consumer applications and video services will require more bandwidth than ADSL can provide and investment in high speed NGN access technologies of the FTTx
left behind117. Deregulation of the US broadband market was brought up as an argument
against the EU regulatory approach, and predictions of faster fibre roll out in the US were presented as evidence supporting the claim for 'regulatory holidays'
-
118.Alternative operators
were strongly against such approaches as they fear that their investments in core networks will be threatened if incumbents re-exert their monopoly power over local access.
5.5. Comparison of options and impacts
Option 1
Option 1 ('open access model') implies mandated vertical separation between infrastructure provision and service provision, and represents a major intervention into the property rights of firms
The evidence examined above suggests that in the telecommunication sector, the benefits of structural separation - in terms of a once-and-for-all regulatory solution to access discrimination - would be quite difficult to justify against the costs, in view of the high one- off costs to implement the split, the loss of economies of scope and increased difficulties of coordinating investment and innovations between services and the unbundled network operations.
In addition, as regards investments in next generation networks, the largest part of the potential reward for taking the risk of investing in these new networks would accrue to external service providers rather than an internal services division. Only direct regulatory incentives for the network operator (in the form of guaranteed rates of return) might overcome the reluctance of a separated access provider to make such investments, which then puts the burden of determining the pace of innovation onto the regulator rather than the market.
This problem is mitigated under the functional separation model. By maintaining common ownership of the two business divisions, the investment incentives and market signals are preserved to a large extent - even though co-ordination problems may still arise - whilst also increasing the incentive to behave in a non-discriminatory manner. Moreover, regulatory action can be taken to incentivise investments in the local loop. This is functional separation's biggest advantage over structural separation, and the primary reason why the stakeholders in the public consultation has suggested functional separation as a possible remedy and not divestiture.
However, there is a risk that different national approaches to functional separation could fragment the internal market and hinder both competition and investment. Setting common EU criteria for the implementation of functional separation would therefore improve legal consistency and certainty in the sector, thereby contributing to better regulation (note that regulatory consistency is further discussed in Chapter 7). In particular, the common conditions should not prevent appropriate investment co-ordination mechanisms between the different separate business entities in order to ensure that the economic and management supervision rights of the parent company are protected.
Moreover, the costs and benefits of functional separation, and therefore the desirability of imposing such a solution, depend on national circumstances. Before implementing this remedy, the national regulatory authority would need to undertake a detailed cost-benefit analysis and demonstrate that the proposed measure met the set criteria.
The remaining risk is that access infrastructure competition is weakened under functional separation (since competitors find it more attractive to 'rent' access than to invest in their own infrastructure), causing subsequent network investments to be delayed. However it is worth remembering that infrastructure competition on the access networks is relatively uncommon in Europe, with only about 20% of the market accounted for by alternative providers. Moreover, the costs and technical architectures of next generation access networks - such as VDSL networks - are likely to make the emergence of further access competition rather difficult, except in certain high density zones or in special cases such as new build cabling where duct sharing is commercially viable
119.
Options 2 and 3
From 2003 to 2006, there was a gradual but steady development of infrastructure-based competition. Alternative providers 'climbed the ladder of investment' spending in the process several billion euros for new infrastructure. In 2006 alone, the number of fully unbundled local loops grew by 4.1 million (up by 79% from 2005).
When considering Option 2 (removing or restricting ex ante regulation) and Option 3 ('no change to the current model') based on the available evidence, two features can be consistently identified. The presence of competing (effective) alternative infrastructures appears as a key element in broadband development. In the absence of such infrastructure competition, regulation plays a vital role in setting the right conditions for accessing the incumbent's infrastructure and thereby creating service-based competition. New players such as internet service providers exert pressure on traditional fixed and mobile providers to innovate and develop new strategies, including investment in broadband and next generation networks to create new, more lucrative revenue streams from, for example, consumer and business services.
Regulatory holidays even temporary ones - for dominant operators would lock out effective competition, while this operator itself would gain first-mover advantage across a wide range of telecom services. Although competition has become effective in several eCommunications markets over the last years, the monitoring data still reveals the existence of market failures in most markets and in particular in fixed line access.
As large European operators compete for global business in the each other's national markets, regulatory holidays would place some of them at an unfair advantage if they were protected from opening their own domestic broadband networks while at the same time they were able to gain access to broadband network in other countries through open access regulation.
Against this background, Option 2 (removing or restricting ex ante regulation) carries a strong risk of disrupting the level playing field between market players and causing consumer harm without any clear indication that it would lead to more investment and innovation. The mere installation of new technology or new infrastructure does not merit 'regulatory holidays' and cannot in itself change existing access obligations. "Regulatory holidays" may only (if at all) yield short-term benefits, but will not lead to sustainable investment and consumer-benefits in the long run.
The argument that a moratorium on regulation is financially necessary to justify investments in access networks can be met by a suitable adaptation of the existing regulatory pricing obligations. These can include recognition that where investing in access networks is more risky than maintaining the PSTN (Public Switched Telephone Network), incumbents should receive a greater return on capital at the wholesale level as already foreseen by the regulatory framework
120.
The table below provides a summary on main likely impacts and risks arising from the each of the three policy options with respect to the different economic and social dimensions. Impacts of Option 1 and 2 are compared to the "no change" option 3, which provides a baseline scenario for the assessment.
Table 1. Summary on the main impacts and risks of the options
IMPACTS AND RISKS Option 1 Adopt 'open Option 2 Limit ex ante Option 3 - No change
access' model regulation
ECONOMIC
Investment and innovation
Higher predictability of regulation may lead to more investment and innovation by alternative operators. Risk of inadequate investment by structurally separated Higher predictability of regulation may lead to more investment and innovation by incumbents. Risk of less investment by alternative / new operators that may be driven out of market due to higher market entry barrier. Competitive environment fostered by the
framework should induce
investment. Risk of heterogeneous implementation that may lead to regulatory inconsistency / lower predictability
network operators /
incumbents due to reduced investment incentive. hence hampering
investment and innovation.
Competition Can lead to more service competition as separation between infrastructure and Can theoretically lead to more Application of the framework in Member States has been shown to promote competition
infrastructure-based competition where alternative infrastructures are possible, but bigger risk of reduced competition due
services removes operators'
incentive to discriminate or deny access. Risk of removing incentives for access infrastructure competition where infrastructure can be replicated.
to re-monopolisation where
infrastructure is difficult to replicate (e.g. local loop).
Internal market Could facilitate EU wide wholesale offers and thus open up internal market services for business and consumers, but diverging national approaches could emerge and divestiture would be disproportionate when infrastructure competition is effective. Fixed date for removal ex ante regulation could distort the internal market (with monopolies in some markets/ MS and competition in others). Consistent application of the
framework in Member States would promote the internal market.
EU compe- titiveness (vis-à-vis third countries)
Impact depends on effect divestiture on competition and investment. Potential short term gains from Effective implementation would
increased infrastructure investment, but re-monopolisation of markets would impact increase competition and hence EU competitiveness.
negatively on mid-term
competition investment and innovation.
Economic operators' costs
Outcome depends on the degree of separation. Implies high set-up and compliance costs. Mandatory measures could negatively impact share values of the service divisions of integrated operators but improve the market value of the separated entity as it would be subjected to utility style rates of return. Lower compliance costs for operators with significant market power. May initially have a positive effect on the share value of the incumbents / network operators. Compliance costs (of the operators with significant market power) with the existing regulation remain but should
and
benefits gradually decrease as
Could undermine the markets become effectively
business model of alternative operators. competitive and regulation is rolled back. Maintaining openness of key bottleneck assets open is crucial to alternative operator business models.
Public sector costs Generally implies less administrative burden (but even in case of divestiture, regulation to prevent monopoly pricing required). Outcome depends on the degree of limiting ex ante regulation. Generally implies less administrative burden. Administrative burden associated with ex ante regulation remains but should
5.6. Conclusion
The above analysis indicates that competition and convergence are key factors that are driving telecom operators to modernise their network and make substantial investments to Next Generation Networks (NGN). Recent technological and market developments indicate the need for some adjustments to the regulatory framework, although the empirical evidence suggests that the approach is fundamentally sound.
A combination of infrastructure competition and regulation seems to produce the highest national broadband penetration rates. In much of the EU but by no means all there is now infrastructure competition on the core networks. But, only in a small minority of cases is there infrastructural competition on access networks. In the absence of such choice of infrastructure, there is a continuing need to apply the ex ante regulation.
The market situation, however, is very different from one part of Europe to another, even from city to city and region to region inside the same Member State. That is why the flexibility that the current framework provides to the national regulators to take account of the specific situation in each market is crucial. NRAs can introduce regulatory measures to foster infrastructure or service-based competition, or a mixture of both, while taking into account of the need of risky investments to generate adequate return on capital when mandating pro- competitive access obligations. The current model also caters for the needs of the enlarged EU where the market conditions between the Member States are more diverse than before.
The revision of the 2003 Commission Recommendation on Relevant Markets which has been conducted in parallel with this review
121- shows that the existing model of the
framework has the inbuilt flexibility to make possible substantial deregulation by phasing out 11 of the 18 markets previously considered susceptible to ex ante regulation. Regulation in the sector can therefore focus on wholesale markets, where the key bottlenecks for effective competition still remain as discussed above.
However, the key risk that the existing flexible approach carries is the danger of heterogeneous implementation of ex ante remedies, which can lead to lack of regulatory consistency in the single market, thereby hampering the emergence of services at a pan- European scale such as EU wide mobile, internet and business services, all of which are important for Europe's competitiveness, growth and jobs. This is further discussed in Chapter 7.
-
6.SPECTRUM MANAGEMENT
6.1. Identifying the problem
6.1.1. Introduction
Introduction
The overreaching goal of spectrum policy is to ensure that spectrum is managed to deliver the most efficient use from a social and economic perspective. Spectrum management reform is probably the most important area of this review, certainly in terms of the potential gains for Europe. As highlighted already in the Impact Assessment of June 2006
122, spectrum policy in
general must take into account not only the electronic communications services but also all other spectrum uses, such as defence, aeronautical, maritime, medical, scientific, industrial, etc. The analysis presented in this impact assessment focuses on implications for eCommunications services.
The relative importance of radio spectrum as a production factor for electronic communications services and networks (such as mobile, wireless and satellite communications, TV and radio broadcasting distribution, and other services such as transport, radio location and Galileo satellite system) has increased dramatically during the last decade, so has the importance of the provisions related to radio spectrum within the regulatory framework.
The "value" of spectrum
Spectrum can be considered as a public good; it has both public and market value. While it is difficult to measure the real economic value of spectrum as such
123, it is possible to express the importance of
spectrum using the parameter of the total value of spectrum dependent services. It is estimated that the total value of radio spectrum dependent services in the EU today is about EUR 250 billion
124.
The use of spectrum is determined in particular by two parameters, "Who decides who can use a spectrum band?", and "Who decides for what it can be used for?" Both these parameters have traditionally been under the control of Member States administrations, and the organisation of spectrum management varies widely from one Member State to the other
The most important problems related to the current system of managing spectrum can be summarised as follows:
-
-Spectrum is rigidly segmented between the classical services (broadcasting, fixed, mobile communications) and other applications;
-
-National borders are increasingly irrelevant for optimal radio spectrum use. Fragmentation of the management of access to spectrum rights limits investment and innovation and does not allow operators and equipment manufacturers to realise economies of scale;
-
-There are legacy issues related to diverging conditions to access radio spectrum for different spectrum users; and
-
-Access to spectrum for new and innovative services and technologies is limited and, as a result of the rigidity of current spectrum allocations, usually available only in higher frequencies with worse propagation characteristics.
In the current situation, spectrum is for the most part rigidly allocated to specific technologies and/or for specific usages, and its use is generally based on exclusive individual rights subject to stringent conditions with no possibility to sell or lease such rights to other potential users. Some users hold large amounts of valuable spectrum that they do not use to its full capacity, while for new entrants it can be very difficult to acquire suitable spectrum.
The problems of inefficiencies in distribution and use of spectrum result in increased costs, lost opportunities for operators and manufacturers and reduced investment in and take-up of new innovative applications and services. Evidence from recent studies and academic literature supports this general conclusion as described below.
In addition, the switchover to digital broadcasting and the emergence of the "digital dividend"
(the switchover from analogue to digital terrestrial TV that will free up an unprecedented amount of spectrum in Europe) are poised to trigger the largest re-organisation of spectrum resources in Europe for decades. This formidable challenge is also an opportunity to put to work the new spectrum management reforms on a significant scale. This necessitates that the regulatory framework be adapted in time to be able to conduct the required coordination on a European level and reap the full potential of the digital dividend from a social and economic perspective.
locations in 2004 confirm this impression126. Even in central London, much of the most
attractive spectrum was left empty, although formally the entire spectrum measured had been allocated to a specific use. Another oft-quoted fact is that newer, and presumably better technologies, can only be introduced in the higher parts of the spectrum, which are less attractive due to poor propagation characteristics. It is clear that the present regulation of spectrum does not deliver.
Much of the early academic debate was split among two camps, those insisting on a pure economic approach using economic means to distribute spectrum and manage interference, and the other camp seeing a future paradigm of unlicensed use where everybody could access the spectrum under the condition that one abides by a limited set of rules to ensure interference management.
As the debate has matured and moved closer to the level of actual policy development, there has been a growing agreement that all three paradigms linked to spectrum management - administrative approach, market-based approach and unlicensed use - have a contribution to make to an efficiently managed spectrum policy. Apart from a number of studies conducted for Ofcom
127, the German national regulatory authority (Bundesnetzagentur, BNetzA)
commissioned a very useful study128, and the French Commission Consultative des
Radiocommunications specifically studied the future use of the valuable UHF spectrum129,
while the European Commission has finalised two studies, specifically looking at the market- based approach and at the unlicensed use of spectrum
130.
Two other recent studies on the digital dividend have estimated that more flexible approaches to spectrum allocation in the UHF bands lead to respectively 20 billion euros of extra growth
131 or up to 0.6% p.a. extra growth between 2010 and 2020132 .
Although these studies have different emphasis, the common thread is that they all conclude that the removal of unnecessary restrictions on spectrum use, what we now call technology and service neutrality, would substantially increase the benefits that society derives from spectrum use.
While the studies that were commissioned by national authorities quite naturally have focused on the regulatory actions that would prove most useful for national regulatory action, the studies commissioned by the European Commission were specifically directed at identifying the appropriate role for a common approach at the EU level. A study conducted in 2004
estimated that even if Member States individually took the most appropriate action to modernise their spectrum management, the effect would be that Europe would fail to realise 30% of the potential benefits unless the Union coordinated its efforts
133.
This study focused specifically on the issue of spectrum trading. To assess the potential impact of co-ordination, it examined different co-ordination scenarios and benchmarked them against the status quo (which assumed that the Commission undertakes no further action to co-ordinate trading or liberalisation of spectrum). The study concluded that the net benefits are greatest if all Member States introduce trading and liberalisation (i.e. more flexibility in spectrum management) in certain bands. The welfare benefits of this co-ordinated approach are potentially significant whereas the cost of introducing liberalisation alone is relatively small.
Future market developments
Apart from the body of evidence focussing on the reform of spectrum management, the recent data and studies on future market trends again suggest that the current system of managing spectrum is unsustainable from a mid-term and long-term perspective.
A study compiled for the European Commission / the Institute for Prospective Technological Studies (IPTS)
134 examined in particular the development of alternative wireless technologies, such as
ultra-wide band, WiMAX, Flash-OFDM, WiFi or meshed networks135. These technologies represent
an alternative and/or complement to the traditional 2G (GSM) and 3G. The study concludes that alternative wireless technologies (AWTs) have a big potential and their development could have important economic implications for Europe. One of the bottlenecks for AWTs development identified in the study is the existence of licensing regimes in many EU countries imposing limitations on spectrum availability.
Mobile and wireless technologies will be increasingly important for regions where high-speed fibre or cable networks cannot be deployed. In these geographical areas, more and more data will be transmitted via mobile or other wireless types of networks and consequently, more spectrum will be needed to account for the increasing needs for data transfer and higher speeds. In such areas, which largely coincide with rural areas and parts of Europe with a less developed infrastructure, it is likely to be necessary for new broadband systems to use spectrum from the digital dividend in order to become feasible.
According to expert forecasts, also the traditional mobile services are expected to grow in the coming years. The second generation of mobile services will be gradually replaced by the third generation with an increase from around 58 million mobile connections in 2006 to over 300 million 3G mobile connections in 2010
sufficiently flexible and available spectrum both for GSM/3G technologies and alternative wireless technologies.
Availability of radio spectrum is essential for RFID applications. The market for RFID systems is growing rapidly with annual growth of 45% in the EU and almost 60% in the global market. The Commission recently issued a Communication on RFID in Europe
138 where the issue of RFID
potential and spectrum availability is also discussed.
It should be remembered that communications between people is not the whole picture. Machine to machine communication, the so called 'Internet of Things' means that there is a far larger population of users of the radio spectrum than just humans. Such applications are, for example, industrial telemetry, managing traffic flows in major cities or handling car-to-car communications to avoid accidents.
Potential demand for wireless services in the EU
A study commissioned by the IPTS on the demand for future mobile communications markets and services in Europe
139 presents alternative socio-economic scenarios from which potential demand for
wireless services in the EU in the years 2010, 2015 and 2020 is derived140. The most realistic scenario
('Constant change scenario') suggests a sharp increase in wireless traffic, particularly for enterprises after 2015, as showed in the figure. Increase in the demand for wireless services is growing (not shown by the Figure 9), but growth is moderate before 2010 compared to afterwards.
Figure 11. Estimated mobile traffic (within the 'Constant change scenario')
6.1.2. Policy response to the identified problem so far
There has been a shift in the perception of the parties involved in developing spectrum policy in Europe during the five years that have followed the adoption of the Radio Spectrum Decision. As a case in point, the European Council in December 2006 referred to the immediate ICT policy needs as including "the development of spectrum allocation models meeting all objectives, the fast promotion of advanced mobile services and to the extent possible a coordinated approach for the use of spectrum capacity, becoming available as a result of digital switch-over"
141.
This realisation of the European dimension of the issue and the need to coordinate decision making and ensure the single market are increasingly present in exchanges between decision-makers. The Radio Spectrum Policy Group (RSPG), which is composed of high-level representatives from Member States, is advising the Commission on issues of strategic importance in this field. The group has developed the WAPECS concept (Wireless Access Policy for Electronic Communication Services) since 2004 and the work has been used in developing the present legislative proposal
-
142.The RSPG has also highlighted the
significant interest of a reinforced cooperation in EU spectrum policy in two other strategic
areas: the deployment of multimedia services (RSPG Opinion number 5) and the future use of the digital dividend (RSPG Opinion number 7).
Under comitology, the Radio Spectrum Committee has provided the Commission with the support necessary to adopt a number of regulatory opinions. In previous years, these have mainly concerned ad-hoc Decisions supporting a specific use, such as automotive radars or assisted hearing devices, although a framework Decision on Short Range Devices
143 has also
been adopted. In response to demand from operators and manufacturers, in 2007 several Decisions have been adopted with direct implications for electronic communications services, such as the Decision on 2 GHz mobile satellite systems, the Decision on harmonised availability of information regarding spectrum use
144, and the expected forthcoming Decision
on harmonised use of the 900 and 1800 MHz bands (enabling 3G and other services to be used in the GSM bands) combined with the repeal of the 1987 GSM Directive and the Decision on Mobile Communication aboard Aircraft. These measures are interlinked with equipment regulations under the R&TTE Directive
-
145.This Directive relies to a large extent
6.1.3. Summarising the problem
The available evidence shows that the importance of mobile and wireless communications markets and services will further increase, and that the current, predominantly command-and-control spectrum management system has reached its limits.
The problem is how to adapt the system to stimulate new and innovative services, which require much more flexible use of spectrum. The cross-border nature of wireless services also represents a strong case for harmonisation and better co-ordination at the EU level.
6.2. The objective
The overall objective of spectrum management in the EU is to ensure that a scarce resource in high demand is used for the maximum benefit of society, and that change in technology and demand structure can speedily be reflected in how the resource is used.
Specific aims within this overall objective are:
-
-Give spectrum users more freedom in deciding how they use spectrum by reducing the regulatory burden on them;
-
-Remove barriers to access for new entrants and new technologies;
-
-Ensure management of interference between users;
-
-Provide incentives for innovation and investment;
-
-Ensure that there is a co-ordinated approach to spectrum management at EU level: and
-
-Facilitate the optimisation of the potential social and economic value of the digital dividend.
At the same time, any change to the current system must ensure that current license holders will be able to retain the rights enjoyed under the licence, subject to review for very long-term licences.
6.4. Results of the public consultation
The public consultation showed reluctance in most responses to embrace unlicensed spectrum, citing concerns that interference would not be resolved. Some respondents were however strongly in favour, as they believe that interference management solutions are already available.
The responses on the proposed changes to the regulatory framework were in general in favour of service neutrality. The exception was the broadcasting community and the operators of distributions systems for terrestrial television. Most other negative answers had interpreted the term "service" as it is used by the ITU
147, rather than applying the definition in the regulatory
framework. These answers more properly concern technology neutrality.
Technology neutrality was also mainly viewed favourably by most respondents. There were concerns that an excessively neutral approach would lead to a massive increase in interference. On the other hand, a careful removal of technical restrictions was welcomed. A particular case was the fear among satellite operators that terrestrial uses would overwhelm the weak satellite signals. This shows the need for a level of continuing technical regulation.
There was wide-spread recognition of the European dimension of spectrum policy and the need to strengthen the collaboration and coordination in spectrum management. Some respondents indicated a European Spectrum Agency as the preferred tool.
The public consultation confirmed the perceived trend towards welcoming secondary trading. Most Member States, industry associations and companies were in favour. The opposing view was mainly coming from terrestrial broadcasters and from some Member States, who were concerned that trading would affect broadcasting or that hoarding of spectrum would result in unfair competition and barriers to access.
In addition, the European Parliament by its own initiative adopted a resolution on 14 February 2007
148 addressing European spectrum policy. The resolution recognises the desirability to
make more use of unlicensed spectrum as one of three spectrum management paradigms (unlicensed, spectrum markets and traditional). The Parliament strongly emphasises the efficient use of spectrum by all stakeholders and regulators. It endorses the principles of technology and service neutrality and the principle of viewing electronic communications spectrum as a coherent entity from a technology neutrality perspective. It stresses the need to safeguard the functioning of media services provided by broadcasters and notes that this may justify exceptions to service neutrality and the award of sufficient spectrum to such users.
Commission's market-based approach to spectrum, and notes that the traditional model would continue to be relevant, particularly where important public interests are at stake.
6.5. Revised policy options
As a result of the public consultation, the Commission has reconsidered some aspects of the initial policy options. The initial set of options dealt mainly with one aspect of the spectrum policy, i.e. the level of EU co-ordination. The option of "creating an EU entity" suggested strong harmonisation measures in the form of an independent EU body whereas the option of "adapt the framework and improve co-ordination at EU level" suggested improving co-ordination through comitology procedures.
The second aspect of spectrum policy is the actual substance of the spectrum policy reform, i.e. options for transition to a more efficient spectrum management system. The key problems identified in this chapter relate mainly to the substance of spectrum policy. The spectrum management chapter will therefore focus on assessing the various spectrum management models and on providing possible solutions to the problems identified. Co-ordination is discussed at a more general level and is addressed separately in Chapter 7 on Regulatory consistency and effectiveness. Chapter 7 analyses possible institutional arrangements and co-ordination mechanisms not only for spectrum management but for the whole area of regulation in electronic communications, including the option "creating an EU regulatory entity" of some sort.
6.5.1. Option 1 adapt the regulatory framework by introducing the principle of technology and service neutrality and co-ordinated spectrum trading
A number of proposals reflected in this option are mirrored in the Commission strategy of a comprehensive spectrum reform, i.e. a strategy towards more flexible and efficient spectrum management. The general principles of the strategy for spectrum policy reform were already outlined in the Commission Communications of 2005
149 and are embedded in the WAPECS
concept which have been endorsed and accepted by Member States and most stakeholder groups. The concrete legislative changes are closely linked to the specific objectives summarized in Chapter 6.2. The proposals relate to extending the concept of general authorisations to spectrum, introduction of technology and service neutrality and introduction of spectrum trading in specific bands.
This provision would reinforce the existing principle of technology neutrality, to the extent this can be done without worsening the situation for other spectrum users (through an increased interference) and without risking the functioning of safety-of-life services. Similarly, the requirement in the legislation to apply service neutrality would permit the delivery of any electronic communications service, with limited exceptions to ensure general interest objectives, such as the delivery of broadcast content services. In both cases there would be a consultation requirement to increase transparency.
The principles of service neutrality and technology neutrality would apply to new licenses, with an option for existing licenses to be transformed into technology and service neutral ones. A relatively long transition period is foreseen for the final transition of the existing licences to technology and service neutral ones. To ensure the consistency of the legal framework, both the Framework Directive, dealing with allocation of spectrum, and the Authorisation Directive, dealing with the individual rights, would have to be updated to reflect the principles. Harmonisation of technical parameters as applied to spectrum as is done under the Radio Spectrum Decision would proceed, and define the EU-level limitations to technology neutrality in a specific band.
This provision is related to the objective of giving spectrum users more flexibility in how they use spectrum by reducing the regulatory burden on them.
Progressive introduction of secondary trading in specified bands
The regulation of service and technology neutrality will release a lot of the potential uses of the radio spectrum, but seen in isolation, it would only affect the pool of existing spectrum usage rights holders. This entails the risk that users would seek to ensure their market position by adopting a position of no change, which could limit the introduction of new technologies and services. This would also limit the turnover of spectrum usage rights to the time of expiry of the license, which again would introduce an element of scarcity, in this case in time.
Therefore, the regulatory framework would introduce the provision that, in designated bands, users have the option to buy or sell spectrum usage rights through secondary trading, with this option applicable in every Member State (to safeguard the single market in services and equipment). The selection of bands, in which trading would be an option for the user, would be through comitology decisions. It should be noted that this provision would not change anything in the initial award of spectrum rights by the issuing authority, but only apply to subsequent trading between users. Trading is thus a necessary complement to technology and service neutrality.
6.5.2. Option 2 no change to the regulatory framework
The Commission has already taken a number of steps towards more flexible spectrum use already under the current legislative framework
-
151.However, the possibilities of introducing a
more flexible and co-ordinated approach within the current legislation are limited. There is no mechanism to ensure a coherent designation of bands where the use of spectrum is subject to general authorisations and no mechanism to ensure a coherent introduction of spectrum trading. This leads to a patchwork of different regulatory solutions in different Member States.
The current framework did introduce sound principles such as general authorisations as a rule and exclusive individual rights as the exception, the principle of technology neutrality or the possibility of secondary spectrum trading. However, the current practice does not seem to reflect these general principles, no coherent application is ensured and most bands are systematically subject to individual rights. The procedure of assignment and authorisation for pan-European and/or cross-border services is very complex, lengthy and burdensome. Coordination among Member States is based on a voluntary approach which does not lead to any coherent implementation of the general principles. Staying with the current cumbersome system would therefore go against the main objective of simplification and better regulation.
In conclusion, this option would rely on the existing provisions and the voluntary approach to co-ordination to achieve the overall objective of more flexible and efficient use of spectrum.
As a base-line option, it will be assessed against the other option.
6.6. Assessment of impacts
Assessment of economic and social impacts of spectrum policy reform is a very complex and challenging task. It requires a careful application of economic theory and models to the real situation on the market while taking into account future uncertainties and rapid technological development. To this aim, the impact analysis has been carried out in four stages:
6.6.1. Three spectrum management models
In theory, three different models of spectrum management can be identified:
-
-the administrative model where states make decisions on allocation of spectrum and assignment of spectrum usage rights and no secondary trading is permitted;
-
-the market-based model where the state is responsible for primary assignment of usage rights and secondary trading and change of use is permitted; and
-
-the unlicensed model where users have complete autonomy over how they use spectrum and anybody has access to spectrum.
Spectrum management policy was traditionally based on the administrative model. Option 2 would be the one which most resembles the administrative approach. Although the current regulatory framework includes some provisions aiming at more flexible spectrum management,
most Member States still largely apply the administrative
"command-and-control" approach.
Throughout the academic debate, a preferred spectrum management model was promoted by its proponents by emphasising a particular benefit of that model. It may be useful to recall the sub-objectives and plot the models against them. Such an exercise indicates that there is no single "best" management model, but that all three have their place in a reformed framework.
"Unlicensed" approach
Regulatory burden An unlicensed approach would provide the option to deliver any service. (++) It would also permit different technologies to be used. (++)
Access Anyone could access and use the spectrum (++). New technologies could access spectrum, but there could be an issue of managing generational change (+)
Interference The necessary technologies to implement interference management are today available
for short range communications (+) Technologies for managing interference are a constraint on product design and require industry agreement and licensing (-) Longer range communications can as yet not be managed in this way (- -) In future this may move to a (+)
manage the expected "denser" use (+)
Innovation Innovation and investment would be strongly encouraged. Artificial regulatory bottlenecks constraining competition would be removed (++) Risk for this being replaced by hoarding (- -)
"Administrative" approach
Regulatory burden Regulatory burden could be diminished, which would benefit existing users (+)
Access Access to spectrum for new entrants would remain unchanged (=) If regulatory burden is lowered new technologies would have improved access provided that benefits existing users (+/=)
Interference Interference management would remain at a high level (++)
Innovation Innovation and investment would depend on administrative decisions. Limited competition would benefit operators and technology providers, but not consumers (-)
6.6.2. Quantitative modelling of impacts using scenarios
Ideally there should be a direct and measurable effect of a specific regulatory choice, so that action "A" would result in outcome "B". In the present case, such a mechanistic approach is unfortunately unavailable. Complexity is however no argument against a structured approach and the Commission decided to contract external support to construct an econometric model to identify the impacts of certain policy choices
152.
A model such as the one outlined in Annex I can be used only if there is a clear understanding of its limitations. It should be noted that building a verifiable econometric model is hampered by lack of comparable data or incomplete sets of statistics. To our knowledge, the econometric model developed for the current exercise in order to test the impacts of regulatory choices, is one of the first attempts to deliver an evidence-based impact assessment in the field of spectrum management.
This has clearly the effect of creating artificial barriers for any potential competition and artificial scarcity of spectrum on the market. Option 1 would require a justification whenever exclusive rights are granted. This would enable fast uptake of technologies that alleviate spectrum scarcity when they become available, but safeguard other users from interference until that time. This provision would contribute to the objective of better access to spectrum for new entrants and new technologies.
Impacts of technology and service neutrality
The establishment of service and technology neutrality as the main principles (proposed in Option 1) would remove most regulatory restraints, not only strengthening competition, but also reducing the regulatory burden on the user. It should be noted that to offer a different service or to adopt a different technology would be an option for the user, not imposed by regulation. The effect on innovation would be to enable an operator to introduce new technologies in the bands where he holds the usage rights. This would make it practical to deploy new technologies in the lower, more attractive bands, which in turn lower the cost of introducing new technologies and increase their uptake by consumers.
Impacts of spectrum trading
The effect of service and technology neutrality without spectrum trading would be to increase competition, but only within the existing set of spectrum users. Looking at experiences from other regulated industries, such limited competition would most likely lead to operators seeking to safeguard market share. The combination of service and technology neutrality with spectrum trading, complemented by enforcement of competition rules, would ensure open market access for new technologies and new service providers.
As noted earlier, the purpose of the reform is not to reallocate spectrum from one group of stakeholders (current spectrum holders) to another (new entrants). The three key elements of the reform proposed in Option 1 will create more flexibility, lower the barriers to entry and encourage more competition. Current spectrum holders will have to adapt to the new more competitive market but they will also have greater possibilities to use their spectrum more efficiently. Additionally, the digital dividend will have a positive impact in this process as it will release more spectrum for innovative services, which also helps to bridge the digital divide
necessitates a European, or even global, approach by industry. There is thus a strong market impetus to coalescing around common standards.
A future operator may wish to develop a service (or mix of services) using a technology covering several, and possibly all, Member States. Such a seamless network would deliver an increasing total value of the network, to the operator but also to society. These trends of reduced regulation and larger geographical target areas, combined with a need for stronger legal certainty, argue for limited regulation coordinated at EU level.
Impacts of Option 2 no change
The effect of allocating a band of spectrum used for electronic communication services to a specific technology and service is to limit competition. This occurs mainly through limiting the number of licenses, i.e. competitors, but also by preventing the introduction of new technology. Option 2 (no change) is close to that situation because, although it allows for different management models (market-based, unlicensed or administrative), the reality is that a technology and service-based administrative model still prevails in most bands and in most Member States. The negative consequences of limited competition and artificial spectrum scarcity are discussed and quantified in more detail in the modelling exercise in Annex I and summarised in the table below.
As regards the impact on different stakeholders, it clearly varies, depending on whether they are current spectrum holders or not. Holders of large amounts of valuable spectrum (e.g. the broadcasting industry) would clearly benefit from the status quo situation. New entrants but also some incumbent operators, who see new opportunities in deployment of new technologies in more suitable spectrum bands, would clearly prefer more flexible arrangements.
The table below provides a summary on main likely impacts and risks arising from the each of the three policy options with respect to the different economic and social dimensions. Impacts of Option 1 are compared to the "no change" option 2, which provides a baseline scenario for the assessment. The signs represent a scale of possible impacts vis-à-vis the "no change scenario": positive impact, O neutral impact, - negative impact.
Table 2. Summary on the main impacts and risks of the options
IMPACTS AND RISKS Option 1 Introduce the principle of Option 2 - No change
technology and service neutrality and co-
ordinated spectrum trading
ECONOMIC
Investment and innovation
More flexible and co-ordinated spectrum management Does not facilitate cross-border investment and deployment of new innovative cross-border services. Differences in regulation do not particularly encourage operators to invest in other MS.
will significantly encourage investment and innovation. New entrants will be able to acquire spectrum through spectrum trading or operate in unlicensed bands (if technologies managing interference are available).
Competition /O Introduction of co-ordinated spectrum trading could Limited competition, disadvantageous position for new entrants, and uneven development in Member States (some MS advanced in market opening and introduce more flexibility whereas others still rely predominantly on administrative model of spectrum management).
lead to more consolidation of the mobile/wireless market. Preventing
spectrum hording through effective
competition regulation will be crucial. Stronger
competitive pressure on broadcasters. Gradual increase in competition from new entrants and new technologies as more unlicensed bands become available (i.e. development towards Scenario 1).
Internal market, regulatory consistency Improvements removing the current fragmentation in Inconsistent application of rules, slow progress based on voluntary co-ordination with lengthy and cumbersome procedures, risk of increasing differences between MS. Slow deployment of cross-border services.
national spectrum policies through strengthened co- ordination
mechanisms. More opportunities for
development or cross-border or pan-European services using frequencies.
EU competitiveness /O More flexibility and better co-ordination of spectrum Risk of gradual erosion of the mobile/wireless industry's competitiveness vis-à-vis the rest of the world. Economies of scale and scope harder to achieve for mobile/wireless operators, slower uptake of cross-border services.
management should strengthen competitiveness of the mobile/wireless industry. Risk of spectrum hording and oligopoly situations (i.e. operators with "deep pockets controlling the market) if competition law is not properly enforced.
Economic operators' costs and benefits /- More opportunities for new entrants, challenges for Reaffirmed position for the current spectrum holders, high barriers of entry for new service providers and new technologies, impact varies by national spectrum regime.
incumbent telcos and distributors of broadcasting (see more detailed analysis of stakeholder impacts in Table X.)
Administrative costs, simplification /O Overall reduction due to lower administrative burden No change, no reduction of administrative burden for operators. Partial reduction possible in MS which decide to implement a more flexible spectrum regime.
and less regulation for operators. Less burdensome general authorisations will be used more often than more burdensome individual licenses. Some additional burden related to transition to a more flexible and co-ordinated system.
6.8. Conclusion
This impact assessment has identified a number of problems and challenges in the current system of spectrum management. The prevailing administrative system of spectrum allocation does not provide sufficient flexibility, hinders new entry and access to spectrum for new innovative technologies. As the demand for spectrum is expected to rise in the coming years, the problem of allocation inefficiencies will get bigger and could result in lost opportunities for innovation and deployment of new technologies. Voluntary co-ordination does not provide sufficiently stable regulatory environment across the EU, leads to fragmentation, delays in implementation of policies and administrative burdens for cross-border operators or operators providing pan-European or cross-border services.
Two policy options related to the spectrum management systems were identified.
Co-ordination mechanisms, particularly co-ordinated authorisation and regulation of pan-European services, are addressed in the section dealing with institutional issues. The econometric model suggests that more flexibility, service and technology neutrality and a co-ordinated approach at the EU level leads to better results in terms of GDP growth, consumer benefits and more competition in the market. In particular, the scenario assuming co-ordinated spectrum trading in combination with use of unlicensed bands is beneficial for competition, innovation and investment in new technologies. Option 1 (introducing the principle of technology and service neutrality and co-ordinated spectrum trading) would create a regulatory environment where a move to a wider use of unlicensed bands could become possible in the future. It has to be borne in mind, however, that the current state of technology does not enable substantial opening of bands for unlicensed use due to risks of interference. Until these changes, secondary markets would be the primary tool to lower the barriers to access, which in turn emphasises the need for a well-functioning competition regulation, particularly in the initial phase of implementation.
Voluntary co-ordination (Option 2, i.e. no change to the framework) or no co-ordination at all as described in the third scenario gives less advantageous results for all the macro-economic parameters. No co-ordination would lead to a set of smaller mostly national markets arising in both services and products. Economies of scale for equipment and many services would be difficult to realise. The current system of voluntary co-ordination has delivered results, despite being cumbersome. However, given the speed of technology development and the cross-border nature of many wireless services, fast and timely co-ordination will become even more crucial in the future. The Commission considers therefore that Option 1 (introducing the principle of technology and service neutrality and co-ordinated spectrum trading) is the most appropriate basis for a reformed spectrum management in Europe.
consumers travelling across Europe. In short, developing the Internal Market can significantly contribute to growth and investments and provide benefit to European citizens.
Since the framework was adopted in 2002, markets have become more integrated: although markets remain mostly national, except for satellite services, there is a noticeable trend towards consolidation of market players and the emergence of operators with a trans-national footprint. New technology - notably the use of IP-based networks and services can be expected to reinforce this trend towards trans-national services extending outside the geographical frontiers of a Member State. The further emergence of strong pan-European communications services and operators crucially depends on the regulatory environment in the EU as a whole
-
154.It is clear that a fully integrated Internal Market would significantly
facilitate development of new technologies and cross-border services.
Despite the general acknowledgement of the potential benefit of a single European market for electronic communications, the internal market for eCommunications is far from being completed. In the current institutional model, Member States retain key responsibilities in managing spectrum, numbers and in regulating national markets. Implementation of the regulatory framework differs across the EU and these differences create in some cases significant barriers to development of cross-border services and cross-border investment. The following sections analyse the problem of regulatory inconsistency and internal market barriers in more detail.
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7.REGULATORY CONSISTENCY AND EFFECTIVENESS: INSTITUTIONAL AND
PROCEDURAL ISSUES
7.1. Identifying the problem
7.1.1. Institutional design
As initially described in the IA report of June 2006155, the regulatory model of the framework
has essentially two sides: it aims to create a consistent regulatory approach throughout the single market while at the same time decentralising the application to permit maximum flexibility in view of the NRAs' expert knowledge of local market conditions. The main features of the current institutional and procedural design are described in the box below.
Detailed responsibilities and tasks of the NRAs differ among the various Member States, but all of them have at least one NRA who is charged with application of the rules particularly concerning regular supervision of the market.
Internal market consolidation mechanism Article 7 procedures
In order to avoid the fragmentation that decentralisation could bring, the framework contains an 'internal market consolidation mechanism': the process of notification to the Commission and consultation of other NRAs under Article 7 of the Framework Directive.
Accordingly, if an NRA identifies competitive blockages at local and national level after conducting a market review, it must submit the draft regulatory measure (in case it may affect trade between Member States) for consultation to the Commission and to NRAs of other Member States. Each NRA must take full account of the opinions of other national authorities and of the Commission. Member States are also required to establish a single information point on all current consultations and to make the results of consultation publicly available.
The Commission has the additional power, after further examination, to ensure consistency of NRAs' measures by requiring the notifying NRA to withdraw the draft regulatory measure "if it would create a barrier to the single market or if it has serious doubts as to its compatibility with Community law". Whereas this power has been given to the Commission with regard to two aspects of ex ante regulation (defining relevant markets and designating undertakings as having SMP), it does not cover the regulatory `remedies' being proposed.
The purpose of 'Article 7 procedure' is therefore to ensure that the benefits of consistent regulatory policy feed through to all European users and limit ex ante regulation to where it is really necessary.
As recently reported in the 12th implementation report, most NRAs have now completed the first round of market analysis and notified the results to the Commission. The experience so far has demonstrated that the consultation mechanism of Article 7 procedures has indeed helped to bring more consistency across the EU as well more transparency to the regulatory process. However, consistency in regulatory remedies has still not been achieved, as discussed below.
European Regulators Group
As part of the cooperation between the Commission and the NRAs, the Commission established the European Regulators Group (ERG) in 2002 to "advise and assist the Commission in consolidating the internal market for electronic communications ... in such a way as to contribute to the development of the internal market and to the consistent application in all Member States of the regulatory framework"
analysis where a significant degree of consistency has been achieved160. Regulatory measures
(i.e. remedies) imposed on operators with significant market power (SMP) are decided by NRAs who can choose from a list of remedies defined in the Regulatory Framework. The key question is whether an optimum degree of regulatory consistency has been achieved by the current institutional model.
As reported already in the first impact assessment, market players particularly continue to complain about regulatory inconsistency, i.e. that there are differences in approach of national regulatory authorities in different countries, and point to the increased cost for business of handling 27 different regulatory approaches.
A number of inconsistencies have emerged in the remedies imposed in a given market situation by different NRAs
-
161.For example, accounting separation has been implemented
effectively in only a few countries; naked bitstream and wholesale ethernet services are available in less than ten countries; and non-discrimination remains ineffectively enforced. In particular, there are considerable variations between Member States in applying certain regulatory obligations such as scope of access obligations and price control.
The second Commission Communication on market reviews under the EU Regulatory Framework and the accompanying Staff Working Document
162 provide concrete examples of
inconsistent application of remedies. The average mobile termination rates (MTR) for example vary considerably across Member States. While part of this variation can be explained by different underlying costs of operators in different countries, the rest is due to different price setting methodologies used by the NRAs, different timeframes for reducing the MTRs, or the application of asymmetrical MTRs whereby some NRAs authorise higher termination rates for smaller operators. Similar differences exist for prices in other regulated markets, such as the monthly rental for leased lines, interconnection charges or costs of unbundled local loops. Prices in the cheapest countries can be up to 5 times lower than those in the most expensive countries.
Consistency in regulation at the wholesale level is particularly important as it provides input to retail services for customers. Availability of various wholesale access products on reasonable terms across the EU provides a possibility for operators to offer similar services to their customers in different Member States. For example, not all Member States obliged the incumbent to make available bitstream access which enables alternative operators to provide broadband to end customers without the obligation to rent a telephone line from the incumbent.
rely on easy interconnection with trans-European backbone networks. Achieving this type of market opening is fundamental to achieving the scale economies that the internal market offers, so that Europe can lead in the convergence of network services and the emergence content-rich business and consumer offers.
Services of cross-border nature or potential would also benefit from a more consistent regulatory approach. There are very different operating conditions in different countries, which have significant implications for the internal market. In particular, the current situation in which similar situations are treated in distinctly different manners by NRAs - and consequently undertakings are subject to different obligations - is incompatible within a single market since it creates uneven access conditions and indirectly distorts the competitive environment.
Given the fact that already today market players generate around one third of their revenues in Member States other than their own
163, further cross-border growth would be enhanced if
greater consistency were achieved, to the benefit of business and consumers. International voice roaming is now subject to a specific harmonised regulation at the EU level
164, due to the
difficulties of regulating this complex market encountered by individual NRAs.
Inconsistencies may also arise from application of Art. 5 which empowers regulators to impose remedies, under certain conditions, on undertakings without Significant Market Power (SMP) in order to ensure adequate access and interconnection, and the interoperability of services. This should be seen as an exception to the normal approach whereby operators are not subject to ex ante obligations unless there is a lack of effective competition in the relevant market and they are found to have SMP in such a market. This provision may give rise to additional inconsistencies in the application of the framework, if no co-ordination mechanism
is put in place.
The 12th Implementation report notes concerns remain regarding the effectiveness of some
NRAs, which also depends on the resources they can call on and their ability to enforce their own decisions. The report also points out that independence of NRAs is still an issue in some Member States: ..."the extent of political influence over day-to-day regulatory decisions in some Member States is an issue calling for further examination"
Regulatory consistency across the EU is particularly important for providers of services to international business users. International business customers expect a similar level and quality of services across national borders. Although these service providers are limited in number, the value of voice and data services they provide to business customers is already very significant in global terms and growing.
The lack of a coherent regulatory approach affects new entrants in particular, but increasingly fixed incumbents are investing outside their "home" territories where they face the challenges of being 'new entrants'.
A report sponsored by BT on the provision of electronic communications services to international business customers provides numerous case studies of businesses in different sectors and concludes that ubiquitous connectivity is essential for businesses and for Europe's competitiveness
-
166.Businesses are dependent on availability of mutually compatible
telecommunications inputs and find it difficult to cope with regulatory differences across Member States. Several interviewed companies point out that access products are more consistent in the US than in Europe. A wide variety of implementation of access regulation reduces the ability to implement seamless pan-European ICT systems. It also restricts the ability of SMEs to benefit from these systems.
For example, respondents from the oil industry suggest that "fragmentation of regulation and service providers does not allow the oil industry to operate at the same per unit ICT infrastructure costs as in the US, and within a few years will compare unfavourably with China, Russia and India"
-
167.This will hamper the EU's competitiveness.
7.1.3. Barriers to provision of services with pan-European potential, particularly those needing numbers and/or frequencies
The importance of a coordinated European approach to enhance EU competitiveness and scale economies for these services for services with a pan European potential or with a cross-border dimension was highlighted in the ERG's response to the letter of Commissioner Reding
Under the current framework, authorisation for these services is complex and based essentially on national procedures. Member States are responsible for authorisation of e-communications networks and services, and the conditions that apply to undertakings including the rights of use for numbers and radio frequencies vary between the Member States. Examples of such services today are mobile satellite services, or mobile phones on board the aircraft, in both cases crucially dependent on harmonised allocation of scarce resources such as radio spectrum.
The current fragmented approach exerts a particularly heavy cost on innovation and development in the area of allocating spectrum rights. The regulatory framework does require Member States to use general authorisations where possible, however the current practice in many Member States is still predominantly based on individual rights of use or the attachment of conditions to general authorisations, accompanied by administrative burdens and fees which differ widely between States. Divergent and inconsistent administrative practices undermine or reduce legal certainty and raise the cost of doing business across the EU.
In concrete terms, there are different ways of obtaining licences for operating services with pan-European potential under the current regulatory framework, depending on the type of service. For some services, such as mobile satellite, the Commission has already issued a decision designating certain frequencies for deployment of these services, which facilitates the process of applying to national administrations. Nevertheless, even in this case the selection and authorisation is slow, the process which concerns to small segments of the 2GHz radio bands, was launched in 2005 is not expected to be completed before mid-2008.
In other cases, the harmonisation of frequencies (or numbers) does not exist at all and operators must apply to each of the 27 national administrations separately for a licence in non-harmonised spectrum bands (or number ranges), which is even more burdensome. It is important to note that in both cases it is the national regulators who set the terms of award and conditions of use these still vary from country to country.
If frequencies are not harmonised for a particular type of services, it could be very difficult for an operator to obtain the desired frequency in all Member States to be able to launch its service. For example, one Member State launches auctioning for a certain frequency band for which terrestrial and satellite operators are competing. Awarding the frequency band to the terrestrial operator seeking to launch a purely national service actually means that the competing satellite offer's chances to provide an international service across the continent are hampered
pan-European basis. VoIP is a typical example of a service which can be provided to a customer remotely from any physical location and differences in national procedures for obtaining numbers mean in practical terms significant administrative burdens and time delays for operators.
Moreover the absence of a mechanism for guaranteeing pan-European wholesale offers for IP-based services, of which VOIP is a forerunner, can be expected to become a significant barrier to the European information economy as the switchover to full IP-based services takes shape.
These limitations are likely to create a significant barrier to deployment of existing cross-border services and hinder the development of pan-European or cross-border services that may emerge in the next five to ten years
172.
7.1.4. Diverging approaches in National appeal procedures
The lack of consistency in the way that NRAs use the discretion available to them under the framework is compounded by delays and diverging approaches in the national treatment of appeals against NRA decisions.
The Framework Directive requires that an effective mechanism be available for appeals against the national regulatory authorities' decisions. Some Member States have specialised appeal bodies; others use national courts. The main concerns voiced by different stakeholder groups relate to:
-
-length of the appeal procedure;
-
-legal standards for suspension of NRAs Decisions; and
-
-standard of review.
The length of appeal procedures is of particular concern for alternative operators and for NRAs. Long appeal procedures do not facilitate effective decision-making and do not promote legal certainty. Proceedings in countries such as Italy or Portugal can last from four to six years. In Greece, the highest administrative court has not yet issued any decision, despite the fact that some cases have been pending since 2001
against those Member States where suspension of NRAs decisions was practically automatic. However, no action has been taken to harmonise the conditions for suspension.
According to Article 4 of the Framework Directive, "Member States shall ensure that the merits of the case are duly taken into account". However, the standards of review vary across the EU. Some Member States maintain traditional standards of judicial review while others have introduced full review on the merits. Nevertheless, many operators and NRAs share a general concern that problems with the current appeal system may lead to a `litigation culture' where significant resources are spent on litigation and regulatory decisions are paralysed to a certain extent.
7.1.5. Summarising the problem: the internal market is not yet a reality in the sector
Despite the general acknowledgement of the potential benefit of a single European market for e-communications, problems of consistency, efficiency and speed of regulation threaten to become a considerable obstacle for the development of a competitive internal market.
As the e-communication markets are becoming more competitive, there are markets where regulation is not needed any more. On the other hand there is a need to concentrate on the bottlenecks which are likely to persist (e.g. mobile termination, local loop unbundling, wholesale broadband access). To tackle the remaining bottlenecks, a more consistent European approach is needed. Operators need to be assured that their investments can be planned in a regulatory environment that is stable, consistent and predictable throughout the EU's single market. Such a regime allows companies to operate on a scale which only a Europe-wide market can provide.
7.2. The Objective
The general objective is - in the light of the prevailing political and institutional context - to find the best regulatory model delivering a single market in e-communications through consistent and effective regulation while respecting the principles of subsidiarity and proportionality.
7.3.1. Option 1: Single European Regulatory Authority with discretionary decision-making powers in market reviews and in charge of managing EU aspects of spectrum
The option of creating a single European Regulator was already debated in the context of the earlier regulatory reviews in the 1990s
175 and in the June 2006 Impact Assessment176. Option
1 considers a regulatory Authority with centralised decision-making involving discretionary powers which would be in charge of both the market review process and spectrum management. It would have strong implications for the current institutional balance in the sense that it effectively transfers most regulatory powers to the centralised level.
Option 1 envisages centralised decision-making in market reviews whereby NRAs would either cease to exist or would become national offices of the European Authority responsible for data collection and implementation of the centralised decisions. This would effectively mean that the current procedures based on Article 7 would have to change. Markets would be analysed directly by the European Authority which would also impose regulatory remedies.
As decisions concerning market reviews would be taken at the European level, appeals against these decisions would be dealt with by the European Court of Justice.
Under this model, the European Authority would in principle also be in charge of spectrum management, with a few exceptions such as spectrum used for national defence. It would pursue a policy reform towards more flexible use of spectrum, including use of general authorisations, introduction of market-based approach and technology and service neutrality (as outlined in Chapter 6).
7.3.2. Option 2: European Regulatory Authority without discretionary decision-making powers assisting in the implementation of reinforced Community procedures
Option 2 aims at achieving more regulatory consistency and a more harmonised approach to the market review procedures and to services with pan-European potential in particular, through more effective coordination mechanisms at the EU level but without upsetting the institutional balance. Some additional powers would be conferred on the Commission and an independent European Authority would be created to provide primarily technical expertise and advice in market review procedures and in authorisation of services with pan-European potential. The European Authority would bring together the existing national regulatory authorities in its decision-making structure, thereby capitalising on the expert knowledge and regulatory experience of the NRAs. At the same time, the political independence of NRAs would be strengthened. The Authority would have the status of an independent body, and would subsume the role of the ERG, which is currently established an advisory group to the Commission.
-
-Commission oversight of remedies and advisory role of the European Authority in Article 7 procedures;
-
-improved procedures for analysis of trans-national markets with advisory role of the European Authority;
-
-stronger powers for the Commission to act when an NRA does not carry out a market analysis within a given time limit;
-
-involvement of the European Authority in new EU level procedures for authorisation and regulation of services with pan-European potential; and
-
-more consistency in the criteria that justify suspension of NRA decisions by national appeal bodies.
Apart from these areas, the European Authority could play a role in co-ordinating policy on issues such as transparency for consumers, emergency services, eAccessibility, privacy and security, etc, as well as in advising the Commission on the exercise of its enhanced implementing powers
177.
Commission oversight of remedies and advisory role of the European Authority
These measures aim at addressing the issues of regulatory inconsistency and delays in conducting market analyses as explained in Section 7.2.1.
This option proposes strengthening of the Commission oversight of remedies, as a solution to the problem of regulatory inconsistency. The discretionary power of NRAs over remedies is an important one: NRAs can choose from a list of remedies defined in the Access directive and the potential impact of those remedies on market players concerned varies a great deal.
As described in Section 7.1.2, the Commission may, under the current regulatory framework, require the notifying NRA to withdraw a draft regulatory measure concerning market definition and/or designation of SMP. Under Option 2, the Commission would be empowered to require the notifying NRA to withdraw also the draft regulatory remedies and furthermore, to suggest which remedies should be applied instead. Market analysis and Article 7 procedure with Commission oversight of remedies would have to be undertaken also in the case when NRAs impose obligations on non-SMP undertakings, as described currently in Article 5(1) of the Access directive. In keeping with the principle of subsidiarity, the Commission would use its power whenever the remedies proposed by national regulators were not consistent and led to significant differences in regulatory approach of the Member States. In its assessment, the Commission would still take into account differing circumstances and market conditions in Member States. In order to tackle the problem of late implementation of the regulatory framework, a firm time limit could be set for NRAs to conduct their market analyses. The Commission could have the power to conduct a market review in the event that an NRA did not commence it within a specified timeframe.
required. The advisory role of the Authority will not replace the Commission's role in cases where it carries out the market reviews, for which the Commission will be fully accountable. The Authority would also assist the Commission with identifying trans-national markets susceptible to regulation at the EU level, and would coordinate the analysis of trans-national markets and the application of appropriate remedies by NRAs. As markets become competitive and less regulation is required, routine notifications to the Commission could be relaxed somewhat.
Involvement of the European Authority in new EU level procedures for authorisation and regulation of services with pan-European potential using spectrum and/or numbers
This option would establish improved EU level procedure for authorisation and regulation of services with pan-European potential. It would envisage amendments of the current provisions of the regulatory framework so as to allow coordination of the following aspects of service authorisation at EU level:
· qualifying services as having pan-European potential or an internal market dimension,
which would be a pre-condition for using the EU procedure for the coordination of authorisations;
· defining authorisations and selection methods for services with pan-European potential;
and
· defining conditions attached to the rights of use for scarce resources (frequency bands
and/or numbers) where appropriate (e.g., maximum duration of the rights of use, technological and operational conditions, etc), to be commonly applied by all Member States.
In view of the difficulty of establishing rights of use of spectrum and numbers at the European level, the role of the European Authority would provide advice and co-ordinate the procedures related to identifying services, defining common authorisations and selection methods and defining the conditions attached to the rights of use. Member States would still retain the power to issue the rights of use for pan-European services under a harmonised procedure and harmonised set of conditions laid down in a Commission Decision based on comitology.
ENISA was established in 2004 for a period of five years, with the goal of ensuring a high and effective level of network and information security within the Community, in order to develop a culture of network and information security for the benefit of the citizens, consumers, enterprises and public sector organisations of the EU, thus contributing to the smooth functioning of the internal market
-
179.Based in Heraklion, Crete (Greece), ENISA became
operational in September 2004. Its activities consist of giving advice and recommendations, data analysis, as well as supporting awareness raising and cooperation by the EU bodies and Member States. Its budget for the year 2007 is 8 million, having a staff of about 50 people.
The Commission Communication of 1 June 2007 on the evaluation of ENISA, presented an appraisal of an external expert report
180 evaluating the performance of the Agency since its
establishment and the recommendations of the ENISA Management Board regarding the ENISA Regulation and launched a public consultation.
The key findings of that expert report confirmed the validity of the policy behind the creation of ENISA and its original goals, and in particular its contribution to achieving a truly internal market in electronic communications. The report recommended extending ENISA's mandate beyond its current duration of 2009. At the same time, a number of problems were identified which affect the ability of ENISA to fulfil its role, including issues relating to its organisational structure, the skills mix and the size of its operational staff, and logistical difficulties.
In particular, the external evaluation highlighted that ENISA lacks a critical mass of operational staff to work effectively. The report concluded that:
"The Agency's size and resources should be increased to reach the critical mass necessary to act effectively and allow for an appropriate mix of skills and competences. [...] Looking at the range of EU Agencies, it seems that a minimum size for effective action in the European Union could be at about 100 staff, with the administrative and support personnel representing about 25-30% of the total"
181.
Therefore, from the pure cost-effectiveness point of view, Option 2 would provide the possibility of integrating ENISA into the new European Regulatory Authority, resulting in cost savings from the synergy of the two. The combined entity would benefit from economies of scale for administrative tasks, so that the relative share of resources for these tasks would be considerably lower than in ENISA's current organisational set-up. This would allow rebalancing of staff in favour of those working on network and information security issues. In this way ENISA could achieve the critical mass that it currently lacks. For further discussion on costs and benefits of a European Authority, see Annex III.
have the task of ensuring that the integrity and security of public communications networks are maintained. Second, in its judgement of 2 May 2006
182, the European Court of Justice
highlighted the close connection between the work of ENISA and the regulatory framework stating, inter alia, that: "[...] the tasks conferred on the Agency [under Article 3 of the regulation] are closely linked to the objectives pursued by the Framework Directive and the specific directives in the area of network and information security."
These synergies can be exploited through a sharing of operational tasks such information gathering and dissemination, cooperation and networking not to mention the upgrading of ENISA through its association with a larger regulatory entity. The new regulatory entity in a streamlined form could - together with a clearer identification of tasks - ensure that objectives and tasks associated with ENISA can be fulfilled in a more efficient, focused and cost effective manner.
National appeals
As pointed out earlier in the text, the length and differing standards of national appeal procedures are generally perceived as a problem which could negatively affect legal certainty and implementation of the regulatory framework. However, the powers of the Commission or any central body to influence the length and effectiveness of national appeal procedures are limited. An amendment of Article 4 of the Framework Directive would be proposed in order to ensure that the NRA decisions adopted under the Framework can be overturned on an interim basis only in very limited circumstances.
Insofar as the regulation of trans-national markets and certain national markets is dealt with by the Commission acting on advice of the European Authority, its decisions would be subject to review by the European Courts in accordance with the EC Treaty.
7.3.3. Option 3 Better co-ordination between the Member States
This option would constitute a modified `status quo' in the sense that no legislative changes to the regulatory framework would be required. In order to solve the problems outlined above, it would rely on voluntary co-ordination without any transfer of power to a central authority. The existing institutional mechanisms would be preserved and the co-ordinating role of the current institutions including the ERG could be formalised and enhanced.
In order to improve consistency in application of the regulatory framework across all Member states, particularly as regards the application of remedies, the role of the ERG would be enhanced and formalised. The ERG could play a more formal advisory role to the Commission in the Article 7 procedures (especially in Phase II when the Commission issues so called "serious doubts letters"). The Commission would take due account of the ERG's position. In this respect, this option would propose a kind of self-regulatory framework among national regulators rather than an increased regulatory oversight of the Commission. The ERG has taken steps towards promoting a more co-ordinated approach to regulation
183.
Under this option, the Commission would seek to improve regulatory consistency by providing more guidance on remedies, including through a recommendation on remedies based on Article 19 Framework Directive. The aim would be to clarify best practice in this area and to give guidance to NRAs on how best to shape remedies. This would improve national regulation and facilitate Article 7 procedures without introducing Commission oversight of remedies or new institutional structures and is likely to lead to more
harmonisation: pursuant to Article 19(1), NRAs will have to give reasons why they do not follow the recommendation if they wish to pursue a diverging approach.
Apart from enhancing the ERG role in the market review procedures, this option would also imply further streamlining such as the planned reduction in the number of markets outlined in the Recommendation on relevant markets, relaxing requirements for compulsory notifications to the Commission after the third round of market reviews, setting minimum standards for notifications, etc. These streamlining measures were proposed already in the Commission Communication on the Review in June 2006 and could be envisaged also in Option 2. The impact of these measures on administrative costs is analysed in the Annex II.
Co-ordinated approach to services with pan-European potential
The current regulatory framework makes it cumbersome to harmonise authorisation and selection procedures for services with pan-European potential and to define a common set of conditions attached to the rights of use. Harmonised selection and authorisation of a pan-European services is possible only if a specific Council and Parliament Decision under Article 95 of the Treaty is adopted. This in practice means that it is necessary to first adopt a Commission Decision harmonising a specified frequency band for the service and then proceed with a co-decision procedure to define common selection and authorisation methods and common conditions of use
decisions, i.e. the legal standards to be satisfied before a suspension is granted should be relatively high.
7.4. Results of the public consultation
In the public consultation, the lack of a true internal market was criticised both by the industry (UNICE, now BusinessEurope) and consumer organisations (such as BEUC). Europe's potential in the ICT sector which is crucial for growth and jobs in Europe appears to be seriously undermined by these regulatory deficiencies of the internal market.
In general, respondents to the public consultation, from industry (UNICE) to consumer organisation (BEUC), from new market entrants to telecom incumbents with international and cross-border business and Internet Service and Voice over IP providers, argued that having different regulatory approaches in different countries adds substantially to the costs of firms operating across multiple countries.
National regulators and the ERG, generally agree that a more harmonised approach to services with pan-European potential is needed, however most NRAs are opposed to the stronger Commission oversight of remedies.
7.5. Comparison of options and impacts
Option 1: Single European Regulatory Authority with discretionary decision-making powers in market reviews and in charge of managing EU aspects of spectrum
The most relevant arguments in favour of the single European regulator focus on the potential economic benefits of the single market. A European regulator acting outside the domestic politics of all Member States would remove national influences that colour many decisions of NRAs, and would promote consistent regulation across the EU. It represents a significant change in the institutional arrangements and would undoubtedly have a significant impact on the European electronic communications markets.
Centralised regulation may contribute to encouraging faster deployment of services with pan-European potential and international competition among operators, rather than fragmented competition in local/national markets. Operators active in several Member States would have a one-stop regulator system instead of having to deal with each different national authority and differences in implementation. This would significantly lower their administrative burden and compliance costs. Mobile and wireless markets would also undergo a significant transformation towards a European spectrum market with a greater emphasis on international competition
Option 1 would raise subsidiarity issues. The problem definition of this Chapter has demonstrated that a number of issues affecting cross-border services are not satisfactorily regulated by Member States. However, a policy response consisting of transfer of all the regulatory powers to an EU Authority would not be proportionate to achieve the objective of more consistent and effective regulation. Some stakeholders fear that a European regulator would be too far from the markets and would not be as effective as a national level authority which has the specialised expertise and all the detailed information about local market developments
186.
From the legal point of view, creation of a European regulatory authority with strong decision-making powers involving discretion would raise institutional concerns.
In summary, while this option could have positive economic impacts and has the potential to deliver a single market, there are significant subsidiarity and legal constraints which render this option unrealistic.
Option 2: European Regulatory Authority without discretionary decision-making powers assisting in the implementation of reinforced Community procedures
Commission oversight of remedies and advisory role of the European Authority in Article 7 procedures
A European Authority with an advisory role combined with the Commission oversight of remedies has the potential to deliver an efficient outcome in the sense of more regulatory consistency and a level playing field for operators and service providers across the EU. The role of the European Authority in this model is essential as it would provide technical expertise and advice with respect to regulatory consistency before a Commission decision is reached. The Commission will take the utmost account of the opinion of the Authority, while the discretionary decision-making power will remain with the Commission. The impact of more consistent application of remedies would be positive particularly for big operators and providers of services in multiple jurisdictions (including specialised SMEs). They would benefit from a reduction of the cost of doing business across Europe and availability of consistent wholesale products facilitating provision of services for business clients operating in several Member States and for emerging IP-based services. The threat of Commission's requirement to withdraw draft remedies could create incentives for the NRAs to choose more effective remedies and ultimately create a level playing field for operators with less divergent regulatory environment in each Member State. If this outcome is reached, incentives for operators to invest outside their domestic territories would be expected to increase.
In terms of resources, the additional power of the Commission over remedies (i.e. Commission power to require NRA to withdraw the draft remedy and to suggest which remedies should be applied instead) would require more time and resources devoted to the analysis of remedies. Independent opinion/advice of the European Authority prior to the Commission decision would also demand resources. It would be possible to party offset the resources needed for a more detailed analysis of remedies against gains from the reduced number of markets subject to market reviews and a general streamlining of the Article 7 procedures
187.
Option 2 has budgetary implications as the European Authority would be financed from the Community budget. An independent cost-benefit study undertaken to examine the cost- effectiveness of such an agency reported that, under a conservative scenario, the Authority has the potential of bringing economic benefits exceeding its budgetary costs by a factor of around 10-30 times (i.e. 250 800 million). The major source of benefit is the reduction in the regulatory risk, reducing the cost of capital for industry. Additional gains particularly in wireless services would come for example from speeding up the process of assigning spectrum for pan-European services where one year saved can yield benefits of several hundred millions of euros. Creating a pan-European reference point for information on tradable user rights could save the satellite industry 0.5 - 6 million per annum, and reduce the regulatory risks of R&D projects in the field of eCommunications, which must achieve EU economies of scale to enter the market and which currently face considerable uncertainties in the availability of spectrum (see Annex III).
Changes in the institutional set up should also feed through to benefit consumers. Impact on consumer choice, prices and availability of new innovative products and services would benefit from more rapid and effective regulation of markets in particular wholesale in order to stimulate competition. This has been the main tool that has consistently brought consumer gains in terms of lower prices and increased choice over the past 20 years of liberalisation. It should also allow some catch-up of service provision in Member States where market opening has been consistently behind that of the leading countries.
Emphasis on strengthening the internal market dimension of electronic communications networks and services would also be expected to lead to consolidation through mergers and acquisitions. The rising efficiency of the resulting larger trans-European operators would, however, be to the detriment of some small operators whose activities are limited to national markets.
Administrative burdens related to different authorisation, licensing regimes and user conditions in Member States would be significantly reduced with the introduction of a common authorisation system with harmonised conditions. This approach could lead to faster deployment of existing services with pan-European potential, such as VoIP or mobile satellite services, and foster investment in future cross-border services by reducing the uncertainty deriving from the application of diverging regulatory conditions. Another advantage related to the reduction of regulatory burdens is the speed and efficiency of the authorisation process. In fast-developing technological environments, time-to-market plays a crucial role for introduction of any new technology or service. Coordinating authorisations to operate services with pan-European potential across the EU would speed up the development of new services. This would go some way towards levelling the playing field for European business vis-à-vis the US where the problem of internal market fragmentation and differences in regulatory approaches does not exist.
The system outlined in Option 2, i.e. co-ordinated procedures based on comitology with advisory powers of the European Authority, does not imply one single pan-European authorisation at the EU level, as the authorisation of services would remain at the MS level but using the same harmonised procedure. While a single pan-European authorisation issued by the European Authority would be economically the most efficient solution, there are legal concerns as to whether such authorisation can be issued. Indeed, it might be argued that such an approach falls under the earlier discussion of an Authority exercising discretionary decision-making powers (see above). Co-ordination through comitology combined with advice from the European Authority would therefore be more legally secure.
Possible risks and uncertainties of this Option relate also to the question which services would be identified as services with pan-European potential and be subject to common authorisations under the coordinated system. At present, there are few examples of services with truly pan-European footprint as most electronic communications services remain national. However, as explained above, there is a significant potential for these services to develop in the future. A clear pre-requisite for this system to function properly is that Member States should agree which services shall be qualified as having pan-European potential or significant cross-border dimension. There is a risk that some Member States will not be willing to give up their discretionary power over regulating certain services at the national level. Additionally, the procedure whereby Member States decide through a comitology procedure to reserve certain spectrum bands or number ranges for cross-Community use could result in some delays in practice, if there is not sufficient commitment and consensus among Member States.
Option 3 has some similarities to Option 2 but relies more on voluntary co-operation and co-ordination between Member States rather than on binding regulation regulatory measures at the EU level. The intended objectives, i.e. positive impacts resulting from more consistency and harmonised approach to regulation of certain services, remain the same.
Co-ordinated approach to market reviews
Again, the outcomes of this approach compared to Option 2 depend on the effectiveness of co-ordination among NRAs. If NRAs have the incentive to co-ordinate and take into account the element of consistency when analysing markets and drafting remedies, then the final outcome could be similar to Option 2. So far, there is no clear evidence that this has been the case. The current ERG serves as a useful meeting point for national regulators and a platform for exchange of experiences. However, individual NRAs are not bound to follow the ERG common line in their market reviews and their first priority is to analyse and remedy a particular situation in their Member State, rather than ensure consistency across the EU. Under current rules, there is no requirement for NRAs to be independent of government.
Whereas the commitment of NRAs to more co-ordination in the application of remedies could improve the current situation, this would depend on there not being significant differences of opinion within the ERG. It is also possible that the Commission could in some cases view consistency of remedies from a different perspective than the NRAs assembled in the ERG. A consensus position would have to be achieved before the Commission issued its comments on remedies. In any case, even if the Commission's comments are taken into account, the NRA's decision can still be overturned in a national appeal procedure. From this point of view, it would be more difficult to guarantee the consistency of all NRA's decisions over remedies, especially since the Commission comments do not have the legal status of a Decision.
A Commission Recommendation on remedies would give NRAs ex-ante guidance on the shape of appropriate remedies. An NRA that did not follow such a recommendation would have to inform the Commission and give reasons for its position.
Regulation of services with pan-European potential
Table 3. Summary on the main impacts and risks of the options
IMPACTS AND RISKS Option 2 European Authority, stronger Option 3 Better co-ordination between
Community powers Member States
ECONOMIC
Investment and innovation /O Facilitates launching of cross border services In principle Option 3 could improve consistency in market reviews, but uncertainty as to whether voluntary co-ordination will lead to more consistency. Does not facilitate cross-border investment and deployment of new innovative cross-border services.
and services with pan-European potential more investment. Concerning approval of remedies, more regulatory consistency should facilitate investment across national border.
Competition /O Level playing field for operators where Uncertainty as to whether voluntary co-ordination will lead to more consistency. Competition would continue to develop predominantly in national markets, limited cross-border competition and difficulties for services with pan-European potential to compete across the EU.
competition can develop. Facilitates cross-border competition and encourages competition from new cross-border
services. Outcome depends on
implementation (especially concerning national
appeals and remedies).
Internal market, regulatory consistency /- Improvements in regulatory consistency of No material changes to institutional balance. Lower probability of achieving regulatory consistency; lengthy and cumbersome procedures for authorisation of services with pan-European potential.
-
remedies, more efficient, harmonised procedures and conditions for services with pan-European potential, less differences in national appeals. Implies more co- ordination and transfer of some powers to the EU level;
EU competitiveness
Could enhance competitiveness by facilitating Risk of fragmented regulatory approach and
deployment of new cross-border services and creating favourable environment for investment. cumbersome procedures for services with pan- European potential put Europe in a disadvantaged position vis-à-vis third countries. A Recommendation on remedies would guide NRAs and inform them of best practice in the area
Economic operators' costs and benefits Positive impact on service providers operating in Some improvements in legal certainty and the overall regulatory environment for operators due to better co- ordination of market reviews. Providers of services with pan-European potential could not benefit from a more consistent regulatory environment.
several MS, or those offering services with pan- European
potential, less divergent regulatory
environment, more legal certainty.
Administrative costs, simplification /O Overall reduction due to streamlining measures, Overall reduction due to streamlining measures and fewer relevant markets in the Recommendation. No major simplification for providers of services with pan- European potential
fewer markets in the Recommendation and a common authorisation conditions for services with pan- European potential. More time and resources needed for Commission approval of remedies and for setting up the European authority, but strongly positive cost- benefit assessment. Integrating ENISA to the new entity would provide operational efficiencies and reduce overall admin costs
7.6. Conclusion
The key questions of this section are: how to achieve more regulatory consistency across the EU and whether the current institutional model can deliver optimal results in terms of progress towards internal market in electronic communications.
Three main problem areas or barriers were identified. NRAs apply different regulatory measures in similar circumstances and the effectiveness of implementation is undermined by significant delays in market review procedures. Providers of pan-European services using spectrum or numbers are obliged to comply with 27 different selection and authorisation procedures and different operating conditions. Finally, the current system of national appeals can cause significant delays in implementation.
The options in this section offer different institutional arrangements with different balances of power between national authorities and the EU Authorities. Option 1 creation of a single European Regulatory Authority with decision-making discretionary powers is an option that could deliver a single market in electronic communications but was rejected on the grounds of subsidiarity and legal constraints.
With regard to the problem of inconsistency in remedies, Option 2 provides sufficient guarantee of regulatory consistency while preserving the decentralised system of regulation. It combines stronger Community powers with an advisory role of a European Authority. The co-ordination mechanism suggested in Option 3 could be effective only if all NRAs commit themselves to follow common guidelines and voluntarily agreed on pursuing the objective of more consistent application of remedies. This however has not been the case within the ERG to date, and there are insufficient guarantees that the voluntary co-ordination would work in practice. Moreover, the current system of Commission approval of market definitions and SMP assessment has shown positive results and could be effective also in the case of remedies.
Regarding the problem of existing barriers to provision of services with pan-European potential, Option 2 would provide for a more efficient outcome than Option 3. In Option 2, the European Authority would be involved in selection and authorisation of services with pan-European potential and in harmonising the conditions attached to the rights of use of frequencies/numbers. From the perspective of administrative and compliance costs, Option 2 is clearly the more advantageous for service providers, as it establishes one single selection and authorisation procedure for services with pan-European potential. However, legal uncertainties related to transferring the right to issue pan-European authorisations to the European Authority lead the Commission services to the conclusion that a co-ordinated approach with advisory role of the European Authority would represent the optimal solution. This would effectively mean one single selection procedure and harmonised conditions of use, based on Commission decisions using comitology, but with authorisations still being issued at national level .
The issue of differences in national appeal procedures is difficult to tackle at the EU level, as it touches upon Member States competencies and national judicial systems. Strong harmonisation measures are therefore not possible. At the same time, this issue is very important because problems caused by delays in appeal procedures can significantly hinder effective implementation of the regulatory framework. Upholding NRAs measures until they are overturned by the courts (proposed in Option 2) would be the best way forward
188.
Finally, an independent cost benefit analysis found that, even by applying conservative scenarios, the establishment of an Authority could generate net gains of 10 to 30 times of its costs due to reduction in regulatory risk, speeding up procedures and search costs. It is therefore an approach that would be cost-effective and fully justifiable from the EU budgetary perspective.
IV CONNECTING WITH CITIZENS
Introduction
A central goal of the regulatory framework is to provide substantial consumer benefits, and to do this in the context of an inclusive Information Society. To this aim, the EU rules rely largely on enhanced competition as described in Chapters 4 and 5 - while it is also recognised that competition alone may not always satisfy the needs of all citizens and protect consumer rights. The competition-based approach of the framework is therefore complemented by specific provisions safeguarding universal service and users' rights as well as security and privacy in eCommunications. The horizontal provisions of the EU's consumer protection policy are equally applicable to this sector.
-
8.USERS' RIGHTS AND CONSUMER PROTECTION
8.1. Identifying the problem
Genuine competition combined with technological progress has delivered more choice, lower prices and innovation for consumers. At the same time, the bigger choice and complexity of offers are also bringing some difficulties for the users.
The individual legislative proposals comprise also other changes with less anticipated impacts, such as clarification the rights of subscribers to access all non-geographic numbers (e.g. freephone, directory services, and individual end-users).
The concept and general provision of universal service as such are not covered by this review. The results of the call for input on the review as well as the contributions received in response to the consultation on a number of long-term issues put forward by the Commission on the review of the scope of universal service
189, acknowledged the need for a fundamental
reflection on current universal service arrangements. The Commission intends to publish a Communication on universal service in 2008 to fulfil its duty to review the scope of universal service periodically, and to express the Commission's position on the future of the universal service as regards electronic communications in Europe.
8.1.1. Transparency and publication of information
As the market is increasingly providing more communications products and services, users are calling for more transparency to make informed choices. The widening range of possible customer usage patterns, the variations in price levels and structures and the number of possible discounts and bundling schemes available on the market represent a challenge in providing price comparison services.
The latest EU-wide Eurobarometer survey found that on average, 38% of the mobile users, 34% of the fixed telephone users and 30% of the internet users in the EU25 found it difficult to compare the offers available. Consequently, consumers in countries with a high degree of competition find it most difficult to compare information across offers of multiple operators (53%-63% of the users find it "very difficult" or "difficult" to compare mobile telephone offers in Belgium, Denmark, France, Germany, the Netherlands and Sweden)
-
190.In
economics, it is generally considered that information asymmetry (i.e. different parties in an economic relationship having different amounts of price or other information)
191 leads
particular to market inefficiencies or failures.
Two main problems can be identified in relation to transparency and publication of information. Firstly, callers are often unable to find out, or are not aware of, which tariff applies to their services (for example, international calls or mobile calls to a number that is advertised as "freephone"). Secondly, making price comparisons is difficult for a significant number of consumers, in particular in cases of service bundling.
8.1.2. Users with disabilities
In its Communication on e-Accessibility of 2005192, the Commission highlighted the
existence of significant barriers to achieve electronic accessibility for all citizens. In particular, many people with disabilities who constitute about 15% of the European population - encounter barriers when using ICT products and services. To overcome the problems and challenges, the Communication identified three approaches, one of which is the use of legal measures. While some measures to aid users with disabilities are clearly relevant to the regulatory framework, others are of a more horizontal nature
193.
The aim of the framework is to guarantee that users with disabilities have access to eCommunications services equivalent to those enjoyed by other end-users. As part of the provision on universal service, the framework includes special rules as for disabled users and people with special needs. Members States have a duty to take specific measures in order to guarantee access to and affordability of all publicly available telephone services
-
194.Some of
these measures could include, for instance, making public pay telephones accessible to the disabled, providing public text telephones for deaf or speech-impaired people, providing directory enquiry services (or an equivalent) free of charge for blind people, etc.
In this context, it should be pointed out that the EU Member States have also signed the United Nations Convention on the Rights of Disabled People
195, which elaborates in detail the
rights of persons with disabilities and set out a code of implementation. Article 9 of the Convention requires countries to identify and eliminate obstacles and barriers and ensure that persons with disabilities can access their environment, transportation, public facilities and services, and information and communications technologies.
Member States have wide discretion with regard to the specific measures identified in the EU framework, and although the provisions are generally transposed, the experience shows that the specific rules are implemented and interpreted in different ways in different Member States
-
196.As a result, there is a European patchwork of national measures for disabled users as
has particularly highlighted by the reports of the INCOM ("Inclusive Communication") sub-group of the Communications Committee
197, which has investigated and analysed these
issues across the EU since 2003198.
some cases, and to fragmented markets for accessibility solutions in other cases, thereby also hindering the development of economies of scale necessary for the production of equipment for disabled users at an affordable price.
Furthermore, access to European emergency number 112 is not always guaranteed for the disabled users, notably deaf persons, who have to deal with different emergency numbers (see also the section on emergency services below).
8.1.3. Emergency services: access to 112 and caller location
Access to emergency services is extremely important for the safety of all citizens whether users of telephone services or non-voice services such as text communication for hearing and speech impaired users - who expect to be able to initiate a request for help in case of an emergency by using the European emergency call number 112 or other national emergency numbers.
Currently the framework requires that all end-users of publicly available telephone services (PATS), including users of public pay telephones, are able to call the emergency services free of charge, by using 112. The Member States are obliged to ensure that "undertakings which operate public telephone networks" make caller location information available to authorities handling emergencies when this is "technically feasible"
-
199.Member States also have the
duty, where appropriate, to take specific measures for disabled users in order to ensure access
to emergency services.
In 2006, the number 112 was operational in all 25 Member States, and users of both fixed and mobile networks everywhere within the EU were able benefit from this service.
Emergency calls to 112 are transported over the network to a response unit known as a Public Safety Answering Point (PSAP), and a variety of technical requirements must be fulfilled in order to provide full access to emergency service
-
200.While several Member States are
currently in the process of upgrading their emergency response systems, implementation of caller location information remains a problem in some Member States
terminals make it more difficult to know the location of the caller. This information is
required: (1) to route the emergency call to the appropriate PSAP; and (2) to display the location of the caller to help in dispatching emergency assistance to the right location.
8.1.4. Basic connectivity and quality of service ('network neutrality and freedoms')
Issue in the USA
The concepts of 'network neutrality' (or 'net neutrality') and 'net freedoms' are closely linked to the on-going debate on the telecommunications reform in the United States that concerns the "openness" of the internet. This debate has extended internationally, particularly due to the global nature of many US internet services.
The issue of network neutrality contains many complex overlapping topics involving many competing interests. Nevertheless, the underlying dilemma is that whereas the Internet is very efficient for quickly routing large amounts of data, it was not designed to provide the guaranteed quality of service or security that many applications now increasingly require. Network providers have powerful tools that allow them to control, prioritise or block specific data transmissions. For example, traffic prioritisation can be used to improve quality of service on the network as well as potentially be employed in an anti-competitive manner to block or disadvantage competing services
202.
The US debate on 'network neutrality' concerns essentially the question whether the network should be non discriminatory or "neutral" to the content flowing through it, or whether a network provider could offer different levels of quality-of-service for this content. For the end-user (who has purchased broadband access) the latter would mean that he or she could experience differing response times in interacting with various content providers, some of whom paid the carrier a "premium" and some who did not. Some US operators argue that they have the right to charge for prioritised content, and in doing so, would be able to build out their networks to ensure prompt delivery of certain online services and content
203.
While there is a bulk of study on net neutrality in the US204, only one instance concerning
discrimination among suppliers of content has been publicly cited. In 2005, a regional telephone company (Madison River Communications) refused to carry internet phone traffic of the leading US VoIP provider (Vonage), which complained to the FCC. After the FCC's investigation under the US Communications Act, the FCC and Madison River reached a
'consent decree', in which the company agreed that it "shall not block ports used for VoIP applications or otherwise prevent customers from using VoIP applications"
205.
'Net freedoms' is a term used by the U.S. Federal Communications Commission (FCC) to identify four principles "to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet." These freedoms published in 2005 are:
-
1)consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; 3) consumers are entitled to connect their choice of legal devices that do not harm the network; and 4) consumers are entitled to competition among network providers, application and service providers, and content providers the right for users to access and distribute (lawful) content, to run applications and connect devices of their choice
206.
Relevance of the problem in the EU context
In the context of the EU regulatory framework and i2010 Initiative, the debate on net neutrality and freedoms translates into the general concern that the potential of the Internet would be threatened if network or services providers and not users were to decide which content, services, and applications can respectively be accessed or distributed and run.
In the US discussion, much of the advocacy to legislatively mandated network neutrality is based on the assumption that differing charges to suppliers of content to the Internet for correspondingly differing speeds of delivery are inherently discriminatory
207.
However, product differentiation is generally considered to be beneficial for the market (particularly in industries with large fixed and sunk costs) so long as users have choice to access the transmission capabilities and the services they want. Allowing broadband operators to differentiate their products may make market entry of content providers more likely, thereby leading to a less concentrated industry structure and more consumer choice
208.
Consequently, the current EU rules allow operators to offer different services to different customer groups (and price such services accordingly), but do not allow those who are in a dominant position to discriminate in an anti-competitive manner between customers in similar circumstances.
Where there is genuine competition in broadband access services, the EU consumer has a choice between alternative broadband access suppliers. If one supplier seeks to restrict user rights, the affected consumer can in principle switch to an alternative broadband provider.
In case a certain national broadband access market is not competitive (i.e. there would not be service-based competition), the national regulator can under the EU framework impose ex ante access obligations on the dominant operator so that alternative market players are given a chance to provide their own broadband access services
-
209.In comparison, in the US (as
discussed in Chapter 5), the consumer does not always have this choice (or there is only a choice between the `duopoly' of telecom and cable providers), and ex ante access obligations are not usually applied.
From the point of this review, it can be concluded that the sector-specific regulatory issues raised in the net neutrality debate concern essentially barriers for competition that can be effectively addressed by the NRAs under the regulatory framework where appropriate, allowing pricing flexibility, and fostering more efficient use of spectrum to facilitate entry into the broadband market (see Chapter 6). The competitive markets together with the current provisions on access and interconnection, should therefore be sufficient to protect "net freedoms" and to offer a suitably open environment for both European consumers and service providers
-
210.This could be further enhanced by the measures on efficient use of spectrum
(that should facilitate easier entry into the broadband market, see Chapter 5) as well as on functional separation as an ex ante remedy by the NRAs (see Chapter 4)
211.
However, while the "net freedoms" are already embedded in the design of the framework, they are expressed as obligations on the undertakings and corresponding powers of the NRA, and not in relation to users' rights to ensure connectivity.
As for "net neutrality", the problem also remains that the current regulatory framework does not provide NRAs with the means to intervene were the quality of service for transmission in an IP-based communications environment to be degraded to unacceptably low levels, thereby frustrating the delivery of services from third parties
-
212.In such an event, end-users'
connectivity to services provided on the internet (TV, telephony, Internet, etc.) could be at risk. The impact of prioritisation or of systematic degradation of connectivity could be larger
on services needing real-time communications (e.g. IPTV, VoIP, in which latency is critical) and ultimately affect end-user choice.
8.2. The Objective
The general objective is to provide sufficient safeguards for users' rights, consumer protection and public interest in a technologically convergent environment in line with the i2010 objectives of information society for all.
In order to reach the general objective, the following specific objectives have been identified:
-
-Facilitate better information provisions so that consumers are able to make informed choices regarding providers and services of eCommunications;
-
-Remove barriers hindering disabled users to access and use eCommunications services;
-
-Ensure that quality of emergency services can be maintained in all cases; and
-
-Ensure that users enjoy good quality of service.
8.3. Policy options and assessment of impacts
Three policy options to achieve the above objective can be identified
8.3.1. Option 1 Encourage more industry self-regulation
Generally, self-regulation is defined as the possibility for economic operators, the social partners, non-governmental organisations or associations to adopt amongst themselves and for themselves common guidelines at European level (particularly codes of practice or sectoral agreements)
213.
The option of introducing self-regulation by the industry in the area of user rights and consumer protection in eCommunications would mean less intrusive intervention than setting regulatory obligations at the EU level. It would be the responsibility of the Commission to scrutinise self-regulatory practices in order to verify that they comply with the provisions of the EC Treaty
In the context of transparency and publication of information for users, the self-regulation option would mean that operators would agree on common commitments to increase transparency and information for consumers
215.
Evidence presented above and responses from the public consultation suggest that transparency remains to be a problem and that not all operators wish to take any actions in this respect. Operators often argue that mandatory transparency measures can affect negatively their ability to innovate and propose innovative pricing schemes to consumers. However, firms generally do not have sufficient economic incentives to compare their prices with those of their competitors or inform customers beforehand about the cost of phone calls. For this reason, voluntary self- and co-regulatory measures have been so far rather exceptional.
It should be noted, however, that several Member States have begun taking a more proactive approach to tariff transparency through web-based price comparisons or listings, and some NRAs have extended the scope of their internet based tariff comparison sites to cover fixed, mobile and broadband services. In some Member States these public services are supplemented by market players' own transparency initiatives
216.
As for facilitating use and access of eCommunications by disabled users, this option would require operators to agree on a voluntary basis to provide concrete solutions to the specific problems of disabled users.
In this context, a self-regulatory approach has already been proposed by the Commission in its Communication on eAccessibility of September 2005
217, which provided a time limited
opportunity for non-legislative initiatives by promoting a consistent approach in the Member States through voluntary actions and fostered industry self-regulation
-
218.However, this has
not materialised in any significant scale since the publication of the Communication. Against this background, it is therefore very likely that self-regulation would fail again due to a lack of incentives and involvement of the industry (for example to improve access to 112 for the disabled).
As for emergency services and access to 112, some stakeholders favoured self- and co-regulatory approaches in the public consultation that could, for instance, include measure to inform consumers on the lack of availability of caller location information.
8.3.2. Option 2 Update and strengthen the current provisions
This options aims at updating and strengthening the provisions on users' rights and consumer protection in the identified four main areas. To this end, the Commission put forward the following proposals in June 2006 (as outlined in the Review Communication and Staff Working Document), in short:
-
1)Improving the transparency and publication of information for end-users by:
-
i)giving NRAs powers to require from operators better transparency of tariff and other information (with the possibility to agree technical implementing measures at EU level) to ensure that consumers are fully informed of the prices and conditions before they purchase the service;
-
ii)ensuring that third parties have the right to use without charge or hindrance publicly available tariffs published by undertakings providing e-communication services, for the purpose of selling or making available comparative price guides; and
-
iii)empowering NRAs to make price guides available where the market has not provided them.
-
2)Facilitating the use of and access to eCommunications by disabled consumers by:
-
i)Introducing a Community mechanism to address eAccessibility issues. This would mean establishing a group consisting of all interested parties (such as the Commission, Member States, industry and associations of disabled users), which would provide advice to the Commission on matters relating to access and use of eCommunications services and terminal equipment by disabled users; subsequently, the Commission could take necessary technical implementing measures, following a public consultation; and
particular, aged people who find it most difficult to compare the offers, would benefit from better transparency.
Transparency of tariffs prices and conditions is likely to lead fairer competition and stimulate innovation and the development of services, applications and end-user devices from a variety of providers. NRAs might also want to publish price guides even if such guides are already available on the market, simply because the commercially provided guides might lack credibility. Transparency would also force operator to disclose any access restrictions that they imposed; this will bring the forces to competition to bear on any restrictive practices. Combined with this will be a general principle for NRAs to safeguard users' ability to access legitimate content of their choice (`net freedom').
Strengthening of provisions under this option in favour of disabled users, elderly and people with special social needs should generally ensure that this significant part of the population would better benefit from using and accessing eCommunications services. This, in turn, is a key factor to address employability or social participation deficits in these population segments. Increasing employment rates would facilitate the development of a virtuous circle towards autonomy and less reliance on social security.
Setting up a Community mechanism involving all stakeholders should foster dialogue and increase the transparency and efficiency of possible accompanying measures. It is likely to provide a more flexible mechanism that allows regulation to be adjusted more quickly to market, social and technological developments, which should ensure that the views and needs of disabled are better taken into account, leading to a more consistent and comprehensive response to their needs.
Having a pan-European scope in the area of eAccessibility is likely to increase the scale advantages, potentially leading to reduced cost and better leveraging of investment. Moreover, new services, ease of use and simplification can also benefit mainstream users.
This option would also imply specific measures from the Member States to ensure that emergency services are accessible to disabled end-users, and that they can make use of special devices (such as devices for hearing-impaired users, text relay services, or other specific equipment) enabling them to make an emergency call to 112 number (see section on emergency services below).
As for emergency services, strengthening the requirement to provide caller location information for calls made to 112 - irrespectively of the technology (fixed, mobile or IP-based) - will ensure that the facility is available throughout the EU. At present the provision of this facility is subject to its technical feasibility. However the Commission considers that it is technically feasible to provide this facility most of the time and has launched infringement proceedings against Member States that have not implemented the facility.
This option would address "network neutrality" and basic connectivity by establishing a safety net for quality of transmission: in case the elements of the basic connectivity would become seriously under threat, the NRAs could intervene by setting common minimum quality levels for network transmission services for end-users, based on standards agreed at EU level. This would guarantee minimal level of connectivity and greater choice for consumers ensuring the delivery of third party services at suitably high quality levels appropriate to their needs. Provisions in the area of `net freedoms' would also be made more explicit.
It furthermore appears that in most of the analysed areas, there is a general need for better coordination and exchange of information and dissemination of best practice at the EU level (between the Member States, the NRAs and the Commission). This holds particularly true for the fragmented approach concerning issues of disabled users and eAccessability.
In all these areas, a European Authority (as discussed in Chapter 7 above) could play an important role, by providing technical advice and Opinions to the Commission prior to the adoption of any technical implementing measures.
8.3.3. Option 3 No change to the regulatory framework
The current provisions provide already for the basic level of users' rights and consumer protection. The 'do nothing' option implies not taking legislative measure, but the NRAs could continue to take actions under the existing legislation to address (at least some of) the identified problems. The EU's role would provide guidance, supported potentially by coordination by the ERG among the national authorities.
an increase in proprietary national solutions. Manufactures and service providers would also have to deal with fragmented markets. On the other hand, for the operators this option would mean less uncertainty concerning possible future eAccessibility measures at the EU level.
Under this option, access to emergency services would not be brought in line with new technological solutions. As the market for communications services is very competitive, providers would be tempted to keep their costs as low as possible. In the absence of intervention, network providers and service providers are unlikely to make sufficient investments. In the absence of those investments, the number of people who can successfully place emergency calls, and who can be located swiftly in case of emergency, will go down, which will result in a decrease of quality of emergency service.
8.4. Results of the public consultation
Improving transparency and publication of information for users
Some operators expressed the view that there is no case for additional harmonisation at EU level since tariffs must reflect national competitive conditions. New entrants generally regarded that a co-regulation solution would be equally effective. It was noted that the proposed measures should not affect undertakings' ability to innovate, including pricing schemes. ERG and consumers associations welcomed the proposal. Several Member States supported the proposal while some were more critical, for example, regarding the imposition of mandatory solutions (such as price information appearing on terminals on a per-call basis)
as the issue would be costly and complex to implement.
Facilitating the use and access to eCommunications by disabled users
Most stakeholders favoured the Commission's proposal to introduce a Community mechanism to address eAccessibility issues. While some service operators preferred voluntary industry-led and self-regulatory solutions, others did not object to the proposal, although pointed out that the needs of disabled users vary greatly. The associations of equipment manufacturers, consumers and disabled associations welcomed both the Community mechanism as well as the proposal to strengthen access to 112. The latter called, among others, for empowering the eAccessibility group to make swift decisions and ensure that action is taken on them. It was also pointed out that the split between the directives governing eCommunications and the RTTE directive (that governs the terminals) makes it more difficult to effectively address the issues of disabled stakeholders.
disproportionate as it requires significant data traffic thereby causing network investments. They considered location info necessary only in a fraction of such calls, which could be easily obtained from the mobile operators (pull mode). Also a network dependent VoIP provider was critical on Commission's proposal.
Consumer organisations and ERG supported the proposal, and the latter considered that "push" mode should be used (although it expressed concerns whether the cost of caller location information should be borne by the operators). New entrants considered that it would be premature to impose a "push" obligation, while the cost - as related to a social obligation - should be compensated as a public service obligation. Several Member States expressed concerns regarding the proposals' impact on operators, and some favoured co-regulatory measures and alternative means (such as providing information for consumers on the lack of availability of Caller Location Information), while some considered that in certain cases technical difficulties will persist (VoIP, SIM-free calls). Member States had different views whether the costs should be borne by the industry or the state.
Basic access and quality of service ('net neutrality and freedoms')
In the public consultation, most Member States, ISPs, consumer organisations and some software companies were in favour of the proposed change to set quality standards. On the other hand, most operators were against the proposal arguing, among others, that any quality of service should be regarded as a result of market competition, or that the proposal would lead to an increase of price for end-users if it concerns all services at all times. The ERG noted that there is some uncertainty about whether the current provisions of the Access Directive are sufficient to deal with the blocking of information society services (which would be outside the scope of the framework). Consumers were concerned whether the process of setting standards at EU level would involve a sufficient level of consumer representation.
Only a small number of stakeholders commented "net freedoms" arguing that it is not necessary to change the framework in this respect. Some ISPs urged the Commission and national regulators to monitor the situation carefully and, if necessary, to review this stance at a later stage. On the other hand, some software companies wanted to see e.g. more legal clarity to resolve connectivity issues especially for the benefit of end-users, setting regulatory objectives of universal "net freedom" and granting NRAs carefully defined powers.
The biggest costs under this option would relate to investments in new technologies to provide caller location for emergency services. However, neither technology nor cost should any longer be an obstacle to pass caller location information to emergency authorities with most technologies at the expected period for implementation of the revised regulatory framework (2010/211).
Option 3 (no change) could not address the identified problems relating to consumer protection and users' rights in eCommunications and would therefore not be in line with the i2010 objectives.
The table below provides a summary on main likely impacts and risks arising from the each of the three policy options with respect to the different economic and social dimensions. Impacts of Options 1 and 2 are compared to the "no change" option 3, which provides a baseline scenario for the assessment. The signs represent a scale of possible impacts vis-à-vis the "no change scenario": positive impact, O neutral impact, - negative impact.
Table 4. Summary on the main impacts and risks of the options
IMPACTS AND RISKS Option 1 Encourage more Option 2 Update and Option 3 - No change
industry self-regulation strengthen current provisions
SOCIAL
Social and /-
Outcome depends on the range Increased use and easier access to High risk that due to technological advance, current users' rights and consumer protection provisions become outdated, thus widening the digital divide between the "Haves" and the "Have nots".
digital inclusion and extent of self-regulation. Impacts could vary between those of Options 2 and 3. High risk that industry could not agree at EU level, due to different national circumstances and lack of economic incentive. eCommunications services is likely to lead to higher social participation for disabled, people with special needs and elderly.
Employment and /- Outcome depends on the range Higher social participation would Risk that digital exclusion of disabled and users with special need hinders employability and increases their reliance on social security.
labour and extent of self-regulation. Impacts could vary between those of Options 2 and 3. High risk that industry could not agree at EU level (see above). facilitate higher employability in general and particularly in case of disabled and users with special needs and thus ease their reliance on social security.
market
Public safety /-
Outcome depends on the range Improving caller location would lead to High risk that an increasing number of people could not successfully
and extent of self-regulation. Impacts could range between those of Options 2 and 3. High risk that industry could not agree at EU level (see above). better quality of emergency services.
place emergency
calls.
ECONOMIC
Consumer benefits /- Outcome depends on the range Provides better (legal) certainty in High risk that due to technological advance,
and extent of self-regulation. Impacts could range between those of Options 2 and 3. High risk that industry could not agree at EU level due to different national circumstances and lack of economic incentive. general incl. safety net for quality of transmission. Consumers benefit from more informed markets through better prices and service and a wider range of products. current provisions
become outdated, thus
undermining users' rights and consumer protection in the sector.
Investment and innovation /-
Outcome depends on the range /-
A common EU approach is likely to Fragmented market for
and extent of self-regulation. Impacts could vary between those of Options 2 and 3. create economics of scale e.g. in equipment markets for disabled and caller location with concomitant impact on investment and innovation. Risk that operators less inclined to invest/innovate. 'eAccessability equipments' and caller
location applications
discourage investment by
manufactures. No effect to
operator's investment incentives.
Competition /-
Outcome depends on the range Enhanced tariff transparency in the Non-transparent tariffs are likely to reduce competition (as consumers are less sensitive to prices and thus
and extent of self-regulation. Impacts could vary between those of Options 2 and 3. market place is likely to lead to fairer competition in eCommunications services.
less likely to change
8.6. Conclusion
The Commission considers that option 2 is the most appropriate one, while not ruling out the possibility of self-regulatory developments within the legal framework that Option 2 would create where these would effectively achieve the results sought.
-
9.PRIVACY AND SECURITY
This chapter builds on the problem and options analysis from the previous impact assessment.
It focuses on the most important changes covered mainly in the current e-Privacy and Universal Service Directives, assessing their impact in comparison with the "no change" policy scenario.
9.1. Identifying the problem
9.1.1. Main issues and challenges
One of the central goals of the regulatory framework is to promote the interests of the citizens of the European Union through, inter alia, ensuring a high level of protection of personal data and privacy and ensuring that the integrity and security of public communications networks are maintained.
Change of the threat landscape
According to reports from specialised entities, recent years have witnessed an important shift in the network and information security landscape. While in the past most attacks were motivated by search for certain notoriety, recognition of technical mastery, or causing disruption for its own sake, nowadays attacks are increasingly motivated by financial gain. Moreover, the number of variants and the rate of evolution of viruses and other forms of unwanted software code, often installed and executed remotely (using Internet connections) is increasing rapidly
-
221.This is witnessed by
neologisms like botnets, adware, spyware etc. This category of computer programs is usually referred to as "malware", which reflects the main feature of such code, i.e. unwanted (or even illegal) behaviour, most often performed without the consent or even knowledge of the computer system's owner or administrator (user).
that depend on the services of that ISP. Secondly, ISPs provide Internet access to other organisations;
rather than attacking such an organisation directly, attackers may instead target the ISP
223.
Cyber crime
The vulnerability of modern communications infrastructures to malicious or even criminal acts has been highlighted by recent cyber attacks against one of the Member States. The attacks, mainly in the form of Distributed Denial of Service (DDoS) attacks, primarily targeted government and police web sites, but private sector banking and on-line media were also targeted. The attacks affected the functioning of the rest of the country's network infrastructure rendering the targeted sites inaccessible for extended periods of time.
The fight against cyber crime has since long been high on the European policy agenda. The Commission has defined its global policy on the fight against cyber crime in a communication adopted
in May 2007
-
224.The main short term objectives include: improving and facilitating coordination and
cooperation between cyber crime units, other relevant authorities and other experts in the European Union; developing a coherent EU policy framework on the fight against cyber crime and raising awareness of costs and dangers posed by cyber crime.
Spam
Unsolicited e-mail messages (spam) remain a problem. From a mere nuisance it evolved into a fraudulent and criminal activity (e.g. phishing) and a true security threat. Spam is increasingly a vehicle for viruses, spyware and other forms of malware which are surreptitiously installed on users' computers. Such malicious code can in turn take over control of a computer and turn it into a part of a "botnet", i.e. a remotely operated network of computers that, unbeknownst to their owners, are used to send out more spam, carry out DoS attacks, spread spyware and infect other machines.
The complex relationship between combating spam and other security threats has recently been analysed in a Commission Communication that, among other things, highlighted the importance of an adequate legal framework, accompanied by technical means as well as effective enforcement and sufficient resources at Member State level in the fight against spam.
The Commission identified improving security as one of the main challenges for the present review of the Regulatory Framework. This is in line with the "i2010" initiative
225 which
recalled an urgent need to coordinate efforts in order to develop policies, regulations, technology and awareness, in order to increase trust and confidence in electronic communications and services among businesses and citizens. In May 2006, the Commission announced a comprehensive Strategy for a secure Information Society "Dialogue, partnership and empowerment"
In recognition of the importance of the regulatory approach which complements technological solutions, various forms of stakeholder partnerships and awareness raising, it also announced that the review of the regulatory framework for electronic communications "will consider elements to improve network and information security, such as technical and organisational measures to be taken by service providers, provisions dealing with the notification of security breaches, and specific remedies and penalties regarding breaches of obligations". Indeed, reliable electronic communications networks and services have gained an enormous economic and societal importance as they underpin more and more many critical aspects of our economy and society
228.
Trust and confidence
The importance of trust on behalf of users (both businesses and consumers) for the success of the electronic communications sector and the Information Society as a whole cannot be understated. This is why security (in the sense of "making the Internet safer from [...] technology failures to increase trust amongst investors and consumers") has been singled out as one of the challenges addressed by the i2010 initiative
229.
Although concepts like confidence and trust are not easily definable or measurable, available data suggests that attitudes of consumers in particular can be negatively affected by experiences such as viruses, phishing, network down-time etc. For example, 28% of European Internet users declared recently that spam and viruses caused "significant problems" for them
-
230.According to the same
survey, a large majority of Europeans have installed on their computer antivirus software (EU27: 81%) and antispam software (60%).
While EU27 citizens seem in general satisfied with the quality of their Internet services, at the same time, a full 35% of respondents to the recent Eurobarometer survey disagreed with the statement that their Internet connection never breaks down
231 and 42% stated that their ISP usually does not
pre-announce its network connection cuts (while 20% were unable to answer that question)232.
RFID
RFID - also called smart radio tags is a communications technology which involves tags that respond to radio signals, and reading devices that read and identify the tags. This process does not require direct contact or line-of-sight scanning between the tag and the reader. RFID tags can be used to give a unique identity to goods and devices, to store data on items and persons. Potential applications include logistics, retail, health care, access control, travel and security
Participants in the Commission's public consultation234 on RFID in 2006 raised serious concerns that
this technology might endanger fundamental values, privacy and lead to more surveillance. Adequate privacy safeguards are called for as a condition for wide public acceptance of RFID.
The principles of data protection are defined by the Data Protection Directive 95/46/EC and apply regardless of the technology used for data processing. The ePrivacy Directive 2002/58/EC complements the Data Protection Directive and translates the data protection principles into specific rules for electronic communications. An explicit reference to RFID in the ePrivacy Directive allows for appropriate measures with respect to applications of this communications technology.
The market data (see above) provides strong evidence that competition on EU electronic communications markets - combined with technological progress - has delivered more choice, lower prices and innovation for consumers. At the same time, however, the resulting multiplication of actors involved and the technological development (to mention but two major elements) have rendered the management of networks a very complex tasks and the division of responsibilities of various actors involved rather is unclear. The main developments are summarised in the following:
Convergence: new services and products
Liberalisation of the telecommunications markets combined with convergence between technologies and networks ("traditional" telephony, broadcasting, cable, Internet...) brought about a variety of new products and services and opened up new opportunities, both for businesses and consumers. They also resulted in a multiplication of heterogeneous operators on the market, operating increasingly complex networks and services according to various different business models. In addition, while in the past ensuring security and integrity of networks was based on a (explicit or implicit) understanding between the incumbent operator and competent national authorities, investing in security and integrity has become just one element of a business strategy, subject to forces of fierce competition and the "return on investment" imperative. This complexity, in turn, resulted in unclear division of responsibilities at national and EU level concerning the security of networks and services.
Mobile and IP networks gain importance
Communications networks and services based on IP (Internet Protocol), such as the Internet, gain growing importance in all walks of life. As an example, "traditional" telephony providers have been switching their operations to VoIP or have planned such moves as part of their Next Generation Networks strategies. Similarly, end-users and businesses alike increasingly rely on mobile telephony for their professional and private communications alike. A number of Member States enjoy higher mobile than fixed line penetration; while mobile penetration rates remain relatively stable, there is a clear tendency of decreasing fixed telephone penetration (at EU level, a decrease of 5 percentage points over one year)
the current rules are sufficiently future-proof to protect consumers in the light of the current and anticipated trends and evolutions.
The June 2006 consultation document identified three problems with the current rules:
-
-divergence of national approaches to network and information security, and notification of risk;
-
-need to update the requirements on network integrity; and
-
-lack of adequate enforcement mechanisms under the ePrivacy Directive.
9.1.2. Divergence of national approaches to network and information security
Electronic communications service providers and network operators are currently obliged to take appropriate technical and organisational measures to safeguard security of their services and networks. However, these general requirements are interpreted and implemented in different ways in different Member States. As a result, Europe resembles a patchwork of national measures, with hardly any evidence of a common approach among European operators and service providers, as illustrated by a study conducted by the European Network and Information Security Agency ENISA in 2006
-
236.Such a divergence of approaches to
network and information security could result in obstacles to the internal market through, for instance, increased compliance costs for businesses operating in more than one Member State.
9.1.3. Notification of security breaches by network operators and ISPs
Article 4 of the ePrivacy Directive currently requires service providers to inform their customers about existing security risks. In the June consultation document, the Commission indicated a need to extend this notification to also cover situations where customers' personal data was compromised as a result of a security incident which had actually happened.
In US law, the issue of mandatory disclosure of security breaches involving personally identifiable information has been a heavily discussed topic since the first state (California) mandated such disclosure in 2003. At present, at least 30 states have enacted similar legislation. There are also several proposals pending at federal level. Generally, such laws require that any business (e.g. a bank) in possession of personal information about an individual must disclose any breach of security affecting that information to the person affected. Details vary from state to state. The rationale behind such regulation is that, on the one hand, breach disclosure requirements enable individuals to react and thus prevent possible cases of fraud (or identity theft) and, on the other hand, provide additional incentives to operators to ensure adequate levels of security of their services and networks or receive complaints from the end-users affected or, at the very least, face adverse consequences of bad publicity in case of a breach.
9.1.4. Future-proof network integrity requirements
As society becomes increasingly dependent on its information and communications networks and services for everyday life, security, availability and integrity of these networks are not only important for the eCommunications sector itself, but also for all other sectors of the economy and for the society as a whole. In the electronic communications sector, the impact of the EU competition driven policy and technological developments have produced substantial benefits for consumers in terms of both choice and innovation including in the development of security products and services. However, the market appears to have failed so far to provide sufficient incentives to address security problems, which was also confirmed by several contributions to the public consultation.
While network integrity has been a requirement of "classical" telecommunication networks (PATS) for many years, it is no longer sufficient to rely on these networks for the availability of communications services. On the one hand, Internet-based, mobile and other new services are becoming more and more important and are often the main technology used for some areas of application. On the other hand, even in the "classical" telecommunications networks the traditional switching technology is replaced more and more by IP-based components. Due to this convergence, the distinction between PATS and other types of networks no longer properly reflects the reality of the networks.
9.1.5. Enforcement mechanisms under the ePrivacy Directive
At present, the ePrivacy Directive only contains a general clause stating the applicability of the provisions of the general Data Protection Directive 95/46/EC in so far as judicial remedies, liability and sanctions are concerned. A survey of the situation in various Member States demonstrated that light sanctions and uneven enforcement have in some cases led to ineffective or insufficient protection of consumer rights in the areas covered by the ePrivacy Directive. In the June consultation document, the Commission indicated an intention to introduce new rules concerning the implementation and enforcement of the Directive and thus provide better incentives for regulated entities to comply with its provisions.
9.3. Policy options
The first Impact Assessment of June 2006 assessed three policy options:
9.3.1. Option 1 - No change to the regulatory framework
The "do nothing" option implies not taking further legislative measures at this stage, but the competent authorities could continue to take action under the existing legislation to address some of the identified problems.
While it is true that self-regulation by the industry would mean less intrusive intervention than setting regulatory obligations at the EU level, it is not clear in what respect this option would be different from the "do nothing" option. Indeed, as numerous contributions to the public consultation pointed out, self-regulatory initiatives already exist in the broad area of network and information security.
However, there is so far no evidence to support the assertion that the market forces provide sufficient incentives for operators to address security matters in an adequate manner, including through self-regulation. Also, with respect to the specific area of protection of personal data and privacy, EU legislation contains provisions encouraging the drawing up of codes of conduct which would contribute to the proper implementation of the national data protection laws
-
237.Therefore, for the purposes of the present impact assessment,
self-regulation as a "stand-alone" solution cannot be considered as a realistic option as far as network and information security and privacy are concerned.
9.3.2. Option 2 - Update and strengthen the current provisions
This option would aim at improving security by specifying general security and integrity requirements at EU level and setting out a flexible framework enabling competent authorities at Member States level to implement and enforce them.
It builds upon the basic approach of the framework as it stand but aims to clarify some provisions, where it has been observed that the current text of the Directives has allowed a wide margin of interpretation and implementation, leading to considerable differences between markets. It grants the Commission power to adopt appropriate instruments under comitology procedure to provide a common set of guidelines to the Member States to achieve greater harmonisation. When preparing such a measure, the Commission would take into account the administrative burden among other factors.
9.4. Results of the public consultation
In June 2006, the Commission put forward the proposals in the following areas (see the Review Communication and the Staff Working Document for a more detailed description of these proposals
238):
-
1)Obligation to take security measures and grant powers to NRAs to determine and monitor technical implementation;
-
2)Notification of security breaches by network operators and ISPs;
-
3)Future-proof network integrity requirements; and
-
4)Improving enforcement mechanisms under the ePrivacy Directive.
The results of the public consultation showed overall support for the security-related proposals. However, concerns were often expressed as to how the review of the Regulatory Framework is positioned vis-à-vis the overall Strategy for network and information security, as set out in the Strategy Communication COM(2006) 251. Such concerns may result from a misinterpretation of the overall Commission approach. As mentioned above, the 2006 Communication indicated some of the areas in which changes to the regulatory framework could be considered. In addition, the current proposals would not come into force before 2009-2010, which would allow any results of the broad multi-stakeholder dialogue taking place in the follow-up of the 2006 Communication to be fed into the implementation process at Member States level. There is, therefore, no contradiction between the general strategy and the proposals currently under consideration.
Generally speaking, Member States are cautiously supportive of the Commission proposals. Consumer organisations are also in favour and Data Protection Authorities even consider that the Commission proposals often do not go far enough. Among the industry, software manufactures and security solutions providers were in favour of the proposals whereas operators generally opposed them.
Obligation to take security measures and grant powers to NRAs to determine and monitor technical implementation
Notification of security breaches by network operators and ISPs
The majority of Member States, as well as consumer organisations and Data Protection Authorities generally supported the proposals. Some operators, along with representatives of the security industry were also in favour, recognising that a requirement to notify security breaches could indeed provide the missing incentive for market players to invest more in security (as it has arguably been the case in the United States following the adoption of similar legislation at state level). On the other hand, and not surprisingly, the majority of electronic communications industry opposed the Commission's proposals.
Future-proof network integrity requirements
The majority of Member States supported the proposals, although some expressed concerns regarding the proposals' impact on operators (mainly in terms of costs). Some industry associations and several operators expressed the view that there is no case for extension of integrity requirements beyond PSTN and expressed concerns that such extended requirements would be costly and complex to implement. Other industry players welcomed the proposals in principle, but stressed the need for a proper assessment of the technical characteristics of the various networks and a thorough cost-benefit analysis of any legislative proposals.
Improving enforcement mechanisms under the ePrivacy Directive
The majority of the Member States, consumer organisations and part of the industry welcomed the Commission's proposals in general, but there were many reservations with respect to the proposal to introduce a liability clause for those not in compliance with the provisions of the Directives. In particular, it was pointed out that this would mean putting unfair and unnecessary burden on ISPs and network operators who would in essence be held responsible for the whole security chain, while only a small fraction of it is actually under their control. That could in turn dramatically increase their costs of doing business which would ultimately have to be passed on to consumers, but could also stifle innovation in the otherwise dynamic sector.
In turn, there was a broad support (including the Internet Service Providers community) for the proposal to allow operators to take direct court or administrative action, for instance against spammers, on behalf of their customers
adopt appropriate instruments under comitology procedure to provide a common set of guidelines to the Member States to achieve greater harmonisation. When preparing such a measure, the Commission would take into account the administrative burden among other factors.
Under Option 2, considerations can be also given to the potential synergies between the existing European Network and Information Security Agency (ENISA) and the new European Regulatory Authority discussed in Chapter 7.
Assessment of Option 1 - No change to the regulatory framework
Under this option, the Commission would continue to rely on the existing provisions in the current regulatory framework and on initiatives carried out by private undertakings, industry associations and (other stakeholders). There would be differences between Member States in the interpretation of the existing provisions of the Directives. The question would remain whether the current provision can effectively provide sufficient incentive to operators to address security and integrity in an adequate manner across the EU.
In the context of introducing an obligation to take security measures and granting powers to NRAs to determine and monitor technical implementation, the results of the public consultation show that industry is generally in favour of self-regulatory approach. On the other hand, consumer groups and some national authorities generally consider this approach as not far-going enough. Arguably, including such explicit provisions in the regulatory framework would codify what de facto should already be reasonable regulatory practice in any Member State. Moreover, evidence presented in the problem definition section and responses from the public consultation suggest that security remains a problem and that many operators are not prepared to take any action in order to improve the situation. Operators often argue that mandatory security measures can affect negatively their ability to innovate and propose innovative pricing schemes to consumers. However, from an economic point of view, firms generally do not have sufficient economic incentives to spend adequate percentages of their investment budgets on security measures Also for this reason, voluntary self- and co-regulatory measures have been so far rather exceptional and there is no evidence to support the view that the situation would dramatically change in the near future.
reputation will be damaged more severely. On the other hand, while certain Member States (e.g. Finland) have already introduced such measures based on legislation currently in force, other Member States have not followed suit, which suggests that the "do nothing" option is not likely to result in more uniform standards for breach notification across Europe in the foreseeable future.
As for future-proof network integrity requirements, option 1 would include leaving legislation as is (i.e. integrity requirements applicable to PSTN only), but pursuing coordination/cooperation activities as a follow-up to the May 2006 Commission Communication on a Strategy for a secure Information Society
-
239.This approach would not
ensure a uniform or synchronous application of rules across the EU. Success would largely depend on the initiative, resources and competence of the MS authorities and industry. It could result in diverging requirements, implemented according to different timescales. Network integrity across technologies and integrity of cross border services would not be guaranteed and the risk of market fragmentation would not be addressed.
The importance of putting in place effective enforcement mechanisms under the ePrivacy Directive, in particular in the context of the fight against spam, spyware and malicious software, has been highlighted by a Commission Communication on that topic
-
240.It seems
that, at least in some Member States, the responsibilities to deal with infringements have not been allocated clearly enough and are often not accompanied by sufficient resources. In addition, enforcement before national courts has not been uniformly successful across the EU. The difficulties related to that are best illustrated by anti-spam cases. In such cases, ISPs suffer measurable damages due to increased load of traffic on their networks (and the necessity to deploy additional equipment), costs of filtering software, additional maintenance etc. However, it is very difficult (if not impossible) to prove which part of such additional cost is related to activities of a given "spammer", which makes obtaining damages in a civil law suit all but impossible. This situation clearly is not satisfactory and there seems to be room for more enabling provisions at EU level.
Assessment of Option 2 Update and strengthen the current provisions in specific areas
The impact of regulation on the overall levels of network and information security (and, indirectly, of trust) is difficult to quantify. In addition, not only eCommunications providers, but also other industry groups and stakeholders (equipment manufacturers, producers of software and end-users themselves, to name but a few) have their responsibilities in that respect which lie beyond the scope of the present proposals. Consequently, regulatory intervention within one sector could never be a "silver bullet" solution for all security-related problems. It should also be kept in mind that only a fraction of the problems mentioned in this chapter could be remedied by electronic communications sector operators. Nevertheless, service providers and network operators have an important role to play as the first "point of contact" and a gateway through which end-users access the converging world of electronic communications.
(while maintaining the existing obligation to adopt security measures in Article 4 of the ePrivacy Directive). The implementation and enforcement at national level would be for the competent authorities and a comitology procedure would be in place to ensure a certain level of harmonisation among the Member States.
This option would in particular address the current problem related to different definitions given by Member States to terms such as "appropriate technical and organisational measures"
-
241.It would also provide for the flexibility necessary to adapt the measures to
changes in technology and developments in the area of security.
Concerning the proposal to introduce breach notification requirements, two possibilities should be considered, separately or jointly:
-
1)a notification required for security breaches which result in personal data being compromised; and/or
-
2)a notification required for security breaches which result in a "downtime" or interruption in the continuity of service.
The first type of breach disclosure obligation could be seen as a logical extension of the current obligation to disclose security risks in Article 4 of ePrivacy Directive 2002/58/EC. A similar approach can be found in numerous US state laws, as well as draft bills pending at federal level (see box below). Concerning the second type of breach disclosure, similar rules are already in force in the Unites States
242, as well as in Finland243. At EU level, it would be a
new provision to be introduced in the Framework244. The basic justification would be to
provide the NRAs with enough information about the actual level of (in)security of the networks under their jurisdiction so as to enable them to make informed policy choices.
Mandatory disclosure of security breaches discussions in the USA
In US law, the issue of mandatory disclosure of security breaches involving personally identifiable information has been a "hot topic" since the first state (California) mandated such disclosure in 2003.
At present, at least 30 states have enacted similar legislation. There are also several proposals pending at federal level.
which users can access the Internet, ISPs and network operators carry a special responsibility with respect to their customers' privacy.
Both possibilities would require a number of decisions to be made, in particular with respect
to the following issues:
Notification to whom: Breaches can be disclosed to the customers involved, to all customers of a service provider or data controller, to the NRA in the country where the breach occurred, to the NRA in the country where the service provider's headquarters are located or to the NRAs in all EU markets in which a service provider is active.
Clear definition of the risks warranting disclosure: Types of risk that may warrant disclosure are (i) significant harm to an individual, (ii) significant financial loss to a customer, (iii) significant loss to a subcontractor or other party with whom the service provider has a contractual relationship, (iv) significant damage to critical (information) infrastructures
245.
Notification may include third-party risks, concerning breaches that occur under the responsibility of subcontractors or intermediaries with whom the service provider has a contractual relationship and that form an integral part of the provision of services by a service provider or data controller.
-
a)Legal time limit for notification: The Commission can include a legal time limit for notification, essentially defining the longest delay allowed in all MS for the disclosure of breaches to NRAs, customers, and third parties. There will be exceptions to this delay, for example to give law enforcement the opportunity to capture cybercriminals. "A standard time should be set that is long enough for an organization to clearly determine the mechanism and extent of the compromise and also short enough so affected individuals can be warned in enough time to protect themselves from increased identity theft risk"
246.
Under option 2, the Directives would be revised to include a general obligation on Member States to impose disclosure requirements, while the definition of the detailed modalities (including, but not limited to issues listed above under a. to e.) would be left for decision at national level at the implementation stage. However, in order to avoid possible obstacles to the internal market that could arise from 27 potentially different notification regimes, some form of a harmonisation mechanism (a "comitology" procedure) would need to be envisaged.
Concerning potential economic impacts, the expected positive side-effect of sorts of such requirements would be an incentive for operators to "take security seriously" - operators, afraid of potential negative publicity (the "shaming and blaming" effect) in case of a breach, would increase their security budgets. Steps need to be taken to avoid "notification fatigue"
among individuals, high compliance cost for businesses (in particular, the cost of notification), e.g. only breaches causing "significant risk of harm to an individual" would have to be notified; or a notification may be delayed if it could otherwise jeopardise an on-going law enforcement investigation of the breach etc. There are also various possibilities concerning the addressees of a notification, i.e. (only) the customers affected; all customers of a given provider; the NRA; a combination of those. Justification and impacts would be different for each of those categories.
As far as disclosure of network outages is concerned, the experience from existing schemes (FCC, FICORA) suggests that such reports are a very valuable source of information, enabling the authorities to identify problems and helping them with developing adequate regulatory measures for outage prevention. Since such reports are not public, there is no adverse impact on a company's reputation.
As for administrative costs, the decisions on the above parameters would be eventually taken by the Member States. However, to achieve harmonisation, the Commission would issue an appropriate instrument according to the comitology procedure, to provide a common set of guidelines to the Member States. When preparing the draft in that procedure, the Commission would take into account administrative burden among other factors. Therefore, given that:
-
1)no reliable quantification can be provided at the current stage
247; 2) a detailed analysis of
administrative burden would be part of the implementation process, once the present proposals are adopted; and 3) the actual impact on administrative burden is expected to be low
could potentially discourage certain groups from using new technologies altogether or limit their use to the absolute minimum. However, this possible negative effect could be counter-balanced by the experience of empowerment and "being in control", at least with respect to personal data. Indeed, when asked whether they would like to be informed if their personal data
249 was lost, stolen or altered, 64% of Europeans responded positively "in all
circumstances" and further 14% "in case there was a risk of a financial loss". Only 12% indicated that they would not like to be informed
-
250.These results can be seen as yet another
proof that data privacy is highly valued by Europeans.
As for future-proof network integrity requirements, this option would consist in defining general objectives at EU level which would apply to a broader set of networks than it is currently the case (also IP-based and mobile networks, not only PSTN). Such general objectives would in turn be implemented by the national authorities, which would explicitly be granted the powers to define specific technical requirements and audit their implementation. This approach could help to ensure an equal level of integrity across the EU, addressing also cross-border services. Coordination among national authorities, whether voluntary or through "comitology" approach, is likely to result in the creation of economies of scale for the technical equipment market.
Modern ICT infrastructure is essential for the successful supply of electronic communications services. Telecom operators have an important role to play as suppliers of ICT infrastructure and services to their customers; they also require an efficient network infrastructure as well as powerful and secure Internet connections for the provision of their services and the use of advanced e-business applications. A recent report states that in fact the Internet has already become the main channel of communication and the primary way to store and access information in the sector. It would seem, therefore, that many players in the sector (both mobile and IP network operators) have sufficient business incentives to invest in a robust and secure infrastructure. The potential economic impact of the proposal on those actors would normally remain limited. Costs of compliance might be higher for companies that so far have not treated security and integrity as priorities. However, evidence
251 of "pronounced
awareness of security issues [in the telecommunications industry]" suggests that this group is likely to be limited in number.
empowering ISPs to take legal action (whether in a court of law or before a competent national authority) in defence of their legitimate business interests and interests of their customers should facilitate actual prosecution of spammers.
In all these areas, the new European Regulatory Authority could play an important role by providing technical advice and opinions to the Commission prior to the adoption of any technical implementing measures. Furthermore, Under Option 2, operational problems identified with the existing European Network and Information Security Agency ENISA could be tackled by integrating ENISA in the Authority, as discussed in Chapter 7.
9.6. Comparison of options and impacts
Option 1 (no change to the regulatory framework) would mean that the review would not address the existing big differences between the 27 EU Member States with respect to the application of "technical and organisational [security] measures". Also, requirements concerning network integrity would remain applicable to fixed telephony networks only, which would substantially reduce their relevance in the future, with networks evolving towards all-IP environment.
Self-regulatory initiatives or co-regulatory measures in the Member States cannot be out ruled, but their effectiveness would highly depend on the consensus of all stakeholders involved (industry, consumers and regulatory authorities) and especially on the willingness of the industry to commit itself to concrete solutions, preferably at the EU level. However, in this respect there are no indications that a voluntary self-regulation would take place at a broader scale any time soon or that it could guarantee a coherent approach to network and information security across the EU.
At the same time, it should be kept in mind that in most areas discussed in this section, self-regulation would remain possible even if the other options would be implemented.
In the public consultation, the Commission' initial proposals received generally a broad support, although it became apparent that some adjustments would have to be made at the stage of drafting the actual legislative proposals. In particular, strong opposition from most stakeholders groups was voiced against the proposal to introduce liability for operators for non-compliance with security and privacy requirements. In view of the arguments put forward (unfair burden on one group; increased costs for consumers; potentially significant adverse impact on innovations), it has been decided not to include this item in the legislative proposal.
and service providers, but this approach also seems appropriate for the issue of introducing mandatory security breach notification at EU level.
The table below provides a summary on main likely impacts and risks arising from the two policy options with respect to the different economic and social dimensions. Impacts of Options 2 are compared to the "no change" option 1, which provides a baseline scenario for the assessment. The signs represent a scale of possible impacts vis-à-vis the "no change
scenario": positive impact, O neutral impact, - negative impact
Table 5. Summary on the main impacts and risks of the options
IMPACTS AND RISKS Option 1 No change Option 2 Update and strengthen
current provisions
ECONOMIC
Investment and innovation Risk of underinvestment in security, however, little regulatory risk of mandating inefficient investment in security and integrity. Voluntary co-ordination and self- regulatory measures may not result in more investment in security. /-
Positive impact on investment in security can be
expected. However, risk of lower return on investment due to higher compliance costs for businesses and impacts on reputation (in the case of mandatory breach disclosure). The final outcome will depend on implementation of the general provisions in the individual Member State..
Competition Lower risk of creating "walled gardens" as a result of too strict security measures. Less transparency on the market as regards security "performance" of service providers. /- More transparency on the market, security and
reliability could become a factor of competition among service providers. However, higher compliance costs could raise barrier to entry for new service providers.
Internal market, regulatory consistency Diverging requirements on operators in different Member States, additional cost of compliance with differing regulatory regimes, network integrity across technologies and across borders would not be guaranteed. Voluntary co-ordination between MS can improve the situation but improvements would be slower than in Option 2. /O More consistent application of rules across the
EU, level playing field for businesses and more regulatory certainty. However, detailed application of the general requirements will still depend on implementation in Member States,
Economic operators' costs and benefits Overall, lower compliance costs for operators than in Option 2. Differences in implementation in Member States, therefore differences in costs for operators in different Member States. O/- Higher compliance costs for operators. Additional
burden will be probably higher for SMEs than for big operators. Magnitude of the burden will depend on concrete implementation provisions in MS. Thresholds for notification can mitigate the costs. Some operators fear that mandatory notifications could create "walled gardens" and encourage the industry to rely more on proprietary systems.
Administrative costs for public and private sector Overall reduction due to lower administrative burden and less regulation for operators. Less burdensome general authorisations will be used more often than more burdensome individual licenses. Some additional burden related to transition to a more flexible and co- ordinated system. - Increase in administrative costs associated with the
legal obligation imposed on services providers to inform customers and NRAs about security breaches. Some increase in administrative burden and enforcement costs for NRAs.
Consumer benefits No improvement in security, risk of deterioration of the situation in the medium to long term. Consequently, risk of low trust of consumers in ICT, lack of public information on security "performance" of service providers. /- Higher quality and security of networks and
services can be expected. More information and transparency for consumers. However, at least part of the costs may be passes on to consumers which could lead to higher prices in short to medium term. Risk of "notification fatigue"
9.7. Conclusion
The Commission considers that option 2 (update and strengthen the current provisions in specific areas) is the most appropriate one offering balance of harmonisation, predictability and flexibility to allow future security threats to be addressed in a timely way.
V OVERALL IMPACT
-
10.OVERALL EFFECT AND SYNERGIES OF THE LEGISLATIVE PACKAGE
This Impact Assessment report has examined separately five key areas of the regulatory framework for eCommunications. In each area, several options are analysed and a preferred option is identified. This section looks at the options at an overall level to examine the synergies between options and the overall effect of the measures as a package. The following also discusses the key simplification elements and the overall environmental impacts of the package.
10.1. Synergies between different areas of analysis
Taken as a whole the measures proposed in the reform should support the multiple objectives of the regulatory framework to create an open and competitive single market, to encourage innovation and investment and to ensure secure and affordable high speed networks and services.
The strongest thrust of the reform is to achieve a "more competitive and open single market encouraging new investment and innovation." The mix of options discussed in Chapters 5, 6 and 7, taken both separately and together, are targeted upon specific improvements that can be made to the existing framework in order to make regulation more consistent and to focus it on areas where there are enduring barriers to competition. Spectrum reform proposed in Chapter 6 (Option 1) and reinforced measures to counter discrimination on access markets (functional separation as a new exceptional remedy proposed in Chapter 5) are clearly aimed at providing scope for more competition and innovation, and thereby investment.
Options in Chapters 8 and 9 analyse possible ways of strengthening user rights, consumer protection and security of networks. Overall, a certain balance has to be found between the level of consumer protection and the regulatory burden imposed on business. Very restrictive consumer protection and/or security measures could hamper or at least slow down achievement of the objectives in the competition and investment area. Additionally, Chapters 8 and 9 have a direct link to the institutional arrangements discussed in Chapter 7. Enhanced co-ordination can be beneficial in areas such as the effective implementation of the emergency call number, eAccessibility, transparency and information for end-users or co- ordination of network integrity requirements. Here again, the European Authority would help realise potential synergies between the different areas of regulation and consistency in application of the regulatory framework in different Member States.
10.2. Simplification and reduction of administrative burdens
Simplification of the regulatory environment for businesses is one of the priorities of the Commission's Better Regulation Strategy. The review of the regulatory framework is listed in the Commission Simplification Rolling Programme for 2007 as an initiative that should lead to significant simplification of the current regulatory obligations.
The current regulatory package was already a major simplification of the prior acquis, It is also inherently deregulatory: with an in-built mechanism to roll back regulation where competition is established in the form of the Commission Recommendation on relevant markets which is being updated alongside the reform proposals. The proposed new list of markets susceptible to ex ante regulation will not only be substantially shorter, but will focus regulation on wholesale markets. This is a significant simplification that will reduce the regulatory burden for businesses in the sector and cut their compliance and administrative costs.
Moreover, the future, the key simplification proposals of the regulatory package include:
-
-Lighter market review procedures current costs and future reductions are quantified
in Annex II; and
-
-Streamlined spectrum management and authorisations of services with pan-European potential reductions in administrative burden are related to simplification benefits.
Benefits from the reduction in administrative costs in these areas must be compared to additional costs, e.g. those related to the legal obligation of mandatory breach disclosure. As explained in Chapter 9, although reliable quantification of the administrative costs cannot be provided at this stage - detailed analyses of administrative burdens will be part of the implementation process - a net reduction of administrative burden is expected.
10.3. Environmental impacts
The key impacts of the regulatory framework for electronic communications are economic. The detailed analysis of options in each of the five areas focused mainly on the economic and to a lesser extent on the social dimension, bearing in mind that the environmental impact of certain options (in particular in the institutional area) is very indirect and therefore difficult to assess. The whole package of measures nevertheless has certain environmental implications. For this reason, the discussion on environmental impacts is presented in this section dealing with overall impacts and synergies.
Firstly, the ICT sector in general, and electronic communications networks and services in particular, play an important role in the debate on energy efficiency. eCommunications services contribute to more energy consumption
252 (use of more devices, higher capacity and
performance of networks and network equipment requiring more energy, computers being left on with broadband connections, etc.).
Secondly, the sector is an important generator of electronic waste. Ubiquity and variety of communications services implicitly means that the number of electronic devices increases. The life cycle of products is relatively short and new devices appear rapidly as the pace of technology development and innovation increases. The rapid development of the electronic communications sector could thus have negative environmental implications. On the other hand, if the sector has sufficient funds to invest in research and development, new technologies reducing energy consumption and waste generation can be developed. The issues of energy consumption and electronic waste are however not dealt with in the regulatory framework but in other Community legislation.
For example, a study by the RAND Corporation on future electricity requirements of the ICT industry in the US argues that "even large growth in the deployment and use of digital technologies will only modestly increase electricity consumption in the United States over the next two decades"
-
253.In Europe, there are already examples of voluntary industry initiatives
aiming at a more sustainable provision of products and services and minimising negative environmental impacts
254.
The question is: How can the regulatory framework help accelerate the transition? As noted earlier, the impact of the framework on the environment is indirect in the sense that it does not regulate environmental issues related to eCommunications networks and services. Nevertheless, the framework can strengthen the positive contribution of the sector to the environment and to sustainable development through acceleration of deployment and uptake of advanced electronic communications services. Only when these services become a mass market for domestic and corporate users, can their potential be realised. The high level goals of the regulatory framework and of the i2010 strategy (Single European Information Space with available and affordable high speed networks and services) are fully in line with the EU's renewed Sustainable Development Strategy and their achievement will help accelerate the transition to a more sustainable economy.
10.4. Synthesis of the preferred options
The following table summarises the key economic, social and environmental impacts - as well as risks and uncertainties arising from the preferred options in each area examined by this report. It aims at showing the synergies between the options across the five key areas of analysis and at providing an overall synthesis assessment of the proposed legislative package, so that the broad impacts of the review can be appreciated.
IMPACTS Positive effects of proposed approach Risks/Uncertainties
ECONOMIC IMPACTS
Internal market and regulatory consistency Positive impact of enhanced co-ordination in spectrum management (i.e. co-ordinated introduction of spectrum trading), of harmonised conditions and procedures for pan-European services using frequencies and numbers. Strengthening of regulatory consistency through the Commission approval of remedies and establishment of an independent European electronic communications market Authority, which will also give advice in spectrum and number management for services with pan-European potential Implies more co-ordination and transfer of some powers to the EU level; but national control of spectrum and numbering resources will continue to result in inconsistencies of approach.
will reinforce competition in wireless industries. infrastructure - risk of dependency on regulation.
Investment Competition (whether arising from the market or supported by regulation if and when necessary) should drive investment in existing and new networks. Functional separation, appropriately implemented, should preserve investment incentives. Spectrum reform will encourage investment and create new investment opportunities particularly for new service providers through lower costs of entry. More regulatory consistency and simplified procedures for pan-European services should facilitate investment across national borders. More investment in security is expected as a result of new security measures. Empirical evidence providing direct links between the regulatory framework and investment is still being accumulated (due to the relatively recent implementation of the framework and differences among MS). Ineffective implementation and risk of regulatory failure would lower the investment incentives.
Speed and effectiveness of implementation Positive impact of streamlining of market reviews, changes concerning national appeals and reduction in the number of markets in the Recommendation. Significant efficiency gains for market players from reduced regulatory uncertainty due to the Authority. Positive impact of spectrum reform simplified procedures, general authorisations as a rule, harmonised conditions for pan-European services, contribution of Authority . Enhanced enforcement mechanisms should improve implementation of the ePrivacy directive. Implementation remains national issue, despite strengthened Commission oversight and co-ordination in some areas.
Consumers individual and business users More choice, more services at lower cost as a consequence of more flexible spectrum management. High-speed broadband more available and affordable across the EU. Better tariff transparency and guarantee of minimum quality of service if NRAs use their new powers. More information for consumers about security breaches. Possibility to offer similar services under similar conditions to business users across the EU. Benefits for consumers across the EU depend among others on the quality of implementation. Impact of new approach to spectrum will take time to feed through
to consumers as tangible benefits.
investment in next generation access.
Alternative operators Positive impact, more opportunities to access spectrum for mobile/wireless service providers, access to incumbent's networks through regulation where justifies, benefits from regulatory consistency across the EU. Will benefit from equivalence of access where functional separation is imposed. Risk of deterring investments
in alternative access networks and
SOCIAL IMPACTS
Employment and labour market Some evidence exists about the positive impact of competition on employment in the sectorThe overall employment effects depend on many different variables and the influence of the regulatory framework is difficult to single out.
-
255.The
latest research suggests that full market opening of all network industries (electricity, gas, transport, communications and postal services) could create 140.000 - 360.000 new jobs in the EU15. The job effects are expected to take place in the other sectors of the economy through spill-over effects, generated for instance by price reductions
256.
In wireless industries, increased competition should lead to withdrawal of inefficiencies and possibly reorganisation of the market with positive employment effect on certain wireless/mobile operators. This assertion is confirmed by the results of the quantitative model (Annex I). Apart from employment effects in the sector, available and affordable communications networks and services have the potential of boosting employment in the whole economy.
Social/digital inclusion In general, effective competition and more investment in networks should result in more affordable and available services for all social groups. However, complementary policies may be needed to tackle the demand side and provide public funds where private incentives are not sufficient (e.g. broadband coverage). New approach to spectrum will facilitate wireless broadband access in less populated areas. Risk of not achieving sufficient synergies between the different policy instruments at the EU, MS and regional levels (universal service concept, Structural Funds, eGovernment, eHealth policies, education and training, etc.).
economic risk of outages, higher reliability of networks.
ENVIRONMENTAL IMPACTS
Sustainable development A key element of the EU's over-arching renewed Sustainable Development Strategy (SDS) is to "reconcile environmental protection and smart economic growth and exploit win-win opportunities"Uncertainty as to whether the transition to more sustainable economy will happen fast enough even if the technologies and
e-communications services are available on a large scale.
-
257.The accelerated deployment and
uptake of advanced e-communications services is recognised as the principle way in which this could be accomplished. Therefore, the regulatory framework has a clear link to the SDS, however the impact of individual measures on environment
is hard to determine.
Waste production/ generation, recycling A healthy eCommunications industry will have the funds to research new technologies that could reduce power consumption and cut electronic waste. Market growth could lead to an increase in the amount of electronic waste. Risk of negative environmental impact.
The electronic waste directive currently under review deals with the issue of electronic waste
258.
VI MONITORING AND EVALUATION
The Commission annual implementation reports on European electronic communications regulation and markets provide comprehensive data and analysis of market, regulatory and consumer developments in the sector. These reports cover a broad set of indicators such as prices, number of alternative providers, investment by incumbents and new entrants, market shares of operators, broadband penetration, and development of new technologies. The latest report of 2006 (published in March 2007) was the 12
th consecutive report that for the third
time covered the sector in 25 Member States259.
The implementation reports are assembled on the basis of information received from various sources in particular through missions carried out in the Member States by staff of the Directorates General for Information Society and Media and for Competition, analysis of the notifications of national transposition and implementing measures received from Member States, market data received from national regulatory authorities and surveys commissioned on price developments.
In addition, the Commission will continue to conduct household surveys to measure the attitude of European households and individuals in particular towards telephony, Internet access, TV broadcast services, bundled offers, 112 emergency call number, telephone directories, privacy and security.
ANNEX I: ECONOMETRIC MODELLING OF THE IMPACT OF SPECTRUM REFORM
The main features of the econometric model
The basis for the econometric model used in the study Benchmarking Impacts of EU Policy Options for Economically Efficient Management of Radio Spectrum (SFC Associates, 2006)
260 is three regulatory scenarios that were discussed in Chapter 6.6.1. For each scenario,
the predicted rational response from the individual operators to the regulatory choice is used to develop four predicted data sets at the microeconomic level, building on known historical data. The model then uses an identified historical correlation between:
-
a)Four microeconomic parameters:
-
1.Average revenue per user of mobile telephony
-
2.Mobile subscribers above saturation per 100 people
-
3.Range of services (in everyday use by most subscribers)
-
4.Coverage of most advanced services; and
-
b)Five mesoeconomic parameters:
-
1.Growth of wireless industries (as # of WiFi hotspots)
-
2.Average mobile subscribers per 100 people
-
3.E-Readiness261
-
4.Consumer expenditure on communications
-
5.Consumer expenditure as % of total disposable income.
All of these micro/meso correlations are weighted and used in the model. The five meso-economic parameters are separately correlated against four macroeconomic parameters:
The relation between micro and meso is based on weighted cross-correlation of historical data (and with varying weighting dependent on scenario) and as always the past is an uncertain predictor of the future. A best-fit correlation as between meso and macro should also preferably be tested over time.
Macro 1
Micro1 Meso 1
Choice 1
Micro 2 Meso 2
Choice 2 Macro 2
Micro 3 Meso 3
Choice 3
Micro 4 Meso 4
Macro 3
Meso 5
Macro 4
Scenarios
The consultants have clearly acknowledged the limitations of the model and used three scenarios, which should be seen as simplified representations of different regulatory options and their projections to the future. Although these are scenarios bordering on the extreme, they do highlight how policy choices and the regulatory environment have real effects on the European economy and our efforts to bridge the digital divide. The scenarios are briefly discussed below:
Scenario 1
The regulatory choice, based on EU coordination, is to open up several important bands to unlicensed use, combined with the introduction of secondary trading of spectrum usage rights and service and technology neutrality. Technology to manage interference is assumed to be available. Enforcement of competition regulation is limited.
Scenario 3
The regulatory choice is to step back from EU coordination. Member States establish secondary trading of spectrum usage rights according to national criteria. Regulatory action aims at securing a market for local suppliers of equipment and services.
An operator would in this scenario primarily aim at increasing the market share. Technology under existing European standards such as GSM or DVB would remain in use also when obsolescent. New services would emerge in "islands" of Member States and slowly seep back to the others. Member States without a manufacturing tradition may leapfrog those with an industry to protect.
No single scenario mirrors exactly the policy options outlined in Chapter 6.5.1. However, scenarios 1 and 2 can be said to inform Option 1 while scenario 3 may be seen as an extreme version of Option 2. The relationship between options and scenarios is further discussed in Annex II.
In brief, the modelling results of the scenario approach indicate that:
-
-Scenario 1 would give a higher GDP growth and higher GDP/head development due to opening the spectrum and creating more competition. The total market would quickly separate in two markets with the traditional established services being at the centre of the trading markets and new technologies to share spectrum appearing
in the unlicensed bands.
-
-Scenario 2 would result in limited competition due to the market effects such as spectrum hording. Operators with `deep pockets' would be driven by not only gaining market access but also by preventing others from using any part of the spectrum available for a competing offer. This scenario assumes that spectrum will slowly become a scarcer asset as it is progressively concentrated in fewer hands by consolidation because market transactions naturally favour those with deepest pockets. Increasingly, market players would be bought solely for being owners of spectrum assets and a trend that will progress with the degree of consolidation.
Table X. Summary of impacts for stakeholders by scenario
Stakeholder Scenario 1 Scenario 2 Scenario 3
Citizens More choice - more Few changes in offerings but expect progressively higher charges, to pay for spectrum Same choices as today: few changes in services and product pricing and technologies
services, lower cost with more
offerings (and
offerers); more types of k- society use
Regulators More co-ordination, and move to more unlicensed;
more market control of traded bands More market control for traded bands Same regimes and rules
Incumbent telcos More challenges from new entrants/service types/technologies Must move quickly to Old rules rule
maintain position with
spectrum acquisition
New service More opportunities low cost entry SPs must bid against the largest for prime cuts of spectrum or take the crumbs Varies by national
providers (SPs) and new radio product entrants spectrum regime; little difference to today
Media and content players Business opportunities as players expand, especially in mobile content Few changes as players are mainly conservative and will not have access to wide swathes of bandwidth for broadband mobile on a one user/one band approach as too expensive; limited 3G market could finally take-off Same rules and players may slowly change as mobile media arrives and incumbent telcos follow media convergence (e.g. BT in UK); limited 3G sales in some MS
Broadcasters, terrestrial & satellite More competition from Must move quickly to Same rules, few changes
mobile media maintain position with
spectrum acquisition. Form tacit
alliances with
Option 1 aims at more flexibility and creates the basic conditions for a concerted introduction of secondary trading and opening up bands to unlicensed use. The speed of this opening will crucially depend on the availability of technologies to manage interference. From that point of view, the provisions in Option 1 put in place an enabling mechanism, which can be used once the time for unlicensed spectrum is mature.
Comparing scenario 1 and 2 also serves as a stark reminder of the continuing need to enforce competition law.
Both scenarios presuppose EU co-ordination, technology and service neutrality, limited enforcement of competition law and a possibility to trade spectrum on secondary markets. The basic difference is that scenario 1 assumes that technologies able to manage interference are available (which is not the case today) and hence, unlicensed spectrum would be introduced in more bands and, as a consequence, technologies using this spectrum will become serious competitors of the traditional GSM and 3G technologies. On the other hand, scenario 2 that companies could develop a dominant market position through spectrum holdings and thus prevent widespread use of interference management technologies in unlicensed bands.
Option 1 has been developed to avoid the pitfalls that were highlighted in scenarios 1 and 2. The option extends competition regulation to cover spectrum holdings. Given application of such regulation, the option is otherwise close to scenario 2, ensuring strong competition. It would, however, over time move to approach scenario 1, by being open to, but not pre-empting, technical means of managing interference. Option 2 aims in essence at reducing one of the two main factors impeding competition in electronic communication services, namely the scarcity of spectrum. The other, cost of infrastructure, might also in effect be reduced through more intense use of it.
However, there might be a risk of inappropriate application of competition law and ex-ante regulation in some Member States or a risk of delays in implementation, which could effectively result in impacts identified for scenario 2 (see below).
Finally, Option 2 shows a degree of similarity with the Third Scenario. The Third Scenario represents a "no co-ordination" scenario with a mix of different allocation methods (administrative, market-based, and unlicensed) in different Member States. The difference between Option 2, as it is formulated above and the somewhat extreme assumptions in the Third scenario is that according to the Third Scenario, Member States would deliberately withdraw from co-ordination at the EU level and would focus only on their national interests. Option 2 on the contrary involves a significant degree of voluntary co-ordination, though not always effective and relatively cumbersome. Scenario 3 was deliberately chosen to show the added value of a co-ordinated approach to EU spectrum management.
Figure 1 shows the results of the simulation for the set of the five meso-economic parameters. Scenario 1 shows the most positive results for all parameters. Number of WiFi hot-spots (indicating increase in the availability of WiFi) would rise significantly faster in Scenario 1 than in Scenarios 2 and 3. The same holds for the parameter "average mobile subscribers per 100 of population". The graphs show that in terms of the meso-parameters, there is a significant difference between Scenario 1 and Scenarios 2 and 3.
Figure 1. Time series for Meso-economic parameters to 2020
Meso 1 Growth of Wireless industries (as numbers of WiFi hot-spots) Meso 2 Average mobile subs per 100pop EU-25
140000
140
120000
135
100000
130
80000Series1Series1
Series2Series2
125
Series3
60000Series3
120
40000
20000115
110
20082010201220142016201820202022 20082010201220142016201820202022
Meso 3 e-Readiness Meso 4 Consumer expenditure on
communications (Euros)
10
800
10
700
10
600
9
9Series1500
Ser ies1
9Series2
400Ser ies2
Ser ies3
Series3
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9
Macro level
Macro-economic parameters are of course in the centre of attention of this impact assessment, as they are very closely linked to the objectives of the Lisbon agenda for growth and jobs. It has to be borne in mind that connecting micro-economic analysis of individual operators' behaviour through meso-economic level up to the macro-economic parameters such as GDP growth is a very challenging task and in many respects an unexplored territory. This model attempts to make this connection and the limitations of this approach are clearly recognised. The study itself suggests areas of future research and improvement of this approach, such as:
· use multiple parameters for correlation and for simulation of the next level of aggregation
rather than the single parameters used in the final stage (for this, statistics and indicators must be readily available and reliable)
· non-linear regression using multiple parameters for each of the scenarios (this step is
feasible but would require more time and resources)
· allowing sufficient weighting for non-linear supplementary effects of saturation, and
technology diffusion curves in cross variable analysis
· use of techniques for detecting signals in noise, both deterministic and non-deterministic
Having taken these limitations into account, the macro-economic parameters show similar development as the meso-economic parameters. Differences between the 3 scenarios are not substantial for the indicator "employment in knowledge industries". However, in all the remaining parameters, scenario 1 scores significantly better than scenarios 2 and 3.
For GDP growth in particular, the difference between a best case scenario (scenario 1) and the worst case scenario (scenario 3) would be 0.1% of the annual GDP growth, which is a substantial potential contribution to the European economy, equivalent to around 10 billion. This difference may is mainly due to increased competition in the sector.
Figure 2. Results for macro-economic parameters for the 3 scenarios
25400800000
25300700000
25200600000
25100500000
25000400000
24900
300000
24800
200000
24700
100000
24600
20082010201220142016201820202022
20082010201220142016201820202022
It is clear from the model results that lowering the barriers to access spectrum would result in new technology being available faster, less rigid allocation of technologies and services would enable a mix and match of services adapted to population density and local social conditions and an increased uptake of subscriptions to services such as mobile communications. Alternative business models, such as delivering competing services over alternative technical platforms or through unlicensed spectrum, ensure that competition remains healthy to the benefit of the consumers, who in turn would use more services.
It should be noted that it is the regulatory choices underpinning the scenarios that are significantly simplified and based on a number of assumptions (as explained above). The predicted actions of individual operators, given these scenarios, would seem to be borne out by the experiences of many other sectors where competition is limited by definition, an example being the airline industry.
ANNEX II: ASSESSMENT OF ADMINISTRATIVE BURDENS
In recent years the issue of administrative costs imposed on businesses and public authorities by legislation has gained increasing attention both at the EU level and in Member States. The Commission is therefore increasing its efforts to measure and better manage the administrative costs incurred European legislation. In the context of this review, the administrative cost of the most important changes is assessed both quantitatively and qualitatively.
The regulatory framework contains a number of information obligations which generate administrative costs for operators and/or NRAs. In line with the principle of proportionate analysis, this impact assessment focuses on quantitative measurement of the measures entailing relatively significant administrative cost i.e. market review procedures, including notifications to the Commission. Administrative costs of other changes to the regulatory framework are assessed qualitatively in the specific sections of the impact assessment.
Security and privacy is another potential area for measurement of administrative costs, in particular the new mandatory breach notification obligations. However, an important obstacle to useful quantification is the absence of reliable and undisputed information about the frequency of breaches to be notified. It is indeed one of the purposes of the proposed provisions to contribute to better knowledge of the size of the problem. As noted in Chapter 9, a more detailed assessment of administrative burden will therefore be carried out in the implementation phase.
Applied methodology
The measurement and calculation of administrative costs of the market review procedures was done in two steps:
be very imprecise and significantly more time and resources would be needed to collect detailed data on all the 18 market reviews on a per country basis. Therefore, a sample market was chosen and costs for operators and NRAs were calculated on that basis.
Step 1 Current Administrative Costs
Current administrative costs are related to the following stages of market review procedures:
-
-collecting market information and data from operators this stage entails costs both for operators and for NRAs;
-
-market analysis, national public consultation on draft measures organised by NRAs entails the cost of data processing and drafting measures by NRAs, preparing the public consultation, collection of inputs, and the cost for operators of providing comments on the NRA draft measures; and
-
-notification of market definition, market analysis (including designation of SMP) and proposed remedies to the Commission entails cost of preparing notifications by NRAs.
NRAs and operators provided data for all the relevant stages of the market review process:
i.e. number of hours spent and hourly labour costs of each stage of one market review. NRAs and operators were also asked to estimate a percentage reduction in administrative cost of the next round of market reviews in order to account for the learning process and increased efficiency of the future market reviews.
It has to be noted that the collected data are mostly expert estimates, as neither operators nor NRAs have the obligation to monitor and assess their administrative costs related to market reviews. Also, in order to provide a more accurate baseline measurement, more time and resources would have to be deployed by the Commission and by the respondents. Despite these limitations, the collected data provides a relatively good estimate of the order of magnitude of the administrative costs incurred in market reviews.
Results of the baseline measurement
How would you characterize your operations? (more than one answer is possible)
Number of operators in each category Percentage of operators in each category
fixed network operator 108 (58.7%)
service provider 97 (52.7%)
mobile network operator 45 (24.5%)
cable operator or 31 (16.8%)
broadcaster
According to the results of the questionnaire, big companies with more than 10.000 employees spend on average more time on information obligations than middle-sized and small companies. The table below indicates average cost of labour per hour and average number of hours spent on providing (1) data and information for one market review, (2) input and comments for one national consultation associated with one market review.
size of the operator Data and Labour costs Input and total cost for
information per hour comments for one market
for one (including one national review per
market review overheads, public company ()
average social security consultation
number of payments, number of
working hours taxes, etc.) () working hours
above 10.000 217 69 528 51.669
employees
501 - 10.000 180 64 268 28.864
hand, administrative burden for SMEs can be in some cases relatively significant, especially if they are obliged to make an initial investment in data collection and monitoring systems for the purpose of market reviews
264.
Given different approaches to data collection at national level, estimating the total administrative costs of all the market reviews in the EU is very complex and would require a more sophisticated data collection method. It is however possible to provide an estimate of the total administrative costs of one model market review. The following model case illustrates the costs of a market review involving mobile network operators e.g. market 16 of the Recommendation on relevant markets, "voice call termination on individual mobile networks".
In order to analyse market 16, national regulators send data requests to mobile network operators (in most member states 3 to 4 operators) and to mobile service providers, which are defined as mobile virtual network operators, enhanced service providers or simple resellers. According to the 12
th Implementation report, the total number of mobile network operators in
the EU is 78 (EU25, data from July 2006), the total for mobile service providers is 290. The following table shows average costs of a mobile network operator, of a mobile service provider and the total for the whole EU in Euros.
Category of mobile Data and Labour costs Input and Total cost per
operator information per hour comments for category of
for one market (including one national mobile
review overheads, public operators ()
average social consultation
number of security number of
working hours payments, working
taxes, etc.) () hours
mobile network 264 76 419 4.053.637
operator
mobile service 80 64 61 2.647.288
National regulatory authorities
The Commission received 24 responses to the on-line questionnaire from NRAs. As in the case of operators, figures must be considered as expert estimates because most NRAs do not have detailed statistics on administrative costs of market review procedures. The questionnaire included questions on administrative costs of all the three stages of the market review procedure i.e. collection of data from operators, national public consultation on draft measures and notification to the Commission. The second stage proves to be the most burdensome for national regulators, as it includes formulation of draft decisions, based on the analysis of data obtained from operators.
National regulators deal with markets of very different sizes and the number of staff dedicated to electronic communications issues and more specifically to market reviews differs from country to country. In general, around 10% to 20% of the staff working on electronic communications issues works specifically on market review procedures. In order to analyse the responses more closely, countries were divided into 3 groups according to the size of each country and size of the regulatory authority. Small countries with small regulatory authorities (such as Cyprus, Luxembourg, Latvia or Estonia, Slovenia, Malta) spend less time and resources in absolute terms on market reviews than big countries. Nevertheless, taking into account the size of the country and of the national market, these costs are proportionately higher than the administrative costs in big countries. The table below shows average administrative costs of all three market review stages for the three groups of countries:
Data collection
-
-no of hours Labour cost Public consultation - no of hours Notification to
per hour the Commission
-
-no of hours
Small countries266 363 28 292 107
Middle-sized countries820 46 674 170
267
Big countries268 1770 46 1092 973
Middle-sized countries 478.586 377.786 102.503 958.875
Big countries excluding France
269 240.850 248.010 252.805 741.665
Total cost EU 23 1.796.543
The total cost of 1.796.543 includes 23 EU countries and excludes costs of France270,
Bulgaria, Portugal and Greece. Bulgaria, Portugal and Greece are relatively small countries and their costs can be estimated using the average figures for small countries in the above table. The total cost of one market review for the 27 NRAs in the whole EU would then amount to approximately 2.3 million.
Conclusion
The first step of administrative burden assessment provided an indicative quantification of the costs of one market review both for operators and for NRAs. It has to be born in mind that the figures provide only an indication of the order of magnitude of these costs; a more accurate estimation would require more time and resources as data collection systems and methods of carrying out market reviews vary from country to country. The total cost of all market reviews is difficult to obtain: every market has a different resource-intensity and different number of operators required to provide data and input. This section estimated the cost of one market review for mobile operators at around 6.7 million and the cost of one market review for NRAs at around 2 million
-
271.Viewed from the perspective of the size of the market for
electronic communications services272, the administrative costs are not substantial.
Nevertheless, there is some scope for streamlining and simplifying the procedures with a view of cutting the unnecessary administrative burden. Options for reducing the unnecessary administrative burdens will be described in the second step.
Step 2 Estimation of future administrative burdens
The baseline measurement of administrative costs related to market reviews (Step 1) is based on real data provided by operators and NRAs. In the second step, the Commission can rely only on rational estimates and projections of the current costs to the future. Given the variety of operators and national approaches to data collection, the exact quantification of total administrative costs is very difficult to obtain and would certainly require more detailed data collection in each Member State. The assessment of future administrative burdens will therefore be based partly on the available data for the current administrative burden and on a number of assumptions.
Market reviews were introduced by the current framework as a new element in regulation of electronic communications. Both NRAs and companies had to get acquainted with the new procedures and learn how to apply them more effectively. For this reason, it is supposed that thanks to the accumulated knowledge and experience from the first market reviews, the next rounds will be somewhat less resource intensive and that the administrative burden would gradually decrease (for examples, methodological and issues pertaining to the organisational process would be already in place, needing at the most some fine-tuning). Operators were asked about their perception of the cost reductions resulting from accumulated experience in the next round of market reviews. The tables below show the results for data collection phase and national consultation phase respectively. It has to be noted that these figures take into account neither the Commission proposal on cutting the number of relevant markets in the Recommendation nor the proposals to streamline market reviews and Article 7 procedures.
By what percentage will the cost of providing input for a single market review (Art 5 of the Framework Directive) be reduced in the next round of market reviews? Please tick the appropriate range below.
Total number of answers indicating the given range of cost reduction Percentage of answers indicating the given range of cost reduction
1% - 10% 66 (35.9%)
0% 51 (27.7%)
11% - 20% 29 (15.8%)
21% - 30% 21 (11.4%)
above 40% 9 (4.9%)
31% - 40% 8 (4.3%)
By what percentage will the cost of providing input for a single national consultation for one market review (Art 6 of the Framework Directive) be reduced in the next round of market reviews? Please tick the appropriate range below.
Similarly to operators, also NRAs were asked about their expert estimate of the reduction in administrative burden in the next round of market reviews (excluding the effect of the proposed reduction in the number of markets and the Commission streamlining proposals). The tables below indicate the distribution of responses.
By what percentage will the cost of data collection from operators and its processing for a single market review (Art 5 of the Framework Directive) be reduced in the next round of market reviews? Please tick the appropriate range below.
Number of answers Percentage of answers indicating the given range of cost reduction
indicating the given range of cost reduction
0% 7 (29.2%)
1% - 10% 5 (20.8%)
11% - 20% 5 (20.8%)
21% - 30% 3 (12.5%)
31% - 40% 2 (8.3%)
above 40% 2 (8.3%)
By what percentage will the cost of a single national consultation for one market review (Art 6 of the Framework Directive) be reduced in the next round of market reviews? Please tick the appropriate range below.
Number of answers Percentage of answers indicating the given range of cost reduction
indicating the given range
of cost reduction
1% - 10% 10 (41.7%)
0% 6 (25%)
11% - 20% 5 (20.8%)
above 40% 2 (8.3%)
21% - 30% 1 (4.2%)
31% - 40% (0%)
The tables show that most operators and NRAs situate the possible reduction of administrative costs due to accumulated experience somewhere between 0% and 20%.
Assumption 2: the reduction in the number of markets in Commission Recommendation on relevant markets will reduce the administrative costs of fixed network operators by approximately 25-30%
273 and those of NRAs by approximately 30-40%. The Commission
will table a proposal for a revised Recommendation on relevant markets together with the legislative proposals reviewing the regulatory framework. The revised Recommendation will cut the number of relevant markets by more than 50% (i.e. from 18 to 7). Retail markets will be removed. It is supposed; however, that NRAs will still monitor the retail market prices, therefore the reduction of administrative costs will be less than 50%. Fixed network operators will have to provide some data on retail markets but mostly only for monitoring purposes. It is assumed that the cost reduction for NRAs will be larger compared to operators because NRAs will not prepare a formal notification for the deleted markets
274.
As for internet service providers and cable network operators, their cost reduction will probably be negligible. The markets where these operators are involved stay on the list of the Recommendation on relevant markets. For mobile operators, provision of information about roaming will be handled under the Regulation on Roaming
275 and not under this
Recommendation.
Assumption 3: Streamlining of market reviews will bring further cost reductions for NRAs and operators.
Some simplification of the notification process can be achieved under the current legislation. This could reduce the administrative burden for NRAs by 10-20%, depending on how many notifications fall into the categories of "notifications of markets which were found competitive" and "notifications where only minor changes are proposed"
276.
Further simplification to be introduced once the Directives are amended could result in a saving for NRAs in the order of additional 20-25%.
Administrative costs of different institutional arrangements
Chapter 7 of this Impact Assessment proposes a number of options related to different possibilities for institutional arrangements in regulation of electronic communications markets. From the point of view of administrative costs of market reviews, the differences between the three options are not significant. Option 1 would not involve costs of notifications as markets would be analysed directly by the single European Regulatory Authority. Data collection costs and costs of public consultations would remain. Option 2, stronger Community powers with advisory role of the European Authority, does not add on administrative burden in terms of creating new information obligations for businesses and/or NRAs. Clearly, establishing a new authority involves set-up and operational costs, however, these are not counted as administrative burden. Finally, Option 3 would entail similar cost reductions due to streamlining and reductions in the Recommendation.
Administrative costs of different institutional arrangements
Chapter 7 of this Impact Assessment proposes a number of options related to different possibilities for institutional arrangements in regulation of electronic communications markets. From the point of view of administrative costs of market reviews, the differences between the three options are not significant. Option 1 would not involve costs of notifications as markets would be analysed directly by the single European Regulatory Authority. Data collection costs and costs of public consultations would remain. Option 2, stronger Community powers with advisory role of the European Authority, does not add on administrative burden in terms of creating new information obligations for businesses and/or NRAs. Clearly, establishing a new authority involves set-up and operational costs, however, these are not counted as administrative burden. Finally, Option 3 would entail similar cost reductions due to streamlining and reductions in the Recommendation.
operators, cuts in the number of relevant markets in the Commission Recommendations will bring cost reductions mainly to fixed network operators.
ANNEX III: EVALUATION OF COSTS AND BENEFITS OF THE EUROPEAN AUTHORITY WITH
ADVISORY ROLE IN ELECTRONIC COMMUNICATIONS
This annex summarises the costs benefits277 that would result from the establishment of a
European Authority with an advisory role for electronic communications issues (Option 2 discussed in Chapter 7 of this report), since this would involve financing from the Community budget.
While cost-effectiveness analysis looks at the costs impacting the EU budget as a result of carrying out the EU intervention, cost-benefit analysis must look more widely on long-term costs and benefits for different actors involved, and quantify them where possible. To support this assessment, the Commission commissioned a study to provide quantitative and qualitative information on the costs and benefits and added value of such an Authority
278.
The main aim of the European Authority is to contribute to greater consistency in regulation of eCommunications across the EU and to simplify the regulatory environment particularly for providers of services with pan-European and cross-border services. The Authority's tasks can be grouped in three main areas: (1) issues of regulatory inconsistency, delays in conducting national market analysis and promoting the identification of pan-European / trans- national markets; (2) improving EU procedures for authorisations and regulation of services with pan-European potential, and (3) other activities, including those related to network and information security formerly undertaken by ENISA.
The following quantifications of benefits in areas (1) and (2) above are based on an estimate that the Authority's budgetary costs would be around 150 million over five year period (with yearly appropriations of around 27 million). The benefits in area (3) have not been quantified.
Under a conservative scenario, it can be estimated that the European Authority has the potential of bringing total economic benefits exceeding its budgetary costs by a factor of around 10-30 times (i.e. the order of magnitude of the benefits would be around 250 800 million). This factor can be even higher if the more optimistic scenarios on the number and size of pan-European markets to be authorised and subsequently regulated were to materialise.
brought forward by just one year, the economic benefits can be in the range of several hundred millions euros.
From the pure cost-effectiveness analysis point of view, it is clear that integrating the already existing European Network and Information Security Agency, ENISA into the new European Authority would result in cost savings from the synergy of the two. As discussed in Chapter 7 of this report, the problem with ENISA (which was established in 2004 with the goal of ensuring a high and effective level of network and information security within the Community) is that it has not had a critical mass of operational staff to work effectively
280.
The combined entity under the new Authority would benefit from economies of scale for administrative tasks, allowing the number of operational staff working on network and information security issues to be increased as compared to ENISA.
There are also additional benefits to be expected from other, less predictable areas of the Authority's activities. By way of example, it is estimated that the Authority (as a centralised pan-European reference point) could save the satellite industry 0.5 - 6 million per annum by reducing information costs (i.e. reducing the transaction costs caused by national differences in the legal format of the tradable user rights).
There are other important qualitative considerations supporting the establishment of the Authority that cannot be adequately quantified or monetised in a cost-benefit analysis. In particular, as discussed in the Impact Assessment report, there are strong indications that the telecommunications market is evolving towards technological and management models, making the current regulatory approach of defining (national) markets less relevant, requiring instead a much more co-ordinated EU-wide regulatory approach. In the long run, enabling competition between different new technological platforms is likely to be one of most important economic benefits associated with the Authority.
The Authority could also substantially contribute to reduce the regulatory risks of R&D projects in the field of eCommunications, which must achieve EU economies of scale to enter the market and which currently face considerable uncertainties in the availability of spectrum. Any reduction of such risk could thus increase the tendency to invest in R&D and thereby contribute to bridge the gap between actual and socially desirable level of investments in a market-efficient way.
Authority, ERG involvement is simply not possible (replacement of missing national analyses) or severely hindered by lack of sufficient incentives or legal mandate at the national level (trans-national markets).
Therefore, even by applying conservative scenarios on the potential benefits and related costs, the establishment of the Authority is cost-effective and fully justifiable from the EU budgetary perspective. This does not rule out the possibility that operational savings can be achieved if some of the assumptions on the Authority scope of activities can be better fine- tuned in getting closer to the commencement of its activities.
The table below summarises the main costs and benefits related to the establishment of the European Authority.
Summary table of costs and benefits related to the European Regulatory Authority
Authority's contribution in the Annual Possible Key Assumptions
various policy areas Costs benefits*
(orders of
magnitude)
Oversight of NRA remedies 0.7 mn 50 - 120 mn Authority reduces by 10% regulatory risk across EU
There are some yearly 40 NRA remedies with hidden unexploited deadweight effects
Replacement of NRA not carrying market analysis in time 2.7 mn 20 - 80 mn 1-2 delays in carrying out market analysis are experienced on a yearly basis
Authorisation and regulation of services with pan-European potential 7.9 mn 180 - 600 mn Every three years the launch of one pan-European market is shortened by one year bringing one-off benefits
of some 180 600 mn
Other operational and management activities 16 mn
Staffing
In the long term it is estimated that the new Authority would need a staff of around 60 people to carry out the operational functions of (i) strengthening the internal market; (ii) harmonisation of rights of use; and (iii) dissemination of best practices and information, not including administrative staff. These staff numbers will built up over the first 3 years of operations of the Authority.
In addition, in 2011, the Authority will take over the work currently carried out by ENISA that will result in a significant increase of staff in that year. Prior to 2011, there will be no duplication between the activities of the European Authority and ENISA.
Administrative staff will be built up in line with the growth of the operational staff such that the total number of posts will be 134 from 2012 onwards.
With the creation of the Authority, one additional AD post for the Commission is foreseen for audit purposes. The task of ensuring cooperation and coordination between the Authority and the Commission would be accounted for by redeploying the administrative and human resources of the Commission currently allocated for cooperation and coordination with the ERG and with ENISA.
| publicatiedatum | 16-11-2007 |
|---|---|
| kenmerk | 15416/07 |
