- Radio Spectrum Policy - the European Parliament will vote in May 2011 on a European Commission proposal on an EU-wide coordinated wireless spectrum policy (first published on 20 September 2010). The proposed programme sets out policy orientations and objectives for the strategic planning and harmonisation of spectrum use in order to achieve the internal market. It supports the Europe 2020 Strategy and the Digital Agenda for Europe and promotes other EU policies concerning spectrum.
China
Real-name registration required for new mobile numbers in China
Marcus Vass and Vivian Wang
The Ministry of Industry and Information Technology (MIIT), on 1 September 2010, enforced a real name registration policy for new mobile number subscribers in China, which requires the mobile users to submit a copy of their identity cards when buying a SIM card. The Government also wants to extend the real-name registration policy to existing pre-paid mobile number subscribers in the next few years. This policy is part of MIIT's efforts to prevent spam, pornographic messages and rampant fraud through telecommunication networks. However, at present, there is no explicit legal foundation for this policy in laws or ministry regulations. MIIT claimed that new rules will be disclosed soon to provide more details.
It is worth noting that two months ago on 1 August 2010, the Ministry of Culture enforced a real-name registration policy for participants of online games according to the 'Interim Measures for the Administration of Online Games'. Online gamers must provide their real names, identity numbers and contact information.
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Czech Republic
Proposal for regulation of Next Generation Access optical fibre-based networks
Vojtech Chloupek
In September 2010, the Czech Telecommunication Office published a 'Proposal for regulation of Next Generation Access optical fibre-based networks' (the "Proposal"). The Proposal has been prepared in accordance with the European Commission's 'Recommendation on regulated access to Next Generation Access networks'. The purpose of the Proposal is to provide an overview for the regulation of Next Generation Access networks ("NGAs"). The Proposal deals only with NGAs (defined as fixed access networks consisting fully or partially of fibre components that are capable of transferring broadband access services with better characteristics). The Proposal does not deal with any wireless technology-related questions.
Today, duties concerning access to networks may be imposed only on those entities with a significant market power on the relevant market and under certain conditions. The Proposal deals with the possibility of imposing such duty of access to cable ducts on subjects that operate in the electronic communications sector as well as on subjects operating outside this sector. It also proposes a duty to share access to interior wiring (also for owners of real property) and a duty to share access to data streams.
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France
How does Next Generation Access regulation work in France?
Frederique Dupuis-Toubol and Katia Duhamel
The French regulator (ARCEP) is continuing the regulation process of Next Generation Access (NGA) in order to implement the enforcement of provisions introduced by the law on modernising the economy of 4 August 2008 (i.e. the principle of shared access to the last "drop" of the network).
In its first decision on this issue (22 December 2009), ARCEP detailed the general terms and conditions of sharing the last "drop" as well as specific provisions applicable in dense areas.
In general terms, the price of this "mutualisation" must be reasonable and comply with the principles of non-discrimination, objectivity, relevance and efficiency. The so-called "mutualisation" has to be done under the form of co-investment. However, the rate of return on investment used to determine this pricing takes into account the risk incurred and extends a risk premium to the building operator. The building operator is required to publish a reference offer of co-investment and satisfy all reasonable demands of third-party operators to share the last "drop". In particular, in the case of dense areas (148 cities defined by ARCEP), the point of concentration may be located within the limits of private property while the general principle defined in law says that the concentration point is located outside the limits of private property.
The project of decision (June 2010) provides that the backcourt point of concentration should cover areas of at least 300 houses. In its opinion, of 27 September, the Competition Authority called for the French regulator to increase vigilance in those areas where it might be necessary to mandate a kind of unbundling of the fibre at a higher level of the network. The project waits for the European Commission's opinion.
NB: due to its dominant position, France Telecom is required to provide access to its ducts everywhere and under transparent and non-discriminatory conditions and at cost-oriented tariffs.
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Germany
German Federal Ministry of Economics and Technology issues draft amendment legislation for the transposition of the new EU telecoms directives
Sven-Erik Heun
On 15 September 2010, the German Federal Ministry of Economics and Technology issued the first (and not yet public) draft amendment legislation for the transposition of the new EU telecoms directives 2009/136/EC and 2009/140/EC and the BEREC Regulation 1211/2009. Pending internal co-ordination amongst other affected Federal Ministries, a revised draft will be published for stakeholder comments, in particular the affected market players and industry associations, within the next few weeks. It is expected that inter alia the scope of the consumer protection provisions (particularly as regards number portability), will be a source of dispute.
Infrastructure sharing paper published
Sven-Erik Heun
In its official gazette, no. 15/2010 of 11 August 2010, the German National Regulation Authority (NRA) BNetzA, published a revised thesis paper on infrastructure sharing amongst mobile network operators. The paper significantly widens the scope of what NRA BNetzA views as permitted co-operation amongst the operators.
Competition update on wireless access and distribution
Sven-Erik Heun
Following the auction of frequencies for wireless access that concluded in May 2010 and led, inter alia, to the award of frequencies from the so-called digital dividend (800 MHz band), and pursuant to an undertaking it gave to the EU Commission, the German NRA BNetzA has opened a hearing on the amount and distribution of frequencies held by the four GSM and UMTS operators in Germany, with a view to determining whether the frequency distribution amongst the operators lead to distortion of competition. The hearing implements Art. 1 para 2 of the revised GSM Directive 87/372/EEC pursuant to directive 2009/114/EC and comments by stakeholders can be submitted until 11 October 2010.
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Hong Kong
Mandatory provision of telephonic directory services to continue
Marcus Vass and Vivian Wang
The Hong Kong Telecommunications Authority (TA) announced on 4 August 2010 its decision to deregulate the free provision of White Pages by fixed operators in view of the diminishing public demand. The TA has also decided to maintain the current requirement for fixed operators to provide a telephonic directory enquiry (DQ) service to their subscribers. For background, a variety of directory services are currently available in the Hong Kong market, including White Pages, Yellow Pages, the DQ service and internet directory services. Fixed operators are mandated by the relevant licence conditions to provide White Pages and DQ services to their subscribers free of charge.
To address fixed operators' concerns over a disproportionate use of the DQ service by a few subscribers, the TA will permit these operators to levy charges, on the basis of their own commercial considerations, on telephone subscribers who make more than 50 DQ calls in a month. In addition, the TA will continue to maintain the status quo in not regulating the operations of Yellow Pages and internet directories, which are offered out of business consideration of the service providers. Further, the TA will continue with the current practice of not including mobile numbers in the directory database, as the demand for the enquiry of such numbers is low and taking into account privacy considerations.
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Hungary
Mandatory provision of telephonic directory services to continue
Andrea Simandi and Titusz Puskar
In late October 2010 the Hungarian Government introduced a so-called crisis tax on firms in the energy and retail sectors as well as telecoms, to avoid imposing such costs on the public as it seeks to meet budget deficit targets. The amount of tax payable by the electronic communications service providers is progressive and depends on the revenue and the activity from which this revenue is generated. In the case of telecoms services no tax is payable after the revenue under HUF 100 million (EUR 370,000); 2.5% tax is payable after the revenue between HUF 100 million and 500 million (EUR 1.85 million); 4.5% tax is payable after the revenue between HUF 500 million and 5 billion (EUR 18.5 million); and 6.5% tax is payable after the revenues above HUF 5 billion. The tax is payable from 2010.
Market-leading Magyar Telekom (affiliate of Deutsche Telekom) has indicated that it faces a bill of HUF 27.5 billion (EUR 10.1 million) in extra tax this year, as the Government seeks to collect HUF 61 billion from the telecoms sector each year from 2010 to 2012.
The European Commission has announced that it is to investigate whether the crisis tax being imposed on the country's leading telecoms operators complies with European Union telecoms regulation. The Commission has highlighted that EU regulation permits such charges only when they cover "certain administrative and regulatory costs". It will also seek clarification that the charges are objective, transparent, and proportionate. The intervention of the Commission suggests that Hungary's affected operators may yet face a reprieve to some degree.
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The Netherlands
Transposition of revised EU regulatory framework into Dutch law
Feyo Sickinghe and Marjolein Geus
The legislative proposal for the transposition of the new EU telecoms directives 2009/136/EC and 2009/140/EC and the BEREC Regulation 1211/2009 was submitted to the Dutch Parliament on 3 November 2010. This has created discussions around some of the choices that the Netherlands has made regarding the implementation of increased end user protection, net neutrality, equal access for disabled persons and number portability. Debate between industry and government is ongoing.
Netherlands WiMAX licence update
Feyo Sickinghe and Marjolein Geus
The granting of licences for BWA using the 3.4 – 3.8 GHz band is governed by the ECC Decision on Broadband Wireless Access (BWA) (3.4 – 3.8 GHz). In the Netherlands, the 3.5 GHz licence was issued in 2003 to Intel subsidiary Worldmax and a WiMAX network was rolled out in the Amsterdam region. In June 2010 the WiMAX licence was restricted by the Dutch Government for reasons of national security. As a result, a 3.5 GHz licence can no longer be used for a WiMAX network in the Northern part of the Netherlands. The Dutch State has compensated Worldmax in view of the restriction. At the same time the Worldmax licence was extended to BWA (including fixed, nomadic and mobile communications) for the rest of the Netherlands that is in accordance with the liberalisation of licences on an EU level.
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Poland
Polish SMS regulation
Marlena Wach
On 27 Aug 2010, the Polish regulatory authority, UKE, issued new draft decisions on the regulation of wholesale SMS termination which were subject to public consultation until 27 September 2010. UKE proposed in these draft decisions that the mobile network operators each have significant market power for wholesale SMS termination, and proposed regulatory obligations be imposed on the operators as a result. This decision has been criticised by the European Commission. The Commission has identified a number of points with which it disagrees. In particular, the Commission has questioned why UKE considers a termination rate of 0,05 zloty "justified and appropriate", when the real cost determined by UKE in the draft decision is much lower. The Commission also disputes UKE's proposal to regulate only the five largest mobile operators.
A few months ago France's regulatory authority, ARCEP, also issued its decision to regulate wholesale SMS termination rates down. Moreover, Denmark's ITST has proposed an immediate imposition of a wholesale price-cap on all MNOs (and on MVNOs). A key argument invoked by ITST to refrain from immediately reducing wholesale SMS termination further, is to avoid SMS spam.
Both decisions were criticised by the European Commission under the "Article 7" procedure. The SMS market is notable in that it is not included in the list of 'relevant markets' that the European Commission believes should be examined by national telecoms authorities.
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UK
Mobile contactless payment points
Rhys Williams and Adriano Ros
A white paper relating to the deployment of mobile contactless payment (MCP) services to consumers was jointly issued in October 2010 by the European Payments Council and the trade body for the mobile industry, the GSM Association. MCP services allow consumers to pay for goods and services in a shop using their mobile phones. To pay, the consumer simply places the mobile phone near a designated payment point. The mobile phone and the payment point communicate wirelessly using technology known as Near Field Communication (NFC) to facilitate the payment.
On 15 November, Google Inc. publicly demonstrated an upcoming version of its Android operating system that will support NFC technology.
More on mobile contactless payment points
The spectrum plan for the London 2012 Games
Rhys Williams and Adriano Ros
On 18 October 2010, Ofcom published a statement updating its plan for use of available radio spectrum during the London 2012 Games. The statement includes a summary of the responses to Ofcom's consultation on the proposed use of the 2.6 GHz band. The types of use that Ofcom is looking to allow to support the 2012 Games include: wireless cameras; private mobile radios, talkback and telemetry; wireless microphones and in-ear monitors; and satellite news gathering.
More on the spectrum plan
Project Canvas
Rhys Williams and Adriano Ros
On 19 October 2010, Ofcom ruled that it would not open an investigation of Project Canvas despite complaints made by Virgin Media, IPVision and BSkyB, including complaints of alleged potential breaches of the Competition Act 1998.
Project Canvas is a partnership between the BBC, ITV, Channel 4, Five, BT, TalkTalk and Arqiva that will offer digital terrestrial channels and internet-delivered TV services via a set-top box. It also involves creating technical standards that can be used by participating services to deliver content via a single set-top box using a branded user interface that will be known as YouView.
In assessing whether it should investigate these complaints, Ofcom took into account the likelihood of harm to the interests of viewers and consumers. Ofcom decided that at the current stage of YouView's development it would be premature to open an investigation, as any potential harm to competition would need to be offset against the likely benefits that YouView would bring to viewers and consumers.
More on Project Canvas
Digital Economy review
Rhys Williams and Adriano Ros
The High Court in England has granted a judicial review hearing, to be held in February 2011, to look into the passage of the Digital Economy Act through Parliament in the lead up to the general election in May 2010. The judicial review, which was applied for by BT and TalkTalk, will look at the provisions in the Act relating to online copyright infringement and in particular whether they received sufficient scrutiny in Parliament before being passed into law.
Large-scale cyber attacks
Rhys Williams and Adriano Ros
Large-scale, targeted cyber attacks on information systems are evolving and becoming more prevalent and more successful in their aims to infiltrate, disrupt and damage systems and data. On 30 September 2010, the European Commission proposed new measures to replace and improve the existing rules on attacks against information systems contained in a 2005 Council Framework Decision.
One of the new measures to help combat this evolved cyber threat is to introduce a new European Directive that allows the perpetrators of these large-scale cyber attacks, as well as the producers of the malicious software used to carry out the attacks, to be prosecuted and provides for increases in the associated criminal sanctions. The other measure is a new European Regulation to bolster the European Network and Information Security Agency (ENISA), established in 2004, to help improve network and information security across EU Member States.
More on large scale cyber attacks
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