Dutch regulator publishes market study and guidelines to steer the roll-out of fibre-optic broadband

On 6 May 2021, the Netherlands Authority for Consumers & Markets (“ACM”) published its updated market study (“FttH report”) into the roll-out in the Netherlands of fibre-optic broadband networks for households (Fiber-to-the-Home).

The ACM started its FttH market study in April 2019 in response to indications of strategic overbuild by operators (e.g. the installation of parallel networks) and market behaviour seemingly aimed at frustrating the business case of competitors. For more information on the initial FttH report of 2019, please see our earlier blog in Dutch.

In its updated FttH report of May 2021, ACM maintains that co-investment agreements remain the most suitable possibility to realize a rapid roll-out. The EU Telecom Code offers the opportunity for the Dutch legislator to stimulate the roll-out of fibre-optic networks by allowing operators to cooperate in the installation of a fibre-optic network on the basis of a co-investment agreement. As such, the installation costs can be shared between the operators and ACM also has the option to exclude the resulting network from ex-ante regulations (if one of the operators would be designated as having a market position of Significant Market Power ‘SMP’). However, ACM concludes that in practice market players are reluctant to cooperate under a co-investment agreement and no co-investment agreement has yet been submitted to ACM for review.

An interesting aspect in the updated FttH report is the suggestion by ACM that municipalities, together with the operators, may take a coordinating role in selecting the areas for optical fibre roll-out. As part of its updated FttH report, ACM provides general guidelines on how the roll-out of fibre-optic networks could potentially be coordinated within the applicable telecommunication and competition laws. In essence, ACM suggests that municipalities may request operators to start their roll-out of fibre-optic networks in different geographic areas instead of installing parallel networks at the same locations. However, ACM emphasizes that operators cannot be prohibited in the end, after a limited break of excavation works during which duplication of networks can be prevented, from installing a second fibre-optic network. According to ACM, it is from the perspective of infrastructure competition, in the long run, undesirable to only have one exclusive fibre-optic network installed.

In the annex to the report, the ACM provides guidelines on how the roll-out of fibre-optic networks could be coordinated within the applicable telecommunications and competition laws. ACM intends to use these guidelines as a ‘living document’ which may be amended on the basis of future market and legal developments. ACM invites market players to continue providing their input on the guidelines.

For more information contact Piet-Hein Eijssen and Matteo Stainer

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