ETNO Response to BEREC Consultation on Oligopoly Analysis and Regulation - BoR (14) 172

Download the full Reflection Document here.

General Remarks

ETNO welcomes the invitation to provide inputs to BEREC’s consultation on Oligopoly analysis and regulation. ETNO believes that the EU telecoms sector needs right now a proper debate on the future regulatory framework, that takes into account all the facts and aspects affecting the industry and particularly the conditions and incentives for operators’ investments. In the last 10+ years we have witnessed a major development of competition, with increasing convergence of platforms and services, including Internet‐based services, and a substantial deployment of infrastructures providing intense network competition in many geographic areas of the EU. In order to fulfil the objectives of digitalization and modernisation of the European economy, further significant investments in network infrastructures are required. These facts underline the need to substantially deregulate the sector and undertake a comprehensive review of the EU framework.

BEREC frames the present work stream partly as a contribution to the forthcoming Regulatory Framework Review. However, this exercise looks at one specific issue in isolation, in a way that potentially leads to more regulation and regulatory complexity. It is not addressing a full set of issues and the wider policy objectives such as investment incentives and the related dynamic efficiencies, competition and market structures, consumer welfare, etc., giving proper priority to all policy objectives. We therefore believe that the consultation is incomplete and as such not helpful to inform the forthcoming framework review.

The rationale for having new regulatory tools for specific market structures (other than those already offered by the current framework) is not clear. It would raise enormous complexities and also go against the transitory nature of ex‐ante regulation and the transition to competition law that should begin to occur after 10+ years of SMP‐based regulation and the high degrees of competition already reached. Trying to move the regulatory target raises uncertainties and gives a negative signal to investors. That is why it is necessary to highlight that:

• For the current framework the need for ex‐ante regulation has to be proven on the basis of the competition law approach described in the SMP Guidelines. If no single or joint dominance exists, there is no role for ex‐ante regulation. Under the current framework, no extension of the concept of dominance/SMP is possible or advisable.

• For the upcoming review, it is necessary first and foremost to focus on modernising and reducing regulation in the sector in light of market developments. We see no justification for devising specific regulation for “oligopolies” in telecoms markets (or in other adjacent markets). Moreover, the upcoming review should ensure that the addressee of potential regulation is determined in an objective and equitable manner, allowing operators to compete on an equal basis with each other.
  

Regarding the concept of “oligopolies” itself, we note that it is not clearly defined, and its use without a proper academic/economic context may be misleading, creating the idea that potentially oligopolistic market structures would constitute a competitive problem in the sector. On the contrary, telecom markets have their own specificities and are a good example of how a relatively concentrated market structure is in fact necessary to produce competitive outcomes, and must be analysed on that basis.

Download the full Reflection Document here.