RD266 - ETNO Reflection Document on ERG consultation on Regulatory Principles of NGA ERG (07)16

The Reflection Document is ETNO’s reply to the ERG Consultation Document on Regulatory Principles of NGA (ERG (07)16). The latter describes Next Generation Access roll-out and the regulatory implications stemming from FTTCab and FTTB/H scenarios, in particular adjustments to the Recommendation on relevant markets susceptible to ex-ante regulation and the EU Regulatory Framework.

• Next Generation Access (NGA) networks will create an enabling environment for high-speed applications and services of all kinds, allowing new forms of competition. Many operators investing in NGA currently consider developing business-driven wholesale products for different retail services on a commercial basis to attract end-users to their networks and promote new high-bandwidth services jointly with other partners and in competition to alternative broadband platforms.
• NGAs are still at an early stage of development in Europe. A main challenge for regulation is to not disincentivise private investment in NGA. It is regrettable that this issue is not addressed in the consultation which treats the roll-out of NGAs as a “fait accompli”. ETNO would welcome that sound regulatory principles are developed so that timely investment decisions in NGA deployment can be made with full knowledge of the regulatory risks involved.
• The consultation document does not address existing and prospective inter-platform competition and the resulting deregulatory potential. ERG should further examine the important interaction of innovation, platform competition and regulation.
• The regulatory treatment of geographical areas that allow for inter-platform competition must be different from that of geographies with no foreseeable potential for sustainable competition. The ERG takes the first step by recognising regional differences, without the logical second step of recommending a differentiated regulatory treatment and deregulation in geographies where sustainable competition can emerge.
• The ERG’s suggestions on market definition are not based on a profound analysis of future market boundaries and are in themselves technology-specific. A sweeping extension of the scope of market 11 to high-speed broadband access is not justified in view of the 3 criteria test and the guidance for defining markets under the NRF.
• Before imposing any obligations regarding duct access or backhaul, the lack of technical and commercial viability of using or installing competing facilities (Art. 12 (2) a) Access Directive) has to be established. To limit the analysis to ducts “used for electronic communication pur-poses” as envisaged by ERG is in not in line with EU law.
• NGA roll-out plans by private operators are the sole responsibility of the investing company. ETNO members support a clear and predictable regulatory framework before investing in NGA. However, the EU Framework does not provide for “ex-ex-ante regulation” aiming at influencing roll-out decisions before a concrete analysis of an existing market including NGA has been completed. Economically, such an approach could reduce efficiency and affect timely investment.
• Some of the hypotheses in the consultation document appear to contradict the ladder theory. ETNO invites ERG to acknowledge that the ladder concept is inadequate in an NGA context and to no longer follow a mechanical ladder approach as adopted in the consultation document and previous ERG documents.