16 Rev2b NGA Opinion Supplementary doc - IRG

ERG (07) 16rev2b NGA Opinion Supplementary Doc 23 / 69
Competitors in general consider that regulation has to grant access to a wide set of wholesale
offers – access to ducts, unbundling of the fibre local loop, bitstream – enabling them to
choose which offer to take.
ERG Considerations
The ERG notes that the two options proposed to regulate access to the ducts of the incumbent
through market analysis (through Market 11 including fibre / through a separate market)
have both their pros and cons. It is acknowledged that defining a duct market may not be an
easy task, as ducts may not be strictly considered electronic communication.
However, the ERG proposes to maintain the two options identified in its consultation document.
ad 4.4.3/4.4.4 Role of symmetrical regulation and its relation to SMP regulation
Consultation Comments
With regard to facility sharing several comments advocate a symmetrical approach to regulation
(BT, DTAG, ETNO, Fastweb, KPN, OTE, TI). These comments refer to the availability of
infrastructures from other telecommunications operators, electricity companies, municipalities
or public utilities. Referring to FttH roll-outs in Paris, Vienna and Milan also other infrastructures
like water pipes, sewers, or underground railway systems are exploitable. One comment
calls for open access to passive infrastructures in the public domain. According to this
view “all ducts and poles should be sharable” (Alcatel-Lucent).
One comment states that NRAs can assess on a case-by-case basis the availability of infrastructures
in different regional geographies (FT). According to another comments public policy
initiatives in non-competitive areas should aim at removing barriers to the development of
facilities based competition. Thus, newly created duct networks could then be offered by public
authorities on a non-discriminatory basis (Corning).
Nevertheless, in the first instance, it needs to be analysed whether ducts constitute a bottleneck
in a specific region. If there is such a bottleneck, then not only incumbent’s ducts should
be looked at (DTAG).
According to one comment, the need to consider all existing ducts is already mandated by
Art. 12 (2) a) AD requiring that NRAs when evaluating possible access obligations shall take
into account the technical and economic viability of using or installing competing facilities
(ETNO). Thus, limiting the analysis to ducts used for electronic communication purposes is
not in line with EU law and would lead to disproportionate obligations.
Moreover, ducts are not electronic communications services and as such cannot constitute a
separate electronic communications market (ETNO). For this reason the ERG-proposal of
defining a market for ducts “used for electronic communications puposes” is ill-perceived.
Another comment considers a classification of ducts as “ancillary service” as unfounded and
incompatible with the Framework (DTAG).
Although symmetrical approach is preferable, any such new obligation in the Framework
need to be justified, proportionate and broadly consulted upon by the Commission (ETNO).
The option of using alternative infrastructures, as proposed by those advocating a symmetrical
approach, is not uncontested. One comment considers these alternatives for connecting
the backhaul network to the SDF as “regulatory unfeasible alternative” due to the high trans-