The Dutch regulatory authority OPTA has today published a document (dated 24 March 2005) in which it states that it currently does not have the power to regulate the forthcoming VoIP offering(s) of the fixed incumbent operator KPN.
KPN had announced its intention to launch VoIP for the second quarter of 2005, in its 2004 annual report.
Since a ruling by the “College van Beroep voor het Bedrijfsleven” (a Dutch administrative court) on 16 April 2004, VoIP cannot be considered to be identical to the traditional telephony service in the Netherlands. This means that OPTA is not allowed to simply extend the rules applicable to KPN’s fixed telephony service to VoIP services also provided by KPN. This is important, because KPN has Significant Market Power (SMP) on the fixed public telephone network as a result of the outgoing regulatory framework until the conclusion of the relevant market analyses under the new regulatory framework.
OPTA is currently defining and analysing the relevant markets for fixed telephony (corresponding to Markets 1-6 in the European Commission’s Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation).
OPTA has made it very clear in its statement that it does not rule out that VoIP will be considered to be part of these fixed telephony markets. If this were to be the case, OPTA could find that KPN has SMP, also for services delivered using VoIP. If OPTA would come to this conclusion, the regulator would be able to apply the same remedies to KPN’s provision of VoIP services as it would for traditional fixed telephony services.
The results of the market definition and market analysis exercises will not be known before October 2005.
For a discussion of the OPTA statement, and VoIP more generally, please contact Alexa Veller