The French regulatory authority ART has today published several important documents in the context of the market analyses it is conducting relating to broadband access markets (these documents are discussed below).
Perhaps more significantly, the ART has decided to launch an additional consultation, given the very opposing views received from interested parties, on the its previously formulated proposal to define an additional wholesale-level relevant market, consisting of "xDSL-based wholesale access without bandwidth guarantees, where traffic is handed-over at national level using an IP interface" (corresponding to the currently existing "Option 5 national").
T-REGS Notes: The ART now refers to Option 5 national as an offer akin to a resale offer: "[...] s’apparente à une pure offre de revente, dans la mesure où aucun réseau n’est nécessaire [...]". France Télécom states in its response to the consultation of 23 June 2004 that: (i) this wholesale market should be defined as excluding self-supply, and (ii) when excluding self-supply, France Télécom's market share will be significantly below 50% by the end of 2004.
Three of the documents published today by the ART are essentially revision-marked updates of the public consultation it launched on 23 June 2003 (which was covered in detail by a previous T-REGS news item), addressing comments received from interested parties (24 comments were received, of which 23 were also published today by the ART).
These three documents concern:
a) The possibility of defining a separate retail-level relevant market for broadband access, which several respondents to the consultation had demanded. This possibility is rejected by the ART, with additional arguments (the ART had already expressed its opposition to this notion in the consultation document), but the ART also expresses that it will take due account of the concerns expressed by respondents, by taking certain measures (e.g. accounting separation) at wholesale level.
b) Confirmation of the relevant market of wholesale unbundled access (Market 11), which is split into two geographical areas (isolating the islands of Saint Pierre and Miquelon), which encompasses full unbundling and shared access to the local loop, and now explicitly sub-loops, and on which France Télécom is found to have SMP.
c) Confirmation of the relevant market of wholesale broadband access (Market 12), which DOES NOT encompass cable-tv-based networks, and which is split into two geographical areas (isolating the islands of Saint Pierre and Miquelon), where traffic is handed over at regional level (not at national level), and on which France Télécom is found to have SMP.
In addition, the ART has published a 31-page document containing a summary of the responses received, and its official reaction to those responses, ranging from taking on board suggestions, to clear rejections of suggestions.
The next steps towards completing the French broadband access market reviews are now as follows:
1) In accordance with article L. 37-1 of the new Code des postes et des communications électoniques, the ART is now formally consulting the Competition Council (Conseil de la concurrence) on its proposals regarding Market 11 and Market 12. T-REGS Note: The duration of this consultation should not exceed 6 weeks if one takes into account what is provided for by the proposed article D.301 contained in the draft decree on SMP, on which a public consultation was recently held.
2) As regards the controversial additional market of xDSL-based wholesale access without bandwidth guarantees, where traffic is handed-over at national level, interested parties are invited to send additional contributions to the ART by 15 Oct 2004.
3) In the light of the content of those contributions, the ART will define its position on market definition and on the possible designation of France Télécom as having SMP, and then consult the Competition Council.
4) After taking due account of the opinion of the Competition Council, the ART will notify the European Commission and all national regulatory authorities in the EU of its proposals for market definition and SMP designation on broadband markets.
5) The definition of regulatory obligations ('remedies') for the SMP operators on the defined markets will be the subject of further consultation, and is expected to be finalised at the beginning of 2005.
For an in-depth discussion, please contact Yves Blondeel