Are there any regulations covering interconnection between operators? If so are these different for operators with market power?
Technology (second edition)
Interconnection between operators is regulated under MOCI Regulation No. 09/Per/M.KOMINF/02/2006 regarding Interconnection (February 8, 2006). There are no other regulations specifically regulating operators with market power.
There is a general obligation for all providers of public electronic communications networks or services who control the connectivity to end users, to negotiate in good faith with other communication providers in order to ensure interoperability and end-to-end connectivity. Subjects on which agreement may need to be reached include technical aspects of the connection to networks, tariffs and quality of services. Providers are to enter into these negotiations proactively. Although the underlying principle for these negotiations is the freedom of contract, ACM may be requested to intervene if a dispute arises that stands in the way of reaching an agreement. In such case, ACM will review whether the requests of either party can be considered objective, transparent, reasonable, proportional and non-discriminatory. ACM may impose obligations on providers to instate the requested end-to-end connectivity and it may, if necessary, impose the commercial conditions, including maximum tariffs, to be applied by the providers.
In addition, ACM has a duty to periodically review the structure of the telecoms markets recommended for review by the European Commission, and where it finds that one (or more) operators have significant market power (aanmerkelijke marktmacht), ACM may impose obligations on such operator. These obligations should be aimed at resolving (potential) problems resulting from the lack of effective competition on such market, and may relate to providing access, tariff setting and charging reasonable tariffs, accounting standards and separate bookkeeping for separate services, preventing discrimination or providing information (transparency). Measures imposed by ACM should be proportionate.
In addition to these specific powers provided to ACM by the Dutch Telecommunications Act, also the general Dutch and EU competition rules apply in respect of anti-competitive agreements and the abuse of dominant positions.
Yes. The Telecommunications Act establishes that interconnection shall be carried out in a non-discriminatory manner, under adequate technical conditions, with the practice of fair and isonomic prices.
Additionally, the General Interconnection Regulation, approved by Anatel Resolution No. 410/2005, provides the applicable rules to interconnection requests, interconnection public offers, the time limits that must be observed for the implementation of interconnections and the procedure for disputes resolution.
There are specific obligations for operators holding significant market power as established by the General Competition Plan (“PGMC”) enacted by Anatel. The PGMC provides rules to determine whether an economic group holds the so-called significant market power (“SMP”) to influence economic conditions in certain telecommunications markets. According to PGMC, operators found to hold SMP may be subject to asymmetric regulatory obligations regarding transparency, resources access, products offer and equality, as well as wholesale price control. In order to determine whether an economic group holds signiﬁcant market power in a relevant market, Anatel undertakes an assessment with regard to the group’s (i) market share; (ii) ability to benefit from economies of scale and scope in the relevant market; (iii) control over an essential infrastructure; and (iv) presence in both wholesale and retail segments.
For groups that hold signiﬁcant market power, the offer of wholesale network capacity (dedicated circuits) is mandatory, and shall be provided within deadlines established in the regulation, so as to avoid procrastinations or other anti-competitive behaviours.
The rules on interconnection are governed by a mixture of communications- and competition-related laws.
Notified companies are free to negotiate, with each other and with undertakings notified in another EC member state, technical and commercial arrangements for access or interconnection, with:
- 'access' meaning: making available to another company, under well-defined conditions, resources and/or services for the provision of electronic communications services
- 'interconnection' meaning: the connection of public communications networks in order to allow users of a company to communicate with users of the same or another company, or to access the services provided by another company.
Operators have the obligation, when other notified companies request this, to negotiate a reciprocal interconnection to provide publicly available electronic communications services, in order to guarantee the provision of services and their interoperability in the EC. In this regard, the ILR may obligate notified companies to assure the interconnection of their networks and to make their systems interoperable.
Furthermore, if the ILR designates a provider with significant market power on the access and interconnection market, the ILR may impose transparency obligations, obligations of non-discrimination, accounting separation requirements, and cost recovery and price control obligations. The ILR may also obligate such an operator to publish a reference offer which guarantees that companies do not pay for resources that are not required for the requested service.
Where an operator has significant market power over the access or interconnection market, it must apply equivalent conditions to any notified company providing equivalent services. In this regard, it must also provide services and information under the same conditions and with the same quality as it provides for its own services or for those of its subsidiaries or partners.
An operator with significant market power may also be obligated by the ILR to make its wholesale and internal transfer prices transparent.
Moreover, general European competition law applies in respect of anti-competitive agreements and the abuse of dominant positions.
Yes. ANCOM takes all necessary measures to ensure and encourage adequate access and interconnection as well as the interoperability of services in a way that promotes efficiency, sustainable competition, investment and innovation for the benefit of end-users. To accomplish this, ANCOM may impose certain obligations on undertakings, as follows:
- in order to ensure end-to end connectivity, the authority may impose obligations on undertakings that control access to end-users to interconnect their networks;
- in justified cases and if it is necessary, the authority may also impose obligations on undertakings that control access to end-users to make their services interoperable;
- to the extent that this is necessary to ensure accessibility for end-users to digital radio and television broadcasting services to provide access to application programming interfaces or electronic program guides on fair, reasonable and non-discriminatory terms.
The obligations and conditions imposed as per the above must be transparent, objective, proportionate and non-discriminatory and must follow a certain procedure provided in the law. Also, such measures that may be imposed by the regulatory authority are without prejudice to the measures that may be taken regarding undertakings with significant market power.
One of the tasks of ANCOM is to promote competition on the market. To achieve this, the authority identifies the relevant market and the undertakings with significant market power. In the sector of electronic communications an undertaking is considered to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers.
After conducting the market analysis and to the extent that it is necessary to promote competition on that market, ANCOM may impose, maintain, amend or withdraw, as the case may be, certain obligations on undertakings with significant market power. According to GEO 111/2011 and in line with the EU provisions (Access Directive) the authority may, in addition to the above impose, maintain, amend or withdraw the following in order to facilitate access to and interconnection of electronic communications networks and associated facilities:
- obligations of transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use;
- obligations of non-discrimination in relation to interconnection and/or access that ensure in particular, that the operator applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services, or those of it subsidiaries or partners;
- obligations of accounting separation in relation to specified activities related to interconnection and/or access;
- obligations of access to, and use of specific network facilities in situations where ANCOM considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest;
- obligations of price control and cost accounting obligations; and
- obligations of functional separations; this obligation may be imposed when the authority considers that the above listed obligations have failed to achieve effective competition and that there are important and persisting competition problems and/or market failures identified in relation to the wholesale provision of certain access product markets; this obligation requires vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in an independently operating business entity.
Article 12 of the Spanish Telecommunications Act (in line with Article 4.1 of the EU Access Directive 2002/19/EC) states that operators of public communications networks shall have a right and, when requested by other undertakings so authorised, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure the provision and inter-operability of services throughout the community.
Particular obligations on operators with market power
Article 14 of the Spanish Telecommunications Act states that the CNMC may impose on operators with significant market power certain specific obligations, which include amongst others:
- Transparency obligations; according to which operators may be required to publish information relating to accountability, technical specifications, network characteristics, supply conditions, and/or the publication of a reference offer etc.;
- Non-discrimination obligations; according to which operators may be required to apply equivalent conditions in similar circumstances to other operators that provide equivalent services and provide third parties with services and information of the same quality as those provided for their own services or those of their subsidiaries or associated and in the same condition;
- Other obligations include the separation of accounts, access to specific elements or resources from the network as well as other related services as identity, location and presence services, pricing control etc.
Yes, interconnection between operators is regulated under the Telecommunication Interconnection Regulations, 2018 (Regulations) issued by the Telecom Regulatory Authority of India (TRAI). The Regulations require operators to enter into an Interconnection Agreement with the interconnection seeker on a non-discriminatory basis within a period of thirty (30) days. Prior to February, 2018, the concept of a Signiﬁcant Market Player (SMP) was recognised wherein an operator holding 30% or more share of the total activity in a licensed telecommunication service area was required to get an approval from TRAI for its base contractual agreement containing the technical and commercial speciﬁcations (called Reference Interconnect Oﬀers). However, this requirement has now been done away with.
Yes. Whether an operator is required to give access to its network or infrastructure depends on the level of market competition in the relevant market. Telecommunication operators that are identified as entities with significant market power in a determined market can be subject to certain pre-determined obligations under ECL and the Regulation on Access and Interconnection. Therefore, after conducting some market analysis, the ICTA can impose any of the following obligations on telecommunications operators with significant market power:
- The provision of access and/or interconnection.
- The publication of reference access and/or interconnection offers.
- Facility sharing.
The ICTA can impose an obligation on the operator to meet the other operators' requests for access if it considers that an operator with significant market power in the relevant market would hinder the emergence of a competitive market by either:
- Denying another operator's access request.
- Imposing unreasonable terms and conditions.
Operators obliged to provide access to other operators must unbundle the network in a way that enables access to transmission, switching and interfaces, requested from them. The ICTA determines the scope of obligation of providing unbundled access to all network elements, including the local loop.
In chapter 4 of the Electronic Communications Act, the matter of interconnection between operators is covered. Operators of a public communication net are obliged to negotiate about interconnection with those who provide, or intend to provide, electronic communication services to the public. Such negotiations are subject to confidentiality.
According to chapter 4, section 3 of the act, there is an obligation for operators who control the end users´ access to interconnect, or take measures that enables the end users to connect with each other. As for operators with significant market power, they can be obliged to e.g. adopt non-discriminating terms and fulfil certain demands relating to the access and use of the net in question.
As regards fixed line services, TSPs with a dominant position in the market must give other providers access to their facilities (technical co-use of locations related to network access) and services. They must provide access in a transparent and non-discriminatory manner and at reasonable prices including, among other things, as regards fully unbundled access to the local loop, rebilling for fixed network local loops, interconnection, access to leased lines and cable ducts (provided they have sufficient capacity). If two providers do not agree on the access conditions, one party can request that ComCom decides. Providers of services forming part of the universal service (such as mobile and fixed line services) must ensure that communication is possible between all users of these services and networks (interoperability). The provisions for fixed line services also apply to mobile services providers. However, in practice only interconnection is relevant to mobile services, meaning that mobile services providers must ensure interoperability between each other and with providers of fixed line networks.
Dominant providers are subject to the Federal Act on Cartels and other Restraints of Competition (LCart) and the Federal Act on Price Surveillance, and may have limits imposed on their freedom to determine prices.
The Chapter 3 of the Telecommunications Regulations (2016 Revision) and the Provisions on the Management of Interconnection between Public Telecommunication Networks (2014 Revision) are the major regulations governing the interconnection between operators. China adopts the ‘asymmetric regulation’ management mode to dominant telecommunication operators and non-dominant operators. In aligning with the Telecommunications Regulations, the Provisions on the Management of Interconnection between Public Telecommunication Networks specifically provide obligations for dominant operators, such as the dominant operator shall provide the non-dominant operator with the information of network functions and equipment allocations which are related to the interconnection, and shall facilitate the non-dominant operator to use its facilities and shall not attach any unreasonable conditions, to facilitate non-dominant operators in the interconnection.
In order to promote competition in the telecommunications sector, the FTBA provides that concessionaries that operate telecommunications public networks shall interconnect their networks on a non-discriminatory basis, consequently, concessionaries operating public networks shall adopt open architectural network designs.
Given that IFT must ensure prompt and effective interconnection between networks, if the concessionaries do not agree on interconnection terms and conditions or if a concessionaire refuses to negotiate such interconnection, the regulator may intervene and determine the terms upon which two networks must interconnect.
IFT has the authority to declare that an economic agent (i) is the preponderant agent in the telecommunications or broadcasting industries and/or has market power in a relevant market or service within the telecommunications or broadcasting industries. Such declarations result (in the case of preponderance, and may result, in the case of market power) in the imposition of asymmetric regulation on the relevant agent, which in turn create obligations that other concessionaries do not have. Generally speaking, these measures consist in: (i) the obligation to provide access to infrastructure, (ii) rate regulation, and (iii) certain obligations with respect to acquisition of contents and/or entering into certain type of agreements.
The CMA is the principal legislation in respect of interconnection and access to facilities and services between operators. The establishment of an access regime under the CMA enables providers to obtain access to necessary facilities and services on reasonable terms and conditions.
Network Facilities Providers and Network Service Providers are required to provide access to their network facilities or services listed in the access list under the CMA to any other Network Facilities Providers, Network Services Providers, Applications Service Providers and Content Applications Service Providers.
Any written agreement between providers for access to listed facilities and services must be registered with the MCMC in order to be enforceable.
In respect of treatment of operators of differing market powers, under the CMA, the MCMC is empowered to direct a licensee in a “dominant position” in a communications market to cease conduct in that communications market which has, or may have, the effect of substantially lessening competition in any communications market, and to implement appropriate remedies. The MCMC issued its Guideline on Dominant Position on 24 September 2014.
The Guideline on Dominant Position provides that in analysing whether a licensee is in a dominant position in a relevant communications market, the MCMC will consider the structure of the market and nature of competition in that market, including market shares; barriers to entry and expansion; countervailing power of buyers; and nature and effectiveness of economic regulation (if any). The MCMC may derive the existence of a dominant position from either a single factor or from multiple factors, depending on the facts of the case. Where other factors that are relevant to the assessment of dominance exist in a particular market, the MCMC will also take these into account.
The effect of access regulation under the access list will be considered by the MCMC in order to determine whether a licensee is being sufficiently constrained in a communications market. The existence of access regulation will not prevent a licensee from being in a dominant position if it does not provide an effective constraint on the ability of a licensee to act independently in a market. Access regulation may only constrain the activities of licensees in relation to particular products supplied in a market rather than more generally in the market.
If the MCMC considers that a provider is in a dominant position, it may direct the provider to cease conduct that substantially lessens competition in the communications market.
Interconnection between operators is regulated pursuant to the EU ‘Telecom Package’ and the French CPCE (see Question 1). For instance, operators of networks open to the public must accept interconnection with their peers, unless their refusal is duly motivated. The ARCEP may control any interconnection agreement as well as any agreement for the sharing of a radio network and may, in certain cases, impose specific requirements on the parties in an ‘objective, transparent, non-discriminatory and proportionate manner’. Similar duties apply to infrastructure managers such as railways or highway operators and to those who set up or manage optical fiber broadband lines to end users.
Furthermore, the ARCEP identifies and lists the operators which have a significant market power on a market segment and may impose more stringent obligations on them, such as to publish an interconnection tariff and to offer services under non-discriminatory terms to other operators.
Specific regulations on interconnection between telecommunication operators are stipulated in Section 19 TKG (e.g. non-discrimination, transparency), according to which each operator of a public telecommunications network is obliged upon request to submit an offer on interconnection to other operators of public telecommunications networks to ensure the communication of the users, the provision of telecommunication services and their interoperability throughout the European Union.
Further general regulations covering interconnection between operators are located in the Treaty on the Functioning of the European Union (AEUV) and the Restriction of Competition Act (GWB).
With view to telecommunication operators with market powers, special obligations and prohibitions are regulated in Section. 19 et seq. TKG. In addition the general regulations pursuant Article 102 AEUV and Sections 19 to 21 GWB need to be taken into account. These regulations prohibit the exploitation of a dominating position.
Specific consumer protection regulations with regard to telecom services are stipulated in Section 43a et seq. TKG. The scope of protection ranges from special information requirements, claims for damages, the equivalence in disabled end-users' access to services, fault clearance service and itemized billing.
The Code of Practice for the Provision of Telecommunication Services ("Telecom Competition Code") mandates interconnection between operators.
Where a licensee is considered to be a "dominant licensee" it is subject to further requirements regarding interconnection. The IMDA requires dominant licensees maintain and to provide interconnection services in accordance with, a reference interconnection offer ("RIO"). The RIO sets out prices, terms and conditions that have been pre-approved by the IMDA.
A licensee will be considered to be a "dominant licensee" if:
(a) it is licensed to operate facilities that are sufficiently costly or difficult to replicate such that requiring new entrants to do so would create a significant barrier to rapid and successful entry into the telecommunication market in Singapore by an efficient competitor; or
(b) it has the ability to exercise significant market power in any market in Singapore in which it provides telecommunication services.
Parts 3, 4 and 5 of Schedule 1 to the Telecommunications Act comprise the carrier-to-carrier access regime. This makes it mandatory for carriers to provide other carriers with access to the following in certain circumstances:
(b) certain information relating to the operation of telecommunications networks in Australia;
(c) telecommunications transmission towers and the sites of such towers; and
(d) underground facilities designed to hold lines.
This regime promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services, and enables the provision of competitive facilities and carriage services, or alternatively for carriers to establish their own facilities.
The Competition and Consumer Act 2010 (Cth) also contains a telecommunications access regime. This regime does not provide a general right of access. Rather, the ACCC must first declare a service following a public inquiry. Where a service is declared, the carrier must provide access to other providers subject to standard access obligations. Current declared services in Australia include:
(a) wholesale ADSL and line rental;
(b) local telephone services;
(c) certain access to the public switched telephone network; and
(d) certain access to the National Broadband Network.
Yes, the Telecommunications Act of 1996 requires local exchange carriers ("LECs") to interconnect with other carriers, and specifies the requirements for LECs to meet the interconnection requirement in their negotiated agreements with other carriers. LECs must provide interconnection at reasonable rates and in a timely manner, and their interconnection agreements are subject to approval of state public utility commissions. While LECs are required to provide interconnection on fair terms, reasonable rates and in a non-discriminatory manner, there is no separate set of rules for LECs with market power.
Under Article 32 of the Telecom Act, all telecommunications carriers must accept a request from another telecommunications carrier to interconnect the facilities of the requesting carrier with the circuit facilities that the requested carrier installs, except where (i) the interconnection is likely to hinder telecommunications services from being smoothly provided, (ii) the interconnection is likely to unreasonably harm the interests of the requested carrier, or (iii) there are justifiable grounds specified by an Ordinance of the MIC.
In addition, there are specific regulations on telecommunications carriers who install basic and important telecommunications facilities as designated by the MIC. Such designated carriers are obligated to establish interconnection tariffs concerning the amount of money that a carrier will receive and the technical conditions required at the points of interconnection with other carriers’ facilities. Such interconnection tariffs must be authorised by the MIC (in the case of fixed line facilities) or must be submitted to the MIC prior to implementation of the interconnection tariffs (in the case of mobile facilities).
Concerning regulations covering interconnection between operators, Act of 7 May 2010 on Supporting the Development of Telecommunications Services and Networks regulates networks’ operator obligation to provide access to technical infrastructure to other telecommunications operators, including the right to utilise it to implement a fast telecommunications network.
With respect to operators with significant market power, the Telecommunications Act provides that the President of the UKE may by decision impose on such an operator the obligation to take account of justified requests from telecommunications undertakings to be provided with telecommunications access, including the use of network elements and associated facilities, in particular taking into account the level of competition in the retail market and the interest of end-users. This obligation may consist in:
- 1) ensuring the possibility of managing end-user service by an authorised telecommunications undertaking and making decisions concerning the provision of services for the benefit of that undertaking;
- 2) providing specific telecommunications network elements, including access to non-active network elements or telecommunications equipment, lines, links or local loops; the obligation to make local loops available may relate to a loop or a sub-loop, with full or shared access, together with collocation and access to cable lines and relevant information systems;
- 3) offering wholesale services for the purpose of their resale by another undertaking;
- 4) granting access to interfaces, protocols or other key technologies necessary for interoperability of services, including virtual network services;
- 5) providing telecommunications infrastructure, collocation, and other forms of shared use of buildings;
- 6) providing network functions necessary to ensure full interoperability of services, including the provision of services in intelligent networks;
- 7) providing roaming services on mobile networks;
- 8) providing systems which support operational activities or other software systems necessary for effective competition, including tariff systems, systems for issuing invoices and collecting receivables;
- 9) providing associated facilities in relation to radio and television broadcasting;
- 10) providing network or telecommunications equipment interconnection and related facilities;
- 11) conducting negotiations in good faith with regard to telecommunications access and providing formerly established telecommunications access to specific telecommunications networks, equipment or associated facilities;
- 12) providing telecommunications services taking account of priority;
- 13) ensuring access to associated facilities, including identity, location and presence services.
Additionally, the President of the UKE may by decision specify, within the scope necessary to ensure proper functioning of a telecommunications network, the technical or operational conditions to be met by a telecommunications undertaking providing telecommunications access or by telecommunications undertakings using such access.
In summary, as far as regulations covering interconnection between operators are concerned, the Telecommunications Act provides the basis for the President of the UKE to issue decisions which define the principles of interconnection between operators.
And, finally, specific provisions on consumer protection are, above all, set forth in the Polish Civil Code, which broadly regulates agreements concluded with consumers that apply also in the area of telecommunications.