The European Commission (EC) has issued comments on Dutch regulator ACM’s proposed wholesale broadband regulation of nationwide operators KPN and VodafoneZiggo, which were found by the watchdog’s recent analysis to hold joint Significant Market Power (SMP) in a combined Wholesale Fixed Access market. ACM proposed that for the first time cableco VodafoneZiggo would be subject to similar wholesale network access obligations to those imposed on PSTN incumbent KPN in the interests of fair competition.
The EC did not object to the definition of the relevant market and ACM’s finding that both KPN and VodafoneZiggo are jointly dominant, but the Commission has asked the regulator to further substantiate its conclusion regarding the market definition, and to further justify ‘the proportionality of extending the full set of remedies also to VodafoneZiggo, and to consider whether a more flexible price control remedy (economic replicability test rather than strict cost orientation) related to VULA [Virtual Unbundled Local Access] as well as all fibre and cable products could better address the identified retail market failures.’
Additionally, the Commission pointed out that ‘if the competitive landscape changes after the transposition of the [EU] Electronic Communications Code into national law, specifically if operators enter into cooperative arrangements or co-investment commitments, then the regulator should reassess the adequacy of the proposed regulation.’
The EC’s public release ended with: ‘ACM will now have to take utmost account of the Commission’s comments in the preparation of its final measures, to be published in the coming months.’