The main development in the Dutch telecom sector is undoubtedly the merger of the Dutch activities of Ziggo and Vodafone. The European Commission recently cleared that transaction. But it made the go-ahead conditional on Vodafone divesting its consumer fixed line business in the Netherlands. The Commission’s decision is unusual because it is one of very few telecom transactions that was cleared without a thorough investigation. The transaction confirms the European Commission’s policy, in principle, to regard transactions of a mainly conglomerate nature as promoting competition.
In 2016 ACM published several draft market analysis decisions. Recently, for instance, the draft market analysis decisions for Fixed Telephone and for High-quality Wholesale Access (“HWA”) were submitted for public consultation. The final version of the Fibre to the Office (“FttO”) (draft) market analysis decision has also been published. Later this year ACM is expected also to publish the draft decision on fixed and mobile terminating access (“FTA-MTA”). The policy apparent from these (draft) decisions confirms ACM’s longstanding deregulation trend. Although ACM will continue to regulate the KPN’s HWA business telecom services, it no longer considers it necessary to regulate “Lite” copper services over Ethernet or HWA optical fibre services. ACM has also put an end to part of the regulation on the fixed telephony market. It has also again decided that regulation of the ODF access (FttO) is unnecessary. One of the questions that will be addressed in the appeal proceedings following the various market analysis decisions is whether and, if so, to what extent the upcoming merger of Ziggo and Vodafone will shed a different light on the question whether or not certain services should be regulated.
The Ministry of Economic Affairs recently submitted the 2016 Frequency Policy Memorandum for public consultation. The Memorandum sets out the general objectives, principles and priorities regarding the frequency policy in the coming years. It is apparent from the Memorandum that effects are particularly expected regarding (i) scarce permits (more predictable allocation, more possibilities of joint use and marketability); (ii) the spectrum for the performance of public tasks (more possibilities of joint use); (iii) company-specific applications (better harmonisation of supply and demand on the market for wireless communication solutions, frequency space for company-specific applications); (v) unlicensed use (sufficient frequency space, lower innovation thresholds); (v) the vulnerability of the telecommunication system (greater awareness among citizens and organisations of the vulnerability of wireless telecommunication and what they can do to increase their resilience); and (vi) implementation and supervision by Agentschap Telecom (more possibilities of shared use and joint use, broader role as a mediator and arbitrator). The public consultation will end on 11 September 2016.
There is also a deregulation trend in the field of broadcasting. If State Secretary Dekker of Education, Culture and Science gets his way, television contracts will be overhauled. It is also apparent from a letter that he sent to the Lower House that he intends to abolish the statutory provision that obligates market parties to offer a standard package of 30 channels. But he will most likely persist in a minimum package of eight “must carry” channels, which must therefore in any event form part of the package.
Developments are also to be expected in the coming period in the field of net neutrality. ACM warned telecom companies only recently about the new European rules regarding net neutrality, which those companies were not observing. Those new rules provide that customers themselves may decide what equipment they use for an Internet access service. Providers of the Internet access services may also not tinker with video traffic, e.g. via YouTube or Netflix. We addressed those new rules in an earlier blog. ACM is not yet authorised to enforce the new rules. The legislative proposal authorising ACM to take action is currently before the Upper House.