lunes, 14 de septiembre de 2015

The EU #telecom reform : the cornerstone for the #DigitalSingleMarket

The European Commission has included the review of telecom market legal framework as an action to start in 2015,  both in its REFIT programme and in the strategy for the completion of the Digital Single Market in Europe. Although Europe enjoys one of the the most competitive telecom market in the world, it is lagging behind in 4G deployment and it doesn't exist any real pan-european telecom operator ready to take advantage of the opportunities of the world biggest free trade area. Only these two pieces of information justified a reform of the EU telecom market.

It is not the first attempt of the European Commission in the last years to completely overhaul the 2009 telecom package. The former telco Commissioner, Neelie Kroes, proposed in September 2013 the "Connected Continent" package. This proposal included measures for the harmonisation of the wholesale access products, strengthening the coordination of spectrum policies, the review of the institutional regulatory framework, the creation of a unified authorisation process for telecom operators, an agreement of a common interpretation for net neutrality in Europe and the end of roaming charges. For different reasons, both the Parliament and the Council rejected some of the measures. In the end, only the last two measures have survived the legislative process that is expected to finish by the end of 2015 after the agreement reached between the European institutions in June in the three-way negotiations.

Although there is not a firm proposal for the new regulation yet, the communication "A Digital Single Market strategy for Europe" hinted some of the areas that would be tackled in it. The European Commission set as the general aims for the review "making telecoms rules fit for purpose"  and develop the "right regulatory conditions for investment, fair competition and a level playing field". In order to achieve these goals the European Commission has the intention to propose measures focusing on achieving more coordination on spectrum policies, tackling with the regulatory fragmentation, ensuring a level playing field between some telco services and their equivalent OTT applications, reviewing of the universal service definition and setting up a new architecture for the regulatory institutional framework. In a recent blog post, the DG responsible for the review, Roberto Viola, has hinted other possible complementary measures as establishing more ambitious targets for connectivity in Europe and addressing the extension of high-speed broadband to rural areas through investment incentives.

There is a clear overlap among the measures that were included in the "Connected Continent" package and those that would be included in the forthcoming regulatory proposal of the new commissioner, Gunther Oettinger. After the rejection from the Council of a more centralised spectrum policy and the opposition to the institutional regulatory reform from both the Council and the Parliament, the Commission will need to innovate in its proposals. As Einstein said, it would be difficult to achieve a different result doing the same things, and the risk would be facing another fruitless debate for a couple of years. Furthermore, the EC should start by exploring critically its own thoughts before publishing the new proposal. For instance, although the EC mainly blames the lack of coordination in spectrum policies for the delay in the deployment of 4G, the larger period of economic crisis in Europe in comparison with US or Asia has had a certain and equal impact on the lack of the needed telco investments to deploy the 4G networks. Regarding the institutional framework, beyond an stable chairpersonship for BEREC, we may need a complete review of the definition, status and role of the independent national regulators after the liberalisation of the telco sector has finished in Europe many years ago.

Some experts missed tackling other areas besides the known intentions for the reform. There are voices claiming to solve first the contradictory approach of the EC to the consolidation of the telco market in Europe. On one hand, they say that the DG responsible for the telco regulation claims the need for market consolidation to guarantee the long-term sustainability of EU operators. On the other hand, they state that the DG responsible for competence has short-term consumer protection as one of its priorities and usually demands strict remedies for the merger that disincentivizes pan-european M&A. The experts claim both interests are conflicting and the dilemma should be solved within the EC before proposing any new regulation, that "the commission’s competition policy has hindered the EU’s goals of bolstering the tech sector and establishing better digital interconnections across Europe". What it is the same, they alert that EU would risk having a potential conflict between the goals of the future ex-ante and ex-post regulatory tools.

Finally, it should not be forgotten that the telecom services are included among the services which market access conditions are under negotiation within the TTIP. The EC have made public at last its proposal for this negotiation. The text published is not far away the EU acquis, but at the same time it is highlighted that there is already a first draft of the consolidated version not published. The coincidence of the TTIP negotiation and the development of the new EU telco regulatory framework will demand an extra effort of regulatory coherence from the EU institutions.

The reform of the EU telecom market is the cornerstone of the Digital Single Market Strategy. Innovative proposals are needed that, at the same time, protect the consumer and promote investment by all the actors of the digital value chain. The strong competition in the European telecom market should be complemented with the right competition tools that allow the growth of the EU telecom operators within Europe and in the global digital market that will be reinforced with the free trade agreements under negotiation.

How to reach the above ambitious combination of goals? The European Commission has opened a public consultation on the matter that will be open until December 7th. It is the time to contribute to this key project for the future of the digital Europe.

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