ARCEP contributes to the European Commission public consultation on the review of the EU electronic communications regulatory framework
Paris, 8th December 2015
On 11 September 2015, the European Commission launched a public consultation
on the review of the directives that make up the regulatory framework for electronic
communications in Europe, which was adopted in 2002 and amended in 2009.
Along with French authorities, ARCEP believed it was important to contribute
to the process, the outcome of which will have a major influence on the sector's
The current regulatory framework has had a decisive impact on opening up
former State monopolies to competition, which paved the way for investments
that have been beneficial to the whole of society, and provided users with increasingly
competitive and innovative services. By opening the market to competition, the
regulatory framework for electronic communications has contributed to building
a digital single market by making it possible to provide services on a Europe-wide
scale. Without undermining the objectives of the current framework, the future
framework must build on what has been achieved thus far and, looking ahead seek
to meet two core challenges: to provide connectivity to the most advanced
services to every citizen, and to preserve the openness of the digital environment.
The next European framework must therefore be set within the context
of profound technological and economic changes brought about by:
- a new round of massive, long-term investments in superfast
fixed and mobile access networks;
- a new digital ecosystem created, first, by the arrival of services
delivered via the internet which has altered the traditional value chain of
electronic communications services and, second, by future developments, with
the Internet of Things for instance.
These developments require a clear, new approach to defining public policies
and actions, including an increasingly necessary distinction between regulations
governing networks - transport infrastructure whose deployment and operation
are guided by economic circumstances and local constraints - and regulations
governing digital services which belong to global markets that are subject
to very little territorial constraints, aside from regulatory ones. Among other
things, this new set of rules should guarantee that all players can continue
to innovate and experiment.
The main elements of ARCEP's contribution:
* Protecting the openness of the digital environment
In line with the new regulation on open internet access and roaming in Europe,
which sets an ambitious framework for net neutrality, some questions specific
to the electronic communications sector will require solutions that are harmonised
at the European level. Consumers and businesses are indeed increasingly faced
with transparency issues and newfound obstacles, particularly when moving from
one closed environment to another. Issues such as possible changes to interoperability,
portability and user protection obligations which extend beyond electronic communications
services will all need to be addressed.
* Ensuring quality of service and users' trust in all "digital communications"
At a time when more and more communications services delivered online are becoming
potentially interchangeable with traditional electronic communications services
(voice calls, messaging), it is important that the European regulatory framework
evaluate consistently all "digital communications" service providers.
It is only then that each obligation contained in the framework will need to
be adapted to meet the stated objectives with respect to pre-existing rules.
* Setting out precise and detailed connectivity objectives, especially
for mobile coverage, for the whole European continent
On the whole, the connectivity objectives of the Digital Agenda for Europe
could be strengthened and made more specific. Above all, they must first be
completed by mobile coverage objectives for 2025 and 2030, for the whole European
continent. These include 4G and later 5G coverage objectives for cities, rural
areas as well as rail and road transport routes, which will be needed to satisfy
European consumers' and businesses' growing mobile data needs.
* Adapting radio spectrum management at the European level and recognize
a right to experiment
Possible changes to the institutional procedures and forms that will shape
spectrum management in the future will stem from connectivity objectives. In
addition to greater harmonisation of European spectrum regulation (notably regarding
timetables), accompanying measures for optimising frequency allocation processes
could also be considered.
As a result, common tools for frequency auctions could be made available to
and adapted by Member States. Common definitions of the terms and conditions
for using the spectrum allocated by national authorities, such as coverage indicators
definition, could be brought more in line with one another or harmonised, with
the parameters set at the national level. A stronger participation from the
Body of European Regulators for Electronic Communications (BEREC) could also
be considered in sharing best practices for spectrum allocation and licence
monitoring, notably in the definition of possible European indicators, in coordination
with the Radio Spectrum Policy Group (RSPG).
ARCEP also supports the Commission and RSPG initiatives that seek to further
innovation and definition of technical terms and conditions, particularly for
spectrum optimisation and sharing mechanisms, all of which are crucial to ensuring
the end-users' needs and the connectivity of millions of objects. This search
for innovation could be supported by a right to experiment that is recognised
at the European level.
* Consolidating regulation tools in order to ensure the deployment of
The so-called "asymmetric" regulatory framework, whose purpose was
to open up access to the incumbent operator's network, through the imposition
of obligations to the latter, has achieved its objectives in that it helped
open up former State monopolies to competition in an efficient manner, which
stimulated investment and encouraged the development of innovative services.
However, this framework has also reached its limits: if it is well suited to
deal with existing monopolies, it does not prevent the creation of new local
monopolies, nor does it address the challenges affecting the whole industry
and possibly users. The so-called "symmetric" regulation is an effective
complementary tool and therefore a better articulation between symmetric and
asymmetric remedies should be considered.
Lastly, if creating incentives for investment and co-investment in new generation
access networks could involve taking into account a risk premium when setting
wholesale access prices, it must not lead to a reduction of access obligations.
The openness of access networks remains a fundamental prerequisite to healthy
competition, investment and innovation. Furthermore the definition of access
products, whether passive or active, depends on local or national circumstances,
and therefore falls within the remit of the national regulator.
* Making electronic communications regulation part of the "better
Ten years after it was first included in the framework, the current process
of notifying market analysis could be lightened by setting strong objectives
and clear rules at the European level, while giving national regulatory authorities
(NRAs) more flexibility to choose the appropriate remedies for national markets,
based on a common regulatory toolkit, in order to achieve the set objectives.
Now that a new round of massive investment is getting underway, concerns over
the predictability of remedies must be addressed.
NRAs could therefore continue to establish regulatory decisions adapted to
their own national circumstances, and favouring the development of the internal
market, while the European Commission would only need to monitor the progress
made on achieving connectivity objectives without necessarily having to examine
a priori each measure proposed by NRAs at the end of a market analysis exercise.
Regarding interconnection, the current framework for call termination regulation
could be streamlined through a more automatic symmetric regulation for maximum
termination rates, or be determined at the European level, while still being
based on cost-based models that reflect national market characteristics, developed
in tandem with NRAs.
Moreover, it is vital to ensure the predictability and consistency between
the evaluation that the Commission is likely to make of the ex ante regulatory
measures adopted by NRAs, on the one hand, and State aid on the other. Notification
of national programmes devoted to achieving connectivity objectives, and which
include both the award of State aid and ex ante measures, would pave the way
to better coordinated rollout policies. NRAs' role in implementing State aid
also needs to be better defined, particularly as NRAs have the required expertise
when it comes to determining the parts of the country where State involvement
may prove indispensable, along with the power to impose access to all networks,
and to lay down the technical and economic terms and conditions of this access,
regardless of whether the networks are deployed through private or public-sector
This quest for optimised procedures makes it possible to take better account
of the local nature of the networks to be regulated, and the global and symmetric
nature of interconnection. This will also enable NRAs, BEREC and the European
Commission to allocate their resources to essential tasks that require strong
coordination in Europe, such as regulating digital services.
* Guaranteeing universal access to electronic communications
A safety net such as the universal service must continue to exist to ensure
the rapid supply of access at a fixed location to essential services of the
digital society without impeding market dynamics. When it comes to the rollout
of new networks, the universal service must not replace other possible mechanisms,
such as national superfast broadband rollout plans based on a long-term industrial
policy or coverage obligations listed in mobile licences. In addition, measures
in support of users with disabilities should be required from all operators
and not just the universal service provider, as part of a symmetric approach
and in compliance with the principle of proportionality.
* Strengthening BEREC's ability to contribute to the smooth functioning
of the digital internal market
As regards the future governance of BEREC, ARCEP believes that a structure
that can guarantee both that the consideration of local circumstances and the
independence of NRAs should be maintained. These are the cornerstones of European
electronic communications regulation. The work of coordinating regulation at
the European level must continue to be rooted in NRAs' expertise and practices.
Their expertise and participation in BEREC's work have indeed enabled the Body
to make a useful contribution, through its analyses, reports, positions and
opinions, to the proper application of the regulatory framework, and the establishment
of the electronic communications internal market.
In the future, BEREC's involvement could extend to the analysis of problems
and possible solutions that should precede the European Commission's legislative
initiatives. BEREC could also be able to contribute to defining the tools that
will enable better spectrum management, as well as to drafting and implementing
the European regulation regarding some digital services. BEREC may need to be
given greater means of action in order to ensure that the accomplishment of
the future framework's objectives.