22 Feb When geography structures telecoms regulation
Since the 1990s, the regulatory model that has prevailed in Europe has been that of competition. Competition at the level of services, but also at the level of infrastructure, whenever possible. This model is adapted to large cities but becomes less and less relevant when approaching smaller towns or rural areas. The counterweight to the lack of appetite of private investors for fibre optic infrastructure in such areas is generally provided by a public initiative, consisting either of creating a network from scratch or of subsidizing one. Between the double need to bring very-high-speed to the entire European population and to respect the rules on State aid so as not to distort the single market, the definition of geographical areas in terms of competition regime regarding very high-speed infrastructure is a point of harmonization identified as crucial by the new European Electronic Communications Code (EECC). The detailed definition of the geographical studies necessary to define the modes of competition area by area has been entrusted by the European legislator to BEREC, the Body of European Regulators of Electronic Communications.
Article 22 of the EECC (see appendix) requires regulators to carry out a survey of the coverage of electronic communications networks before the end of 2023. This article adds: “By 21 June 2020 at the latest, in order to contribute to the consistent application of geographical surveys and forecasts, BEREC shall publish, after consultation with stakeholders and in close cooperation with the Commission and the national authorities concerned, guidelines intended to assist national regulatory authorities and / or other competent authorities to consistently implement their obligations under this Article. “
As stated in Article 22, the results of geographic studies can be used by regulators for several purposes or functions, in particular:
- For the application of state aid rules,
- To designate an area with clear territorial limits where no company or public authority has deployed or plans to deploy a very-high-speed network (at least 100 Mbps),
- to check the availability of services falling under universal service obligations,
- For the allocation of public funds for the deployment of electronic communications networks and the design of national broadband plans, also including adequate identification of areas of market failure,
- To define the coverage obligations attached to the rights to use the radio spectrum,
- For making available on the market, (if not already available) information tools allowing end users to determine the availability of connectivity in different areas, with a sufficient level of detail to support their choice of operator or service provider,
- where applicable, when defining the relevant geographic markets,
- impose appropriate universal service obligations,
- To make the results of the survey available to BEREC and the European Commission.
The guidelines should provide regulators with:
- specification of the relevant data to be produced,
- advice on how to collect this data,
- advice on how to aggregate this data,
- advice on data considered public or confidential,
- advice on the procedure for identifying agents’ intentions to deploy very-high-speed networks.
The concepts retained are, for fixed broadband,
- the concept of homes passed,
- upload and download speed,
- the access technology used and
- high resolution mapping data (distinguishing the coverage of each address).
For mobile broadband, these key information points and characteristics are:
- the availability of broadband service in a certain area,
- upload and download speed,
- the user’s location and
- high resolution mapping data (in squares of 100 m by 100 m).
The methodology adopted distinguishes three successive approaches to quality of service:
QoS-1: calculated service availability – Theoretical performance of the existing infrastructure network,
QoS-2: measured service delivery – Measurements via probes, excluding the end user environment,
QoS-3: measured service experience – Measurements using an Internet access service, including the end-user environment, for example via online speed tests.
BEREC carried out no less than three public consultations to develop these guidelines. The most important of these, which took place from October 10 to November 21, 2019, received nine contributions from operator associations, seven from operators, four from administrations and two from experts. In addition to contributions from global or pan-European actors, contributions came from the following countries: Austria, Belgium, Czech Republic, Denmark Germany, Ireland, Italy, Netherlands. If we put aside Denmark, where the concerned administration asked for details on the method of calculating speeds, and the Netherlands, where the integrated fixed / mobile operators criticized BEREC for going beyond its mandate, contributions generally came from countries where VDSL dominance has long led, at least in part of the country, to postpone the urgent need to deploy optical fibre. Conversely, the public consultation did not attract any contribution from Sweden, France, Spain or Portugal, countries where the deployment of very high speed is sufficiently advanced for the debates created by these geographical studies to be considered as belonging to the past for. the actors concerned.
Annex – European Code of Electronic Communications – Article 22 – Geographical surveys of network deployments
1.National regulatory and/or other competent authorities shall conduct a geographical survey of the reach of electronic communications networks capable of delivering broadband (‘broadband networks’) by 21 December 2023 and shall update it at least every three years thereafter.
The geographical survey shall include a survey of the current geographic reach of broadband networks within their territory, as required for the tasks of national regulatory and/or other competent authorities under this Directive and for the surveys required for the application of State aid rules.
The geographical survey may also include a forecast for a period determined by the relevant authority of the reach of broadband networks, including very high capacity networks, within their territory.
Such forecast shall include all relevant information, including information on planned deployments by any undertaking or public authority, of very high capacity networks and significant upgrades or extensions of networks to at least 100 Mbps download speeds. For this purpose, national regulatory and/or other competent authorities shall request undertakings and public authorities to provide such information to the extent that it is available and can be provided with reasonable effort.
The national regulatory authority shall decide, with respect to tasks specifically attributed to it under this Directive, the extent to which it is appropriate to rely on all or part of the information gathered in the context of such forecast.
Where a geographical survey is not conducted by the national regulatory authority, it shall be done in cooperation with that authority to the extent it may be relevant for its tasks.
The information collected in the geographical survey shall be at an appropriate level of local detail and shall include sufficient information on the quality of service and parameters thereof and shall be treated in accordance with Article 20(3).
2.National regulatory and/or other competent authorities may designate an area with clear territorial boundaries where, on the basis of the information gathered and any forecast prepared pursuant to paragraph 1, it is determined that, for the duration of the relevant forecast period, no undertaking or public authority has deployed or is planning to deploy a very high capacity network or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds. National regulatory and/or other competent authorities shall publish the designated areas.
3.Within a designated area, the relevant authorities may invite undertakings and public authorities to declare their intention to deploy very high capacity networks over the duration of the relevant forecast period. Where this invitation results in a declaration by an undertaking or public authority of its intention to do so, the relevant authority may require other undertakings and public authorities to declare any intention to deploy very high capacity networks, or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds in this area. The relevant authority shall specify the information to be included in such submissions, in order to ensure at least a similar level of detail as that taken into consideration in any forecast pursuant to paragraph 1. It shall also inform any undertaking or public authority expressing its interest whether the designated area is covered or likely to be covered by a next-generation access network offering download speeds below 100 Mbps on the basis of the information gathered pursuant to paragraph 1.
4.Measures pursuant to paragraph 3 shall be taken in accordance with an efficient, objective, transparent and non- discriminatory procedure, whereby no undertaking is excluded a priori.
5.Member States shall ensure that national regulatory and other competent authorities, and local, regional and national authorities with responsibility for the allocation of public funds for the deployment of electronic communications networks, for the design of national broadband plans, for defining coverage obligations attached to rights of use for radio spectrum and for verifying availability of services falling within the universal service obligations in their territory take into account the results of the geographical survey and of any designated areas pursuant to paragraphs 1, 2 and 3.
Member States shall ensure that the authorities conducting the geographical survey shall supply those results subject to the receiving authority ensuring the same level of confidentiality and protection of business secrets as the originating authority and inform the parties which provided the information. Those results shall also be made available to BEREC and the Commission upon their request and under the same conditions.
17.12.2018 EN Official Journal of the European Union L 321/115
6.If the relevant information is not available on the market, competent authorities shall make data from the geographical surveys which are not subject to commercial confidentiality directly accessible in accordance with Directive 2003/98/EC to allow for its reuse. They shall also, where such tools are not available on the market, make available information tools enabling end-users to determine the availability of connectivity in different areas, with a level of detail which is useful to support their choice of operator or service provider.
7.By 21 June 2020, in order to contribute to the consistent application of geographical surveys and forecasts, BEREC shall, after consulting stakeholders and in close cooperation with the Commission and relevant national authorities, issue guidelines to assist national regulatory and/or other competent authorities on the consistent implementation of their obligations under this Article.