EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

equal size and a bolder policy of co-investment and network sharing with first mover incentives. This means that the EU regulatory measures adopted in the electronic communications do not provide optimal regulatory environment for the technological development of this sector in the EU. It makes Europe lagging further and further behind USA and many countries in Asia. This is primarily due to US regulatory forbearance ensuring that barriers to investment in infrastructure are removed. The US essential facilities doctrine calls for obligatory wholesale access only if there is an infrastructure monopoly. While Federal Communications Commission (FCC) as the US sector-specific regulator already in 2003 used a high capacity connectivity goal to deregulate new fibre infrastructure. The duopoly competition, which would be treated as an oligopoly and subject to regulation by EU law, between the dominant cable companies and telephone incumbent was viewed as sufficient for abolishing regulation of fibre. In the mobile sector in the US, unbundling was first established in 1996 to open up markets to competition. Spectrum caps were originally viewed by the FCC as one means to ensure effective competition in early stages of mobile market development. Starting in 2003, the regulatory policy in the US changed to a market led approach, with lighter spectrum control (spectrum caps were replaced with a case-by-case review of spectrum aggregation), enabling a dynamic secondary market, and abandoning unbundling. The US favours commercial agreements (e.g., roaming, MVNO, spectrum), a technology agnostic approach to regulation (e.g., same treatment for cable than for traditional ‘incumbents’, technology neutral spectrum) and a more open approach to consolidation. In South Korea the attention is increasingly focused on the need to use the ‘negative regulation’ that minimises regulations on new technologies and the ‘regulatory sandbox’ system that provides opportunities to invest for operators. A ‘regulatory sandbox’ is a system in which companies seeking innovation are exempt from or waived existing regulations for a certain period of time when they release products. References [1] Austrian Institute of Technology, Fraunhofer ISI, Imec, RAND Europe (2021). 5G Supply Market Trends. Final Report. Luxembourg: Publications Office of the Euro pean Union. [2] BEREC (2012). Report on co-investment and significant market power (SMP) in Next Generation Access Networks, (NGA), BoR, Vol 12 No 41. [3] BEREC (2019). Common position on infrastructure sharing, BoR, Vol 19 No110. [4] BEREC (2020a). ‘Guidelines on Very High Capacity Networks’, BoR Vol 20 No 165. [5] BEREC (2020b). Guidelines on the Criteria for a Consistent Application of Arti cle 61(3) EECC, BoR , Vol 20 No 225.

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