Response to Consultation and Final Document. Information Technology and Communication Authority

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1 MARKET ANALYSES Retail Leased Lines Market (The Minimum Set of Leased Lines) Final Document Response to Consultation and Final Document Information Technology and Communication Authority Competition and Consumer Rights Department January 2010, ANKARA Ref: 2010.P.7.2

2 TABLE OF CONTENTS 1 INRODUCTION SERVICES WITHIN THE SCOPE OF THIS DOCUMENT MARKET DEFINITION FOR RETAIL LEASED LINES SERVICES Relevant Market Relevant Product Market Bandwidth Analogue & Digital Lines Traditional & Other Leased Line Services International Leased Lines Relevant Geographic Market Market Definition THE NEED FOR REGULATION IN THE RELEVANT MARKET COMPETITION LEVEL ANALYSES Market Shares Control of the Infrastructure that is not easily Duplicated and Economies of Scale Vertical Integration and Economies of Scope Barriers to Entry and Lack of Potential Competition Countervailing Buyer Power Determining the Operators with Significant Market Power REMEDIES TO BE IMPOSED TO THE OPERATOR(S) HAVING SMP CONCLUSION

3 1 INRODUCTION Current regulatory framework requires Information and Communication Technologies Authority (ICTA) to determine undertakings with Significant Market Power (SMP) in relevant markets and then impose obligation to the operator having SMP. In accordance with the 6th Article of the Bylaw on Principles and Procedures in the Electronic Communications Sector for the Determination of the Undertakings with Significant Market Power and the Remedies which is to be Imposed for Those Undertakings which was published in Official Journal (OJ) No dated , Authority can do market analyses on its own initiative or upon justifiable request from operator(s) so as to determine operator with significant market power in relevant market. As a result of the first market analysis, Turk Telekom Co. (Turk Telekom) was designated as undertaking with SMP in relevant markets for leased lines services and the final decision was published in OJ No dated This document defines the relevant market first, and then contains the ICTA s view on competition level in the market, and finally sets out the undertakings with SMP which are determined following the analysis of competition level and the remedies to be imposed on those undertakings with SMP. ICTA has started the second round for market analyses and public consultation for this document was held between and Between these dates, ICTA has received responses from; Turkish Competition Authority (TCA) Turk Telecomunication Co. (Turk Telekom), Koç.Net Communication Tech. and Services Co. (Koç.Net) Millenicom Telecommunication Services Co. (Millenicom) Turkish Competitive Telco Operators' Association (Telkoder) In general, TCA s responses include some advise towards excluding the retail leased lines from the market which subject to ex ante regulation by creating a competitive environment. These advised measures and other opinions of TCA are mentioned within the document. Similarly, other responses from the stakeholders will be evaluated within the document. Millenicom stated that it shares the same views with Telkoder in this document. 3

4 2 SERVICES WITHIN THE SCOPE OF THIS DOCUMENT In general, leased line services may be asked both by end users to satisfy the functional needs and also by other undertakings to supply other electronic communication services. However the seperation of wholesale and retail services is sometimes difficult due to functional similarity from commercial perspective. On the other hand, this seperation shoul be based on whether the services are obtained to supply other electronic communication service for third party or to satistfy other personnal needs 1. Relevant EU regulation sets a more clarified methodology on this seperation. Turk Telekom was designated as undertaking with SMP in retail leased lines market following the first market analyses in According to Commission Recommendation on Relevant Markets (2007/879/EC), retail leased line market has been excluded form the markets subject to ex ante regulation because the relavant market has already reached to competitive levels. However it is possible for NRAs to establish market analyses where three criteria test is held and notified to the Commission. ICTA has revised its secondary legislation following the the new electronic communicaton law (no date 11 Nov. 2008). As an acceding country to the EU, Turkey has alligned its legislation to the acquis. Thus in secondary legislation for market analyses it is stated that three criteria test must be held in market analyses process. First of all, in this document, market definition for retail leased line services will be clarified. Then, the need for ex ante regulation and competition analyses will be held. Finally, after determination of market power; the remedies will be imposed to the undertaking with SMP. 1 Commission Recommendation on Relevant Markets, Feb. 11, 2003 Rs. 6 4

5 3 MARKET DEFINITION FOR RETAIL LEASED LINES SERVICES 3.1 Relevant Market Definition of relevant market is important, because it systematically denotes constraints related with market structure and it is used in market analysis procedure which is the further step. In this respect, firstly, relevant product market is defined and then geographical market is explained. Definition of relevant market can be elaborated within the context of supply and demand substitutability of retail leased line services. On the other hand, areas which have adequately homogeneous competition conditions will be identified while defining the related geographic market. In this process, various methods -including hypothetical monopolist test- are used when applicable Relevant Product Market Leased line services can be defined as point to point symmetric capacity between network termination points which does not include on demand switching or routing functions controlled by the end user. Main characteristic of leased lines is their high quality transmission capacity. In order to define relevant product market, the scope of this market analysis should consider the following: whether leased lines of various bandwidths fall within the same retail market; whether analogue and digital leased lines fall within the minimum set of leased lines; whether traditional leased lines and other following services are included in the same relevant market; o ATM o Frame Relay o Ethernet services o DSL services o ADSL services whether international and national leased lines (speeds up to and including 2 Mb/s.) fall within the same retail market. 5

6 Bandwidth Leased lines services supplied in Turkey in terms of bandwidths are classified below: Table 1: Bandwidth Specification of Domestic Leased Line Services Up to and including 2 Mb/s Above 2 Mb/s 64 Kb/s 34 Mb/s 128 Kb/s 155 Mb/s 256 Kb/s 622 Mb/s 512 Kb/s 2,4 Gb/s 1 Mb/s 10 Gb/s 2 Mb/s ICTA has considered whether, and the extent to which, retail leased lines of different bandwidths fall within the same retail product market(s). Supply and demand substitutability is analyzed below whether low speed lines could be used instead of the higher ones within the constraints of technology and cost. Demand side substitutability The question is whether a lasting 5 to 10% price increase by a hypothetical monopolist supplier of a particular bandwidth would lead to a sufficient number of end users switching to another (lower or higher) bandwidth, so that the price increase is ultimately unprofitable. ICTA notes that the relative price differences between lower bandwidth leased line prices and higher bandwidth prices suggest that it is unlikely that end users would respond to an increase in, for example, prices for 34 Mb/s leased lines by buying multiple 2 Mb/s lines. Similarly, an end user is unlikely to respond to a small but significant increase in, for example, 2 Mb/s leased lines by buying a 34 Mb/s circuit. This pricing evidence shows that it is not cost effective for a customer to use 2 Mb/s leased lines as 'building blocks' to respond to a constant price increase for higher bandwidth leased lines, in this case for a 34 Mb/s circuit. (Table 2 and Figure 1) Table 2: Turk Telekom Leased Line Tariffs TL (tax excluded) 2 Mb/s 34 Mb/s 16x2 Mb/s Same Exchange 427,82 TL 2.351,88 TL 6.845,15 TL Diff. Exchange 727,82 TL 4.478,19 TL ,15 TL Local (in city) 1.650,37 TL 8.223,31 TL ,97 TL Intercity 2.904,51 TL ,97 TL ,14 TL 6

7 Figure 1 Turk Telekom Leased Line Tariffs On the other hand above situation is not valid for leased lines for speeds form 64kb/s to 2 Mb/s. the prices for these lines are close to each other which means any small but significant increase in their prices will refer its users to demand higher speeds. Finally, where demand substitutability for leased lines under 2 Mb/s is possible, it does not seem sensible for speeds higher than 2 Mb/s. Supply side substitutability Demand-side analysis demonstrates that there is a break in the chain of substitution for leased lines for those up to and including 2 Mb/s and those above 2 Mb/s capacities. The majority of retail leased lines of capacity up to and including 2 Mb/s is provided over Turk Telekom's copper-based technology. There is little use of competing infrastructure to provide leased lines at bandwidths at or below 2 Mb/s. ICTA considers that it is unlikely that a new entrant would incur the cost of constructing such infrastructure to provide low bandwidth leased lines, considering the high sunk costs associated with replicating a copper access network and the economies of scale, scope, and density enjoyed by Turk Telekom. This seems the case for all capacities up to and including 2 Mb/s leased lines. Leased lines above 2 Mb/s are predominantly provided over fibre networks. The provision of high bandwidth retail leased lines to a new location by a new entrant would require either access to wholesale leased lines at prices permitting re-supply or the construction (including sunk costs such as trenching and ducting) of additional fibre links to end users. This implies that the provision of the wholesale inputs is dependent on the proposed obligations at rates that allow an appropriate margin to be made. ICTA sees evidence in the market that competing operators are building fibre infrastructure to supply high bandwidth leased lines, although ICTA notes this tends to 7

8 be concentrated in urban areas. Therefore, took the preliminary view that there was little supply-side substitutability between higher and lower bandwidth retail leased lines. ICTA concludes that there is a defined market for bandwidth up to and including 2Mb/s. From the demand and supply-side perspective, there is chain substitution between different bandwidths up to and including 2 Mb/s Analogue & Digital Lines It is not necessary to identify specific markets for each category of leased line in the minimum set since it is likely that the market structure will be similar for each subset. ICTA has considered, from the demand-side whether there is evidence to suggest that analogue and digital low bandwidth leased lines (up to and including 2 Mb/s) fall within the same market (i.e. whether digital leased lines impose a competitive constraint on the pricing of analogue leased lines and/ or analogue leased lines constrain the pricing of digital) Traditional & Other Leased Line Services In assessing whether other services products fall within the same relevant market as retail leased lines, ICTA considered the extent to which such services would exert competitive pressure on the pricing of traditional leased lines offered by a hypothetical monopolist. ICTA takes into consideration the EU Regulations which require the NRA to take the utmost account of the desirability of making regulation technologically neutral, that is to say it does not discriminate in favor of or against the use of a particular type of technology. In defining the market, ICTA considered other services also. ATM ATM offers equivalent functionality as a traditional leased line. However ATM is typically used for the provision of high capacity data transmission and thus is excluded from the minimum set of leased lines. ATM may be measured for high capacity leased lines. Frame Relay (F/R) Frame Relay does not offer equivalent functionality to a traditional leased line and thus is not included in either of the relevant leased line markets. 8

9 Metro Ethernet Ethernet can offer the equivalent functional characteristics of a traditional leased line however ICTA does not consider that capacity provided over Ethernet in the market for the minimum set of leased lines. Symmetric high-bit-rate Digital Subscriber Line (G.SHDSL, SDSL) SDSL technology is a functional substitute for leased lines within the minimum set. G.SHDSL products are served in Turkey at low speeds between 128 kb/s and 2 Mb/s. Therefore, G.SHDSL products are not included into market definition due to technical reasons. Asymmetric Digital Subscriber Line (ADSL) ADSL is not included in the same market as traditional leased lines as it provides asymmetric capacity, which is not considered to be functionally equivalent to a traditional leased line International Leased Lines International leased lines can be defined as leased lines which has one point (the A end ) in Turkey and the other (the B end ) outside Turkey. ICTA finds that both demand and supply-side factors indicate that there are separate markets for national and international leased lines Relevant Geographic Market ICTA has considered the scope of the geographic market within which the conditions of supply and demand for low bandwidth leased lines are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas. Retail leased line services are supplied mainly over Turk Telekom infrastructure. Moreover, the tariffs of these lines are set according to the position of their exchanges not according to their geographic places. Thus relevant geographic market is determined as whole country. 3.2 Market Definition Relevant market is composed of traditional retail leased lines supplied over digital and/or analogue lines at speeds including and up to 2 Mb/s at national level within the borders of Turkey. 9

10 4 THE NEED FOR REGULATION IN THE RELEVANT MARKET Commission Recommendation published in 17 December 2007 states that, in order to identify markets that are susceptible to ex-ante regulation, it is appropriate to apply the following cumulative criteria: the presence of high and non-transitory barriers to entry, a market structure which does not tend towards effective competition within the relevant time horizon, the insufficiency of competition law alone to adequately address the market failure(s). Assessment of three criteria test in terms of the relevant markets is at below: When the first market analyses held in Turkey in 2006, Turk Telekom was the only undertaking having its infrastructure and supplying leased line services. However in the following period other alternative operators were authorized as infrastructure services operators and they began to operate in the market. By the end of 2009, forty one (41) infrastructure operators exist in the market. Not all of these operators are equivalent in terms of the services they supply. While some of them supply only international leased line services, some has only domestic services, some operates simple by resale and some has their own terminating infrastructure in metropolitan cities. Although increase in the number of operators is monitored, market shares remained low since the entry. ICTA considers this situation as a consequence of the Turk Telekom s extensive infrastructure which is difficult to replicate especially in terminating segments. Therefore it seems that high and non transitory barriers to entry exist in the relevant market. As to second criterion, low market shares of alternative operators and vertical integrity of Turk Telekom will not bring the market to reach to competitive levels by itself in a certain period of time. Last but not the least, ICTA has identified that some potential restrictions of competition may still be possible, for example, through possible predatory or exclusionary behaviour by an operator (due to its strong position in relevant and other markets) in retail leased line markets. By doing predatory or exclusionary behaviour, an operator with a significant market power can push the alternative operators outside the market. Hence, beside competition law, ex ante regulations are needed to decrease the effects of anti competitive conduct in relevant markets. 10

11 5 COMPETITION LEVEL ANALYSES In order to determine whether there are operators with significant market power in the related market, various criteria are taken into consideration within the provisions of By-Law on Principles and Procedures for Identification of the Operators with Significant Market Power. These are market share, control of infrastructure not easily duplicated, lack of countervailing buying power, economies of scale, economies of scope, vertical integration, highly developed distribution and sales network and so on. Hence, it is recognized that large market shares are not in themselves sufficient to form the basis of a finding of SMP and that other factors that contribute to SMP (and indeed potentially offset it) must also be taken into account. But very large market shares in excess of 50% - are in themselves, saving in exceptional circumstances, evidence of the existence of a dominant position. Criteria stated above will be assesed below. 5.1 Market Shares By the end of 2009, forty one (41) infrastructure operators exist in the market. Market shares of alternative operators and Turk Telekom by the end of June 2009 are shown below in terms of earnings incurred (Figure 2). 2 Figure 2: Market Shares in terms of Revenues (June 2009) 2 Market shares are determined with the help of data provided from infrastructure operators. Since majority of the operators are failed to supply specific data which income is divided into wholesale and retail revenues; income data indicates the whole leased line revenues that is incurred from domestic market. 11

12 In this market, it is clear that alternative operators are able to have 3% in 2007, 7% in 2008 and 13% in 2009 of the market revenues. Note that, according to the data in June 2009, 98% of retail leased lines (by number) is offered at speeds including and below 2 Mb/s which referred as minimum set of leased lines (Figure 3). Figure 3: Market Share by Line Numbers In Terms of Different Speeds (2 Mb/s and below 2 Mb/s) Taking into account all of the line numbers, cumulative market shares are: %74 of Turk Telekom and %26 of alternative operators (Figure 4). Figure 4: Market Shares In Terms of Line Numbers (2 Mb/s and below 2 Mb/s) 12

13 5.2 Control of the Infrastructure that is not easily Duplicated and Economies of Scale If an undertaking has the control of the infrastructure that is not easily duplicated and when there are no alternative access technologies, this could pose a significant entry barrier for competitors. In this respect, ICTA considers that Turk Telekom s infrastrucute is not easily duplicated in a short period. Economies of scale are present when an increase in production is accompanied by falling unit costs (average costs). Currently infrastructure for leased lines is mainly owned by Turk Telekom. As regard to retail leaesed line serviced, especially in local network, huge investment is needed for alternative network. Furthermore economies of scale which Turk Telekom enjoys makes situation more complex for new entrants. It is unlikely that Turk Telekom s market power will close to competitive levels due to its control on extensive infrastructure and economies of scale in the short and mid term. 5.3 Vertical Integration and Economies of Scope A vertically integrated undertaking is characterised by having several production levels that are usually controlled by different undertakings, gathered in its activities. Although vertical integration enables an operator to provide services both wholesale and retail level, it creates etrance obstacle for the alternative operators. Economies of scope are reductions in production costs per unit through more than one service being produced using common means of production. When these are considered for Turkey, Turk Telekom is providing services both in wholesale and retail levels and integration and economies of scope over alternative operators. uses its advantages of vertical 5.4 Barriers to Entry and Lack of Potential Competition Potential competition means the potential of new operators entrance to relevant market. It is obvious that potential competition leads firms to determine their prices near to the prices in a full competitive condition. Turk Telekom s extensive network constitutes barriers to entry. Together with economies of scale and scope, vertical integration and control of extensive infrastructure leads potential competition not to develop against Turk Telekom in the short and midterm. 13

14 5.5 Countervailing Buyer Power Countervailing buyer power exists where large customers have the ability within a reasonable timeframe to resort to credible alternatives (e.g., not to purchase or to retaliate) if the supplier decides to increase prices or to deteriorate the conditions of delivery. ICTA is of the view that there is not exist short or medium term sufficient countervailing buyer power to act as a competitive constraint, either at the wholesale or retail level, regarding the relevant market in Turkey. 5.6 Determining the Operators with Significant Market Power According to Bylaw on Principles and Procedures in the Electronic Communications Sector for the Determination of the Undertakings with Significant Market Power and the Remedies which is to be Imposed for Those Undertakings and above explanations: Türk Telekom should be designated as having SMP at retail leased lines (minimum set of leased lines) market (speeds including and up to 2 Mb/s). 14

15 6 REMEDIES TO BE IMPOSED TO THE OPERATOR(S) HAVING SMP Determination of operator(s) with significant market power in the relevant market shows that there is not effective competition in that market. To determine regulatory procedures it is important to evaluate potential practices which are obstructive for competition. In this context preliminary assessment of these practices is vital towards determining the regulatory measures. These practices are basically practices excluding competitors (e.g. price discrimination, predatory pricing) and practices impacting negatively on consumers (e.g. excessive pricing). Anti competitive conduct by SMP firm in retail leased lines market may yield results both for end users and for other alternative operators. Accordingly, if any regulation is not put into practice in the relevant market, because of the vertical integrated market structure, it wouldn t be possible new entries competing with vertical integrated SMP firm. As a result of the market analysis performed within the scope of this document, it has been determined that Turk Telekom has SMP in relevant market. Thus, regulatory measures must be taken against potential competition problems in market. Furthermore, with regard to the article 7 (3) of Electronic Communications Law, Obligations shall be differentiated between the operators that have significant market power in the same market or in different markets. there may be differentiation in terms of the remedies related to the SMP operators. Operators that have SMP currently in relevant markets of retail leased lines in Turkey might be subject to the obligations below within the framework of legislation in force: Access (provision of minimum set of leased lines) Non-discrimination Transparency Subject to tariffs regulation Accounting separation and cost accounting Preparing service level agreement (SLA) 15

16 7 CONCLUSION At the end of market analysis of the relevant markets in accordance with the Bylaw on Principles and Procedures in the Electronic Communications Sector for the Determination of the Undertakings with Significant Market Power and the Remedies which is to be Imposed for Those Undertakings and relevant legislation, Turk Telekom should be designated as having SMP in the market for retail leased lines (mininum set olf leased lines) services and Access (provision of minimum set of leased lines) Non-discrimination Transparency Publication of reference access and interconnection offers Subject to tariffs regulation Accounting separation and cost accounting Preparing service level agreement (SLA) should be imposed on Turk Telekom in the relevant market. 16

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