EUROPEAN COMMISSION. Commission Decision concerning Case SE/2015/1687: Wholesale local access provided at a fixed location in Sweden

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1 EUROPEAN COMMISSION Brussels, 6/2/2015 C(2015) 757 final Post- och telestyrelsen (PTS) Box 5398-Valhallavägen 117 SE Stockholm Sweden For the attention of: Mr. Göran Marby Director-General Dear Mr Marby, Fax: Subject: Commission Decision concerning Case SE/2015/1687: Wholesale local access provided at a fixed location in Sweden Case SE/2015/1688: Wholesale central access provided at a fixed location for mass-market products in Sweden Comments pursuant to Article 7(3) of Directive 2002/21/EC 1. PROCEDURE On 7 January 2015, the Commission registered a notification from the Swedish national regulatory authority, Post- och telestyrelsen (PTS) 1, concerning the market for wholesale local access provided at a fixed location and the market for wholesale central access provided at a fixed location for mass-market products 2 in Sweden. Three subsequent national consultations 3 ran from 19 June 2013 to 19 September 2013, from 7 February 2014 to 7 March 2014 and from 28 October 2014 to 24 November On 20 January 2015, a request for information 4 was sent to PTS and a response was received on 23 January Under Article 7 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ L 108, , p. 33, as amended by Directive 2009/140/EC, OJ L 337, , p. 37, and Regulation (EC) No 544/2009, OJ L 167, , p. 12. Corresponding respectively to market 3a and 3b in Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (Recommendation on Relevant Markets), OJ L 295, , p. 79. In accordance with Article 6 of the Framework Directive. Commission européenne/europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel

2 Pursuant to Article 7(3) of the Framework Directive, national regulatory authorities (NRAs), the Body of European Regulators for Electronic Communications (BEREC) and the Commission may make comments on notified draft measures to the NRA concerned. 2. DESCRIPTION OF THE DRAFT MEASURE 2.1. Background Wholesale local access provided at a fixed location The market for wholesale local access provided at a fixed location in Sweden was previously notified to and assessed by the Commission as the market for wholesale (physical) network infrastructure access (including shared or fully unbundled access) at a fixed location under case SE/2010/ PTS defined the product market to comprise wholesale physical access to copperbased (including fully unbundled and shared access) and fibre-based network infrastructure. It found the geographic scope of the market to be national. PTS designated one operator, TeliaSonera, as having Significant Market Power (SMP) and imposed on it a full set of remedies including inter alia access to copper-based infrastructure, fibre based infrastructure and backhaul fibre, access to associated facilities (including co-location), and cost orientation based on a LRIC model. Wholesale central access provided at a fixed location for mass-market products The market for wholesale central access provided at a fixed location for massmarket products in Sweden was previously notified to and assessed by the Commission as the market for wholesale broadband access (WBA) under case SE/2010/ PTS defined the product market to comprise virtual access in the form of bidirectional data transmission from the end-user's fixed network termination point, via customer connections that use xdsl-technology or fibre-based networks, to any point in the buying operator's network. It found the geographic scope of the market to be national. PTS designated TeliaSonera as having SMP and imposed on it a full set of remedies including inter alia bitstream over copper as well as fibre-based infrastructure, access to associated facilities (including co-location), and cost orientation based on a LRIC model. The Commission provided comments specific to the physical access market, calling on PTS to further justify in its final measure the imposition of backhaul access and inviting PTS to impose an obligation for access to ducts. In relation to both markets, the Commission invited PTS to provide further justification of the proposed co In accordance with Article 5(2) of the Framework Directive. C(2010)2584. C(2010)

3 II.2. location obligations, and invited PTS to take into account the Commission's NGA Recommendation 7, once adopted. Market definition Retail market PTS finds that broadband services provided over xdsl, fibre and cable are substitutable at the retail level while mobile and fixed broadband services are not substitutes from a demand perspective, but are complementary, given their different functionalities and characteristics. PTS notes that 98% of households and 96% of workplaces in Sweden have access to fixed broadband. 8 As to take-up, xdsl remains the most common type of connection, representing 41% of total subscriptions 9. However, fibre-based connections represent an increasing share of the retail market, reaching also a 41% share, mostly as a result of decreasing xdsl connections. The remaining 18% of connections are delivered over cable networks. As to competitive conditions at the retail level, TeliaSonera remains the largest provider of broadband services with 39% 10 of the retail market. Telenor has 20% of the market, and cable operator Com Hem has more than 18%. Tele2 controls 2% of the market 11. PTS notes that in the absence of existing access regulation, competitive dynamics in the retail market would be considerably less intense. Indeed, about 16% of fixed broadband subscriptions provided in 2013 relied on regulated network access provided by TeliaSonera 12. Wholesale local access provided at a fixed location PTS defines the relevant product market to include physical access to copper and fibre-based local loops, as well as virtual access over copper or fibre-based local loops with handover points in or adjacent to the exchange Commission Recommendation 2010/572/EU of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (NGA Recommendation), OJ L 251, , p. 35. Coverage achieved through the xdsl network. Coverage of fibre has increased since the previous review, with 53% of households and 46% of workplaces having access to broadband connections with a theoretical transfer speed of 100 Mbit/s in October Cable TV networks are also present, and reached 34% of households and 25% of workplaces in October 2013 June % of TeliaSonera's subscribers are connected through its copper network, the rest through fibre. June Most of these lines were provided relying on physical access regulation. PTS indicates that only 19,000 lines were provided on the basis of the regulated WBA offer in PTS also indicates in its response to the RFI that approximately 90% of lines provided on the basis of regulated access rely on the copper network. 3

4 PTS finds the geographic scope of the market to be national. PTS observes that there are geographic variations in the coverage of alternative networks to TeliaSonera, as well as in their market share and pricing 13. However, PTS considers that such variations are not sufficiently significant and stable to be able to define areas with clear boundaries where conditions of competition are appreciably different, forecasting further fibre rollout and changes in network coverage over the next regulatory period. Wholesale central access provided at a fixed location for mass-market products PTS finds that the market for wholesale central access comprises non-physical or virtual access to copper-based, fibre-based and cable TV networks in the form of two-way transfer from the fixed termination point of an end user to an access point in the provider's network that is regional or national. PTS considers that virtual access provided at Layer 2 and Layer 3 14 can be considered functional substitutes and must be treated as part of the same market, as can bitstream provided over copper and fibre, which provide services that are substitutable at the retail level. As to cable TV networks, PTS observes that the main cable operator, Com Hem, has deployed DOCSIS 3.0 technology, which supports the provision of central access at Layer 2 and Layer 3, at least as a possibility. Furthermore, PTS has found that from 2009 to 2013 some municipal networks have indeed provided Layer 2 and Layer 3 bitstream over cable networks on a commercial basis. PTS notes that these offers were provided as a temporary solution, pending the rollout of fibre. 15 PTS concludes that it is therefore technically and commercially possible to offer bitstream over cable in Sweden, and that this infrastructure must be considered part of the relevant market. As to the geographic scope of the market, PTS finds this to be national. Although PTS finds that there are differences between areas of the country in view of the growth of the municipal networks, such differences are not sufficiently significant to conclude that conditions of competition in certain areas are materially different from competition conditions in adjacent areas. On the supply side, PTS finds that there are approximately 100 undertakings that supply virtual access connections in Sweden, either for self-supply or for external supply. While TeliaSonera is the only provider that owns a ubiquitous infrastructure, broadband-activated cable networks reach 35% of Swedish households. Further, access with regional access points can be provided over fibrebased urban networks, which are present in most Swedish municipalities (though their reach within in each municipality varies), many of which supply bitstream access externally either by themselves or through the "communications operator" As to TeliaSonera's pricing, PTS indicates that the wholesale copper price in this market is regulated and is the same throughout the country. Both regulated and unregulated offers for wholesale access to fibre, on the other hand, are geographically differentiated, with the exception of connections to Single Dwelling Units (SDUs) which are priced nationally. PTS indicated in the response to the RFI that Layer 3 bitstream is the dominant form of bitstream provided by Swedish municipal networks. It identified five providers offering Layer 2 bitstream over cable and six providers offering Layer 2 bitstream over cable, for a total of less than one hundred accesses in

5 (CO) model 16. PTS indicates that there are 62 operators that deliver virtual access connections to end users via urban networks in 147 Swedish municipalities. While most municipal networks operate within the boundaries of their municipality only, cooperation with neighbouring municipalities and the presence of COs allows access seekers to interconnect at regional or central level 17. Pricing policies also do not point towards sub-national markets. Prices of municipal networks are set by municipal law on the principle of cost recovery. TeliaSonera's pricing of unregulated bitstream offers is set nationally; whilst its prices can show variations based on point of access, PTS explains that they are motivated by differences in transmission costs and are not a consequence of different competitive pressures. II.3. Finding of significant market power Wholesale local access provided at a fixed location PTS designates TeliaSonera as the only operator with SMP in the wholesale local access market. It reaches this finding on the basis of TeliaSonera's market share 18, overall size of the undertaking, control of infrastructure that is not easily duplicated 19, economies of scale and scope, and vertical integration. PTS notes a certain degree of potential competition, especially from municipal networks, and indirect constraints from cable and mobile networks, which may constrain TeliaSonera to an extent, but not sufficiently to change the finding of SMP for the next market review period. Wholesale central access provided at a fixed location for mass-market products PTS considers that this market is not susceptible to ex ante regulation. PTS applies the three criteria test recommended in the Commission's Recommendation on Relevant Markets. First of all, it finds that there are no longer major and lasting barriers to entry in the Swedish market for central access. The The "communications operator" (CO) model means that the CO invests in active network equipment and provides virtual access connections to service providers, which can offer broadband services to end users via a so called "service portal" provided by the CO (a website available to end users connected to the municipal network, where they can choose service providers). In the response to the RFI, PTS estimates that approximately 20% of Swedish households can only receive broadband access through TeliaSonera's infrastructure, whereas approximately 50% have access to at least one additional infrastructure, and approximately 10% have access to two infrastructures in addition to TeliaSonera's. In June 2014, a total of 1.6 million broadband subscriptions, or 64% of the total market, were provided over TeliaSonera's copper and fibre-based access networks. As to market shares excluding self-supply, in December 2013 TeliaSonera supplied 480,000 copper access lines and 12,000 fibre connections, amounting to 61% of the total market of external sales of local physical access in PTS' calculations. The second largest supplier was metropolitan network Stokab with 4% of the market for external sales. TeliaSonera is the only fibre network that has a national grid, inter-metropolitan transport networks and wide area networks throughout the country, in addition to its ubiquitous copper and growing fibre access networks. 5

6 II.4. growth of the CO model has resulted in significant market entry in recent years. It finds that regulation of market 3a has been sufficient to resolve competition problems in the retail market, allowing operators to enter the fixed broadband retail market, whereas the remedy imposed in market 3b has had very limited take-up 20. PTS finds that the market tends towards effective competition, with a great number of operators of varying size operating in the market and the existence of a substantial non-regulated market, with undertakings selling access to third parties on a commercial basis 21. It also finds that there are no structural problems in the market, which would render the intervention of competition law insufficient. PTS proceeds also to analyse whether any company in the market has SMP. Against the background of the presence and success of regulation in Market 3a and the constraints exercised on TeliaSonera at the retail level, PTS considers that its control over infrastructure, economies of scale or scope, its vertical and horizontal integration do not result in such barriers to entry or expansion, that the company can operate independently of customers, competitors and consumers in this market. PTS notes the dynamic growth of external supply of access provided by networks other than TeliaSonera: TeliaSonera, has 10% of the market excluding self-supply and 50% of the market including self-supply 22. Regulatory remedies Wholesale local access provided at a fixed location PTS imposes a set of obligations on TeliaSonera, including: Local physical access to copper and fibre infrastructures: PTS imposes local and sub-loop unbundling (LLU and SLU) of the copper network, and access to the fibre access network between a network termination point and the corresponding optical distribution frame (ODF). TeliaSonera is also obliged to roll out a connection cable to reach an end customer that has not yet been connected, provided the distance is no more than minor 23. Local virtual access to copper infrastructures: TeliaSonera's fibre rollout topology is "point to point" (P2P), and thus it is possible to physically unbundle its fibre access lines. For this reason, PTS does not consider it necessary and proportionate to impose a local virtual access obligation over TeliaSonera's fibre network. However, PTS proposes an obligation to supply local virtual access to A total of 19,000 lines in PTS indicates that in December 2013 approximately 500,000 lines were sold externally at Layer 2 and Layer 3, out of a total market of 3.1 million broadband subscriptions figures. PTS indicates in the response to the RFI that it has no indications of significant changes in market shares since 2013, although TeliaSonera's share would have increased as a result of the acquisition of the company Zitius. In the response to RFI, PTS indicates that it will consider whether a particular distance is minor following the Court of Justice judgment in Case C-556/12, relating to access regulation imposed in Denmark. 6

7 TeliaSonera's copper based infrastructure 24. PTS indicates in the response to the RFI that this obligation would not substitute LLU and SLU, but rather would constitute an additional option for access seekers wanting to gain local access where physical access is no longer economically or practically possible. In PTS' view this measure is necessary because of the decreasing number of end customers that can be reached via an xdsl connection at each exchange, as the fibre rollout progresses, decreasing the economic feasibility of physical unbundling. PTS considers that this virtual obligation would also be necessary if TeliaSonera rolled out vectoring technology, which, however, is currently only a theoretical possibility. Obligation to grant access to civil engineering (ducts): this obligation is considered reasonable only if TeliaSonera has accessible ducting and the right to provide a sub-lease to the access seeker. Access must be provided at cost oriented prices. Obligations to provide co-location and access to associated facilities and support systems, including an obligation to notify parties at least five years in advance in the event of the closing down of an exchange or similar connection point, for example as a result of the transition to NGA. Access to backhaul, covering a connection between an operator's co-located equipment and a point no more than 50km away, provided as dark fibre or digital connection capacity or optical wavelength. Non-discrimination, including an obligation to provide the same terms and the same quality of service to access seekers and its own retail arm 25. Further, taking utmost account of the Commission's Recommendation on non-discrimination and costing methodologies 26, PTS imposes the obligation to supply local physical access to fibre-based network infrastructure on the basis of the principle of Equivalence of Inputs (EoI) 27, starting from 1 December 2016 for most services. The timetable of implementation of EoI is based on TeliaSonera's estimates for implementation of this obligation. In addition, PTS proposes a technical replicability test to be performed by TeliaSonera, the results of which must be communicated to PTS, for all new retail services that are launched, and for any existing service that PTS may request. Finally, TeliaSonera is required to provide access to associated facilities, access to ducts upon a reasonable request and In the form of a dedicated broadband connection or a capacity corresponding to what TeliaSonera would offer its own customers, which is transparent, provided via an Ethernet interface and giving the access seeker control of customer premise equipment. With regard to, without limitation, price, technical parameters, delivery times, precision of supply, fault rectification times, error-handling, ordering process, access to support systems, information. When external operators require services that are not provided to TeliaSonera's retail arm, the terms and conditions shall be based on objective grounds. Commission Recommendation 2013/466/EU of 11 September 2013 on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment (Recommendation on non-discrimination and costing methodologies), OJ L 251, , p. 13. The provision of the same services and information to TeliaSonera's internal retail operations and external operators, including price, quality, time-frames and using the same systems and processes, with the same degree of reliability and performance. 7

8 access to backhaul on the basis of the principle of Equivalence of Outputs (EoO) starting from 1 December Price control, copper: PTS mandates price caps for copper access, calculated on the basis of PTS' existing LRIC hybrid model 28. In the response to the RFI, PTS clarifies that these prices will apply for the duration of the period of review, unless an adjustment is considered necessary, for example to take into utmost account the recommendations on costing methodologies in the Commission's Recommendation on non-discrimination and costing methodologies by the recommended deadline of 31 December Price control, fibre: For fibre, price caps are set according to geotype until 30 November Taking account of the Commission's Recommendation and nondiscrimination and costing methodologies, PTS considers that from 1 December 2016 no price caps should apply to TeliaSonera's fibre network, but an Economic Replicability Test (ERT, see below) should be introduced. PTS considers that prices on the retail market will be sufficiently constrained by the presence of competing copper-based products, the wholesale inputs for which will continue to be price regulated, and alternative infrastructures. At the wholesale level, the lifting of price regulation of fibre access on 1 December 2016 will be conditional on sufficient competition constraints deriving from the successful and timely implementation of EoI and of the ERT. Economic Replicability Test (ERT): From 1 December 2016, TeliaSonera must apply a pricing structure that ensures that access seekers can economically replicate its retail offers on the basis of the NGA wholesale inputs, whose prices will no longer be regulated. This will be tested by PTS on the basis of an ERT, the details of which are provided in the draft measure 29. Obligation to accommodate migration requests from one form of access to another and from a wholesale product to local access. Various transparency obligations, including obligations to publish reference offers and key performance indicators (KPIs), to negotiate with access seekers in accordance with general terms and conditions including Service Level Agreements (SLAs) and Service Level Guarantees (SLGs), to provide information and support systems. Accounting separation Quarterly whole line rental prices are set at SEK287. The key parameters of this test are as follows: downstream costs will be determined on the basis of an "Equally Efficient Operator" (EEO) standard and calculated in accordance with a BULRIC+ methodology. The reference price for wholesale inputs will be calculated as a national average for fibre access. Retail products will be chosen as the two most relevant products in the single dwelling units (SDU) and multi-dwelling units (MDU) segment respectively in terms of volumes and values, to be chosen no later than six months after the lifting of price control over fibre. New or substantially changed products may be assessed on the basis of PTS' assessment of their future importance for future competition no later than three months after launch. The reference period within which downstream costs must be covered by retail revenues on the basis of the relevant wholesale inputs is 12 months, although one-off costs and revenues will be amortised over the average customer lifetime, set at 36 months. PTS justifies the choice of this time frame by stating that fibre is relatively well established in Sweden and shows stable growth, with patterns of demand that can be captured by a static analysis. PTS also consider that 12 months is a sufficiently long period of time to launch innovative products and to experiment with price. If a test is failed, PTS can impose on TeliaSonera an obligation to modify prices. 8

9 3. COMMENTS The Commission has examined the notification and the additional information provided by PTS and has the following comments: 30 Evolution of competition as a consequence of the fibre roll-out The Commission notes the growth in take-up of fibre-based broadband services in Sweden and the ongoing rollout of fibre infrastructures by TeliaSonera and by other network owners. The Commission welcomes PTS' choices that take account of the approach recommended in its Recommendation on non-discrimination and costing methodologies, such as PTS' decision to lift existing price control obligations on TeliaSonera's fibre local access products in Market 3a, when sufficient competitive safeguards will be in place (including the implementation of a non-discrimination obligation based on Equivalence of Inputs and of an Economic Replicability Test). Against this background and given the fact that competitive wholesale central accesses are provided on the merchant market by a large number of operators, the Commission also agrees with the proposed de-regulation of Market 3b. The Commission considers, however, that the implementation of the proposed remedies in Market 3a will require careful monitoring by PTS. In light of the deregulation of Market 3b, the efficacy of remedies in Market 3a will acquire an even greater importance for ensuring that the competitive problems found by the market review are addressed. In particular, as the take up of ultra-fast services that rely on fibre infrastructures only increases with time it can be expected that the availability of fibre access will become ever more necessary to compete in the retail market. The next steps of the rollout are likely to take place in segments of the market where the economies of scale are more difficult to achieve, because of lower density (geographic and in terms of prevalence of single dwelling units rather than multidwelling units). In this context, the Commission invites PTS as it monitors the market during the next period of review, to take into consideration the dynamics of competition at a detailed level in all market segments and to gather data per geographic area on a granular scale. This will enable PTS to analyse the continued efficacy of remedies, including in circumstances where copper access may become less and less viable as a means to compete at the retail level, and to consider the effect of competitive safeguards imposed on market 3a to guarantee competition in a specific geographic area or market segment in the light of the more locally varied competitive constraint from other NGA infrastructures. Pursuant to Article 7(7) of the Framework Directive, PTS shall take the utmost account of the comments of other NRAs, BEREC and the Commission and may adopt the resulting draft measure; where it does so, shall communicate it to the Commission. The Commission s position on this particular notification is without prejudice to any position it may take vis-à-vis other notified draft measures. Pursuant to Point 15 of Recommendation 2008/850/EC 31 the Commission will publish this document on its website. The Commission does not consider the information contained In accordance with Article 7(3) of the Framework Directive. Commission Recommendation 2008/850/EC of 15 October 2008 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the 9

10 herein to be confidential. You are invited to inform the Commission 32 within three working days following receipt whether you consider that, in accordance with EU and national rules on business confidentiality, this document contains confidential information which you wish to have deleted prior to such publication. 33 You should give reasons for any such request. Yours sincerely, For the Commission, Robert Madelin Director-General Council on a common regulatory framework for electronic communications networks and services, OJ L 301, , p. 23. Your request should be sent either by or by fax: The Commission may inform the public of the result of its assessment before the end of this three-day period. 10

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