The European Antitrust Review 2009

Italian Telecoms and TV Broadcasting Regulation

Telecoms regulatory framework: new market analysis under EC Recommendation No. 879 of 2007 In 2008, the Italian Regulatory Authority (Agcom) started the analysis of a number of markets defined by the recent European Commission Recommendation of 17 December 2007 (2007/879/EC) on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (the 2007 Recommendation). The analysis follows the previous one carried out by Agcom under European Commission Recommendation C(2003)497 of 11 February 2003 (the 2003 Recommendation). This considered a minimum set of 18 relevant markets in the communication sector, which Agcom analysed in depth between 2006 and 2007. In one case (Market 18), Agcom adopted a general resolution and referred to a subsequent proceeding for the definition in detail of the remedies to be imposed on the two incumbents found in the analogue television broadcasting services market. The proceeding ended in 2008 (Resolution No. 159/08/CONS of 9 April 2008) and the reference offers of the incumbents will be approved and implemented within the same year. Even though the analysis started before 2008, it is now interesting to make a global review of the result of Agcom's activity, because such results should be taken into account by Agcom when managing the new analysis cycle, considering that the 2007 Recommendation is, without prejudice to market definitions, the result of market analyses and regulatory obligations adopted by national regulatory authorities in accordance with articles 15(3) and 16 of Directive 2002/21/EC prior to the date of adoption of this Recommendation. See table below. It is useful to point out that in 2008 the great majority of the claims filed by undertakings against Agcom's resolutions on the 2003 Recommendation markets have been renounced by the claimants or rejected by the Administrative Court of First Instance of Rome (which holds the exclusive competence to decide appeals against Agcom's resolutions). In the latter case, the court argued that the content of such resolutions is an expression of the 'technical discretion' of the Authority. Therefore, its decisions are not subject to investigation by the court in terms of administrative law compliance as long as they are not clearly illogical or unreasonable. The resolutions in this case were found neither illogical nor unreasonable. At this stage, the remedies introduced by Agcom in light of the results of the first investigation cycle could be considered consolidated. The only appeal still pending is the one against the Market 18 resolution, which is likely to be decided during 2009. In 2008 Agcom started the analysis of the following markets: • call origination on the public telephone network provided at a fixed location and call termination on individual public telephone networks provided at a fixed location (Markets 2 and 3 of the 2007 Recommendation) (Resolution No. 324/08/CONS on 11 June 2008); • transit services in the fixed public telephone network (Market 10 of the 2003 Recommendation) (Resolution No. 325/08/CONS on 10 June 2008); • access and call origination on public mobile telephone networks (not expressly referred to by Agcom in any Market defined by the two EC Commission Recommendations, but reference could be made to Market 15 of the 2003 Recommendation) (Resolution No. 309/08/CONS on 5 June 2008); • voice call termination on individual mobile networks (Market 7 of the 2007 Recommendation) (Resolution No. 305/08/CONS on 21 May 2008); • wholesale terminating segments of leased lines and wholesale trunk segments of leased lines (Market 14 of the 2003 Recommendation) (Resolution No. 184/08/CONS on 16 April 2008); • the minimum set of leased lines (Market 7 of the 2003 Recommendation) (Resolution No. 183/08/CONS on 16 April 2008); and • publicly available local and national telephone services provided at a fixed location for residential customers and for non-residential customers (Markets 3 to 5 of the 2003 Recommendation) (Resolution No. 133/08/CONS on 12 March 2008).

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