It should be noted that Vodafone started a civil suit, as this concerns unregulated services (mainly TV), so a complaint to the regulator ACM would not address the issue. Vodafone outlined the course of events to Telecompaper:
- 2010: Vodafone found demand for bundled services was growing quickly in the market. In order to enter the market, it ordered a platform from KPN. This was expected to be ready for commercial services within five months.
- 2011: The platform is ready, but can only process new customers on the FTTH network. On 15 August Vodafone launched its FTTH services.
- 2013: KPN is unable to deliver a universal platform that can serve the entire country. Vodafone is told at least 11 times that the project must be delayed. In May Vodafone announces the acquisition of Wiericke, which together with GlasOperator operates a TV platform.
- 2014: Vodafone announces in January that its TV platform will be ready in April. The triple-play offer 'Vodafone Thuis' launches on 01 April.
- 2015: Vodafone announces in September its quad-play offer.
Given the commercial nature of the agreement, a ruling will prove difficult. Vodafone claims it missed out on a market period when 100,000 consumers were changing plan each quarter (according to Telecompaper estimates, the market averaged 119,000 new triple-play subscribers each quarter in the period mentioned in Vodafone's lawsuit). Estimating how many of these customers may have chosen Vodafone will prove difficult.
Vodafone's damages claim may also be based in part on the acquisition price for Wiericke, which in the end was needed in order to launch TV services. However, Vodafone could have already bought the company in 2010. Vodafone also notes that the Tele2 network did not offer an alternative. Vodafone wanted to launch on the national market quickly, something Tele2 couldn't deliver. It's not known whether Tele2 could and would want to provide such a wholesale service.
Abuse
Vodafone accuses KPN of abusing its dominant market position. One could say the fact that KPN could not deliver is not related necessarily to its market position; technological or other obstacles could have been at play. Nevertheless, KPN (and its brand Telfort) were able to enter the triple-play market, making Vodafone's argument a bit stronger. This is still difficult point to prove, and the case may be limited to proving contract breach. A notable detail: according to Vodafone, the contract with KPN did not include any penalty clauses, at KPN's request, so this is not something that can be invoked in the lawsuit.
European perspective
Vodafone's press release on the case lists a number of similar cases in Europe, all involving an accused incumbent (Eir, BT, Telefonica, Telecom Italia, Deutsche Telekom). Separately, Vodafone has pointed to Germany and the UK as markets where the incumbent is holding back the market by investing primarily in copper technology rather than FTTH. This seeks to create the impression of a wounded challenger. Investments and acquisitions are apparently not enough to break the bastion of the incumbents.
In the UK, regulator Ofcom is considering a new approach to regulation, with a choice of four options: do nothing, deregulate, introduce structural separation or adapt the current situation to make it better suited. We know that Vodafone is a supporter of both FTTH and structural separation. If it can show in this case that KPN is abusing its dominant position, this could have consequences for regulation elsewhere in Europe. Unfortunately though, Vodafone's case is likely to take a very long time, testing everyone's patience.
