Dutch operators KPN and VodafoneZiggo have won an appeal against the wholesale broadband regulation passed by the ACM in 2018. The corporate appeals court CBb sided with the dominant operators and rejected appeals from rivals T-Mobile and Tele2 Netherlands.
YouCa, VCO, the Eredivisie, Voiceworks, Xenosite, the NDIX and Netrebel were also party to the cases. The regulation in effect since October 2018 covers wholesale access to KPN's copper and fibre networks and for the first time imposed wholesale access to the Ziggo cable network.
VodafoneZiggo has challenged the regulation from the start. While the company complied with the rules and published a wholesale reference offer in early 2019, no service providers have started using its network. The company also has an appeal pending at the European Court of Justice, against the European Commission's clearance of the Dutch regulation.
The ACM's regulation was based on a market analysis pointing to joint dominance by KPN and VodafoneZiggo on the Dutch retail broadband market. The appeals court found the joint dominance was not sufficiently established by the regulator. Its decision is final and cannot be appealed further.
The ACM said in a statement that it was disappointed with the decision and would study the ruling before deciding on further action. The regulator said it remains concerned about competition in the telecom market, especially given the increased importance of telecom networks in recent times.
VodafoneZiggo said it was very pleased with the court decision, as it's always believed the Dutch broadband market is very competitive. "Network competition has resulted in attractive packages at competitive prices," the company said. "The ACM's decision threatened a well-functioning market without justification."
KPN also expressed satisfaction, especially with the fact that the court found the ACM's reasoning lacking when it comes to showing joint dominance. KPN added that wholesale remains an important market, which it will continue to serve. KPN said it has confidence in a market without regulation, where the wholesale channel ensures there remains sufficient choice for consumers.
T-Mobile said it was amazed by the decision, and the consumer would be the big loser. It declined to comment further to Telecompaper until it has studied in detail the court decision.
