The ACM issued its draft regulation in February, extending wholesale access requirements for KPN's copper and fibre networks and introducing a new requirement for access on the VodafoneZiggo network. The ACM argued that regulating just one of the operators was not enough to resolve the competition problems identified in the market. If the cable network is opened up, more providers would then be able to provide internet, television and fixed phone services, enhancing competition on the retail markets, with more choice and better rates for consumers and businesses, according to the ACM.
While VodafoneZiggo opposed the measure, the ACM later softened its stance after a public consultation, saying the company would only have to invest in wholesale access if it had an interested customer. The amended proposal was sent to the EC for comment in July, and the ACM had hoped to have the final regulations in effect before year-end.
The Commission did not object to the definition of the relevant market and the ACM’s finding that both KPN and VodafoneZiggo are jointly dominant. However, the Commission asked the regulator to further substantiate its conclusion regarding the market definition. It also asked the regulator to monitor whether local access products and central access products continue to be functional substitutes.
In addition, the Commission asked ACM to further justify the proportionality of extending the full set of remedies also to VodafoneZiggo, and to consider whether a more flexible price control remedy (economic replicability test rather that strict cost orientation) for virtual network access (VULA) as well as all fibre and cable products could better address the identified retail market failures.
Furthermore, the Commission expects the market situation could change once the European Union's new Electronic Communications Code takes effect. This opens up opportunities for the regulator to soften the rules if operators agree to cooperate or co-invest in networks, which could change the market dynamics. The ACM would then need to reassess the regulations.
The ACM is required to take into account the EC's comments before publishing its final decision. The Dutch regulator said it had received the EC's decision and would aim to issue an amended proposal by 01 October. Once it publishes the final decision, a number of supplemental tariff decisions will also be needed to fully implement the new regulatory regime. The timetable for this is not yet fixed.
