1) Opening the Market to OLOs 2) Identifying SMP-Operators
7) Customer Protection 6) Safeguarding Universal Service 3)
Interconnection
& Access
5) Managing Scarce Resources 4) Regulation
of Competition
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Elements of Regulatory Work Number of Proceedings Regulating Market Access (Opening the market to
“other licensed operators” (OLOs), licensing procedures)
186
Designating Operators with SMP-Status (Identifying SMP-Operators)
5 Network Access (Interconnection and Access) 109 Regulation of Competition (Safeguarding against the
Abuse of Market Power)
46 Managing Scarce Resources (Efficient Administration
of Numbering and Addressing Elements, frequency allocation procedures included in „Regulating Market Access“)
3,687
Safeguarding Universal Service 1
Consumer Interests
– Approval of General Terms and Conditions – Dispute Settlement between Operators and Customers (Arbitration Centre)
131 3,999
An exclusively quantitative approach bears the risk to draw premature conclusions. The number of proceedings launched does not give any indication of how complex regulatory decisions can be. Proceedings in the area of interconnection or identifying SMP operators are by far more complex than proceedings with a fairly high degree of standardisation, such as customer dispute settlements or number allocation. A look at the actual decisions published at RTR’s website (www.rtr.at) may illustrate how comprehensive regulatory decisions can be. As a rule, interconnection decisions are documents of sometimes hundreds of pages. These documents are made available for download on RTR’s website.
4. OPERATION AND SELF-PERCEPTION OF RTR-GMBH, TELECOMMUNICATIONS DIVISION
At no point should regulation become an end in itself. The legislator therefore determined in § 1 of the TKG the general objectives for the liberalisation of the telecommunications markets, and in § 32 of the TKG the special objectives for regulating competition. These are the direct targets set for the activities of the regulatory authority in Austria:
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§ 1 (1) of the TKG: It is the purpose of this federal law to ensure that the public and business circles are provided with reliable, cost-effective, high-quality and innovative telecommunications services by way of promoting competition in the area of telecommunications.
§ 1 (2) of the TKG: The regulatory measures are intended to serve the following goals:
1. to create a modern telecommunications infrastructure in order to promote high-level locational quality;
2. to ensure equal opportunities and operative competition on telecommunications markets;
3. to ensure universal service throughout Austria;
4. to protect users against abuse of a market dominant position; and 5. to ensure an efficient and smooth use of the frequencies.
§ 32 (1): By taking the measures listed below, the regulatory authority must:
1. ensure equal opportunities and operative competition on the telecommunications market;
2. promote the market entry of new providers;
3. stop the abuse of a market dominant position and prevent abuses;
4. ensure compliance with the principles of an open network access in accordance with ONP;
5. implement the sector-specific rules of the European Communities;
and
6. resolve disputes between market players as well as between market players and users.
These objectives guide the institution in its activities. The targets set by the legislator and the resulting guiding principles form the framework, within which the staff members of the regulatory authority perform the tasks assigned to them. In addition, there is the self-perception that a service provider must provide the public with high-quality services and do so with expediency.
In keeping with its self-perception, the regulatory authority considers itself to be an active and transparent organisation that looks for contacts with the players on the Austrian telecommunications market, and that puts its task on a broad information basis, against the background of the government objectives. In this respect, the decisions, inter alia, are
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made available to an interested public on the web site of RTR-GmbH (http://www.rtr.at), observing all data-protection requirements, in order to facilitate a more detailed insight into the regulatory activities regarding telecommunications.
In order to meet the demand for a high level of transparency, the regulatory authority has used the instrument of consultations from the very beginning, whenever important issues need to be discussed. A consultation can generally be defined as an invitation to a group of addressees, which is usually not specified in any further detail, to comment on certain questions. Consultations, which are always based on a consultation document, the contents of which is to be discussed and commented, are meant to provide an overview of the different positions and interests of the market players, and thus to provide a better basis for decision-making. From 1998 until recently, the regulatory authority conducted consultations on the following topics, among others:
• licensing obligation for voice telephony services;
• carrier pre-selection;
• number portability;
• two consultation procedures for unbundling access to the local loop;
• a tender for mobile telephony licences (4th mobile radio communication licence and licences for networks not having full national coverage);
• licences issued for digital trunked radio communication;
• call for participation in the development of a bottom-up costing model for the fixed network;
• UMTS/IMT-2000 awarding procedure;
• allocation of Wireless-Local-Loop frequencies;
• requirements of the SigG for user equipment;
• customer complaints regarding value added services;
• numbers for on-net services;
• ENUM (tElephone NUmber Mapping).
The regulatory authority is convinced that the World Wide Web is the best-suited medium for conducting such consultations. In addition to any consultation documents that may be made available, the results of the consultations are always made accessible to the public on the web site of RTR-GmbH (http://www.rtr.at).
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Every regulator should make an effort to act close to the market. The approach in telecommunications is to promote the direct contact with the licensed companies by means of so-called jours fixes for operators, in addition to conducting consultations. Such forums, to which invitations to the premises of the regulatory authority are extended every second month, offer an opportunity to discuss specific topics or to comment on key decisions. The objective is to ensure the best-possible level of information among the operators.
Press conferences on decisions taken by the TKK, background discussions with the press, individual interviews with representatives of the press, but also broad-based participation in specific telecommunications events round off the supply of information.
When trying to understand the operating mechanisms, the activities and the alleged "omissions" of the regulatory authority, one should not lose sight of the interaction existing between the different levels of standardisation in the Austrian legal system with regard to telecommunications.
The TKG is the basis for all regulatory activities. It contains a number of authorisations to issue ordinances, which are intended to bring about more detailed arrangements for selected areas. The statutory provisions and the stipulations laid down in laws are formulated by the policy-makers, the most important representative of which in the Government, is the Federal Ministry of Transport, Innovation and Technology. The regulatory authority is responsible for the specific implementation and design of the TKG provisions, which can be implemented directly (in particular, the sector-specific competition-law elements) and the provisions that are determined by ordinance. RTR-GmbH and the TKK implement whatever the legal framework provides.
The "liberalisation areas" of the TKG are gradually provided with specific stipulations by means of regulatory decisions, in order to make it possible for the market players to do business on the emerging competitive telecommunications markets, or - to put into other words:
the TKG and the ordinances derived from it provide the necessary leeway for liberalisation. The operators are called upon to make the appropriate use of these "voids", on the basis of private-law agreements.
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Only if market solutions cannot be found, regulation, as defined by the TKG, commences.
In telecommunations the "primacy of the private-law agreement" is the guiding principle. Should it not be possible to reach private-law agreements in the field of interconnecting telecommunications networks, such a dispute may be submitted to the TKK for decision, as part of its competences under § 111, Item 6, of the TKG. The members of the TKK reach such a decision unanimously. The decision is an instruction, issued in the form of a notice, which replaces the private-law agreement that the parties to the proceedings were unable to reach.
Concerning issues of sector-specific competition law, the TKC had responsibility pursuant to the blanket clause of § 109 of the TKG, which applied until 31 March 2001. Since 01 April 2001, the TKK has been primarily responsible for such matters (§ 34 proceedings). It relies on the services of the Telecommunications Department of RTR-GmbH.
The following principle applies: neither the TKK, nor RTR-GmbH can bring about progress concerning the design and materialisation of the liberalisation steps taken on the Austrian telecommunications markets without the necessary submissions or information.
The General Administrative Procedures Act (AVG) provides the comprehensive basis for the procedure applied to the activities undertaken by the Austrian authorities. This also applies to all proceedings pending before the regulatory authority. In addition to the solid foundations of the AVG, the telecommunications regulator is trying to establish and to develop further a mode of operation that aims at comprehensive transparency in the work of the regulatory authority in the framework of the legal possibilities.
5. OUTLOOK ON REGULATORY ISSUES IN THE FUTURE
The big challenge of regulatory work in telecommunications in the near future is to further develop and elaborate oncoming decisions based on the generic regulatory intervention of the past 4 to 5 years. Those key decisions have to be refined in a way that helps to accomplish the status of sustainable competition on – and this has to be the ultimate goal – all (tele-)communications service markets. In such a scenario the ex-ante approach of regulatory intervention will have to be gradually
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transformed into a sector specific supervision of competition in line with rules employed by general competition law as outlined by the EU.
Assuming that the (former) telecommunications markets have been opened up successfully, the new regulatory approach will result in much more specific regulatory interventions based on refined market definition and a clearly defined "tool box" of regulatory measures. The basic idea of asymmetric regulation is still valid and will be employed in the future – the difference will be in the degree and the extent of applying asymmetric regulatory measures.
The newly composed seven elements, or seven regulatory steps – as derived from the recently adopted regulatory framework of the European for communications networks and services – may be described as follows:
Technological innovations pave the way for phenomena such as convergence requiring new approaches for regulatory action. This need has been recognised by the European Commission (Services), which triggered a (political) process of establishing a completely new regulatory package directed at providing a regulatory framework for platform (i.e. technologically neutral) regulation for digital communications. This package now consists of five recently adopted