Communication to the Commission of Intended Measures Under Article 7(3) of Directive 2002/21/EC

Communication to the European Commission of adopted measures in accordance with Article 7(5) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services

1. On 15 September 2009, the Office of Communications (“Ofcom”) notified pursuant to Article 7(3) of Directive 2002/21/EC the European Commission and the national regulatory authorities of other Member States (“NRAs”) of Ofcom’s draft measures in relation to its review of the market for single transit on fixed public narrowband networks (see case UK/2009/0973) and a draft measure applied to the previously defined market for call termination (see case UK/2009/0974). This document sets out where Ofcom has adopted those previously Notified draft measures in accordance with our obligation under Article 7(5) of Directive 2002/21/EC.

Background

2. Ofcom has now concluded its review of the single transit market and review of whether to impose an additional transparency obligation in the call termination markets The attached document Review of the fixed narrowband services wholesale markets: further statement on wholesale transit markets and remedies in the wholesale call termination market (‘the further wholesale statement’) contains analysis and decisions on:

 market definition;  designation of undertakings with significant market power (‘SMP’); and  the imposition of appropriate regulatory obligations.

3. Ofcom hereby communicates its decisions to implement proposals made in the in Notification, referred to in paragraph 1 above, in this document.

4. Ofcom has conducted a national consultation under Article 6 of Directive 2002/21/EC and has taken account of the responses to that consultation in making its decision to adopt the following draft measures, without any material modification:

Proposals Adopted

Decisions on Market Definition

5. We have adopted the following proposals for market definition:

In the UK excluding the Hull area:

 Single transit on fixed public narrowband networks (‘Single Transit market’); and  Inter-tandem conveyance and transit on fixed public narrowband networks (‘ITC/ITT market’). Decisions on the Designation of undertakings with significant market power

6. We have adopted the proposal that BT holds SMP in the Single Transit market in the UK (excluding Hull):

7. We have found that the market for ITC/ITT remains competitive and therefore no provider holds SMP.

Regulatory obligations : Single Transit market

8. We have adopted the proposals to set the following SMP services conditions, as appropriate, in the Single Transit market where BT has been found to hold SMP:

Requirement to provide network access (Article 12) Requirements not to unduly discriminate (Article 10) Transparency obligations (publish reference offer, notify charges, notify technical information, transparency of quality of service) (Article 9) Requests for new network access (Article 12) Accounting separation (Article 11)

Regulatory Obligations : Call Termination market

9. On 15 September 2009 we notified the Commission, in accordance with A7(5), that we had adopted proposals in relation to the call termination market (see case UK/2009/0899). In summary we:

 defined a market as wholesale fixed geographic call termination on each individual network in the United Kingdom;

 found that each terminating operator (as specified) held SMP to the extent that each person’s public telephone network constituted a separate market; and

 imposed appropriate SMP remedies to address the identified competition concerns.

10.Separately, on 15 September 2009 we notified the Commission, in accordance with A7(3), that we proposed an additional draft measure be imposed on all dominant providers, save for BT and KCOM in the Hull area.

11.We have adopted that proposal to set an SMP services condition on those dominant providers requiring them to publish charges (Transparency obligation : Article 9).

12.On 16 October 2009, Ofcom received comments from the European Commission in respect of the proposed SMP Condition to be applied in the call termination markets. We have fully addressed the Commission’s comments in Section 6 of the further wholesale statement, attached to this Notification.

Ofcom 5 February 2010