Autorità per le Garanzie nelle Comunicazioni

SUMMARY NOTIFICATION FORM CONCERNING AGCOM’S DRAFT DECISIONS ON DISPUTE SETTLMENT BETWEEN A MVNO, POSTEMOBILE, AND FASTWEB, TIM, H3G, CONCERNING VOICE CALL TERMINATION PRICE DEFINITION ON POSTEMOBILE MOBILE NETWORK

This notification concerns AGCOM’s draft decisions on three disputes settled, between PosteMobile and H3G, TIM and Fastweb, concerning the price of voice call termination on the mobile network of the virtual operator PosteMobile.

Section 1 – Market definition NA Section 2 - Designation of undertakings with significant market power NA Section 3 - Regulatory Obligations According to decision n. 621/11/CONS1, concerning the third round of market analysis on mobile termination service, in Italy only four MNOs (Telecom Italia, Vodafone, Wind, H3G) were identified as having significant market power in the voice termination market on mobile networks from July 2012. With the above mentioned decision Agcom has not identified as having SMP the full MVNOs, assignee of MNC – Mobile Network Code – and IMSI – International Mobile Subscriber Identity – and able to provide the termination on their networks. When AGCOM took this decision, indeed, no full MVNO operated in the mobile termination market, i.e. all the virtual operators present in the market at that time did not provide termination services. Four full MVNOs (BT Italia, Lycamobile, Noverca, Postemobile) started to provide mobile termination service under the regulatory framework already established with decision n. 612/11/CONS. In particular, PosteMobile started to operate as full MVNO on 14 July 2014 (evolving from Enhanced Service Provider). Thus, AGCOM evaluated the SMP position of such MVNOs in the mobile termination market in the following mobile voice termination market analysis, started on 30 January 2014 with decision n. 50/14/CONS and concluded on 30 September 2015, with decision n. 497/15/CONS (market n. 2 of

1 The Commission assessed this decision under case n. IT/2011/1219.

1 2014/710/UE Recommendation). The Commission assessed this decision under case n. IT/2015/1768. From 30 September 2015, PosteMobile was, according to the last decision, subject to price control obligation for termination of voice calls, applying a symmetrical tariff (0.98 eurocent/min) with other MNOs and MVNOs. The disputes settled by AGCOM, and object of the present notification, refer to the time period between 14 July 2014 and 30 September 2015, when PosteMobile, although full MVNO, was not identified as having SMP in the mobile voice call termination market. Thus, this operator was not subject to price control obligations for termination of voice calls on its mobile network, even if it provided a mobile termination service. PosteMobile started (in October 2014) three controversial resolution proceedings in Agcom, according to article 23 of the Italian Code of Electronic Communications, since it was not able to agree a termination rate with H3G, TIM and Fastweb on the base of bilateral negotiations. The notified decisions concern the settlement, by Agcom, of the price for mobile calls terminated on PosteMobile network in the time period elapsing from the start of its operations as full MVNO (14 July 2014) and the imposition upon PosteMobile of price control obligations from 30 September 2015 according to decision n. 497/15/CONS. The legal basis for the decision schemes being notified is article 41 of the Italian Code of Electronic Communications. According to this provision, all electronic communication network authorized operators have the obligation to negotiate the interconnection required by another electronic communication operator. Article 23 of such Code concerns the Agcom power on the dispute settlement between electronic communication operators. Further, article 42, concerning Agcom power on interconnection, foresees that, in addition to the obligations that are imposed according to the market analysis upon SMP operators, in the case of non SMP operators Agcom can intervene to fix the technical and/or economical interconnection conditions, according to article 23 procedure (dispute resolution). AGCOM is presently notifying the above referred draft decisions to the Commission because they refer to price setting by Agcom for termination on Italian mobile operators. In the notified draft decisions, according to the above recalled regulatory framework, Agcom has fixed voice call termination tariff of PosteMobile equal to [1.0-3.0] eurocent/min for the time period from 14 July 2014 to 30 September 2015. In such period of time, such tariff is higher than the one applied by notified MNOs, which is equal to 0.98 eurocent/min (defined through a BU-LRIC model) according to decision n. 621/11/CONS. The 1.7 eurocent/min tariff was determined according to a FDC cost orientation approach, starting from the costs and volumes reported for its operations as full MVNO by PosteMobile during the dispute settlement proceedings.

Section 4 - Compliance with international obligations NA Section 5 – Documents included in the notification Draft decisions, both in the complete and publishable version, concerning the dispute settlement according to the Regulation n. 352/08/CONS (that establishes the specific procedure for controversial resolution).

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