The European Commission is examining new Belgian broadcasting and broadband regulation that was introduced this week and that forces cablecos to open up their networks.
Meanwhile Belgian operator Telenet continues with its own preparations for a legal…
The European Commission is examining new Belgian broadcasting and broadband regulation that was introduced this week and that forces cablecos to open up their networks.
Meanwhile Belgian operator Telenet continues with its own preparations for a legal challenge at the Brussels’ Court of Appeals, although a decision might not come before 2012.
An EC spokesperson confirmed to TelecomFinance that the Commission officially received notification of the final measures by the Belgian regulator at the end of last week. The EC would now “have to assess whether or not the regulator has taken account of our [earlier] comments”.
It remained unclear how long such an assessment might take, although an outcome is not expected to come anytime soon, given the detailed legal analysis required to assess the situation.
The EC had raised concerns about the plans for new regulation in late June, when they were still at draft stage. In a “comments letter” the EC outlined its concerns, questioning, among other things, if the proposal took sufficient account of recent market developments which improved competition, and if the proposed measures were proportionate.
Those measures to improve competition include forcing cable operators to open their networks to other players. Companies Brutele, Numbericable, Tecteo, AIESH and Telenet have an obligation to allow third parties to access their digital TV platform, to resell their broadband internet products, and to resell their analogue TV programming.
According to EC procedures, national telecoms regulators are required “to take utmost account” of such comments made by the Commission before taking final decisions. But the Belgian Conference of Regulators on the electronic communications sector (CRC) decided on 18 July to go ahead with its plans, less than one month after receipt of the EC’s comments letter, which was sent on 20 June.
If the EC now concluded in its assessment that the Belgian authorities did not take utmost account of the comments, the EC could, in principle, take matters further and ultimately launch infringement proceedings against Belgium.
However it is not known at this stage if the EC is prepared to go down that route.
Luc Hindryckx, Chairman of the Council of BIPT, one of the regulators that form the CRC, said the timeframe between comments letter and adoption of the regulation was sufficient. “Absolutely die we take the comments of the EC into account,” he told TelecomFinance.
He also pointed out that adjustments to the draft proposal were made to address the EC’s comments and that the draft submitted to the EC and the final regulation are not identical.
But Belgian cableco Telenet questions whether the CRC has effectively “taken the utmost account” of the EC’s comments as required by EC procedures. It believes: “If the CRC would not or insufficiently have taken the Commission’s comments into account, the final decision will be unlawful.”
This was rejected by Yves Derwahl, chairman of the Medienrat, which is another CRC member, representing the German speaking community in Belgium. Derwahl noted that no official deadlines or timetables apply for consideration of EC comments letters, and that therefore he does not think that the CRC acted outside EC procedures.
In the meantime Telenet continues to prepare its appeal against the regulation. TelecomFinance understands that the official filing will be made within the next two weeks and could come as soon as later this week.
Telenet hopes that the new regulation will eventually be suspended or annulled before the court.
Peter Alexiadis, partner at law firm Gibson Dunn, thinks Telenet’s chances for success are good.
“The Belgian regulators have a lot to answer here. I cannot see how they possibly managed to take the elements set forth in the letter by the EC into due account, given the short period they looked into it,” said Alexiadis.
But it will take considerable time before it is known whether the Belgian Court of Appeals will follow Telenet’s argumentation, given that the even after a filing with the court it will likely take months for it to come to a conclusion. CRC member Derwahl said he does not expect a decision before early 2012.
But the regulation is unlikely to have any noticeable effect on the market before autumn 2012 anyway, because the operators have time for implementation. The CRC estimates that the measures should in principle be implemented by the end of October 2012 only.
