09 November, 2021

ETNO comments on the draft BEREC Report on the regulatory treatment for fixed and mobile backhaul

ETNO welcomes the opportunity to comment on the draft BEREC “Report on the regulatory treatment for fixed and mobile backhaul” (“the report”) to express its views and conclusions. ETNO would like to share the following analysis on the report. In general terms, ETNO considers that at present, the current regulatory framework (EECC, BCRD) has the necessary instruments and obligations on the different relevant markets included in the EC 2020 recommendation, to be able to address any competition issues that may arise in the future. Therefore, we do not consider the potential regulation of mobile backhaul to be justified or proportionate, as no competitive issues have been identified in the relevant retail market that would request to consider backhaul as a relevant market susceptible to be regulated.

Indeed, we would like to recall that, within the conclusions of the 2020 Relevant Markets recommendation, the EC did not identify backhaul as a relevant market susceptible of ex ante regulation at EU level either. As such, ETNO is really concerned that letting fixed access regulation interfere with competition on the mobile infrastructure market, while there is no related retail market defined or analyzed, might constitute a serious risk of market distortion in the mobile market.

Fixed Backhaul

Currently, the different regulators have a series of regulatory obligations derived from the analysis of different markets (market 1 and market 2, 2020) or from the consideration of backhaul as part of these markets that allows addressing any competition issues in retail markets. Specifically:

• Physical Infrastructure Access (ducts & poles mainly)
• Leased lines
• VULA services
• Dark fibre

This existing regulatory framework makes available to alternative operators a set of measures that guarantee the possibility of deploying the infrastructure they need according to the competitive approach they have chosen. Therefore, from ETNO’s perspective, there is no material need to enlarge the set with additional obligations to those previously mentioned, specially taking into account that these are complemented in the regulatory framework, with the transposition of the BCRD (2014/61/EU). As included in the report, “in general it can be said that the BCRD provides a general entitlement for access to physical infrastructures usable for (mobile and fixed) broadband deployment”. Therefore, the BCRD guarantees the right of operators to request access to network operators' infrastructures for the deployment of NGA networks and to negotiate such access with them under fair and reasonable conditions. These additional provisions complement the obligations arising from the market analysis by extending access to alternative operators' infrastructure.

Mobile Backhaul

ETNO believes that the mobile backhaul market is highly competitive and benefits from infrastructure deployments undertaken by both SMP and alternative operators. With the presence in each market of at least 3 MNOs and a variety of MVNOs, the mobile market in Europe is characterized by great dynamism and infrastructure competition. As previously mentioned, and acknowledged in the report, where retail markets are effectively competitive in the absence of wholesale regulation, regulation will not be needed on related wholesale markets. An interventionist regulatory approach towards mobile backhaul could not be possible without a prior careful assessment of the retail mobile market and the establishment of potential a market failure, which up to date has been discarded within 2020 EC Relevant Market Recommendation1:

• On the one hand, the EC recognizes in its conclusions that the retail mobile market does not present competition problems in the EU as a whole.
• On the other hand, wholesale regulation should only be applied in the event that competition problems are identified in a retail market. 

Therefore, it should be concluded that the possible regulation of mobile backhaul would be not only excessively intrusive but also undue in the absence of an identified market failure to remedy.

Read the full document at the link below.