Diverging Appellate Time-Frames, Rulings Said to Stifle Competition
BRUSSELS -- Legal challenges to national telecom competition rules pose a growing threat, regulators and industry representatives said Thurs. at the European Competitive Telecom Assn. (ECTA) annual regulatory conference here. As regulators analyze 18 markets under the new e-communications regulatory framework (NRF) and impose remedies on dominant players, many orders are being appealed by incumbents and new entrants alike. Widely varying decision times across the European Union (EU) -- and differing judicial approaches -- are leaving competition questions unresolved and investments delayed. The situation has become so troublesome the European Commission (EC) has been asked to intervene.
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As the Commission begins a comprehensive review of the NRF, a key question is whether the regulatory scheme should harmonize methods of analyzing and dealing with competition issues or outcomes, said Kip Meek, U.K. Office of Communications (Ofcom) senior partner-competition & content, and 2006 chmn. of the European Regulators’ Group (ERG). There’s a “huge gulf” between the 2, he said. Policymakers are close to finding a common methodology, but a long way from harmonizing outcomes.
Inconsistent appeal results could prove “a challenge to the whole notion of a common methodology,” Meek said. If it takes 6 months to decide a case in one country and 4 years in another, the EC and ERG should deem the problem suitable for debate and give it prominence. But ultimately they can’t sort it out because national politics are involved, Meek said.
Sweden is the “champion” with 80 appeals cases pending, its regulator said. Courts tend to suspend orders from the National Post & Telecom Agency, making it impossible to ensure access to competitors, said Dir.-Gen. Marianne Treschow. She asked whether the EC would consider setting time-frames or other measures to speed appeals and harmonize their results.
Courts do have a role but “the efficiency of the regulatory framework has to be guaranteed,” said a spokesman for Information Society & Media Comr. Viviane Reding. In the long run, the NRF’s point is a single e- communications market across Europe, so the Commission is willing to look at ways to streamline procedures.
The uncertain appeals process is a big issue for ECTA. The group wants the Commission to set a limit of perhaps a year on how long courts can take to issue a decision, curb the number of appeals and set a high threshold for interim relief to incumbents, Andy Tarrant, British Telecom Group Services head of govt. affairs, told us. In Germany, where judgment stays don’t require a showing of grave, irreparable harm, over 1,000 appeals have been filed and 500 still await decision.
The U.S. has had 200-plus years to wrestle with federal/state issues, far longer than the EU, said Robert Pepper, Cisco senior managing dir.-global advanced technology policy. The 1996 Telecom Act sparked 8 years of litigation, he reminded the audience.