response to bor(13)53 › eng › document_register › subject...eafm – response to bor(13)53 and...

Response to

BoR(13)53

BEREC Guidelines on the separate sale of regulated retail roaming services and the implementation of separate sale of regulated retail roaming services under article 4 & 5 of the roaming regulation - a

consultation

and

BoR(13)54

BEREC Guidelines on Roaming Regulation (EU) No 531/2012 (Third Roaming Regulation)

(Articles 4 and 5 on Separate Sale of Roaming Services)

3 June 2013

stoilis

Typewritten Text

stoilis

Typewritten Text

BEREC ref. N BoR PC01 (13) 16

EAFM – Response to BoR(13)53 and BoR(13)54 – 3 June 2013 2

Contents

I. Introduction of the European Association of Full MVNOs (EAFM) ................................ 3

II. Key EAFM Responses to BoR(13)53 and BoR(13)54 ...................................................... 4

III. EAFM Responses to Questions and Points of Detail on BoR(13)53 .............................. 8

IV. Caveat .................................................................................................................................. 15

V. Modifications Requested to BoR(13)54 ........................................................................... 16

VI. EAFM Contact Details ......................................................................................................... 19

VII. Annex – Legal Analysis (EAFM Letter Dated 22 March 2013) ..................................... 20


I. Introduction of the European Association of Full MVNOs (EAFM)

1. The European Association of Full MVNOs (hereafter “EAFM”) was created in 2012 to

represent the interests of companies which are active on European mobile markets, and are

independent (in terms of ownership and control) from established mobile network operators.

The EAFM consists of companies which have negotiated Full MVNO agreements with host

mobile network operators, in such a manner that they achieved commercial independence

from their host mobile network operators and are involved in the deployment of their own

network elements (or are in the process of achieving Full MNVO status).

2. The goal of the EAFM is to create a more openly accessible market for Full MVNOs, in order

to contribute to the growth of the fast-moving mobile communications sector, to ensure that

consumers and business users have a wider range of diversified services to choose from and

to develop competition on the retail mobile market to their benefit. Our members believe

that Full MVNOs can stimulate innovation in the telecom sector.

3. The members of the EAFM are listed at http://eafm.eu/members/


II. Key EAFM Responses to BoR(13)53 and BoR(13)54

4. The EAFM welcomes BEREC’s initiative to consult interested parties on the

application of Articles 4 and 5 of the Roaming III Regulation on the separate sale of

regulated retail roaming services. The EAFM participated in the industry platform and in the

Steering Committee chaired by BEREC.

5. The EAFM is pleased to provide its responses to both BEREC consultation documents, and

we look forward to BEREC finalising the Guidelines in a manner which removes

uncertainties for the mobile industry as a whole, and for Full MVNOs in particular.

6. The EAFM’s key responses to BoR(13)53 and BoR(13)54 are contained in this Section II.

Responses to the consultation questions and further points of detail (not repeating the key

points made in this Section II) are put forward in Section III. Section IV below contains our

proposals for modifications to the BoR(13)54 draft Guidelines.

7. We emphasise that uncertainties need to be unequivocally removed in particular with

regard to which obligations apply / do not apply to specific categories of industry players.

A. Distinction between ‘wholesale roaming access’ and ‘access to facilities and

support services that are necessary for the separate sale of regulated roaming

services’ (Full) MVNOs are not required, and cannot be required, to supply

wholesale roaming access to ARPs

8. The EAFM considers it absolutely necessary for BEREC to distinguish, unequivocally and

systematically throughout its Guidelines, between:

a) The supply of wholesale roaming access (Article 3 of the Roaming III Regulation).

b) Access to facilities and support services that are necessary for the separated

sale of regulated roaming services (Articles 4 & 5 of the Roaming III Regulation).

These are two distinct concepts, which must remain fully distinct.

This is of particular importance because the industry players which are subject to obligations

resulting from Article 3 on the one hand, and Articles 4 and 5 on the other hand, are not

always the same.


9. The EAFM calls upon BEREC to confirm explicitly in the Guidelines that (Full)

MVNOs are not required and cannot be required to supply wholesale roaming

access1 (Article 3 of the Roaming III Regulation: covering direct wholesale roaming access

and wholesale roaming resale access, read in conjunction with Article 2 and with Recital 25)

to Alternative Roaming Providers (ARPs), regardless of any aspect of BEREC’s

guidance on access to facilities and support services that are necessary for the

separate sale of regulated retail roaming. The EAFM’s legal analysis on this point is

provided in Annex (EAFM letter dated 22 March 2013). It is necessary for BEREC to provide

this confirmation, because: (i) to-date, there remains uncertainty on this point among

important stakeholders including National Regulatory Authorities, and (ii) BEREC’s own

consultation document and draft Guidelines are ambivalent on this matter.

10. With reference to points 7 and 8 above, the EAFM calls upon BEREC in particular to

remove the second sentence of draft Guideline 31, to remove the first paragraph

of draft Guideline 32, and to amend the second paragraph of draft Guideline 32,

which are not in accordance with the Roaming III Regulation. We suggest replacement as

follows:

Draft Guideline 31 According to the Regulation the ARP must be able to offer customers to subscribe to regulated services (voice, SMS and data roaming services) as a bundle. The domestic provider is required to provide a wholesale bundled offer including those three services to the ARP. Draft Guideline 32 Domestic providers required to resale roaming access to ARPs can be MNOs, MVNOs, resellers, or any other entities offering retail mobile services in the customer’s home country. If the domestic provider requested to resell roaming access is technically unable to offer the required functionalities for the separated sale of regulated roaming services, for example due to the level it holds in the value chain, the obligation for providing the necessary functionalities extends to the service providers capable to provide these functionalities, located upstream from the domestic provider, including the host MNO.

Furthermore, we ask BEREC to remove from BoR(13)53, and not to include in any successor

document accompanying the final BEREC Guidelines, the last sentence of paragraph 3 of the

introduction. We suggest replacement as follows:

The Implementing Act sets out the Single-IMSI solution and the provision of local data roaming services by a visited network as the two technical modalities to allow

1 In accordance with the minutes of the Steering Committee held on 17 May 2013 and the final section of

Change Request Document 20130408-CR-SG-04 to which the minutes of the Steering Committee refer.


the separate sale of regulated retail roaming services. In the Single-IMSI solution the regulated retail voice, SMS and data roaming services are provided by an alternative roaming provider to the retail customer. Hence, the domestic mobile operator technically supplies the wholesale roaming services to the ARP.

Note that the concept of ‘domestic mobile operator’ is not contained in the Roaming III

regulation (the Roaming III regulation distinguishes ‘mobile network operators’ (Article 3)

and ‘domestic providers’ (Articles 4 and 5)).

B. Provision of local data roaming on a visited network by others than mobile

network operators (Full) MVNOs should not be excluded from participating in

this market segment

11. With regard to local data roaming by third operators, discussed at point 7 of the consultation

document and addressed by draft Guideline 10, we welcome BEREC’s statement that it

expects stakeholders to reach commercial wholesale agreements enabling

MVNOs (and resellers) to provide local (data) roaming on a visited network.

However, we think that, as a very minimum, this should be strengthened by BEREC

underlining in Guideline 10 that:

a) It is reasonable for the visited network provider (i.e. Home Network Operator) to support

an MVNO for these purposes if this MVNO already has a Full MVNO agreement with this

Home Network Operator, and,

b) If the Home Network Operator refuses to provide such support to its Full MVNO, the Full

MVNO would be entitled to initiate dispute resolution proceedings on this matter in front

of the NRA.

12. More fundamentally, we remain in substantive doubt as to whether BEREC’s

interpretation to the effect that there would be ‘no legal justification […] to offer

any other stakeholder decoupling functionalities for using local data roaming’ is

the correct interpretation of the Roaming III Regulation.

13. We observe that draft Guideline 10 is worded in a perplexing way, especially its

reference to ARPs, who are in fact the mobile network operators, which are subject

to obligations under Article 3 read in conjunction with Recital 25 of the Roaming III

regulation to provide wholesale roaming access to any authorised entity in the EU, i.e.

including Full MVNOs within their own country, with a view to supporting visiting roamers.


14. Overall, we remain of the view that access to local data roaming should be

mandated on the mobile network operators to avoid severely distorting the

market against Full MVNOs. As discussed in our response to BEREC’s 2012 consultation,

BEREC’s interpretation creates a paradox in which Full MVNOs would be put in a

lose-lose position compared to mobile network operators. Indeed, Full MVNOs would

have to incur CAPEX and OPEX to enable their roaming customers to select local data

roaming on a visited network when abroad (and hence temporarily lose the customer to

another operator), but Full MVNOs would be prevented from participating in the local data

roaming market (preventing them from temporarily gaining a customer from another

operator). Such a state of affairs would benefit mobile network operators choosing to offer

local data roaming over Full MVNOs, since the mobile network operators would be able to

mitigate roaming usage losses from local data roaming by making roaming usage gains in

choosing to offer local data roaming, while the same mitigation technique would be withheld

from Full MVNOs. Especially as data traffic will increasingly represent the major proportion of

traffic (and in the future, increasingly the major proportion of revenues), and as messaging

and voice may become included in local roaming offers on visited networks, this situation

could tip the market definitively in favour of mobile network operators to the

detriment of Full MVNOs and would therefore even undermine competition from

Full MVNOs on domestic markets. Surely, this cannot be reconciled with the

objectives pursued by the co-legislators in adopting the revised Roaming

Regulation, and with the EU regulatory framework for electronic communications

(BEREC being an institution created as part of that EU regulatory framework). On the basis

of the above, the EAFM again calls upon BEREC, and upon the European

Commission, to take steps to avert the paradox/lose-lose situation on local data

roaming for Full MVNOs.


III. EAFM Responses to Questions and Points of Detail on BoR(13)53

Q1. Do you consider that a period of 4 months is sufficient for MNOs as well as for ARPs to

prepare the functionalities for decoupling in order to allow ARPs to provide retail roaming

services on 1st of July 2014? If your answer is no, please specify what period should be

sufficient and provide justification why the period should be longer?

15. The EAFM expressly welcomes the statement made by BEREC in point 2 of the consultation

document that ‘BEREC is aware of the complexity of implementing the decoupling solutions

and understands that the burden may be high particularly when operators face no wholesale

access requests’. We ask for this statement to be included also in the text of Guideline 1

itself. If Full MVNOs are considered subject to requirements to provide access to facilities and

support services that are necessary for the separated sale of regulated roaming services, we

express our related comments below. With regard to the period of 4 months, we consider

that a period of 4 months is not sufficient for Full MVNOs, for the following reasons: (i)

the low likelihood that Full MVNOs will face requests for access to facilities and support

services that are necessary for the separated sale of regulated roaming services, at all, or in

the first wave of any potential requests from ARPs (prior to 1 July 2014), (ii) the likely undue

level of resources to be engaged by Full MVNOs to meet such requests, given Full MVNOs

intrinsic activities and the limited scale of their own operations (see draft Guideline 26), (iii)

the fact that Full MVNOs will depend (in part) on their host MNO to fulfil such potential

requests, (iv) additional complexities arising from the fact that Full MVNOs are not required

to supply wholesale roaming access (this obligation applies only to mobile network operators

in accordance with Article 3 of the Roaming III Regulation). On the basis of the above, we

believe that it is justified to apply a period of 4 months for the first requesting ARP

to be provided with a draft contract, and a period of 7 months for implementation

(the 7 months to start from the date of signature of the contract). The initial

period of 4 months can be shortened to 1 month for subsequent requesting ARPs.

The period of 7 months for implementation cannot be compressed and is a

technical challenge in its own right, in particular if several ARPs must be

accommodated simultaneously by Full MVNOs who typically have limited

resources.

Note 1: The wording of Question 1 (reproduced above) refers to ‘MNOs’, whereas the draft

of Guideline 1 refers to ‘domestic providers’.


Note 2: We have deliberately used the terminology ‘access to facilities and support services

that are necessary for the separated sale of regulated roaming services’ in our comment, to

underscore that this is the scope that this question should cover, to the exclusion of the

supply of wholesale roaming access, which is out of scope of this question. We have used

this same terminology throughout the EAFM response, and we urge BEREC to use this

terminology throughout the final Guidelines, to systematically reflect the distinction

between, on the one hand, the obligations resulting from Articles 4 & 5 of the Roaming III

Regulation, and, on the other hand, and the obligations resulting from Article 3 of the

Roaming III Regulation.

Q2. Is there any additional provision to be considered regarding the use of standards, reference

documents and access to documentation by access seekers?

16. The EAFM expressly welcomes the statement made by BEREC in point 3 of the consultation

document that ‘Any relevant reference documents developed by market participants may be

applied as long as they are free of charge for any potential access seeker and there are no

limitations in their use. Such documents shall be in line with the provisions set out in the

Regulation and the Implementing Act’. We also wish to thank the European Commission and

BEREC for enabling the EAFM to participate in the steering committee and in the work of the

industry platform established with reference to Recital 22 of the Implementing Regulation

1203/2012. However, indications were given at the stakeholders meeting on 22 April 2013

that important aspects of the output of the industry platform may be handed-over to the

GSMA (e.g. TADIG) for further development going forward. At the hearing on 29 May 2013,

BEREC indicated that this may be under reconsideration. The EAFM hereby expresses its

request that the industry platform remain in existence and remains in charge of

any further development of the technical documentation. More broadly, it is the

EAFM’s explicit wish to participate in shaping technical documentation, rather

than merely be informed of, any further development at the technical level. The

EAFM has, for the past several months, engaged with the GSMA with a view to becoming

admitted as a member, for the purposes described above, and also more widely, given that

several GSMA working groups’ activities (including fraud management, which is also

addressed in this BEREC consultation, etc.) are also of direct relevance to Full MVNOs. To-

date, it has not been possible for the EAFM or its members to achieve their objectives in this

regard.

Q5. Do you consider that the fallback from ARP providing local data roaming services to the

previous roaming provider needs more clarification? Is there any additional issue that BEREC

should take into account in the guidelines regarding the switching process from local data


roaming services to traditional roaming and the rights of the customers when using local data

roaming services?

17. The EAFM’s position is that fallback from local data roaming services to the default (not

locally provided) roaming mode/environment of EAFM members should happen

instantaneously (e.g. not the next day, or within 1 working day, or any such timeframe). We

request that draft Guideline 9 be extended to specify the instantaneous nature of

the fallback requirement.

Q6. Do you consider that there is any provision in the regulation supporting obligations for MNOs

to provide wholesale services to other stakeholders for allowing them to provide local data

roaming services? If so, please provide your justification based on the regulation?

18. Mobile network operators are subject to obligations under Article 3 read in

conjunction with Recital 25 of the Roaming III regulation to provide wholesale roaming

access to any authorised entity in the EU, both to facilitate competition from

MVNOs/resellers and to support separate sale of regulated roaming services,

without specification of one (Single IMSI) or the other (local data roaming)

modality of the separate sale of regulated roaming services. Therefore, if a commercial

agreement is reached to enable a Full MVNO to provide local data roaming

services (in this scenario there is not yet a Full MVNO agreement with the host

mobile network), the wholesale roaming access component must be provided by

the mobile network operator to the Full MVNO under Article 3, and at wholesale

charges which cannot exceed the regulated wholesale caps. If the full MVNO

already has a Full MVNO agreement, its host network operator provides local data

roaming to the Full MVNO under tariff conditions defined in the Full MVNO

agreement. Please refer to Section II (Key EAFM Responses), paragraphs 11-14 above, for

further elements of our response to Question 6.

Q8: Do you consider that there is a technical constraint pointing a different model for allowing by

default the use of the Universal APN? If so, please explain.

19. To prevent fraud, BEREC could usefully recommend that it is permitted to restrict the

provisioning for Universal APN to intra-EEA networks only.

Q9: Do you consider that the BEREC guidelines should consider any additional exception for

barring and/or blocking? If so, please explain and justify the compliance of the proposal with the

regulation.


20. The ARP can introduce services negatively impacting the end-user experience. This will have

impact on the relation between the domestic provider and the end-user. The domestic

provider should have the ability to inform customers on the actual performance of the ARP

(based on registered customer complaints).

Q10. Should BEREC consider any other issue about traffic steering? Please describe and justify

the need according to the regulation?

21. Several EAFM members have organised their roaming capability by means of a dual-IMSI

solution, enabling them to rely on another operator (sponsor network) than their domestic

Host MNO for roaming purposes. Where use is made of a sponsor network, the Full MVNO

cannot impact the traffic steering which is performed by the sponsor network for roaming

purposes.

Q12. Do you consider that ARPs providing local data roaming services are to take any other

responsibilities regarding the restoration of APNs? If so, please provide justification based on the

regulation?

22. Yes. We have a major concern that there will be technical issues with customers switching

back from local data roaming services to the default (not locally provided) roaming

mode/environment of EAFM members, without the proper APN setting. We suggest that:

(i) BEREC issues a Guideline stating that the APN must be restored to its previous

value, and (ii) Key Performance Indicators (KPIs) are defined, and data is

collected on a quarterly basis from 1 July 2014, to understand the degree to

which there are complaints relating to wrongful setting of the APN. If the number

of problematic instances is material, action should be undertaken to mitigate/eliminate such

problems.

Q13. Do you consider that it is necessary to use a real time interface between ARPs providing

local data roaming services and donor roaming providers for switching off steering and selected

barring?

23. Yes, to facilitate billing and to prevent fraud.

Q14. Do you agree with the fallback model stated in the guideline? Are there any additional

issues BEREC should take into account with regard to the process described in the Guideline?


24. The EAFM strongly agrees with the proposed fallback model. We reiterate (see our response

to Question 5 that fallback should be instantaneous. We request that Guideline 25 be

extended to specify the instantaneous nature of the fallback requirement.

Q18. Do you consider that the time limits are reasonable? If not, please explain and justify why?

25. No. Please refer to our response to Question 1. In our view the arguments are the same

for requests made prior to 1 July 2014 and after 1 July 2014. Therefore, we believe

that it is justified to apply a period of 4 months for the first requesting ARP to be provided

with a draft contract, and a period of 7 months for implementation (the 7 months to start

from the date of signature of the contract). The initial period of 4 months can be shortened

to 1 month for subsequent requesting ARPs. The period of 7 months for implementation

cannot be compressed and is a technical challenge in its own right, in particular if several

ARPs must be accommodated simultaneously by Full MVNOs who typically have limited

resources.

Q19. Do you agree with BEREC’s approach on wholesale bundled offers?

26. No. Please refer to Section II (Key EAFM Responses), paragraphs 8-10 above, which

specifically address Question 19 and in particular the wording of draft Guideline 31.

Q20. Do you agree with the obligation for domestic providers and host operators stated in the

guidelines? If not, please explain?

27. No. Please refer to Section II (Key EAFM Responses), paragraphs 8-10 above, which

specifically address Question 20 and in particular the wording of draft Guideline 32.

Q23. Should BEREC consider additional functionalities to be provided for free? If yes, please

explain?

28. In the case of Full MVNOs, some of the facilities and support services that are necessary for

the separated sale of regulated roaming services to be offered to ARPs may have to be

supplied by the host MNO, either directly to the ARP, or indirectly - via the Full MVNO - to

the ARP. Hence, in the case such facilities and support services have to be provided free of

charge to the ARP via the Full MVNO, the host MNO should provide these facilities to the Full

MVNO free of charge as well. At the hearing on 29 May 2013, an important mobile network

operator group’s representative stated explicitly the intent to charge (Full) MVNOs for this

type of activity. The EAFM emphasises that Full MVNOs are not access seekers with

regard to such facilities and support services. The access seeker is the ARP.


Q25. Do you agree with BEREC’s approach on roaming outside the EEA and on special rate

services? (If not, please explain and justify)

29. No. Please refer to Section II (Key EAFM Responses), paragraphs 8-10 above. As we have

made clear in those key responses, the EAFM considers that (Full) MVNOs are not required

and cannot be required to supply wholesale roaming access (Article 3 of the Roaming III

Regulation: covering direct wholesale roaming access and wholesale roaming resale access,

read in conjunction with Article 2 and with Recital 25) to Alternative Roaming Providers

(ARPs), regardless of any aspect of BEREC’s guidance on access to facilities and support

services that are necessary for the separate sale of regulated retail roaming. This is the case

for intra-EEA roaming and is a fortiori the case for extra-EEA roaming as well. We suggest

amendments to draft Guideline 41 as follows:

Draft Guideline 41 The regulation does not require domestic providers to allow alternative roaming providers to provide access for the purposes of retail provision of unregulated services (in particular roaming voice calls and SMS messages where either sender or recipient is outside the EEA). However, BEREC considers that the great majority of customers would find it confusing and inconvenient to have one retail supplier of intra-EU roaming services and another supplier of extra-EEA services when roaming in the EEA. For that reason, BEREC takes the view that access for decoupled service must include extra-EEA roaming services for Mobile originated calls from EEA to outside the EEA and Mobile terminated calls from outside the EEA to the EEA, when requested by the alternative roaming provider. These extra-EEA roaming services are to be charged by the domestic provider at fair and reasonable prices.

Q29. Do you have any other comments on the draft Guidelines?

30. The EAFM considers that BEREC’s consultation document and draft Guidelines are ambivalent

insofar as they insufficiently distinguish, on the one hand, the supply of wholesale roaming

access (Article 3 of the Roaming III Regulation), from, on the other hand, access to facilities

and support services that are necessary for the separated sale of regulated roaming services

(Articles 4 and 5 of the Roaming III Regulation).

31. Lack of rigour in applying the essential distinction leads to lack of certainty on the obligations

of industry players, in particular Full MVNOs, and could lead to unnecessary disputes. We

urge BEREC to review each draft Guideline specifically with this issue in mind, to ensure that:

(i) the distinction is unequivocally and systematically made, and (ii) obligations are not

imposed on industry players in contradiction with the Roaming III Regulation.


32. Full MVNOs are in principle able to purchase wholesale roaming access at the regulated

wholesale caps. In fact, especially in case use is made of dual-IMSI solutions or roaming hub

solutions (i.e. any solution other than a direct roaming relation) a mark-up will be charged

on top of the regulated wholesale caps, and/or some other fees will be charged, to cater for

the service of the hub or dual-IMSI provider. Unlike mobile network operators, Full MVNOs

are not able to trade or barter roaming traffic bilaterally or multilaterally, at charges below

the regulated wholesale caps. Therefore, in case Full MVNOs would (in contradiction

with the Roaming III Regulation) be required to supply wholesale roaming access

to ARPs at the regulated wholesale caps, the Full MVNOs would incur a loss,

because they would have to engage CAPEX and OPEX for making that supply possible, and

may de-facto be purchasing wholesale roaming access above the regulated wholesale caps,

whilst being required to sell to ARPs at the level of the wholesale caps. This cannot possibly

have been the intent of the co-legislators when adopting the Roaming III Regulation, given

that it is evidently unreasonable. We urge BEREC to ensure, in the final Guidelines, that such

a scenario will not occur, also not as the outcome of possible dispute resolution proceeding

under the auspices of a National Regulatory Authority which is a member of BEREC.

33. None of the above should preclude the possibility for a Full MVNO to voluntarily supply

roaming solutions to a third party should it choose to do so. Given that Full MVNOs are not

required to supply wholesale roaming access under the Roaming III Regulation, voluntary

supply of roaming solutions by Full MVNOs to third parties cannot be subject to the

wholesale caps stipulated in the Roaming III Regulation.

34. At the hearing held on 29 May 2013, certain stakeholders asked for draft Guideline 38 to be

modified to remove the reference made to “operating a terrestrial public mobile

communication network”. The EAFM asks BEREC to maintain this important

reference, or to delete draft Guideline 38 in its entirety. .


IV. Caveat

35. The entirety of this EAFM response is without prejudice to our assessment of forthcoming

(legislative) proposals announced by EC Vice-President Kroes relating to the Single Market in

ICT2, which may affect the Roaming III Regulation and/or its implementation, in particular

the separate sale of regulated retail roaming.

2 http://commentneelie.eu/speech.php?sp=SPEECH/13/484

http://www.youtube.com/watch?v=b-RDh2vf26A&feature=youtu.be

http://www.commentneelie.eu/speech.php?sp=SPEECH/13/414

http://blogs.ec.europa.eu/neelie-kroes/european-council-ict-single-market/

http://commentneelie.eu/speech.php?sp=SPEECH/13/484

http://www.youtube.com/watch?v=b-RDh2vf26A&feature=youtu.be

http://www.commentneelie.eu/speech.php?sp=SPEECH/13/414

http://blogs.ec.europa.eu/neelie-kroes/european-council-ict-single-market/


V. Modifications Requested to BoR(13)54

Introduction, paragraph 3 Two types of decoupling models are considered in the regulation. For the first type of decoupling, where regulated voice, SMS and data roaming services are provided as a bundle, the Single-IMSI solution has been chosen. Under the Single-IMSI technical modality the separate sale of roaming services is technically still provided by the domestic provider, which serves as the host mobile network operator to the alternative roaming provider (ARP). The separate sale of roaming services is provided on a wholesale basis to the alternative roaming provider, which resells the services to the roaming customer at the retail level. This basic option of resale of retail roaming services does not allow the alternative roaming provider to control which visited networks are to be used in preference to others. Additional Guideline (Full) MVNOs and resellers cannot be required to supply wholesale roaming access (Article 3 of the Regulation) to ARPs, regardless of any aspect of BEREC’s Guidelines on access to facilities and support services that are necessary for the separate sale of regulated retail roaming (Articles 4 and 5 of the Regulation). Guideline 1 BEREC is aware of the complexity of implementing the decoupling solutions and understands that the burden may be high particularly when operators face no wholesale access requests. If ARPs want to offer retail services for customers on 1st of July 2014, they should request access from the domestic provider foureleven months in advance, in order to allow domestic providers to implement all the functionalities as well as to carry out all relevant testing procedures. Guideline 9, paragraph 1 When a customer finishes using local data roaming services (for example: returning to the home country, switching countries, etc.) or has given explicit consent to terminate the usage of local data roaming services, his roaming service automatically and instantaneously rolls back to the default (not locally provided) mode/environment, so ARPs should not prevent roaming customers from returning to the default roaming mode. Guideline 10 There is no legal justification to support an obligation for ARPs providing local data roaming services to offer any other stakeholder decoupling functionalities for using local data roaming services (as for example, resellers or MVNOs offering local data roaming services supported by the visited network). In any case, tThere are no legal reasons to prohibit commercial agreements among stakeholders to allow resellers and MVNOs to provide local data roaming services. It is reasonable for the visited network provider (i.e. Home Network Operator) to provide support to an MVNO for the provision of local data roaming services if this MVNO already has a Full MVNO agreement with this Home Network Operator.


If the Home Network Operator refuses to provide such support to its Full MVNO, the Full MVNO would be entitled to initiate dispute resolution proceedings on this matter in front of the NRA. Guideline 23: addition after existing text of draft Guideline 23:

Upon termination of service, the APN shall be restored to its previous value. Key Performance Indicators (KPIs) will be defined by BEREC, and data will be collected by NRAs on a quarterly basis from 1 July 2014 onwards, to understand the degree to which there are complaints relating to wrongful setting of the APN. If the number of problematic instances is material, BEREC will consider adopting a Common Position on Best Practices to mitigate/eliminate such problems. Guideline 25 When a customer terminates the contract with the ARP, the ARP informs the domestic provider about the termination and the customer falls automatically and instantaneously back to the domestic provider’s previous contract tariffs, if agreed by the customer, or the eurotariff. Guideline 30 An access agreement should be implemented as soon as possible but in any case it should not take longer than the time limits set out in the Roaming Regulation for Art 3. This means that domestic providers should provide the ARP with a draft contract for access at the latest one four months after the initial receipt of the first ARP request (1 month for subsequent ARP requests). The access should be granted within a reasonable period of time not exceeding threeseven months from the conclusion of the contract. Guideline 31

According to the Regulation the ARP must be able to offer customers to subscribe to regulated services (voice, SMS and data roaming services) as a bundle. The domestic provider is required to provide a wholesale bundled offer including those three services to the ARP.

Guideline 32

Domestic providers required to resale roaming access to ARPs can be MNOs, MVNOs, resellers, or any other entities offering retail mobile services in the customer’s home country.

If the domestic provider requested to resell roaming access is technically unable to offer the required functionalities for the separated sale of regulated roaming services, for example due to the level it holds in the value chain, the obligation for providing the necessary functionalities extends to the service providers capable to provide these functionalities, located upstream from the domestic provider, including the host MNO. Guideline 37 Addition after existing text of draft Guideline 37:


Full MVNOs are not access seekers with regard to such facilities and support services. The access seeker is the ARP. In the case of Full MVNOs, some of the facilities and support services that are necessary for the separated sale of regulated retail roaming services to be offered to ARPs may have to be supplied by the host MNO, either directly to the ARP, or indirectly - via the Full MVNO - to the ARP. Hence, in the case such facilities and support services have to be provided free of charge to the ARP via the Full MVNO, the host MNO should provide these facilities to the Full MVNO free of charge as well. Guideline 39, paragraph 1 The wholesale roaming charge does not normally include the costs for termination of outgoing roaming SMS or incoming roaming voice calls. Therefore these termination services cannot be considered to form part of a wholesale roaming resale service. These services must nevertheless be offered to ARPs having access to the separate sale of roaming services. Fair and reasonable prices may be charged. Guideline 41

The regulation does not require domestic providers to allow alternative roaming providers to provide access for the purposes of retail provision of unregulated services (in particular roaming voice calls and SMS messages where either sender or recipient is outside the EEA). However, BEREC considers that the great majority of customers would find it confusing and inconvenient to have one retail supplier of intra-EU roaming services and another supplier of extra-EEA services when roaming in the EEA. For that reason, BEREC takes the view that access for decoupled service must include extra-EEA roaming services for Mobile originated calls from EEA to outside the EEA and Mobile terminated calls from outside the EEA to the EEA, when requested by the alternative roaming provider. These extra-EEA roaming services are to be charged by the domestic provider at fair and reasonable prices. Guideline 45 Where services areaccess to facilities and support services that are necessary for the separated sale of regulated roaming services is required to be offered in accordance with the provision of access to decoupling services required functionalities for the separated sale of regulated roaming services, all terms and conditions of supply (except price) must be equivalent to those relevant for the provision of services such access to facilities and support services to the domestic provider itself. Exceptions must be objectively justified. Without prejudice to the generality of this requirement, it applies in particular to: a) The availability of access services and necessary access to facilities and support

services

d) Process of announcing new or redefined access to facilities and support services


VI. EAFM Contact Details

Should you require any clarifications or further information on the elements and positions set out

by the EAFM in this response to BoR(13)53 and BoR(13)54, please contact:

Political Intelligence (Functions as Secretariat of the EAFM)

Ms Isabelle De Vinck, Country Manager

Tel: +32 2 503 2265 - [email protected]

Rue Montoyer 39-3, 1000 Brussels, Belgium

mailto:[email protected]


VII. Annex – Legal Analysis (EAFM Letter Dated 22 March 2013)

Brussels, 22 March 2013 EAFM European Association of Full MVNOs Rue MontoyerStraat 39 Box 3 B-1000 Brussels Belgium

Subject: Obligations on MVNOs under the consolidated Roaming Regulation (531/2012) and the Implementing Regulation (1203/2012)

Dear members of the Steering Committee, As agreed, please find below the EAFM’s analysis of the legal and regulatory framework with regard to the obligations imposed on MVNOs. We trust that the European Commission and BEREC will share this analysis, and will be able to provide confirmation thereof at the earliest opportunity. Analysis of the consolidated Roaming Regulation (531/2012) Article 1 (paragraph 2) Subject matter and scope It lays down rules to enable the separate sale of regulated roaming services from domestic mobile communications services (Reselling) and sets out the conditions for wholesale access to public mobile communications networks (Access) for the purpose of providing regulated roaming services. It will be seen that this sentence clearly distinguishes, on the one hand, the separate sale of roaming services from domestic mobile communications services, and, on the other hand, the conditions for mandatory wholesale access to public mobile communications networks. Article 2 Definitions 2. In addition to the definitions referred to in paragraph 1, the following definitions shall apply: […]


(b) ‘domestic provider’ means an undertaking that provides a roaming customer with domestic mobile communications services; (p) ‘direct wholesale roaming access’ means the making available of facilities and/or services by a mobile network operator to another undertaking, under defined conditions, for the purpose of that other undertaking providing regulated roaming services to roaming customers; (q) ‘wholesale roaming resale access’ means the provision of roaming services on a wholesale basis by a mobile network operator different from the visited network operator to another undertaking for the purpose of that other undertaking providing regulated roaming services to roaming customers. It will be seen that the definition of ‘domestic provider’ is service-related (i.e. not network-related). It will be seen that the definitions relating to wholesale roaming access are network related. Article 3 Wholesale roaming access 1. Mobile network operators shall meet all reasonable requests for wholesale roaming access. Article 4 Separate sale of regulated retail roaming services 1. Domestic providers shall enable their customers to access regulated voice, SMS and data roaming services, provided as a bundle by any alternative roaming provider.

On the basis of the above, we wish to emphasize that nothing in the consolidated Roaming Regulation, and certainly not the contents of Articles 3 and 4, indicates that full MVNOs (who do not have public mobile communications networks / are not mobile network operators, in particular on account of the fact that they do not operate a Radio Access Network (RAN)) would be required to provide direct wholesale roaming access or wholesale roaming resale access to the alternative roaming providers.

Analysis of the Implementing Regulation (1203/2012) Article 3 Technical modality for the implementation of the separate sale of regulated retail roaming services provided as a bundle 1. For the purpose of enabling roaming customers to access regulated voice, SMS and data roaming services, provided as a bundle by any alternative roaming provider, domestic providers operating a terrestrial public mobile communication network shall provide the necessary network elements and the relevant services that allow for the resale of retail roaming services, to the domestic provider’s customers by the alternative roaming provider in parallel to domestic mobile communication services without the need for the roaming customers to change their SIM card or mobile device. […]


3. Domestic providers operating a terrestrial public mobile communication network shall meet all reasonable requests for access to network elements and services in accordance with paragraphs 1 and 2. Articles 3.1 and 3.3 of the Implementing Regulation further clarify that the obligation to provide the necessary network elements, services, allowing for resale by an alternative roaming provider (ARP), applies only to those entities ‘operating a terrestrial public mobile communication network’. The reference to ‘domestic provider’ (a service concept, as indicated above) is clearly augmented by the specification that the obligation applies to those domestic providers who operate a terrestrial public mobile communication network (i.e. not all domestic providers, for instance not the full MVNOs since they are not operating a terrestrial mobile communication network, on account of the fact that they do not operate a Radio Access Network (RAN)).

It follows from Articles 3.1 and 3.3 of the Implementing Regulation, read in conjunction with the consolidated Roaming Regulation, that entities (such as full MVNOs) who do not operate a terrestrial public mobile communication network, are not required to provide (i) direct wholesale roaming access and (ii) wholesale roaming resale access to alternative roaming providers (ARP).

Economic issues

The EAFM wishes to highlight that any erroneous interpretation, to the effect that full MVNOs would after all be required to provide wholesale roaming access, would cause a paradox. This would be the case because full MVNOs, not having their own mobile communications network, are themselves purchasers of wholesale roaming access, not suppliers of wholesale roaming access. As full MVNOs are not suppliers, they have (contrary to MNOs) nothing to ‘trade’ on a bilateral basis with MNOs to reach a deal for wholesale roaming access below the regulated caps. If a full MVNO would have to provide wholesale roaming access, it would purely have to resell what it purchases. Analysis of the reference offers published by MNOs to-date indicates that they typically offer to provide wholesale mobile resale access at the level of caps set out in the consolidated roaming regulation. Indeed, the pricing sections of the reference offers typically refer directly to the consolidated roaming regulation, rather than stating an actual wholesale price.

A full MVNO erroneously made subject to a requirement to provide wholesale roaming access would have to resell at zero margin, while at the same time incurring CAPEX and OPEX to make such wholesale roaming resale access available to alternative roaming providers (ARP). This cannot have been the intention of the co-legislators, as it would damage the ability of full MVNOs to compete, rather than stimulate competition.

Conclusion The EAFM trusts that the legal, regulatory and economic analysis set out above is sufficient for the European Commission and BEREC to unequivocally conclude and confirm that full MVNOs are not required to provide wholesale roaming access in application of Article 3 of the consolidated Roaming Regulation.


We would add that it was a deliberate policy choice by the co-legislators to distinguish, on the one hand, the (consumer protection driven) approach to create rights for customers wishing to obtain roaming services at more affordable retail prices, and on the other hand, the wholesale access obligations placed on operators of mobile communications networks, to stimulate competition. In case there are any counter-arguments, we ask for these to be presented in writing ahead of the next steering committee. Yours faithfully,

Jacques BONIFAY EAFM Chairman

response to bor(13)53 › eng › document_register › subject...eafm – response to bor(13)53 and...

Documents