OFTEL - GUIDELINES ON SPECIAL NETWORK ACCESS
(Draft document dated April 1999)
Comments from the Service Providers Interest Group
Introduction
SPIG members welcome the draft guidelines and the opportunity to comment. We share Oftel's view as to the importance of SNA to service providers for the future. The lack of detailed definition given to SNA in both the Revised Voice Telephony Directive ("RVTD") and the Interconnection Directive ("ICD") (together the "Directives") causes some concern and we think as a general point that the guidelines could give some further help in this area. We also welcome Oftel's clarification that Cellnet and Vodafone are obliged to provide SNA by virtue of them having SMP in the market for interconnection.
We draw Oftel's attention to a Special Network Access Code of Practice dated 15th April 1997 (attached as Annex 1) written by a working group of the European Telecommunications Platform and adopted by the ONP Committee of DG XIII. This is a voluntary code intended to be used by requesting and requested parties as the foundation for their negotiation of SNA. The code is out of date in that the RVTD was not issued when the document was completed but nevertheless its treatment of the issues likely to arise in negotiation and the timetable for resolution remain valid. We would suggest that the code is used in parallel with the Oftel guidelines by the parties negotiating SNA.
Where we refer to Regulations in this document we mean the statutory instruments implementing the Directives in the UK.
What is SNA?
It is by no means clear to SPIG members from the Directives and the Regulations what is meant by SNA. We think that the meaning of SNA implied in the Directives has exceedingly wide scope and is open to interpretation. In this note we take the widest possible view of what might constitute SNA and include, by way of non-exhaustive examples, access to:
SPIG members have suggested that in addition to the above generic examples reasonable requests for SNA would also include everything, in network functionality terms, which an incumbent network operator provides for itself. This would avoid accusations of discrimination in favour of internal service provision businesses and serve to dissuade operators from embedding the network functionality needed to construct competing value added services deep in their network. In these circumstances there would be no benefit to be gained from erecting technical and network integrity barriers around embedded network functionality and using these as a reason for rejecting requests for SNA.
Some further guidance on this aspect of SNA provision from Oftel would be most helpful.
Commercial and Confidentiality matters
SPIG members are concerned that in requesting SNA they would be required to disclose information to the requested party that was commercially sensitive. Equally the requested party would almost certainly be a potential competitor in any service that the requesting party intended to offer to customers using the SNA. Without proper confidentiality and non-disclosure arrangements in place with and within the requested party, and particularly if the request has to be made to the retail division of the requested party, the requesting party will be reluctant to make the request. In addition without proper control and monitoring the requested party might be inclined to delay fulfilment of the request until such time as it was able to bring its own competing service to market. In addition the requested party probably has obligations under its licence to publish details of new interfaces. Further issues arise as to when an interface is SNA and at what point it becomes generally available?
Regarding the reasonability or otherwise of a request for SNA. An incumbent operator could reasonably ask the requesting party to disclose the business purpose for which the SNA is required in order, it would say, to determine its own business case for the provision. Refusal to provide such information might be seen by Oftel as a reason not to uphold a request as being reasonable if asked to make a determination. This would lead to a surrender of the "first mover" advantage that the requesting party would otherwise have and serve to dissuade parties from making such requests.
SPIG members and Oftel have recent experience in negotiating what could be described as a model confidentiality agreement and framework document with BT. We were keen to deal with some of the commercial confidentiality issues that would arise in negotiating SNA with an incumbent in a model agreement. BT on the other hand wanted service providers to rely on its standard agreement applicable to the generality of its retail customers. The negotiations were abandoned. This is perhaps indicative of one of the difficulties likely to arise again in future which might be considered within the Oftel Guidelines for SNA. Some of the issues of confidentiality could be avoided if the negotiation and administration of SNA was dealt with within the carrier services department of the requested party.
SNA, commonly provided interfaces and NTPs
The question arises as to when a requested SNA becomes a commonly provided interface. The Directives and the Regulations are silent on this point.
SPIG members interpret the Directives and the Regulations in this area to require the following process:
Following publication of the SNA any other organisation can apply for the same access and de facto the access becomes commonly available and can be described as being included in Part 1 of Schedule 2 of the Regulations. We would welcome Oftel's comments on this interpretation.
This raises additional points regarding the cost of providing the SNA and who should be required to contribute to these charges. The rights the organisation(s) contributing to these charges may have in the SNA and in the products and services provided by others which utilise the access also needs to be determined.
In our view these are key issues that should be fully considered by Oftel and dealt with in the proposed guidelines.
Reference Interconnection Offer for SNA
It seems to SPIG members that SNA as under the ICD and as under the RVTD cannot be regarded as identical in all respects. We agree that the ICD describes SNA as a form of interconnect and this gives rise to questions including:
By stating that fixed network operators with SMP should have a Reference Interconnection Offer for SNA we believe that DTI recognises this distinction.
We believe that these matters should be clarified in the proposed guidelines.
Pricing regime
SPIG members view the concept of setting SNA prices based on comparable retail service prices as fundamentally flawed. The potential for SNA to stimulate new innovative services from independent purveyors will be lost if a regime of wholesale prices exists that (i) is related to existing products and/or (ii) is related to the retail selling prices of a competitor, in this instance the incumbent.
We are fearful that giving an incumbent the total freedom to set wholesale prices as it pleases for the components for potentially innovative new services will ensure, at a stroke, that such innovative services will remain the preserve of the incumbent. However, without prejudice to the foregoing we welcome Oftel's wish to consider other factors where there is no retail equivalent.
We remain concerned that in requesting SNA a requesting party could be laying itself open to all sorts of set-up, capital, development and lost opportunity costs with no security that it would have any commercial competitive advantage due to first mover status. Indeed we would expect that an incumbent following receipt of a request for SNA would want to assess the market for that particular SNA in order to gauge interest from other than the requesting party. This exercise in itself would introduce delays in any implementation and when completed one outcome would be to skew the commercial advantage away from the requestor in the direction of the second and subsequent applicants for a particular form of access.
Attached reference data
Appendix 1 - ETP - SNA CODE OF PRACTICE
Appendix 2 - EXTRACTS FROM THE REGULATIONS
Appendix 3 - EXTRACTS FROM THE INTERCONNECT DIRECTIVE
APPENDIX 1
ETP - SNA CODE OF PRACTICE
European Interconnection Forum
SPECIAL NETWORK ACCESS
CODE OF PRACTICE
ISSUE 1 of 15th April 1997
CONTENTS:
Annex A: Flow Diagram for the procedure for a Request for Access
Annex B: Typical contents of a Statement of Requirements
Annex C: Typical contents of a Special Network Access Agreement
****
European Interconnection Forum
SPECIAL NETWORK ACCESS
CODE OF PRACTICE
ISSUE 1 of 15th April 1997
1.Introduction
1.1 The Purpose of this Code of Practice is to facilitate negotiation of Special Network Access (hereafter also termed SNA) to fixed public telecommunications networks and facilities, in order to provide efficient and effective telecommunications services, and to offer new applications.1 In the service provision market, new services are continually evolving and competition has developed very quickly. It should be possible for external providers of services to approach network operators for access within a predictable and consistent framework. Lack of such a framework can have serious commercial implications for individual service providers and for the development of the sector (it is, for instance, of key commercial importance that dispute resolution takes place in a timely fashion).
1.2 This voluntary Code of Practice has been produced by the European Interconnection Forum (EIF) Special Network Access Working Group. The EIF is hosted by the Open Network Provision Consultation and Co-ordination Platform (ONP-CCP), a telecoms industry-wide group including network operators of all types, service providers, manufacturers and users. The European Commission invited the EIF to take a role in the preparation of a Code of Practice.
1.3 The ONP Voice Telephony Directive 95/62/EC of 13th December 1995, for implementation by13th December 1996, identifies three types of network access:
1.4 However; the regulatory situation has moved on since the Voice Telephony Directive was first drafted. In producing the Code of Practice (referred to in this document as the ‘Code’) the Working Group has anticipated the draft Interconnection Directive, the Proposal for a Directive on Voice Telephony and Universal Service replacing Directive 95/62/EC, and the draft Notice on the Application of the Competition Rules.2 Reference is also made to the DGXIII paper ‘Technical Aspects of Special Network Access and Interconnection’, of 10 January 1996. (It should be noted that, in this document, references to adopted legislation including EU Competition Law are quoted in the body of the text, whereas references to proposed legislative texts or unofficial documents are mentioned as footnotes). The Code of Practice is to be read in conjunction with EU and national regulation; nothing in this Code will prejudice EU competition law principles.
1.5 The Voice Telephony Directive (Article 10.1) requires that ‘National Regulatory Authorities shall ensure that telecommunications organisations respond to reasonable requests from users other than:
for access to the fixed public telephone network at network termination points other than the network termination points referred to in Annex 1’ (‘commonly-provided’ network termination points). Reference is also made to the Proposal for a Directive on Voice Telephony and Universal Service replacing Directive 95/62/EC.3
1.6 Organisations requesting access may be varied, and may include network operators or service providers. Organisations requested to provide access are generally, but not exclusively, public telecoms network operators, including public fixed telecoms network operators which may or may not have significant market power in the relevant market. (Interpretation of which operators are deemed to have significant market power in the relevant market will be determined at national level by the regulatory authority. Such operators will be referred to as those ‘with significant market power’ for the purposes of this document).
1.7 The industry has therefore developed a Code of Practice in order to facilitate negotiation and conclusion of SNA agreements within the framework of the current relevant legislation. The Code is a living document which is expected to evolve as the market develops. The development of the draft Notice on the Application of Competition Rules to Access Agreements in the Telecoms Sector (see footnote 2) is noted, as is the contribution this Notice could make to the application of EU and national regulations in future.
1.8 This Code of Practice suggests some principles and assumptions for approaching the issue of Special Network Access. It refers to some rights and obligations of both the party requesting SNA and the party required to grant reasonable access, and sets out criteria which may be taken into consideration when assessing the reasonableness of a request for access. The role of EU Competition law is also considered. Finally, the Code proposes a procedure, with illustrative timescales, for requesting access, and outlines the typical contents of a Statement of Requirement and a Special Network Access agreement.
2. Scope
2.1 This Code of Practice is voluntary and aims to give guidance to assist negotiations on Special Network Access (SNA). (The European Interconnection Forum document ‘Framework Interconnection Guidelines’ of 30 May 1996 addresses the situation relating to Interconnection). The aim is that both parties negotiating a Special Network Access agreement will agree to abide by the principles of the Code of Practice.
2. 2 The Code applies to parties requesting Special Network Access (‘Requesting Party’) and to parties receiving the request for Special Network Access (‘Requested Party’), and aims to set out objective criteria to be met by these parties to ensure a predictable and fair procedure for those concerned.
2.3 The scope of this document does not include regulatory matters. It is in addition to, and does not supersede, regulatory conditions on network access, and is to be read in conjunction with EU and national regulation.
2.4 The Code is intended to cover all types of SNA request, independent of the services to be provided by the Requesting Party (this is voice, data, internet, videotelephony etc.), subject to EU and national legislation.
2.5 The Code of Practice is intended to be independent of any type of technology or application employed.
2.6 Tariff issues do not come within the scope of this Code. However it is recognised that different interfaces, functional terms and conditions, and tariffs may apply as between end users, service providers and network operators. This is subject to regulation at national level and may be dependent on the rights and obligations granted to the different kinds of participants in the market.
2.7 This Code of Practice is a living document and is expected to evolve over time in the light of experience, and to take account of the developing regulatory environment.
3. Definitions
3.1 Requesting and Requested Party
The Voice Telephony Directive (Article 10.1) describes users other than:
as able to request SNA.
Users are identified (Voice Telephony Directive) as ‘end-users, including consumers (e.g. residential end-users), and service providers, including telecommunications organisations where the latter provide services which are or may be provided by others’. Defining precisely what e.g. ‘service providers’ might be is difficult, partly due to varying regulatory treatment in different Member States, and is not attempted here. Again, it is anticipated that this will be a matter of interpretation at Member State level. Owing to the difficulty of reaching common definitions, the terms ‘Requesting Party’ and ‘Requested Party’ are used.
The ‘Requesting Party’ is the party seeking access to a public telecommunications network.
Organisations requesting access may be varied, and may include operators and service providers.
The ‘Requested Party’ is the party required (according to EU and national law) to provide access. It is generally, but not exclusively, a public fixed telecommunications network operator, which may or may not have significant market power.
See 3.5 below for schematic representation of relationships between the parties.
3.2 Special Network Access (SNA)
The Voice Telephony Directive (Article 10.1)4 describes SNA as: ‘access to the fixed public telephone network at network termination points other than the network termination points referred to in Annex 1’ (the annex refers to ‘commonly-provided’ network termination points, including PSTN and ISDN).
As the debate on Special Network Access has moved on since the adoption of the Voice Telephony Directive, this Code of Practice uses SNA to mean any access to the Requested Party’s network or functionality which is not available to the generality of the Requested Party’s customers via an existing network termination point. In this document, access may include hardware/interfaces, functionality in order to provide services and elements of a service (eg network management functions, CLI), administration and control: all that is objectively necessary physically and administratively in order for the Requesting Party to provide the service to its own customers (e.g. relevant databases, such as those for directory enquiries, and information to enable billing).
Some Member States regard interconnection as a part of SNA, other Member States consider it separate, but consistent definitions of both interconnect and SNA do not exist.5 It is anticipated that this will be a matter of implementation of European Union Directives into individual Member State legislation. Terms and conditions (including charges) and regulatory treatment for SNA may be different from those for Interconnect. Thus, where this is the case, clarity over the distinction between Interconnection and SNA at national level is of great importance.
3.3 New SNA/Existing SNA
New and existing SNA need to be identified, as different timescales are proposed for each.
For both existing and new SNA, the Requested Party cannot unreasonably delay timescales to finalise negotiations on SNA. Two types of SNA are identified:
existing SNA, identical to one already offered to another organisation,
including a subsidiary or partner of the Requested Party
an SNA not offered by the Requested Party to another organisation.
This - could consist of entirely new functionality, or the same or equivalent functionality as already used internally by the Requested Party and which is potentially capable of being adapted for external access.
Note:
It is recognised that the adaptation for openness to third parties and the decoupling of embedded functionality within the Requested Party’s network may not be feasible, or may be technically very difficult and/or uneconomic to provide. In the latter cases the timescales for considering a request for access and providing the access may be longer, but such complexity must not be used as a reason to unduly delay the process. Any delays must be justified.
3.4 Public telecommunications network:
‘ Public telecommunications network means a telecommunications network used inter alia for the provision of public telecommunications services’ (Article 1a (i) Full Competition Directive 96/19/EC).
3.5 Schematic diagram of possible relationships
Some Member States consider that there is a distinction between interconnection and SNA, whereas other Member States do not. The diagram below illustrates the current relationships between the various parties (it is possible that organisations which are not public network operators, such as database providers, will be subject to requests for SNA in future).
4. Summary of Principles and Assumptions
The principles and assumptions which have been adopted in developing this Code are as follows:
4.1 Compliance with this Code of Practice is voluntary;
4.2 Both parties agree to negotiate in good faith;
4.3 The assumption is made here that a request for SNA is within the law and within the licence conditions and authorisations of the parties concerned;
4.4 This Code of Practice should not prejudice the application of EU and national Competition Law;
4.5 There is a requirement on organisations with significant market power not to discriminate;
4.6 The Code does not guarantee that the requested type of Special Network Access will be granted, but it is intended that, where used, the Code will serve to increase the level of mutual confidence between the negotiating parties, particularly in the newly liberalising markets;
4.7 A request for access should not imply, or be required to state in detail, a particular usage, nor define a particular service beyond what is necessary for the understanding and technical and economic analysis of the request. The assessment of the reasonableness of a request should not depend upon the usage to which the SNA will be put;
4.8 Some Member States do not make a distinction between SNA and Interconnection, but where they are regulated separately, and differently, they should not normally be bundled together in negotiations or contracts, unless agreed otherwise by both parties;
4.9 The Requested Party should consider a Request for Access in good faith and should identify areas requiring additional information promptly and only where necessary;
4.10 Where the Requested Party is providing an SNA to another organisation, including to its subsidiaries or partners, then there is a presumption that a request for the same or an equivalent SNA from another party would be a reasonable request;
4.11 The Requested Party will fully consider every request in good faith and without discrimination. Where this involves embedded functionality, it is recognised that the adaptation for openness to third parties and the decoupling of embedded functionality within the Requested Party’s network may not be feasible, i.e. may be technically very difficult and/or uneconomic to provide;
4.12 Where a request for SNA is denied, the Requesting Party should be given a prompt and justified explanation as to why the request has been refused;
4.13 Where a Requested Party has Special or Exclusive Rights or significant market power, charges for SNA shall fully respect the principles of transparency and cost orientation6. Technical and commercial arrangements for SNA are a matter for agreement between the parties involved, subject to EU and national legislation;
4.14 Both parties should maintain strict confidentiality on information exchanged;
4.15 Exchange of commercially sensitive information between the internal business functions of the Requested Party (eg the network and the service provision parts) should not be permitted;
4.16 All timescales given in the Request for Access Procedure are illustrative, based on the UK model, and best efforts should be made to respond as soon as possible;
4.17 It is assumed that there will be no excessive or unneccessary bundling in the configuration of public networks;
4.18 Network integrity is of particular importance to SNA and interconnection. However, network integrity should not be used initially as a reason to refuse or restrict access. Agreement and mutual confidence between the parties on aspects of network integrity will be developed during the testing process;
4.19 A request considered unreasonable is open to change and renegotiation between the parties to seek a reasonable solution;
4.20 SNA should be a matter for agreement between the Parties, subject to regulatory intervention at the request of either party (ref. Art.10.3 Voice Telephony Directive). Dispute resolution should be included in the items for agreement. When refusing a request, the requested party must respect regulatory procedures. It is of key commercial importance that dispute resolution takes place in a timely fashion;7
4.21 ONP conditions ‘must be based on objective criteria, .. be transparent and published in an appropriate manner, and must be non-discriminatory’ (ref. Art. 3.1 ONP Framework Directive 90/387/EEC);
4.22 Both parties should agree to exchange information, where it affects the SNA (once a Special Network Access has been agreed
), within reasonable timescales, concerning relevant changes in the configuration of their networks;4.23 Subject to EU law and NRA interpretation, National Regulatory Authorities should ensure that adequate and up-to-date information on access to and use of the fixed public telephone network and voice telephony service is made available (ref. Article 4.1 of the Voice Telephony Directive ).8
5. Rights and Obligations
Both parties must agree to negotiate in good faith.
5.1 Charges which may be levied
5.1.1 When making a request for Special Network Access the Requesting Party acknowledges that the Requested Party may incur one-off costs in developing, and ongoing costs in providing, the requested SNA. For each request, the Requested Party must inform the Requesting Party of any reasonable costs that it will incur and may recover from the Requesting Party if the SNA is to be provided. The charges should be agreed between the parties. The Voice Telephony Directive (Article 10.2) requires that, for operators with special or exclusive rights, charges should be cost-orientated: ‘Technical and commercial arrangements for special network access shall be a matter for agreement between the parties involved, subject to intervention by the national regulatory authority ... The agreement may include reimbursement to the telecommunications organisation of the costs incurred, inter alia in providing the network access requested; these charges shall fully respect the principles of cost orientation’. This is subject to Member State implementation.9
5.1.2 The terms and conditions applied by a Requested Party with significant market power should not be discriminatory.10
5.1.3 If the Requesting Party believes the charges required by the Requested Party are unreasonable it can refer the matter to the NRA for resolution.
5.1.4 Where the SNA is requested by several requesting parties, the development costs should be shared appropriately. If costs are incurred for one particular requesting party, then they may be recovered from the requesting party, subject to negotiation.
5.1.5 Charges should be transparent (reference is made to Art. 3.1 of the ONP Framework Directive 90/387/EEC, which requires that ONP conditions ‘ ... must be based on objective criteria, .. be transparent and published in an appropriate manner, and must be non-discriminatory’).
5.2 Network Integrity Testing
5.2.1 Network integrity is of particular importance to SNA and interconnection. In particular, Signalling System 7 was not designed for open access, whereas future interfaces are expected to be self-protecting (eg with ‘firewalls’). However, network integrity should not be used initially as a reason to refuse or restrict access. Article 22.5 b) of the Voice Telephony Directive requires that: ‘National regulatory authorities shall ensure that restrictions on access to and use of the fixed public telephone network on the grounds of maintenance of network integrity, in order to protect inter alia network equipment, software or stored data, are kept to the minumum necessary to provide for normal operation of the network. Restrictions shall be based on published, objective criteria and shall be applied in a non-discriminatory manner’.11 Agreement and mutual confidence between the parties on aspects of network integrity will be developed during the testing process.
5.2.2 All parties should be responsible for their own costs of testing for network integrity.
5.2.3 Test specifications must be reasonable and sufficiently comprehensive for the SNA in question and should not include the testing of any other elements not requested, unless otherwise agreed by both parties.
5.2.4 Timing for testing should be agreed and reasonable.
5.2.5 The Requested Party will deliver to the Requesting Party a test specification which, for the requested SNA, shall be reasonable and sufficiently comprehensive to operationally test the SNA.
5.2.6 The Requesting Party will fully comply with the test specification. The parties shall together test the SNA to the test specification. If the SNA and the Requesting Party’s use of the SNA meets the test specification then the Requested Party shall issue a test certificate to the Requesting Party.
5.2.7 The parties shall agree the timescale for the provision of the test specification and the completion of the testing.
5.2.8 In the event that the Requesting Party believes that the test specification is unreasonable; or either Party believes that the test specification is not complied with; or either Party cannot agree on the time scales then, following negotiation, the matter shall be referred to the NRA for resolution.
5.2.9 Charges for test specification and development would normally be included in the development costs, and the same principles of cost-orientation and transparency should apply.
5.3 Fault Reporting and Resolution
5.3.1 Both parties shall be obliged to provide operational and maintenance support and both parties shall put in place appropriate procedures to ensure that all faults are resolved in a timely and efficient manner.
5.3.2 Both parties will provide contact points so that either party can report faults and complaints about the quality or performance of the SNA. The contact points will also enable
either Party to ascertain the progress of fault resolution. Both parties agree to resolve reported faults within a time to be stated in the commercial agreement between the parties.5.3.3 Issues of liability and indemnity will be covered in the SNA Agreement (see Annex C).
5.4 Operator, Directory Enquiry and Emergency Services
5.4.1 If relevant, and subject to national and EU law, the parties shall agree in each case of the provision of an SNA which of the parties will provide any operator, directory enquiry or emergency call handling services for the customers of the Requesting Party who obtain a service using the SNA.
5.4.2 Any licence obligations of the Requested Party in respect of these services shall take precedence but in the event that the parties cannot agree the matter shall be referred to the NRA for determination.
6. Criteria which will determine the ‘reasonableness’ of a Request for access
6.1 The Voice Telephony Directive (Article 10.1) requires that ‘National Regulatory Authorities shall ensure that telecommunications organisations respond to reasonable requests from users other than:
The issue to be addressed here is what is considered ‘reasonable’.
6.2 When refusing a request, the requested party must respect regulatory procedures. Users affected must be given the opportunity to put their case to the national regulatory authority before a decision is taken.13 A request considered unreasonable is open to change or re-negotiation between the parties to seek a reasonable solution.
6.3 A number of factors are important in determining whether any request is reasonable or not, and each request will be assessed on a case-by-case basis. The details of the request would be an important part of the ‘reasonableness test’.14
6.4 The following is a non-exhaustive list of criteria which may be taken into account in assessing the ‘reasonableness’ of a request. It should be noted that many of the issues below are not insurmountable obstacles to access but may have time and cost dependencies.
a) Timing
b) Technical configuration and feasibility
c) Price and other issues
7. The Application of EU Competition Law
7.1 Abuse of a dominant position and price-fixing
Nothing in this Code will prejudice EU competition law principles (Treaty of Rome Articles 85 and 86). Thus usual competition law principles prohibiting abuse of a dominant position and anti-competitive practices including price-fixing apply in the use of this Code. In particular, potential for anti-competitive effects is identified in the draft Notice on the Application of Competition Rules.15
It is extremely important that any Requested Party, but especially a public telecoms network operator with significant market power, ensures full confidentiality of customer (Requesting Party) information between its internal business functions. For instance, exchange of commercially sensitive information between e.g. the network and the service provision parts should not be permitted. Both parties should respect mutual confidentiality.
7.2 The Non-Discrimination Principle, and exceptions to it
Public telecoms network operators of fixed services (according to current EU law) which hold a significant market position are prohibited from discriminating:
The Voice Telephony Directive requires that: ‘National regulatory authorities shall ensure that telecommunications organisations adhere to the principle of non-discrimination when they make use of the fixed public telephone network for providing services which are or may also be supplied by other service providers.’ (Article 10.6).16
There may however be instances in which discrimination would be objectively justified,
such as eg. cost or technical considerations, or licensing restrictions consistent with, eg. intellectual property rights as identified in the draft Notice on Application of Competition Rules.17
8. Procedure for a Request for Access
(NB: Please see flow diagram at Annex A)
The Requested Party should consider a Request for Access in good faith and should identify areas requiring additional information promptly and only where necessary. Special Network Access should be a matter for agreement between the Parties, subject to regulatory intervention at the request of either party (ref. Art.10.3 Voice Telephony Directive).
Timescales given are illustrative, based upon the UK model.
8.1 Stage One
Negotiations between the Parties are to be covered by a confidentiality/non-disclosure agreement. The Requested Party is to make available a standard confidentiality agreement, which is commonly acceptable. This should be supplied to the Requesting Party on request within 5 days for return to the Requested Party on completion. The Requested Party will also make available a proforma for the Statement of Requirement, (SOR), which once completed will include a written description of the SNA (please see Annex B for a list of typical contents of Statement of Requirement). The proforma Statement of Requirement should be sent to the Requesting Party at the same time as the confidentiality agreement (within 5 days), or e.g. be made available on an Internet site.
The Requesting Party returns completed confidentiality form and SoR within its own timescale. (Because of this, Stage One of the process is not counted in the cumulative procedure timescales).
8.2 Stage Two
Upon receipt of the completed confidentiality form and SOR, the Requested Party examines the SOR, and acknowledges it, confirming that the information is satisfactory and whether the request is for:
Note: the procedure and timescales can vary depending on whether the Requested Party considers the SNA to be new or existing. The Requested Party should give objective reasons for its decision which may be scrutinised at a later date (eg by the NRA if there is a dispute).
8.3 Stage Three
From acknowledged receipt of the SOR, detailed discussions between the parties will take place to agree the SOR, and in order for the Requested Party to confirm that the information already provided is adequate to enable it to assess reasonableness. The SoR is to be agreed between the parties:
a) within 10 working days for an existing SNA;
b) within 30 working days for a new SNA.
8.4 Stage Four
The Requested Party examines the request in detail. At the end of the period specified below, the Requested Party gives its agreement to accept the request in principle, and proceed to a detailed Agreement and implementation plan, or its intention to reject as unreasonable (discussions may take place between the parties on the reasonableness of the request during this phase):
a) within 10 working days for an existing SNA;
b) within 30 working days for a new SNA.
If the Requested Party considers the request is reasonable, both parties should proceed directly to Stage Six.
If the Requested Party considers the request is unreasonable, it respect the relevant regulatory procedures.
8.5 Stage Five
In the case that the Requested party considers the request unreasonable, the Requesting Party may consult the NRA regarding the reasonableness of the request.18
The NRA shall consider the request. Both parties should have the opportunity to put forward their views to the NRA (ref. 10.1 Voice Telephony Directive 95/62/EC).
If the NRA agrees that the request is unreasonable, the Requesting Party must be given a prompt and justified explanation as to why access was denied or restricted. The parties may renegotiate on the reasonableness of the request and return to Stage Four (see 8.4 above). If renegotiation does not lead to agreement, the end of this process is reached.
If the NRA disagrees that the request is unreasonable, the Requested Party should be given a prompt and justified explanation as to why this decision was taken.
Following agreement or an NRA decision on reasonableness, both Parties should then proceed to the detailed Agreement and implementation phase (see Section 9 below).
Timescales for an NRA decision on reasonableness will be determined by the NRA at national level. As this stage does not lie within the control of the Requesting and Requested Parties the timescales are not included in the overall timescales for the procedure.
8.6 Stage Six
Both Parties should prepare the detailed Agreement and implementation plan (see Section 9 below). Suggested timescales for this stage are:
a) within 5 working days for an existing SNA;
b) within 15 working days for a new SNA.
8.7 Overall Timescales
Suggested overall illustrative timescales for the whole process, from acknowledgement of SOR to signing of SNA agreement :
a) within 30 working days for existing SNA from date of receipt of SoR by the Requested Party;
b) within 85 working days for new SNA from date of receipt of SoR by the Requested Party.
All timescales given in the Request for Access Procedure are based upon the UK model. They are illustrative and best efforts should be made to respond as soon as possible, subject to the demands of non-discrimination and reasonableness. If any delays occur (e.g. owing to the need to obtain information from manufacturers, the complexity of the request, or the volume of requests for access), they must be justifiable. If the Requesting Party is not satisfied with the justification given, recourse may be made to the NRA for resolution. It is of key commercial importance that any dispute resolution takes place in a timely fashion.20
Note:
Given the early stage of liberalisation of some markets, it is not clear whether these illustrative timescales are realistic (too long or too short). The timescales will be reviewed in due course in the light of practical experience.
9. Special Network Access Agreement, including Implementation Plan
9.1 Special Network Access Agreement
The Requested Party shall make available a proforma SNA agreement or contract, which is commonly acceptable. Suggested typical contents will reflect those within the Interconnection Framework Guidelines of 10 May 1996, and are given in Annex C. Dispute resolution should be included in the items for agreement (ref. Art. 16.4 Proposal for a new Directive on Voice Telephony and Universal Service replacing Directive 95/62/EEC).
It should be a requirement for both parties to provide timely information concerning relevant changes in the configuration of their networks.
9.2 Implementation Plan
The implementation plan will be an important part of the agreement. The Requested Party shall make available a proforma implementation plan, which is commonly acceptable.
The items in a typical implementation plan should include:
Cost negotiations, and timescales
Test specifications and test developments
Testing procedures, with timescales
Dispute resolution, with timescales
Timescale for implementation of access provision
Operations and Maintenance
Unless otherwise agreed by the parties, the timescale for determining the detailed implementation plan will be 5 days for new and 15 days for existing services.
* END *
This Code of Practice is not to be reproduced for public use without permission from, and attribution to, the ONP-CCP European Interconnection Forum c/o Fabrimetal, Brussels
tel: +32 2 510 24 34
(Refer also to Section 8 of Code of Practice) ANNEX A
FLOW CHART OF PROCEDURE FOR REQUEST FOR SPECIAL NETWORK ACCESS
ANNEX B
TYPICAL CONTENTS OF A STATEMENT OF REQUIREMENTS
Typical contents of a Statement of Requirements may include:
ANNEX C
TYPICAL CONTENTS OF A SPECIAL NETWORK ACCESS AGREEMENT
(based on the FRAMEWORK INTERCONNECTION GUIDELINES, version 10 may 1996)
Typical contents of a special network access agreement may include:
APPENDIX 2
EXTRACTS FROM THE REGULATIONS
Special network access Article 16
18.
-(1) In exercising their functions under sections 7 and 12 to 15 of the Act, the Secretary of State and the Director shall ensure that:
(2) The Director may agree to limit the obligation in paragraph (1)(a) above in a particular case where, in his opinion:
(3) The Director may on his own initiative at any time, where justified, and shall do so on the request of either party, make a direction specifying conditions to be included in an agreement in order to ensure effective competition or interoperability or both. Any conditions specified by the Director shall be non-discriminatory, fair and reasonable for both parties and offer the greatest benefit to all users.
(4) The Director may, in the interest of all users, make a direction specifying:
(5) The Director shall publish or shall ensure the publication in accordance with regulation 13 above of any conditions which he has specified in accordance with paragraph 4 above.
SCHEDULE 2
PART 1
Technical characteristics of network interfaces
and
APPENDIX 3
EXTRACTS FROM THE INTERCONNECTION DIRECTIVE
Recital 6
(6) Whereas it is necessary to define those organizations which have rights and obligations for interconnection; whereas in order to stimulate development of new types of telecommunications services, it is important to encourage new forms of interconnect and special network access at points other than the network termination points offered to the majority of end-users; whereas the market power of an organization depends on a number of factors including its share of the relevant product or service market in the relevant geographical market, its turnover relative to the size of the market, its ability to influence market conditions, its control of the means of access to end-users, its international links, its access to financial resources and its experience in providing products and services in the market; whereas, the determination of which organizations have significant market power should be undertaken by national regulatory authorities taking into account the situation in the relevant market;
Article 4(2)
2. Organizations authorized to provide public telecommunications networks and publicly available telecommunications services as set out in Annex I which have significant market power shall meet all reasonable requests for access to the network including access at points other than the network termination points offered to the majority of end-users.
Annex 1
SPECIFIC PUBLIC TELECOMMUNICATIONS NETWORKS AND PUBLICLY AVAILABLE TELECOMMUNICATIONS SERVICES referred to in Article 3(2).
The following public telecommunications networks and publicly available telecommunications services are considered of major importance at European level.
Organizations providing the public telecommunications networks and/or publicly available services identified below which have significant market power are subject to specific obligations with regard to interconnection and access, as specified in Articles 4(2), 6 and 7.
Part 1 - The fixed public telephone network.
The fixed public telephone network means the public switched telecommunications network which supports the transfer between network termination points at fixed locations of speech and 3,1 kHz bandwidth audio information, to support inter alia:
Access to the end-user's network termination point is via a number or numbers in the national numbering plan.
The fixed public telephone service according to Directive 95/62/EC of the European Parliament and of the Council of 13 December 1995 on the application of open network provision (ONP) to voice telephony ().
The fixed public telephone service means the provision to end-users at fixed locations of a service for the originating and receiving of national and international calls, and may include access to emergency (112) services, the provision of operator assistance, directory services, provision of public pay phones, provision of service under special terms and/or provision of special facilities for customers with disabilities or with special social needs.
Access to the end-user is via a number or numbers in the national numbering plan.
Part 2 - The leased lines service.
Leased lines means the telecommunications facilities which provide for transparent transmission capacity between network termination points, and which do not include on-demand switching (switching functions which the user can control as part of the leased line provision). They may include systems which allow flexible use of the leased line bandwidth, including certain routing and management capabilities.
Part 3 - Public mobile telephone networks.
A public mobile telephony network is a public telephone network where the network termination points are not at fixed locations. A public mobile telephone service is a telephony service whose provision consists, wholly or partly, in the establishment of radiocommunications to one mobile user, and makes use wholly or partly of a public mobile telephone network.