FACTORES QUE AFECTAN A LA OFERTA

The adoption o f Directive 90/388/EEC (“the Services Directive”) was the first step towards a systematic liberalisation o f the field o f communications in the Community. The Services Directive did not apply to television or radio broadcasting. Moreover, in its original form, the Services Directive did not apply to telex mobile telephony paging, satellite services and not even voice telephony which was defined as '’''the commercial provision fo r the public o f the direct transport and switching o f speech in real time between public switched network termination points, enabling any user to use equipment connected to such a network termination point in order to communicate with another termination point.

The scope o f the Directive has been gradually enlarged by new directives dealing with satellite communications (Directive 94/46/EC or “Satellite Directive”),^^ the use o f cable television networks for the provision o f telecommunications services (Directive 95/51/EC^3 or “Cable Directive”) and mobile and personal communications (Directive 96/2/EC^'^ or “Mobile Directive”). The Internet, due to its recent and rapid development has been subject to little regulation. However, the Commission Notice on voice

Directive 90/387/EEC, OJ 1990, L 192/1; and the subsequent implementing Directives: Directive 92/44/EC, OJ 1992, L 165/25 on leased lines, subsequently amended by the Directive 97/51/EC; Directive 95/62/EC, OJ 1995, L 321/6, on ONP to voice telephony subsequently replaced by the Directive 98/10/EC, OJ 1998, L 101/24.

See proposals o f 12* July. Directive 90/388/EEC, Article 1.

The Directive also amends Directive 88/301/EEC. OJ 1995, L 256/49.

communications on the Intemet^^ distinguishes three forms o f voice communications from the consumer’s point o f view: computer to computer voice services; computer to phone voice services (i.e. voice communications transmitted via the Internet between a PC o f one user and another using a traditional telephone connected to the PSTN); and phone to phone services where the information is transmitted using Internet protocols. The Commission considered that for Internet voice communications to be considered as voice telephony, and therefore to fall within the scope o f Directive 90/388/EEC on competition in the markets for telecommunication services, each o f the following conditions had be met: such communications are the subject o f a commercial offer for the public (i.e. available to all member o f the public on the same basis) and to and from switched network termination points;^^ and the communications must involve direct transport and switching o f speech in real time.^^

In 2000 the Commission launched a Consultative Communication to review the 1998 Notice on the Status o f voice on the Internet.^* The Communication intended to open a public consultation on the review o f the 1998 Notice but not to lead to an alteration o f the regulatory framework in force. Taking into account market trends and technological development (such as the level o f quality and reliability o f voice communications on the Internet, the degree o f use by PTOs o f Internet Protocol in their core networks to carry data and voice, and the use by large data users in a closed user environment o f Voice IP for supporting internal telephone services) it asked whether the approach should have been modified. The Commission anticipated that in the current situation it would confirm that Internet Telephony still continues to fall outside the definition o f voice

Commission Notice on the Status o f voice communications on Internet under Community law and, in particular, pursuant to Directive 90/388/EEC, OJ 1998, C 6/4.

The communications must connect two network termination points o f the public switched telephone network at the same time; if access to the Internet is obtained via leased circuits, the service could not be considered as voice telephony. The regulatory consequences o f this regime was that Internet access providers under the previous could operate under a general authorisation for data transmission or value added services and requirements o f individual licences may not be imposed on them and no universal services obligations could be imposed on them. This is changed as a result o f the reforms stemming from the 1999 Communications Review.

Consultative Communication on the a review o f the 1998 Notice on the Status o f voice con the Internet under Community law and in particular, under Directive 90/388/EEC - Supplement to the Communication by the Commission to the European Parliament and the Council on the status and implementation o f Directive 90/388/EEC on competition in the markets for telecommunications services, OJ 2000, C 177/4.

Chapter II____________________________________ ^_________________________ Antonio F. Bavasso

telephony. It sought views on the services available to end users, bundled offering (including VoIP services) and identification o f market players.^^

Despite the current scarce household p e n e t r a t i o n ,cable TV networks play an increasingly important role in the conveyance o f both broadcasting and telecommunications services. Their capacity to convey telecommunications services places them at the forefront o f the process o f convergence and multi media applications. The Cable Directive required Member States to allow the use o f cable TV networks for the provision o f telecommunication services. As a result o f an amendment introduced by the Cable Directive, telecommunications services were subsequently defined as ^''services whose provision consist wholly or partly in the transmission and/or routing o f signals on a telecommunications network/'^^ Directive 96/19/EC (“the Full Competition Directive”) o f 13th March 1996 extended the scope o f the Services Directive to public voice telephony services, and required Member States to fully liberalise the provision of network infrastructure by (subject to some e x c e p t i o n s ) ^ ^ is t January 1998.

The Service Directive, as amended by all the directives mentioned above, requires Member States to withdraw all exclusive rights for the provision o f telecommunication services.^^ Special rights designating or limiting the number o f operators authorised to provide services, or to establish networks, had to be withdrawn if they were not based on objective, proportional and non-discriminatory criteria.

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A summary o f the responses received was published on the Commission's website on 2Ist September 2000.

In 1997 an average o f 28% o f the households with a TV in the EU subscribed to a cable: Cable Review: Commission Communication concerning the review under competition rules o f the joint provision o f telecommunications and cable TV networks by a single operator and the abolition o f restrictions on the provision o f cable TV capacity over telecommunications networks ( the Cable Review”).

Article 1 o f the Cable Directive; the definition adopted for the purposes o f the ONP is slightly different and excludes