Wholesale broadband market procedure: TKK invites 530 parties to submit comments and opinions

Press release dated 2 April 2008

For some time now, the Telekom-Control Commission (TKK) has been investigating whether any companies possess significant market power (and if so, which ones) on the market for wholesale broadband access, and which specific obligations are required in order to mitigate the effects of such market power. Unfortunately, the investigation cannot be completed at this time. The European Commission recently approved the TKK's plans to impose different remedies for Telekom Austria's significant market power in less densely settled areas due to the lower competitive pressure compared to high-population areas, where multiple infrastructure providers are available. However, a recent decision handed down by the Austrian Administrative Court in another case has prompted the TKK to expand this procedure to involve not only Telekom Austria, which will be directly affected by the decision, but also the company's current and potential competitors. "We interpret the Administrative Court's ruling in such a way that we now have to review whether any other telecommunications service providers or network operators will be affected by a TKK decision in a broader sense," comments Georg Serentschy, managing director of RTR's Telecommunications Division, on the new situation.

At present, RTR believes that there are some 530 known companies which may be involved as parties to this procedure, plus a number of yet unknown parties. A decision in this large-scale procedure is not expected until July 2008. "The Administrative Court did not address the legally relevant issue of who is affected by such a decision and thus has the right to be heard as a party to the procedure. Based on a decision of the European Court of Justice, we believe we will have to use a broader definition of who is 'affected' or 'concerned'," Serentschy adds.

It remains to be seen whether the large administrative burden placed on RTR and the TKK, as well as the accompanying extension of the procedure based on the time periods allowed under the Austrian General Administrative Procedures Act, actually bring about a substantial improvement in the quality of the decision.