1. Imposing access obligations under the new framework Karen Hardy

2. 2 Key changes in regime New framework is far wider in scope covering electronic communications not just telecommunications AID covers more products and features than the ICD (ICD subject to interpretation whereas AID is very clear) SMP operators will have an obligation to meet all reasonable requests for “access” whereas currently BT decides commercially whether it wishes or not to make a product available Successful functioning of the system will be dependent upon Oftel conducting timely market reviews and imposing appropriate access obligations

3. 3 Level of the market It is important to acknowledge that there are three key vertical markets: retail - bought by end-users wholesale - bought by SPs who then resell to end-users interconnection - bought by operators who combine networks to make wholesale and/or retail products The AID requires the provision of sufficiently unbundled products, therefore, the provision by an SMP operator of just retail or wholesale products is insufficient and non-compliant

4. 4 Non discrimination The way that Oftel currently investigates [non-] discrimination must change If an Operator is found to be dominant, then by definition any discrimination will have a material impact on competition Oftel can choose when to impose non- discrimination, by doing so Oftel must consider discrimination to present a market risk Continuation of ex post investigations as to whether the discrimination has had a material impact on competition allows the SMP operator to play a regulatory game

5. 5 How should the process work Following a designation of SMP, Oftel should confirm that products already in the RIO must remain available Oftel should also state whether any other existing products should be made available as interconnection products Oftel should also specify the nature and type of additional products that should be provided if requested Oftel should also regulate the procedure through which an SMP operator must meet requests for new or modified products

6. 6 The SoR process should be ‘regulated’ The industry designed SoR process is failing to work. A new process should be included in the Guidelines, outlining: firm, fixed timescales for all parties throughout the process deadline dates for the provision of documentation including - draft reference offers for indicative pricing, SLAs & SLGs trial details product launch detail maintenance of an SoR register (either public or lodged with Oftel) penalties for the SMP operator if process is not adhered to

7. 7 Benefits of a regulated SoR process The result would be properly documented negotiations between the parties, including: description of product requirements product design agreed by both parties SMP operator’s feasibility results documented reference offer This is the type of information required by Oftel when conducting interconnection disputes A ‘regulated’ process would assist Oftel in meeting the new dispute resolution timescales of 4 months

8. 8 Technical feasibility Oftel states that products that are technically feasible should be provided but this needs further definition What happens if….. SMP operator has functionality within its network functionality is available from vendors and is ETSI- compliant functionality is available from vendors and is ETSI- compliant but SMP operator has deployed an alternative option functionality is available from vendors but is bespoke

9. 9 Undue burden Oftel states that the provision of a product should not represent an undue burden, this needs further definition: how will required changes to operational support systems be regarded/managed? developments should avoid the creation of product- specific order processing systems what rates of return will Oftel consider appropriate if all the risk is on the SMP operator? how will the charges for a product change over time when demand becomes stable?

10. 10 Innovative products What is innovation - technical or commercial (is repackaging of a product considered innovation e.g. FRIACO)? Innovative interconnection products must be provided on transparent, non-discriminatory and reasonable terms A relaxed approach to product description and transparency is NOT justified SMP operators must not be permitted to self-determine whether something would be regarded as innovative or not Retail minus pricing is not necessary to preserve incentives to innovate

11. 11 Terms and conditions It must not be forgotten that terms and conditions can determine the success of a product appropriate SLAs and SLGs have been the subject of recent disputes SLAs and SLGs must also suit end business products as well as those for residential users

12. 12 Pricing of access products LRIC, whilst involving more up-front work, does not require ongoing compliance monitoring (achieves best consumer outcome quickest) and is therefore preferable Retail minus charging creates uncertainty, generates ongoing disputes over charges and requires continuous compliance monitoring by Oftel Existing charge controls should continue and new products that use non competitive elements should also be charge controlled

13. 13 Summary Existing interconnect products must continue to be available The current SOR process does not work There should be some way of ensuring timely negotiations (and their conclusion) Clarity is needed on the interpretation of undue burden, technical feasibility, innovation etc.