Republika e Kosovës Republika Kosova-Republic of Kosovo Autoriteti Rregullator i Telekomunikacionit Telecommunications Regulatory Authority Regulativni Autoritet Telekomunikacije No. Prot 023/B/12 DECISION No. 185 For designation of The IPKO Telecommunications LLC having Significant Market power in Call termination on public telephone network provided at a fixed location Market This Regulation is issued based on the articles 1.1, 1.2, 6 and 44 of the Law of Telecommunication Nr. 2002/7, amended by the Law Nr. 03/L-085 (thereafter Law on telecommunications), articles 3.10, 5 and 6 of the Regulation for Market Analysis and Definition of the providers with SMP, No. Prot. 115/1/10 (thereafter referring to as the Regulation for Market Analysis), Regulation for Provision of Access (Prot.No.012/B/11) (thereafter Regulation for Access);Regulation for Interconnection (Prot.No.033/B/11), point 3.8.3 of the Telecommunication Sector Policy document, date 13.06.2007, European Partnership Action Plan(EPAP), taking into account Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), European Commission recommendation of 11 February 2003 (2003/311/EC), as amended by the 2009/140/EC Directive, together with subsequent recommendation of 17 December 2007 (2007/879/EC) on relevant product and service markets susceptible to ex-ante regulation and European Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services (2002/C 165/03). ). Decision No. 58 for Market Analysis of the Fixed Telephony of 31 January 2011, No. Prot. 002/B/11, as amended by the Decision No. 128 of 13 September 2011, No. 051/B/11; The Report on Fixed telephony market analysis and designation of operator with SMP (hereinafter Report); in compliance with the provisions of articles 20 and 22 of the internal regulation of the Telecommunication Regulatory Authority (TRA), the TRA Board comprised of: 1) Mr. Ekrem Hoxha Chairman of the Board 2) Mr. Besnik Berisha, Board Member 3) Mr. Lulzim Kurtaj Board Member 4) Mr. Nijazi Ademaj, Board Member on the Board Meeting XXXII held on 22 February 2012, based on the material reviews for the Fixed Telephony market analysis and the definition of the Significant Market Power operators (SMP), prepared by the Working Group for the Market Analysis in cooperation with TAIEX experts, after the public consultations, was taken the following decision: Page 1 of 5
D E C I S I O N I. IPKO Telecommunications LLC is designated to have Significant Market Power in Call termination on public telephone network provided at a fixed location II. IPKO Telecommunications LLC assigned as a Significant Market Power operator is obliged to comply the obligations determined based on the Law and Regulation for Market Analysis, Article 6, as follows: 1) Access Obligations 2) Non-discrimination Obligation 3) Transparency Obligations 4) Price control Obligations 5) Accounting Separation Obligation 6) Obligation not to Cross-subsidise III. The obligations assigned in point II of this decision include: 1. Access obligation according to the Article 57 of the Law on telecommunications and Article 6.4 of Regulation on SMP. IPKO Telecommunications LLC must ensure interconnection and the provision of Fixed call termination according to the conditions and procedures, approved by TRA in the Regulation of Access and Regulation on Interconnection. While providing Fixed call termination, IPKO Telecommunications LLC shall: 1.1. give undertakings access to specific network elements and/or facilities, including a possibility where technically possible to interconnect on packet switched basis; 1.2. negotiate in good faith with undertakings requesting Fixed call termination; 1.3. not to withdraw access to facilities already granted; 1.4. provide specified services for resale; 1.5. grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services; 1.6. provide co-location or other forms of sharing of electronic communications infrastructure; 1.7. provide specific services needed to ensure the provision of service to users; 1.8. provide access to operational support systems or other similar software systems necessary to ensure fair competition in the provision of services; 1.9. Interconnect networks or network facilities, including the possibility to interconnect networks at any network point where this is technically feasible. 1.10. May refuse to provide, to unilaterally suspend or discontinue access only in the event that such actions are based on objective criteria, including technical non-feasibility or the necessity to ensure network integrity. 2. Non-discrimination obligation according to the Articles 24.3, 53.2 and 57.2 of the Law on telecommunications and Article 6.6 of the Regulation on SMP. IPKO Page 2 of 5
Telecommunications LLC shall not discriminate the recipients of Fixed call termination against other recipients and, in particular, to apply equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provide services and information to others under the same conditions and of the same quality. 3. Transparency obligations according to the Articles 24.3,.b, 57.1 and 69.1 of the Law on telecommunications and Article 6.5 of the Regulation on SMP. The IPKO Telecommunications LLC, as far as the Wholesale termination products are concerned, must: 3.1. Within 3 months from the date of the adoption of this Decision to publish reference offer according the Regulation of Access and Regulation on Interconnection as far as it is applicable to Fixed call termination; 3.2. Provide the undertakings, seeking interconnection, all the information needed to interconnect. 4. Price control obligation according to the Article 24 of the Law on telecommunications, Article 6.1 of the Regulation on SMP. IPKO Telecommunications LLC as far as it is related to the provision of Fixed call termination shall ensure that: 4.1 Fixed call termination prices are not higher than the prices that are applied for a fixed call termination on PTK network. Regarding the calls originated outside of Kosovo (international calls) IPKO Telecommunications LLC has to negotiate in good faith with access seekers and to ensure that prices of termination on IPKO Telecommunications LLC fixed network of calls originated outside of Kosovo are set at reasonable level; 4.2 Prices of Fixed call termination should not require customers to pay for services/facilities not needed for provision of fixed call termination; 4.3. In regard to Fixed call termination, interconnection link is regulated as associated facility. Therefore IPKO Telecommunications LLC must: 4.3.1. Offer the interconnection links to requesting party; 4.3.2 allow the other interconnecting party to install and to provide interconnection link between IPKO Telecommunications LLC and his network in case if this operator proposes a lower price than the price offered by IPKO Telecommunications LLC; 4.3.3. share the costs of interconnection link between interconnected parties according to the usage of this interconnection link i.e. IPKO Telecommunications LLC is obliged to cover the portion of IPKO Telecommunications LLC traffic in total traffic carried by this interconnection link during the certain month. It is assumed that the operator provides a service to another operator, if the latter commits to pay for that service to the first operator. It is also considered that there is just one interconnection link between public telephone networks, irrespective 2Mbps Page 3 of 5
links actually used for routing of traffic. In case only fixed call termination is provided by IPKO Telecommunications LLC to other operator, this operator should cover 100% of the costs for such interconnection link; 5. Accounting separation obligation according to the Article 45.3 of the Law on telecommunications and Article 6.3 of the Regulation on SMP. In this regard IPKO Telecommunications LLC has to clearly separate the financial records of its activities in order to accurately account for the profits and losses of activity of providing fixed call termination. Commencement Date of the implementation of this obligation will be determined by a specific decision of the TRA Board; 6. Obligation not to cross-subsidise according to the Article 45.2 of the Law on telecommunications and Article 6.2 of the Regulation on SMP. III. IV. This decision will be attached to the Report on Fixed Telephony Market Analysis and designation operator with SMP. This decision enters into force on the day of signature. R E A S O N I N G Call termination on IPKO Telecommunications LLC public telephone network provided at a fixed location market according to the Report is defined in respect of IPKO Telecommunications LLC. The performed Market analysis showed that the competition in the respective market is not effective on the grounds: IPKO Telecommunications LLC has 100% market share in respect of providing call termination services and on additional substantiating conclusions, stated in the Report as follows: the lack of countervailing buying power in wholesale fixed call termination market, due to technological barriers; the lack of competition, due to technological barriers. Therefore, the decision was based on the clause of this decision. Legal Advice: This decision is final and no complaints are allowed against it. This decision can be subject to any administrative and judicial procedural reviews with actual laws into force. Endorsement: With this decision it is confirmed that the TRA Board has decided in compliance with the applied regulations and legislation in Kosovo, and in compliance with rules and procedures of TRA. Pristine, 29/02/2012 Telecommunications Regulatory Authority Page 4 of 5
Besnik Berisha, Lulzim Kurtaj Nijazi Ademaj, Ekrem Hoxha Chief of the TRA Board Decision is sent: - Fixed Licensed Operators - Kosovo Competition Authority - TRA Archive Page 5 of 5