Post and Electronic Communications Agency of the Republic of Slovenia

Stegne 7, POB 418 SI-1001 Ljubljana, Slovenia Tel.: +386 1 583 63 00, Fax: +386 1 511 11 01 E-mail: info.box@apek.si, http://www.apek.si

0902 Comments on BEREC Guidelines 09082012 Page 1 of 14

BEREC Office Z. A. Meierovica Bulv. 14 Riga LV-1050, LATVIA

Our Ref. No.: 38105-7/2012/18 Date: 9.8.2012

pm@berec.europa.eu

Subject: Comments on the documents: “BEREC Guidelines on the application of article 3 of the Roaming Regulation” and “Wholesale roaming access and Roaming regulation – choice of decoupling method” in public consultation

According to the BEREC public consultation of two documents: “BEREC Guidelines on the application of article 3 of the Roaming Regulation” and “Wholesale roaming access and Roaming regulation – choice of decoupling method”1, APEK organized two consultations with Slovene mobile operators in order to join all comments (by operators and APEK) in one document as a respond to the public consultation.

Comments in document were given by:

1. Mobile operators:

Si.mobil d.d., Šmartinska cesta 134b, 1000 Ljubljana, Slovenija

Telekom Slovenije, d.d., Cigaletova 15,1000 Ljubljana, Slovenija

T-2 d.o.o., Streliška cesta 150, 2000 Maribor, Slovenija

Tušmobil d.o.o., Brnčičeva ulica 49, 1231 Ljubljana-Črnuče, Slovenija

2. National regulatory Authority

APEK (The post and electronic communications agency of the Republic of Slovenia),

Stegne 7, 1000 Ljubljana, Slovenija

1 Published on: http://www.erg.eu.int/whatsnew/index_en.htm

0902 Comments on BEREC Guidelines 09082012 Page 2 of 14

Please find below comments to individual questions.

Comments on document BEREC Guidelines on the application of Article 3 of the Roaming Regulation – wholesale roaming access

PROVISION OF SERVICE (Guideline 1) Q1. Do you agree with BEREC’s interpretation of the Regulation concerning timing of provision of service?

Telekom Slovenije, d.d.: Telekom Slovenia believes that it is not reasonable for the access obligations to be applicable even before the reference offers are published. Absence of access conditions, defined in reference offers could prevent access seekers to adequately formulate their access requests. This issue is especially challenging for resale access where the forms of access are not as standardized as for the direct access. The purpose of regulation is to encourage the entry of new players in the mobile market. Therefore MNO’s could receive unreasonable requests for access merely by reason of lack of knowledge of the object matter. For all these reasons we propose that the regulation does not come into effect before 01/01/2013 and we strongly believe it would not cause any harm to the competition on the market. Tušmobil d.o.o.: If operators need to publish their Reference Offer till 1st of January 2013, BEREC needs to provide and publish Guidelines till 1st of October 2012. Without Guidelines we cannot prepare Reference Offer. APEK: The Guidelines should be provided before the Reference Offer (hereinafter: RO) has to be published, at the same time the access should be provided based on such RO. This is the only way to ensure unified access conditions all over EU.

0902 Comments on BEREC Guidelines 09082012 Page 3 of 14

REQUIREMENT TO SUPPLY SERVICES; BASIS OF PRICING (Guidelines 2, 12) Q2. Do stakeholders agree with BEREC’s approach to mandatory and optional resale access services and to its approach to pricing?

Telekom Slovenije, d.d.: According to the guidelines services may be: a) Mandatory and covered by price caps b) Mandatory and charged at fair and reasonable prices c) Optional, negotiated on commercial terms The proposed Guidelines extend the obligation of operators in the area of resale access, since according to the Guidelines MNO should provide any service to reseller, which a reseller for whatever reason does not provide by itself. Among them some activities are also mentioned which are typical retail activities (pre-pay billing, management of data bill shock limits, retail billing system, issuing of bills to end user). Many MNO’s use “in-house” made solutions which are not designed for multi-operators use. Adaptation of these systems to each specific request of access seeker would be very time consuming, costly, and in particular, cannot be anticipated in advance in a reference offer. In our opinion, only services which can actually be provided only by a network operator, like resale of incoming roaming calls and SMS, should be among mandatory services. All other services which can be provided by resellers in the same way as they are provided by MNO’s should not be offered mandatory. By integrating other services into a set of mandatory services, BEREC significantly expands requirements laid down by regulation. Telekom Slovenia does not share the BEREC’s concerns that some existing providers would have to withdraw their services. It is obvious that they were able to resale roaming services in the past when there was no access obligation for MNO’s. Why would this change with mandatory access obligation? What leads BEREC to this kind of thinking? Tušmobil d.o.o.: Fair and reasonable price will be depended on level of access provider will have. Also, operator will have the same costs with assuring access, if provider has 100 or 10.000 users. So the number of potential and existing users with the provider, cannot be an issue of discussion when it comes to fair and reasonable pricing. Si.mobil d.d.: Services deemed by BEREC as mandatory even though not explicitly included in the regulation should be limited to those absolutely necessary to enable the reseller to offer roaming services and not enable, for example, MVNOs or resellers to offer services which the MNO doesn’t. APEK: In case if practice would show that the term “fair and reasonable prices” would need further definition, APEK suggests more detailed guidelines with regard to that (e.g. ceiling in percentage of possible margin, or similar). However, such further steps should be subject of assessment of operational problems if noticed.

0902 Comments on BEREC Guidelines 09082012 Page 4 of 14

IDENTITY OF ACCESS SEEKERS (Guideline 4) Q3. How would your business be affected if the right for direct wholesale roaming access applies to hub aggregators for the purpose of supply of regulated roaming services to EEA customers? How could a distinction between access for such purposes and access for purposes unconnected with the Roaming Regulation be applied in practice?+

Si.mobil d.d.: Non-EU operators could benefit by getting access via aggregators/Hubs. This should be clearly ruled out. Telekom Slovenije, d.d.: We see this question as related to direct access only; in this context we also give our opinion. Telekom Slovenia believes some minimal general terms need to be fulfilled by access seeker acquiring direct access (i.e. new roaming partner) i.e.: - GSMA membership. - Own MCC/ MNC codes (EU numbering resources assigned) - Own PLMN code. Only this would allow MNO’s to use the accepted standards and methods, therefore any deviations cannot be acceptable. T-2 d.o.o.: Not relevant (no inbound implemented yet). Tušmobil d.o.o.: The main issue here is who can be the seeker of this access? Does the seeker have to be an operator? If not, how will the operators know how to distinguished traffic? Will the seeker (provider) have its own MNC code? Will he have own IMSI range? Till we have an exact info, who can be the provider of roaming services, we don’t know what the impact will be. We propose that the seeker must have at least MNC code. APEK: Guidelines should, if necessary, prevent possible “hot potato” issues and prevent EU operators to become a “gateway” for non-EU end users as this could put EU (and EEC) operators in worse condition. Such abuses and bad practice should be prevented and explicitly stated in the Guidelines.

0902 Comments on BEREC Guidelines 09082012 Page 5 of 14

REFUSAL OF REQUESTS (Guideline 5) Q4. Do you agree with BEREC’s general approach to refusal of requests? Do you have any specific suggestions on how the guidance in this area could be strengthened so as to deter refusals on spurious grounds while not constraining the right of MNOs to refuse to provide on the basis of careful objective justification?

Telekom Slovenije, d.d.: Telekom Slovenia shares the BEREC’s view on this topic. However, we wish to draw attention to the fact that with roaming regulation the MNO’s lose freedom of choice of roaming partners on its own merit. For these reason MNO’s are much more exposed to bad debt risk. MNO’s will therefore need to perform a credit check of new potential roaming partner. Based on the credit check result MNO’s must be allowed to demand a financial guarantee in appropriate amount. Guidelines must also allow MNO’s to reject the request which does not match the technical or fraud conditions in reference offer. T-2 d.o.o.: Yes. The guidance on this area could be strengthened regarding the technical aspect, e.g. the request should be in accordance with already existing technical reference documents, provided by GSMA, which describe technical features of operators network. Moreover, specific grounds for refusal based on a request not being reasonable should be considered. For example, if an MNO or MVNO purchases wholesale roaming on a resale rather than on a direct basis, such an agreement might have limitations when it comes to reselling roaming to third parties. These limitations can be either technical (e.g. the use of IMSI range) or commercial (e.g. a clause prohibiting the resale included in the agreement by the provider). The guidelines should therefore provide for reasonable exceptions when MNOs and MVNOs are severely limited in reselling their roaming capacity, especially if this is due to arrangements required by third parties. In addition, when it comes to access to an MNOs own network that has not yet been completely rolled out, it may not be reasonable to request access from such an operator if inbound roaming functionality has not yet been implemented on his network and has therefore not been offered to any other market player. Tušmobil d.o.o.: Our proposal on this is that each operator sets its own conditions in Reference Offer. These conditions must be fulfilled from the provider at all times – in the beginning as they are requesting access and later o when they are already connected. For example: operators need to have some kind of insurance that the provider is registered. That the provider has its own MNC code, with which he could be identified. To insure our financial situation, Reference Offer could also include bank guarantee. Si.mobil d.d.: Si.mobil believes that some of the reasons of the indicative list of reasons which would not constitute legitimate reasons for refusal of request provided in Guideline 8 are too far reaching. In case of network saturation, for example, an MNO would be forced to make additional investments in its network capacities in order to accommodate the traffic generated by the customers of the undertaking requesting access to its network. As Guideline 8 seems not to foresee any compensation of the MNO by the access seeker for such

0902 Comments on BEREC Guidelines 09082012 Page 6 of 14

investments the obligation of article 3 to grant wholesale access would make the MNO worse off by increasing its cost. Therefore, network saturation and any other reason causing the MNO to make additional investments which it would not make in the absence of the access seeker constitutes indeed a legitimate reason for refusal – unless MNOs are allowed to cover all their costs. If that was the case, Si.mobil agrees with BEREC that any additional investments do not constitute a legitimate reason for refusal. APEK: It is almost obligatory to have clear definition on all necessary elements of the RO set in Guidelines in order to avoid variety of different RO for the same kind of access and services on the single European market. With this regard, APEK is of opinion that Guidelines should be accompanied with stated necessary elements of a RO or even a sample of a RO if the practice would show such need.

RESALE ACCESS SERVICES PROVIDED TO UNDERTAKINGS WHOSE RETAIL SERVICES ARE OTHERWISE HOSTED ON OTHER NETWORKS (Guideline 6) Q5. Do stakeholders consider that further Guidelines should be developed to deal with the issue of requests for wholesale resale roaming access from market players whose retail services are otherwise hosted on other networks? If so, please provide examples of commercially credible retail services which could be operated in this manner.

Telekom Slovenije, d.d.: Telekom Slovenia considers that no further Guidelines is needed to deal with the issue of requests for wholesale resale roaming access from market players whose retail services are otherwise hosted on other networks. We share BEREC's opinion that there will not be any material demand for this kind of resale access. T-2 d.o.o.: No further guidance needed. However, see answer to Q4: these operators are more likely to face limitations when asked to resell their international roaming access, as they are less likely to use direct roaming access. Tušmobil d.o.o.: Yes, more detailed Guidelines are necessary on this matter. Si.mobil d.d.: Si.mobil agrees with BEREC that demand for resale services from operators hosted on another network for domestic services will be limited, especially as this would only be possible for real MVNOs who have available their own IMSI range. Without a separate IMSI range the visited network would not be able to identify the customers of a reseller as belonging to another MNO than the one whose IMSI is being used. To enable also light MVNOs and pure resellers to seek roaming access from other market players than the network operator providing national services for them, a dedicated IMSI range or even a double IMSI would be required, which would not be proportionate, especially when access seekers already have access to roaming services from their domestic host. BEREC should,

0902 Comments on BEREC Guidelines 09082012 Page 7 of 14

therefore, delete Guideline 6 or modify it to explicitly indicate that MVNOs can only request resale access at their domestic Host-MNO.

Resale of unregulated roaming services (Guideline 13) Q6. Do you agree with BEREC’s views on resale access to unregulated services?

Si.mobil d.d.: BEREC rightly points out that the Regulation does not cover extra EEA traffic and should therefore not be deemed as mandatory. Nevertheless, Si.mobil agrees that access should include resale of non-EEA wholesale roaming services. Nevertheless, these services should be provided and covered under commercial terms agreed between MNOs and access seekers. Telekom Slovenije, d.d.: Guideline significantly expands the obligations of operators compared with the requirements of Regulation. Including non EU roaming in the list of regulated services also means that it falls under regime of fair and reasonable wholesale prices. In case of any disputes regarding pricing of mandatory services, MNO will need to provide a justification for the proposed wholesale price. It is also stated in the guideline 19, that the resulting return should not be excessive. In other words, the proposed price will need to be more or less cost based with added reasonable rate of return. Undoubtedly, MNO can expect disputes when the burden of proof concerning underlying roaming costs (for roaming outside EU!!) is on his shoulders. To summarize, the following is valid for resellers’ prices: - Roaming in the EU is regulated with price caps, - Roaming outside EU will be (according to the guidelines) regulated with the cost based pricing. Given the above, this will cause obvious distortion of competition, since MNO’s must invest some effort and money to enter into roaming agreements, bear the financial burden of the cost of clearing houses, testing and anti- fraud activities. Finally, MNO also bears the costs of any incorrect business decision in the past. MNO’s do all this with a purpose to be the best on the market. On the other hand resellers can simply wait and obtain all the benefits by the cost based price with no extra risk. Competition distortion will be even more evident after decoupling of roaming comes into force. This kind of measure can also lead to abuse for the purpose of identifying competitors' costs of non EU roaming services. By addressing a virtual demand and claiming a dispute with the NRA, an access seeker could and will acquire all the key information on the MNO's cost. T-2 d.o.o.: Yes. Tušmobil d.o.o.: The issue deviates from EU regulated document.

0902 Comments on BEREC Guidelines 09082012 Page 8 of 14

Fair and reasonable charges (Guidelines 19 & 20) Q7. Do you agree with BEREC’s general approach to fair and reasonable prices? Do you consider that other general principles should be articulated? Q8. Do you agree with BEREC’s proposed basis of charging for resale of incoming roaming voice calls? Q9. Do you agree with BEREC’s proposed basis for resale charges for termination of outgoing SMS?

Si.mobil d.d.: Q7.: Prices for non-regulated services are not included in the regulation. Accordingly, they must neither be defined in the context of BEREC’s guidelines, i.e. operators should have the right to negotiate them commercially. Telekom Slovenije, d.d.: Q7.: Telekom Slovenia agrees with the general approach of fair and reasonable prices as long as it is applicable for the services as defined in the roaming regulation only. Q8.: Telekom Slovenia agrees with BEREC’s approach. Q9.: Telekom Slovenia at this stage did not adopt a final position. T-2 d.o.o.: Q7.: Yes. Other general principles are not necessary. Q8.: Yes. Q9.: Yes, unless there is a commercial agreement in place where MVNO receives a share of the termination rate – in that case resale charges for incoming SMS should be justifiable. Tušmobil d.o.o.: Q7.:Fair and reasonable price will be defined by each operator differently, based on the costs we will have with implementation. Q8.: Since the official document does not propose a price for MTC, suggestion would be – price of termination in a certain country, plus mark up. Q9.: Yes. APEK: Please see APEKs comments on Q2.

0902 Comments on BEREC Guidelines 09082012 Page 9 of 14

Service level agreements and guarantees (Guideline 23) Q10. Do you have any comments on BEREC’s approach to service level agreements and guarantees or on the regular monitoring of service levels?

Si.mobil d.d.: Guidelines should not impose requirements on Service Level Agreements. When MNOs provide roaming services several intermediaries are involved (e.g. voice and signalling carriers or GRX providers) which themselves do not grant any SLAs to MNOs. Furthermore, there are no SLAs between the MNO providing services and the visited network. Accordingly, the enforcement of SLAs would not only place an inappropriately high operative and administrative burden on the operators but is currently impossible. Telekom Slovenije, d.d.: We don't agree with BEREC's approach with regard to the extension of remedies defined in roaming regulation. Guidelines in presented wording impose additional remedy and additional costs of providing detailed reports on MNO’s. We support the general approach that service levels should be at least as good as those achieved by the MNO in respect of services provided to itself. But the SLA reports should only be mandatory for the purpose of dispute resolution cases. The MNO should have the right to charge the relevant costs to prepare the report if SLA report is provided on the request of access seekers. Tušmobil d.o.o.: Since at the moment we do not have strict SLAs, and all operators rely on GSMA recommendations, we see no problem to use those recommendations for this access as well. It takes some time to set up SLAs and we believe this is not double on such short notice. APEK: In order to avoid application of very different standards, APEK, as it already did in case of RO in other markets, suggests to set up minimum standards and requirements of such SLA and SLG (Service Level Guaranties) in the Guidelines.

0902 Comments on BEREC Guidelines 09082012 Page 10 of 14

Interoperability, interfaces and protocols (Guideline 25) Q11. Please set out your views on what the “accepted standards and methods are. Is there any action which BEREC could usefully take to promote further useful standardization?

Telekom Slovenije, d.d.: BEREC should publish the list of relevant standards and methods which should be respected by market players. T-2 d.o.o.: All the necessary guidelines for standardization already exist in GSMA PRD. Tušmobil d.o.o.: We believe that the best proposal here is, to stay with current standards and principals as they are used now in international roaming. APEK: Guidelines should state which standards and documents are to be followed in order to avoid discrepancies and unnecessary problems ensuring access in technical view.

Fraud prevention (Guideline 30) Q12. Do you consider that the Guidelines should include specific provisions on fraud prevention in addition to the generic statements in the draft?

Si.mobil d.d.: Telekom Slovenije, d.d.: Reasonable fraud prevention measures and procedures should be in the domain of MNO. T-2 d.o.o.: Not necessary. Already included in GSMA PRD. Tušmobil d.o.o.: Fraud prevention is quite complicated. Our proposal is to stay with NRTRDE standards. NRTRDE service can be purchased at Clearing House providers separately by the provider, so this could also be one of the conditions to allow access to provider. APEK: The Guidelines could refer to one of currently used practices of fraud prevention.

0902 Comments on BEREC Guidelines 09082012 Page 11 of 14

Restrictions on conduct of business (Guideline 32) Q13. Do you consider that BEREC should provide more detailed guidance on restrictions of conduct of business? In particular, would it be useful to include an indicative list of generally unacceptable restrictions in the Guidelines. Q14. Do you consider that any current practical “permanent roaming” applications should be considered as an “unfair use” of roaming wholesale access agreements? If so, please explain why and also how you would propose to distinguish between “fair” and “unfair” uses of permanent roaming. Would a distinction based on the phone number of the roaming MSISDN be relevant and applicable?

Telekom Slovenije, d.d.: Q13.:The capacity of network is not unlimited therefore the volume of traffic should be agreed between parties, otherwise the adequate service level cannot be provided by MNO. We support the BEREC’s position that any restrictions on conduct of business should be notified by the MNO in writing. Q14.: Telekom Slovenia at this stage did not adopt a final position. T-2 d.o.o.: Q13.: We may consider an indicative list of generally unacceptable restrictions as useful. Q14.: No. As stated in BERECs guideline No.14 there is no clear and unequivocal distinction between so called “permanent roaming” and “temporary roaming”, therefore we consider this issue as irrelevant. Tušmobil d.o.o.: Q13.: In order for provider to have access, they need to fulfill, at all times, all requests in Reference Offer given by the operator. Q14.: Under this we understand SIM cards used, for example, tracking trucks. This is what we would stat as ‘unfair’ use. And this SIMs would be treated separately and not as all other users (customers). The phone number could serve as identification, to see whether this SIM is used for tracking or is used by regular customer.

Unreasonable barriers to entry (Guideline 33) Q15. Do you consider that the Guidelines need further detail concerning anti-competitive provisions which must not be included in the Reference Offer or supply contract?

Telekom Slovenije, d.d.: The roaming regulation and proposed guidelines already define the prohibited anti-competitive provisions. NRA should have the authorization to determine whether a particular contractual provision could be considered as anti-competitive. Tušmobil d.o.o.: No.

0902 Comments on BEREC Guidelines 09082012 Page 12 of 14

Other issues Q16. Do you consider that the Guidelines should cover additional issues or that the draft guidance on issues already covered should be further developed? Q17. Do you have any other comments on the draft Guidelines?

Si.mobil d.d.: Operators should be able to recover their costs on top of the regulated caps for the (other) services requested. The draft guidelines specify some reasons which shall not give operators the right to refuse requests of access seekers. These include network saturation, limitations in billing or “back office” systems, additional investments, size of the access seeker or its customer base and existence of equivalent roaming offers or supply in the same member state where roaming is requested.

BEREC’s reasons

Si.mobil’s position

network saturation

Operators should not be forced to increase network capacities -> objective reason for refusal unless costs are fully covered

limitations in billing or “back office” systems

Operators should not be forced to implement functionalities not necessary for own operation -> objective reason for refusal unless costs are fully covered

additional investments

Arguments above apply to all other additional investments

Telekom Slovenije, d.d.: Q16.: The guidelines should more precisely define the conditions which are the entitled access seeker to request regulated direct or resale access services. Q17.: Proposed BEREC’s guidelines try to enlarge regulatory obligations defined in roaming regulation that it covers also services which are not necessarily provided by the MNO’s. In addition, the guidelines also try to regulate access conditions for non EU roaming. T-2 d.o.o.: Q16.: Further elaboration of customer care aspects (concerning resale), including fraud prevention, could be useful. Q17.: In order to make Roaming Regulation operational it is necessary to have clear rules, which could perhaps be achieved by standardized Agreements for at least mandatory services covered by the price caps, including minimum SLA conditions, similar to GSMA PRD. We also express concerns about incompleteness or absence of rules regarding supreme judicial authority in case of disputes between operators Tušmobil d.o.o.: It is not clear how disputes of end users will be treated, and solved. If operator’s end user has a bad experience using roaming services from another provider, it is

0902 Comments on BEREC Guidelines 09082012 Page 13 of 14

very much likely, that the user will complain to the operator. And the operator has no control over roaming experience the provider is giving to the customer. What would be the procedure here? It is also not clear how deputes between operator and provider would be resolved. Under which law, which county? In which language would be the final statement? We think we cannot go under the roaming contract here; this should be defined in official document. Under all of this, we believe that infrastructural regulation has no point, if we are also having pricing regulation. Infrastructural regulation will require higher costs and recourses from the operator, but in the end, it will have little meaning; as the same affect could be reached with pricing regulation. APEK: APEK is of opinion that the Guidelines should define the process of possible international dispute procedures due to lack of experiences of such (international) dispute solving.

0902 Comments on BEREC Guidelines 09082012 Page 14 of 14

Comments on document roaming regulation – Choice of decoupling method Tušmobil d.o.o.: Comments are based on the content of the entire document.

- It is presumed that high costs of technical implementation are unavoidable. The question in the end is, how much will the end user have of this? Will the end user really gain that much?

- The operator is supposed to assure free access to provider, who does not invest, but only does resale of services?

- Who will set the technical standards? GSMA? - Regarding the proposed solutions – it is not clear; do the operators choose one

solution? Do we need to offer all options of access (this is not doable)? Or will we be given on option from BEREC, based on what they think it is the most suitable?

- How will technical difficulties be resolved? What will be the procedure? - Dual IMSI solution is not doable for small operators, as the costs are too high. - Until it is not clearly defined who will be able to request access, how will this access

be given, and how will the traffic go from there on, operators cannot assess costs that they will have. Also, with this little information we have, we cannot assess impact on our business.

Si.mobil d.d.: - Si.mobil shares the view of BEREC that the best decoupling choice is “Single IMSI”

and basic data LBO. - However, we want to note that BEREC is underestimating the financial efforts

necessary to implement “Single IMSI”. - Furthermore it has to be noted that the Commission has still not decided which

decoupling solution will have to be implemented by operators – and will presumably not do this before Q4/2012. This however, will make it very hard for operators to meet the expected timeline for the implementation of the ubiquitous decoupling solution. Therefore, BEREC should take into account that the deadline for implementation might not be met by 1.7.2014 (and refrain from penalizing operators when they are not ready in time).

Delivery: Via e-mail: pm@berec.europa.eu