Relaxing whilst doing Competition Law is not an Oxymoron

Archive for July 2015

BT vs Sky, again: two regulatory wrongs don’t make a right

leave a comment »

Two wrongs

Some of you may remember that I wrote a few months ago about the regulation of pay TV markets by Ofcom. Back in 2010, the regulator required Sky to supply its premium sports channels to its rivals even though there was (is) no evidence that they were (are) indispensable for downstream competition (there is in fact strong evidence suggesting the opposite), and even though intervention could have the paradoxical effect of strengthening the position of the incumbent telecommunications operator (thereby contradicting the very logic and purpose of the EU Regulatory Framework for electronic communications).

The battle between BT and Sky has made the headlines again, unfortunately for the wrong reasons. BT instigated Ofcom to start the pay TV investigation that resulted in the imposition of wholesale supply obligations on Sky. It now appears that the latter wants an inquiry into the BT’s Openreach, the division that runs the network of the incumbent operator. The ultimate aim of Sky and other major broadband providers like TalkTalk is to achieve the structural separation of Openreach, which they would like to become an independent company. This question is particularly topical against the background of the (ongoing) merger between BT and EE (the leading mobile operator in the UK).

BT and Sky cannot be blamed for using regulation as a means to obtain competitive advantages (or as a means to compensate for a competitive disadvantage). If Ofcom has created the impression that lobbying to obtain regulatory favours pays off, it is natural that Sky follows that route in an attempt to achieve a level playing field in the operation of broadband Internet services. Those of us interested in competition law (and competition tout court), however, see this trend with concern. Where companies devote their resources to achieve regulatory advantages, and not to improve their services, consumers are typically made worse off.

These developments also suggest that bad regulation (and bad intervention under competition law, may I add) is more harmful than commonly assumed. Imposing an obligation on Sky to supply its premium sports channels is problematic not only because it is entirely unjustified, but also because it distorts firms’ incentives and encourages them to compete before the regulator, not in the marketplace. Not to mention that overregulation tends to create the need for ever more regulation to remedy the distortions created by the piling up of successive interventions.

Written by Pablo Ibanez Colomo

8 July 2015 at 6:17 pm

Posted in Uncategorized

What the Uber and the net neutrality debates have in common

with 9 comments

Net neutrality and Uber

It was sad and shocking to see some French taxi drivers resorting to violence in their demonstrations against Uber. These events, and the response of the French government, are the expected consequence of bad regulatory design. Regulation in the sector, as originally conceived and still enforced in many European cities, is simply not justified anymore. Applications like Uber address very effectively the market failures that used to provide a rationale for it. As an enthusiastic and regular user of the service in both London and Brussels, my impression is that Uber is in fact more effective, more responsive and more protective of the consumer than any local rules I have seen (and I have lived and used taxis in a few European cities).

The problem at the heart of the current troubles relates not so much to whether legacy regimes are justified (which they are not), but to the way in which they could be reformed to accommodate disruptive technologies. Some taxi drivers use violence because the legislator had created the expectation that existing regulation would apply forever. This expectation is reflected in the hefty prices paid for taxi licences in many cities. A government (local or national) has to be very courageous to change such a system. It is infinitely easier to prohibit a new service – no matter how good for the public at large – than to confront technological reality.

Why do I discuss all of this, which is well known by all readers of the blog? Well, if there is a lesson that the Uber debate provides is that regulation should be carefully crafted so that it can adapt seamlessly and effectively to technological change. Unless flexibility and adaptability are enshrined in the regime itself, change is unlikely to occur (or unlikely to occur at the pace required by the underlying economic and technological reality).

The European Commission had this lesson in mind when the Regulatory Framework for electronic communications was proposed in 1999. The telecommunications sector was rapidly changing, and it was already clear that technology alone would progressively address many of the concerns that were deemed to justify intervention at the time.

Thus, the Regulatory Framework was not conceived as a collection of rules imposing precise requirements on operators but as a set of broad principles that national authorities would follow when considering the need for intervention in a particular market. Because administrative action is subject to regular review, remedies are only imposed insofar as, and for as long as, they are necessary to advance the objectives of the regime.

The Regulatory Framework was an impressive legislative achievement that, alas, has been progressively undermined. Maybe it is true that good things never last. The most recent nail in the coffin has come from the recent political agreement to introduce net neutrality rules at the EU level (and which apply at least to what the press release calls the ‘open Internet’). As far as I can gather, the new rules will provide for an unconditional ban on some practices. Such prohibitions would be directly enshrined in the Framework. This is the very regulatory technique that the Commission considered to be inappropriate back in 1999.

I have never seen anything close to a theory providing a convincing case for net neutrality. But this is not really the issue here. What I find worrying is that, because of the regulatory device chosen by the European legislator, net neutrality is here to stay, and is likely to stay even if it becomes clear that it does more harm than good. The Regulatory Framework was conceived as a ‘future-proof’ instrument. It is ironic that, over time, it has evolved to become more rigid and less evidence-based.

Written by Pablo Ibanez Colomo

2 July 2015 at 7:15 am

Posted in Uncategorized

Competition & e-commerce + Competition law & personal data (save the dates)

with one comment

Given that my most recent posts have been substantive and lengthy, I think I’ve earned myself a lazy short self-serving post today:

Two events have just been announced concerning some of the trendiest topics in competition law these days, so save the dates:

– On Monday 13 July the Spanish Association for the Digital Economy (Adigital) will be holding a talk about  Competition law and e-commerce featuring Thomas Kramler (head of the DG Comp task force in charge of the sector inquiry and one of the greatest experts in competition digital markets) and myself (not head of anything). All info is available here. 

– After the summer, on 24 September the European Data Protection Supervisor and the Academy of European Law (ERA) will be hosting a most interesting conference titled “Competition Law rebooted: Enforcement and personal data in digital markets“. I will be sharing a panel with Jorge Padilla and Orla Lynskey. For more info click here.

In the coming days I will also be participating in other fascinating events, including 8 hours of lectures with consecutive translation into Mandarin in Bruges, 4 cartel hearings in Luxembourg, a peculiar race in Brussels that you should join if you’re around, and swimming baby lessons, but I’m guessing I will not be attracting much public to any of these…

Written by Alfonso Lamadrid

1 July 2015 at 5:13 pm

Posted in Uncategorized