BEREC’s public consultation on

BEREC Guidelines on the application of Article 3 of the Roaming Regulation - WHOLESALE ROAMING ACCESS

Submission by Fastweb S.p.A.

Fastweb welcomes the opportunity to contribute to “BEREC’s public consultation on “BEREC Guidelines on the application of Article 3 of the Roaming Regulation - WHOLESALE ROAMING ACCESS” pursuant to art. 3 of Regulation 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (hereinafter: “Regulation”).

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1. PROVISION OF SERVICE (GUIDELINE 1)

Q1. Do you agree with BEREC’s interpretation of the Regulation concerning timing of provision of service?

We agree with BEREC’s position. Article 3 of the Regulation, and all related access obligations, are in force as from July 1st, 2012 and, therefore, from that date on, MNOs are obliged to meet reasonable wholesale access requests. The fact that the obligation for a Reference Offer (“RO”) is binding only from January 1st, 2013 is not relevant. The RO requirement was established in the interest of access seekers, not of MNOs, therefore we believe the latter should not have any title to delay granting wholesale access, while the RO provision is not operational yet.

3. 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?

Although we appreciate BEREC’s intent to clarify the provision at stake, we have reservations about the distinction drawn amongst services falling within and outside the regulated caps.

According to Article 3.3. of the Regulation, regulated caps apply to all wholesale service and components which are “necessary” to provide regulated roaming services to customer. The term “necessary” must be interpreted in the way that the wholesale access must comprise all services permitting access seekers to reasonably set up a business and compete in the market, irrespective of their alleged wholesale or retail nature (such a distinction may be arbitrary and in any case it is not relevant for the purpose of the application of regulated caps).

By contrast, the services excluded from the above, to be therefore subject to “fair and reasonable prices”, are only the ones relating to “wholesale resale access” pursuant to the definition laid down by article 2,2(q) of the Regulation. In other words, such additional services concern the case when regulated roaming services are provided via a resale contract with a provider other than visited network. Again, the identification of such services should not depend on their wholesale or retail nature.

The above distinction is already set forth by the Regulation and therefore we believe that BEREC should not propose different criteria to decide which services are subject to caps or fair and reasonable prices respectively. Instead, the distinction proposed in the draft Guidelines might appear to be in contrast with the intent of the Regulation and might also provide MNOs an easy opportunity to challenge their application before national courts.

Furthermore, we believe that certain services are implicitly necessary for the provision of competitive roaming retail offers. There are aspects at wholesale and retail level that should be included in the list of regulated prices (meaning that the caps should already cover such ancillary services, that should be automatically be offered as basic service to fully enable retail roaming). For the sake of clarity, there are some (non exhaustive) examples of what is to be deemed necessary for the provision of roaming:

1) provision of CAMEL protocol and any other GSM basic feature (any different phase) that is commonly included in the so called Inter operator Tariffs,

2) TAP Exchange

3) automatic testing procedures

4) other ancillary services such as International signaling, TAP validation, the whole testing process.

Such services are normally offered within the STIRA (by the GSMA) at no additional cost, and are deemed necessary to be able to offer a competitive service at retail level, thus to improve the competition among MNOs and other market players.

To sum up, all services potentially caught by Guidelines 2 under (a), (b) and (c) should be provided at regulated prices (caps) because they must be considered necessary for the provision of regulated roaming services pursuant to Article 3(3) of the Regulation.

As regards services which are not commonly covered by the roaming business practices, but which access seekers might need to purchase from MNOs, for reasons of practicality or economy, we share BEREC’s view whereby such services should be provided at fair and reasonable prices.

4. 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?

Since we believe that hub aggregators are fully and directly caught by the Regulation, we do not see the need to elaborate specific legal theories to justify their inclusion, for instance via the argument of constructive refusal.

The definition of “roaming customers” under article 2 of the Regulation shall not be interpreted in a so strict way so as to exclude midmen, intermediaries or resellers: this could not be the scope of a discipline intending to expand, and not restrict, competition amongst operators and choices for consumers. A restrictive interpretation would therefore be in breach of the Regulation.

Recital 27 of the Regulation confirms the role of hub aggregators under the new discipline:

- on one side, they are entitled to benefit to direct wholesale access from MNOs; - on the other, they are subject to the obligation of wholesale resale access vis-à-vis

access seekers.

A different solution would dramatically affect the concrete possibility of the new discipline to inflate competition into the market: on one side, hub aggregators are essential for MVNOs and competitive access seekers, because it will be impossible for a new entrant to start from scratch a plurality of direct roaming agreements. On the other side, if the hub aggregators would be allowed to set a mark-up to the buyers, then the competitive advantage (for the new entrants and the consumers) will be vanished.

5. 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?

We share the concerns of BEREC as we fear that, without a clear and detailed discipline laid down by the Guidelines, it is highly likely that MNOs will refuse access on the basis of spurious grounds.

We consider that a list of potential spurious arguments might be set forth in Guideline 5 rather than Guideline 8 (as it is now). At the same time, we do not expect that any special certification or specific “proof” should be requested to access seekers, since the existing licensing regime already ensures strong and sufficient safeguard for existing MNOs. On the contrary, requiring additional certifications or special testing (e.g. beyond the standard testing recommended by GSMA, see below) could result in abusive barriers.

Since roaming management is mainly based on minor network implementations and minor commercial issues to be exchanged, agreed and settled (and the effort has been reduced thanks to the GSMA work on standardizing the roaming relations both technically and commercially) we believe that there should not be refusal other than serious technical issues.

In Annex 1, we enclose a public document of the GSMA on the Roaming Database, Structure and Updating procedure, that clearly lists all information needed to set up a new roaming relation or to modify an existing one.

Please note that it is a binding document of the GSMA that outlines the appropriate way to update and implement technical and commercial information throughout the whole roaming partners community. Even though the enclosed document is designed for GSMA Members, we believe that it highlights an almost exhaustive list of basic requirements that MNOs could require from access seekers. In fact, the document (whose main aim is to regulate how most technical and commercial roaming information are to be spread among roaming partners via the centralized Infocentre) represents a very useful tool to understand how many issues related to new roaming relations and changes to existing ones are dealt by GSMA Members.

As a consequence, we believe that the information listed could be normally requested to new access seekers, but further information could be regarded as factitious and aimed at delaying or denying access.

In addition, we believe that a monitoring mechanism might be put in place, to allow to verify how many roaming agreements are put in place by MNOS, whether with intra-group companies, alliances partners, other MNOs and MVNOs. This would also be useful to ensure that no discrimination is carried out when prioritization is required (see also below)

In principle, we believe that the same efforts in terms of quantity of new contractual relations should be expected by MNOs when requested to open a roaming relation with a new access seeker/MVNO.

6. 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.

We believe that this possibility should not be excluded or prevented.

7. RESALE OF UNREGULATED ROAMING SERVICES (GUIDELINE 13)

Q6. Do you agree with BEREC’s views on resale access to unregulated services?

We fully agree with the position of BEREC. Furthermore, we would like to stress that we are not aware at the current stage of technology development, how the so called “destination of calls coverage” could be provided using more than a single roaming partner: in other terms, if a MVNO is to compete with existing MNOs on the roaming market, it should be able to chose one or more roaming partner to cover the whole “destination of call coverage”. In fact if a customer of a MVNO roams onto a visited network but he is not allowed to call all available destinations, we believe there is no technical means to redirect his calls onto another visited networks to ensure the requested calls are completed. Therefore we fully agree with the position of BEREC and recommend that the mentioned prices are stated in the RO. Furthermore, we fear that negotiations on not regulated pricing (i.e. calls outside EEA) might hinder the capability of the access seeker to timely launch the requested roaming relations, if a reasonable agreement needs to be reached for all destinations (outside EEA).

For instance, if a MVNO is ready to launch a roaming relation, but prices for calls directed outside EEA (e.g. to USA) are not reasonable, the MVNO might not be able to launch live roaming with that specific Visited Network until an acceptable agreement on pricing is reached. Hence the need to publish also the prices for non regulated calls in the RO.

In addition we believe that a serious scrutiny on the fairness and reasonability of charges should be carried out by NRAs to prevent discriminations.

8. 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?

We agree on the general approach. However, when benchmarks and recognised market prices practices exist, then BEREC should publish and recommend them as terms of references (this might also apply for calls directed outside EEA).

With regard to the principles indicated in Guideline 19, we hold that a further criterion should be added: in order to verify whether the resulting prices are effectively fair and do not affect the capability of access seekers to compete, NRAs should also consider the overall increase, on Unit/minute basis, of the costs caused by the additional fair and reasonable charges. If such increase is beyond 10% of the regulated caps on unit/minutes/basis, then there should be a presumption that such additional costs are not fair.

Furthermore we believe that the most appropriate benchmark to verify if prices are fair and reasonable is to compare them with the prices applied to other roaming partners (in particular those belonging to alliances or large groups).

Q8. Do you agree with BEREC’s proposed basis of charging for resale of incoming roaming voice calls?

We believe that MNOs should not - in principle – be entitled to charge any specific fee upon access seekers for incoming calls, since mobile termination rates (hereinafter: “MTR”) do already address and allow to recover all costs borne by terminating networks for incoming calls. In addition, the application of fair and reasonable prices for incoming calls might lead to distortions: mobile termination is widely regulated and there is no reasonable additional price that should be borne by resellers in favour of MNOs other than MTR. Furthermore, MTRs could even be borne by interconnected networks acting as transit network, therefore such issue might be considered as not falling within the borders of the Regulation. For voice calls in fact, the burden of the mobility premium is borne by final customers, that almost always pay the so-called “Roaming leg” to cover the transit and termination outside the national territory.

Therefore we believe that no resale incoming calls fee should be applicable to access seekers.

Q9. Do you agree with BEREC’s proposed basis for resale charges for termination of outgoing SMS?

We fully agree with BEREC’s position and on the fact that no resale charge for incoming SMS is justifiable.

9. 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?

We fully agree with BEREC on the importance of the SLA for a smooth implementation of the Regulation, and to prevent abuses.

In view of a detailed list of SLAs it might be very useful to refer to a public document of the GSMA (already mentioned at Q. 2)

The document (http://www.gsma.com/newsroom/wp-content/uploads/2012/03/ir2163.pdf ) “Roaming Database, Structure and Updating procedure” explains how the most important data related to international roaming can be propagated among GSMA Members, and besides the full list of information to be managed by the Roaming Partners, the document provides (Annex B, page 30) the so called “update schedule” for the GSM Association Roaming Database with a clear explanation of the different level of importance of each change or update.

The document is binding for Members of the GSMA, and is meant to set a common schedule to be respected in order to ensure all roaming partners around the world are able to implement the requested changes.

For instance, while updates (or new implementation) regarding crucial technical information should be sent 3 months before the change takes place (such changes are critical for ensuring roaming is not affected or effectively launched), many other changes are to be sent with much shorter advice.

According to the document, the schedules should allow GSMA member to receive, acknowledge receipt, implement and notify implementation.

We assume that this intervals are set to ensure that all GSMA Members (not only in EU) have a reasonable time to receive, implement and acknowledge implementation for all changes, therefore we believe that such scheme might work as well as a basis for setting SLAs.

Furthermore we tend to believe that in EU such intervals are not regarded as being too strict, in the contrary, they are quite light and could therefore be stricter in case of SLAs

to ensure that no discrimination is admissible towards new access seekers.

Table 1 ; GSM Association Permanent Reference Document IR21 v. 6.3. Therefore we suggest that (most of) the items in the list above could be used as SLA, with the relevant deadlines, and that appropriate fees/penalties should be set in case of delays in providing timely implementation.

10. 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 standardisation?

International roaming standards in Europe are normally laid down by the GSMA, therefore BEREC should make sure that’s such standards are opened and accessible by access seekers of any kind, including MVNOs, when this is necessary. This my imply full and non-discriminatory access to Permanent Reference Documents (so called PRDs) issued by the GSMA to standardise the technical and commercial aspects of roaming relations (IR, TADIG; BARG; etc)

In addition, roaming best practices applicable amongst GSMA members should be extended also to MVNOs, such as:

- Accounting, invoicing and settlement (wholesale); - Fraud management.

In light of the strict dependence of the roaming business on the rules and practices standardized by the GSMA, BEREC should recommend that MVNOs be allowed to participate to the elaboration of such rules.

11. 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?

This issue should be solved by applying standardised procedures, also in compliance with GSMA practices (see our reply to Q11) to be made accessible also to MVNOs.

12. 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.

Yes, we believe that an indicative list of exclusive restrictions should be included, mentioning at least the following:

- Any resale conditions: in principle MVNO could agree on setting roaming and at a later stage start resale of roaming, with no prejudice for the Visited Networks. Therefore BEREC should clearly state that the finality for which wholesale

roaming access is requested should in no event have impacts on granting such access;

- Time limits and expiry dates: access should not be subject to time limits or to expiry dates, since roaming is a crucial part of the retail offers in the national arena. Therefore any restriction on the possibility to enjoy regulated access should not be admissible. Specific charactheristics of customer base or retail products: access seeker cannot be requested to disclose strategies or confidential details on the characteristics of their customer base, therefore any request by MNOs should be deemed excessive and unmotivated.

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?

We agree with BEREC’s approach. No need for the time to take action about potential permanent roaming issues.

13. 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?

We agree with BEREC’s approach and we further suggest to include in the Guidelines an indicative list of potential anticompetitive clauses such as:

- expiration dates - periodical renegotiations - bank guarantees and performance bonds - minimum purchase volumes - bundling of services to be purchased - bundling of roaming agreements in other countries - exclusivity clauses - requests for certifications or network plans, or any other information other than

the standards adopted by GSMA.

Any of the above would represent an unmotivated and unreasonable burden on access seekers, and would jeopardise competition since these clauses are not customary among GSMA roaming partners.

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?

Prioritisation (Guideline 7)

We believe that BEREC, in order to ensure that the Roaming Regulation would truly increase competition, should make clear that, in the matter of prioritisation, non-discrimination is both external (other access seekers) and internal (MNO’s departments).

Furthermore, we believe that BEREC should explicitly reinforce the provision that states that whatever prioritisation occurs, the maximum time limits for the supply of the access service cannot be exceeded pursuant to Article 3(5) of the Regulation.

Reference Offer (Guidelines 22)

The Guidelines should indicate a non-exhaustive list of services to be included in the RO, in order to reduce the room for disputes and delaying strategies. Such list should

The RO should confirms the non-discrimination principle under which MNO operators apply equivalent conditions in equivalent circumstances to other alternative roaming providers, and provides services and information to others under the same conditions and of the same quality as it provides for its own services, or those of it subsidiaries or partners.

In addition, in order to allow effective functioning of separate sales roaming market introduced by the Regulation, it should be clear that all wholesale roaming requests must be processed independent of the specific kind of structural solution (dual IMSI, single IMSI, LBO) that MVNO wants to use.

The following items should be at least included in the RO:

a) list of networks elements (HLR/VLR/MSC) and associated facilities; b) list of technical interfaces and protocols in order to guarantee effective

interoperability; c) synchronizations activities of technical interfaces, network elements and

associated facilities between MNOs networks and alternative roaming providers; d) condition for access to information systems or databases for pre-ordering,

provisioning, testing, maintenance and billing activities; e) appropriate software systems encompassing the necessary operational support; f) number portability procedures or other systems able to support the same

functionalities;

g) economic conditions with a clear disaggregation of cost components underlying the services provided for each feature, function and facility listed above (with a distinction of per minute charges from one-off fees);

h) service levels agreements (SLA) and lead time for responding to requests for supply of services and facilities;

i) penalties provided for failure to meet pre-ordering, provisioning, testing, maintenance (fault repair) and billing contract terms;

The Guidelines should recommend that RO includes the standard draft agreement as indicated by art. 3 of Regulation, thus specifying that any other technical or economic condition not specified and not requested cannot be charged to the alternative roaming provider. With the aim to avoid an increase in structural and opportunistic constraints for the alternative roaming providers, it is necessary that RO will be sufficiently unbundled so that the beneficiary does not have to pay for network elements or facilities which are not necessary for the supply of its services (ie. so called tying effect);

Reference Offer (Guidelines 26)

For what concerns implementation of CAMEL protocol for direct access, we believe that BEREC should provide in the guidelines the provision of the most advanced CAMEL version available on the visited network and already offered to roaming partners (please note also that CAMEL versions should generally ensure backward compatibility, so that provision of CAMEL Phase 2 for instance does not prevent access seekers to use CAMEL 1)

In fact, among EU MNOs the most used CAMEL version is the version 2 that allows full control of call scenarios when roaming, for all retail services, whereas version 1 has many limitations that might hinder the possibility to compete with existing retail roaming offers

As an example many retail functions for prepaid are commonly based on CAMEL phase 2 and could not be provided (unless with substantial limitations) on phase 1.

Therefore we believe that as it concerns CAMEL versions, the most updated version should always be made available to access seekers, upon request as a basic feature.

Reference Offer (Guidelines 28)

ON testing procedure, we believe that procedure for interconnection fall outside the scope of the Roaming Regulation, and no specific requests or procedures should be set in the Reference Offer. Different is the case for the signalling interconnection information that must be exchanged for the establishment of the roaming relation. Therefore we suggest that BEREC removes reference to interconnection in Guideline 28.

Q17. Do you have any other comments on the draft Guidelines?

We have the following further comments.

Accessibility of GSMA services and practices

BEREC should recommend GSMA to make accessible to MVNOs, at fair and non-discriminatory conditions, the same operational services provided to its members in relation to roaming agreements.

Here below we report a list of such services developed by GSMA and currently available only for members, that will be essential for MVNOs launching international roaming services:

- access to the Infocentre: the GSMA offers to its members access this shared database listing technical and contact information needed for the establishment, testing and maintainance of (unilateral or multilateral) roaming agreements. Access to this database facilitates and improves the management of roaming by MNOs and constitutes a crucial resource to streamline the processes required to offer roaming services. In a simplified way, the GSMA Infocentre offers a one-stop shop that helps MNOs in a very complex scenario where many agreements are constantly monitored and managed. Lacking access to this database, each single operator should engage in a heavily time consuming activity to create, update and maintain all information needed to ensure roaming is effectively in place. Furthermore, the database mitigates the risks of erroneous technical and commercial misinformation being spread amongst roaming partners, to the detriment of an efficient operational stream. Therefore access to such information as a single database, as well as respect of the very same time constraint for updates and modifications should be granted to those actors seeking roaming access from any MNO member of the GSMA.

- Possibility to use GSMA network coverage maps in order to reduce customer service operation costs useful for reaching directly end-user customer before they travel. The coverage service provides members of the GSMA with the facility to display their coverage information on the hugely popular Mobile World Live web site which receives over 1.2 million site visits per year and 10 million page views.

- Access to TAP service that represents the process that allows a visited network operator to send billing records of roaming subscribers to their respective home network operator. TAP3 is the latest version of the standard and will enable billing for a host of new services that networks intend to offer their customers. Such new version includes new Internet driven information services, new levels of fraud and security protection as well as new international prepaid roaming services.

- Possibility to use the Rejects and Returns process in order to improve rejects handling. This is because in some cases erroneous call event details are rejected, resulting in loss of revenue to operators. The new Rejects & Returns process available for the GSMA member deals with this problem by providing an automated, standardised method for handling erroneous TAP files.

- Opportunity to use the tap testing toolkit. In particular, the testing toolkit is a user-friendly interactive windows application developed by the GSM Association (GSMA) that has been developed to provide assistance in the testing required prior to launching roaming with a new roaming partner and when upgrading billing systems.

BEREC’s public consultation on

Roaming Regulation – Choice of the Decoupling Method

Submission by Fastweb S.p.A.

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Fastweb welcomes the opportunity to contribute to Berec’s public consultation on

“Roaming Regulation – Choice of decoupling method – A consultation to assist BEREC in preparing

advice to the Commission on its forthcoming Implementing Act” pursuant to art. 5,2 of Regulation

531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on

public mobile communications networks within the Union (hereinafter: “Regulation”). We

are therefore pleased to submit our observations to the consultation document (hereinafter:

“Draft”).

1. GENERAL: FASTWEB’S POSITION ABOUT DECOUPLING METHODS

Fastweb welcomes and appreciate the attention deserved by Berec to international roaming

matters, and in particular to the issues raised by new entrants and MVNO with respect to

the Regulation. We are confident that this strong cooperation will continue and develop.

However, at the present point we are really concerned about the choice of decoupling

methods recommended by Berec to the European Commission (hereinafter:

“Commission”). As a matter of fact, the Draft comes to the following conclusions and

recommendations:

1) to allow a basic version of Local Break Out (hereinafter: “LBO”) only for visited

MNOs (while MVNOs are explicitly excluded);

2) to allow Single Imsi solution (“pure resale”) for domestic MVNOs and MNOs;

3) to reject all other decoupling solutions, even if more advanced, such as Single

Imsi+ and Dual IMSI.

In other words, according to Berec as from July 2014 the only decoupling model available

for a MVNO would be a simple “resale” of the service via the Single Imsi solution, while

LBO de facto would not be available for MVNOs (because of legal and technical reasons).

To our understanding, Berec has come to this conclusions on the basis of the following

reasoning (see p. 3 of the Draft): (a) the decoupling instrument does not give guarantees of

significant competition benefits, as a result of technical (eg. standardizations problems) and

cost-benefit analysis (e.g. low incremental benefits compared to high implementation

costs); (b) therefore, it would be inappropriate to implement a costly solution; (c) as a

result, the less costly and easy solution is preferred, i.e. basic LBO and Single Imsi.

We can’t support such reasoning and conclusions which may water down and render

ineffective the main scope of the Regulation, consisting in providing for a structural

solution addressing in an effective way the competitive failure in the international roaming

market and the resulting (retail and wholesale). The separate sale of roaming and the entry

of MVNOs in the market have been identified, after lengthy negotiations between

Commission, Council and European Parliament, as the fundamental instruments of this

structural solution. Such political decision should not be frustrated by (although respectful)

technical reservations, otherwise the choice enshrined in the Regulation would be implicitly

reversed. Therefore, the choice about decoupling methods should not be influenced or

affected by factual or technical reservations whether this legislative choice is appropriate.

This is particular relevant when considering the balance between expected competitive

benefits and costs/inconveniences for MNOs about the possible decoupling methods.

Whatever such expectations may be, one should primarily consider the scope of allowing

new entrants in the market and creating competition, while costs, inconveniences and

resistances by incumbents operators should have a minor regard. Despite the technological

and regulatory challenges created by the separate sale of roaming, we believe that special

efforts must be done. To make en example, all remedies introduced in the fixed sector

since the 1998 liberalization (ULL, bitstream and others) have also encountered similar

challenges: technical complexities, technological immaturity, critical balance of

costs/benefits, lack of standardization, ecc. Incumbent operators have always played a

game in overestimating such issues in order to make liberalization impossible to succeed.

The members of Berec have a long expertise with such tactics and they should not allow

such tactics to happen also with the Regulation.

In conclusion, Fastweb’s point of view is that Berec’s recommendations should vigorously

align with the general scope of Roaming Regulation, thus pushing toward any possible

solution – rather than excluding - able to solve technical challenges related to competitive

decoupling models such as Single Imsi + and Dual Imsi.

2. WEAKNESS AND LIMITS OF THE “PURE” SINGLE IMSI SOLUTION

The Single Imsi method is not an effective solution in the scope of the Regulation because

it does not enable MVNOs to fully exploit the opportunities introduced by the new rules in

order to increase competition and reduce roaming prices to final customers.

Fact is, under a Single Imsi model, the alternative roaming provider (“hereinafter: “ARP”)

must sign agreements with each domestic operators providing also domestic services,

without any control over the separate sale of roaming (e.g. steering and barring) and

without the possibility to negotiate directly with others MNOs with the aim to reduce

wholesale costs (e.g. volume discounts) and in turn retail prices. In addition, the ARP can’t

directly target customers wishing to use alternative roaming services (as it would be

possible with a Dual Imsi solution), but it has to pass through their domestic provider. To

sum up, the competitive disadvantages of the Single Imsi solution are therefore multiple:

(a) MVNOs are forced to sign up a plurality of resale agreements, with consequent

multiplication of costs and organizational complexities;

(b) MVNOs cannot benefits of potential wholesale competition, because they must rely

on the prices imposed by the resaler-MNO;

(c) MVNOs have therefore no chance to develop aggressive retail price strategies – this is

(inter alia) exactly what the respective resaler-MNO is whishing, because the MVNO

sign the resale agreement with the MNO to target the captive clients of the latter.

Thus, the Single Imsi is per se inadequate for the scope of the Regulation, since the lack of

competition at wholesale level will not allow ARPs and MVNOs to reduce retail prices and

increase competitive pressures on MNOs. Berec itself recognises that such solution is

inappropriate: “Basic Single Imsi cannot realistically change competition at wholesale level” (Annex 3,

pp. 8) while Dual Imsi and Single Imsi+ solutions “would be expected to have the largest effect on

competition” (Draft, Annex 3, p.7).

The pure Single Imsi is consistent with the Regulation only if combined with other and

more competitive decoupling solutions such as Dual Imsi (and LBO, provided that it is

opened to MVNOs). To the opposite, the privileged focus on a pure Single Imsi solution,

without other alternative and competitive decoupling solutions, is definitively incompatible

with the scope of the Regulation to develop competition and reduce retail roaming prices.

3. LEGAL AND TECHNICAL IMPEDEMENTS OF THE LBO SOLUTION

The LBO method may be an effective solution to enhance competition, provided that it is

legally interpreted and technically implemented in the most pro-competitive way.

Unfortunately, the Draft raises many issues in this respect.

Legal issues

A first, fundamental concern lies with the question whether MNOs are obliged to provide

the LBO decoupling also for the benefit of MVNOs and access seekers in general. Berec

has taken a negative view: “BEREC does not see any basis in the Regulation to enforce any rights for

MVNOs and resellers to gain access to networks for the purpose of offering LBO. This interpretation

arises from the definition of wholesale roaming access. Such agreements might nevertheless be reached through

commercial negotiation” (Draft, p. 4 of the Executive Summary).

It is not clear why the definition of wholesale roaming access under the Regulation (Article

2,2p) would prevent MVNOs from benefiting of LBO at regulated conditions. Berec does

not explain its view in details. In any case, such an interpretation seems to be quite in

contrast with the literal and material interpretation of Article 4,1 of the Regulation setting

the ambit of application of the LBO obligation: “Neither domestic nor roaming providers

shall prevent customers from accessing regulated data roaming services provided directly on a visited network

by an alternative roaming provider”.

It is clear from the literal and material interpretation of the above provision that:

(a) any ARP (both MNOs and MVNOs) are entitled to access data roaming services over

visited network. A different interpretation, limiting the quality of ARP to sole MNOs,

would be inconsistent with the Regulation, in particular with Article 2,2c defining

ARPs.

(b) if the Regulation intended to exclude MVNOs from the LBO solution, the concerned

provision would have been written in a different way, like: “Neither domestic nor roaming

providers shall prevent customers from accessing regulated data roaming services provided directly by a

visited network”.

If an MVNO is not considered as a possible alternative data roaming service provider, the

legislator will reach a goal opposite to the objectives of the Regulation. In fact the

“newcomer” MVNO ARP (“the roaming provider”) should not prevent the “incumbent”

MNO LBO to provide roaming data services to the end customers while is not possible the

“viceversa”.

The exclusion of MVNOs from the LBO decoupling solution would unduly discriminate

the latter vis-à-vis MNOs, with the effect to destroy a level playing field between ARPs and

to the detriment of competition. Fact is, MNOs have no interest in offering LBO access to

MVNOs. Therefore, in the absence of a clear mandatory rule, they will deny any

commercial agreement with MVNOs interested in become a competitor, by simply

opposing technical (e.g. network saturation) or strategic reasons (e.g. need to make

undefined huge investment in interfaces or network capacity) or just setting prices that

would not allow MVNO to compete.

Technical issues

Fastweb will mainly focus about the technical issues regarding the viability of LBO solution

with MNOs in visited country, to act as host provider for MVNOs (LBO-based-MVNO).

Fastweb fully agrees with the following Berec statement

“ .. it is technically possible to support MVNOs using LBO capabilities from a visited provider in a

similar way that is done for local MVNOs using a host provider in the domestic market”1.

1 Par 5.1.6 MVNO Competition (pag 18)

In the simplest LBO form, where the customer has to manually select the network

providing the LBO by overriding the mobile device’s automatic network selection, the

Berec itself explains that LBO-based-MVNO option looks quite straightforward “When

connecting, the host LBO provider should show a first captive portal allowing consumers to select among

different providers of local data services supported by the specific visited network, and allow consumers to

select one of them”5.

Nevertheless, in other parts of the document, the Berec seems to contradict itself, saying

that LBO-based MVNO solution is subject to technical viability2.

Fastweb doesn’t agree with this latter view, neither in the “simplest” LBO form, where the

customer is introduced in an initial captive portal of the Visited Network in a similar way

that Wi-Fi services are commercialized, nor in a more complex/less straightforward

solution.

Fastweb strongly believes that in all the scenarios, more or less favourable to customer

experience, it is technically possible to reach technical agreements between MVNO and

visited MNO in order to send, via the MNO’s HLR, the MVNO APN to the end-user

terminal and thus set-up accordingly the data connection.

Fastweb recognize the choice of Berec to use a use of a common "EUInternet" APN is

inspired to an easy technical solution consistent with current state of technology but, at the

same time, fears again that this recommendation could be in sharp contrast with the final

goal of the Regulation (and especially Decoupling) that is to increase competition between

MVNO and MNO “The use of a unique APN for all ARPs makes the discrimination among MNO

LBO service and MVNO LBO service more challenging, as DNS address resolution cannot directly

distinguish among the different providers. (pp.18).

4. CONCLUSIONS

2 Par 6.1.4 Type of actors allowed to act as Alternative Roaming Provider (MNOs, Full MVNOs, and/or Light MVNOs) (pag 31) - MNOs with a roaming agreement with the domestic operators and MVNOs and other resellers reaching an agreement with LBO provider to resell local data services in the case that it would be technically possible to support LBO-based MVNOs.

In light of the above, Fastweb would like to request Berec to modify its recommendations

to the Commission in the following way:

- to enable the most competitive decoupling solutions, including Dual Imsi;

- by recognizing the right for MVNOs to have regulated access to visited networks for

the purpose of offering LBO services (LBO-based-MVNO) in line with the literal and

material interpretation of Article 4,1interpretation that enables the LBO solution to all

ARP and according to the objectives of Roaming Regulation and especially of

Decoupling

- to overcome any technical barriers for the utilization of LBO services by MVNOs. In

particular, enforcing the use of technical solutions shared with MVNOs, similar to the

ones applied for local MVNOs using a host provider in the domestic market, that

should allow visited networks to maintain a list of APNs for all foreign operators

(included a specific APN that identify any MVNO/alternative roaming provider).