The days following the deliberation of the ITRE committee on the Commission proposal for the a new Electronic Communications Code, media coverage reiterates the story that the approach taken by the MEPs would have affected investments plans of telcos (all? or which ones?). Unfortunately, this is just an artificial simplification creating intriguing titles for the readers, while not genuinely reflecting the overall and actual outcome of the ITRE decision. The misunderstanding is partially due to the fact the the European Commission presented the entire telecom package as pro-investment reform, therefore any rebuttal may be interpreted now as a position against investments; in addition,  stakeholders focalized their attention just on few provisions, while the new European Code is much more complex then single provisions; and then journalists followed this story telling.

The main provision of the Telecom Package inspiring this pro/against investment story is art. 74 about co-investment. In a few words, the Commission proposed that in case of joint investments in new very-high capacity networks (thus networks consisting entirely of fibers such as FTTH/FTTB), local regulators would be prevented from looking into the business and therefore coinvestors would escape regulation. Obviously, the provision would be relevant for incumbents which are normally regulated, while it would not matter others. This is the first firm point of this story: only potential incumbents’ plans may be potentially affected by the regulatory intervention, while for other operators life goes ahead as normal.

Are incumbents’ plans really affected by potential regulation on co-investment?  This question brings us back to the circular story about regulation vs investment and vice-versa. In the reality, the impact of regulation upon investments’ decisions of incumbents is normally overestimated. People refer of US deregulation in 2004 which would have boosted telcos to invest in fibers, but they forgot that at that time Verizon and AT&T had no other choice but investing in fibers, since broadband connection offered by competing cable operators was replacing the copper network business. The drama for US telcos was investing in fiber or die, while the regulatory regime has limited impact on their investment decisions. Fiber footprint in Europe confirms this business dynamic: in geographic areas where cable operators have been starting to provide broadband connectivity, incumbents had to react quickly with fiber investment. Conversely, in areas where cable operators were not present (mainly outside metropolitan areas), incumbents fibers’ investment have been much more prudent. Thus, competition drives investment decisions, rather than regulation.

The co-investment text approved by the Parliament, and reforming the Commission’s draft, does not prevent incumbents from gaining a regulatory dividend through co-investments, however it preserves the competences of regulators to look into the matter and to address potential anticompetitive issues. Remarkably, the original proposal of the Commission prevented regulators from doing so, then the Parliament has reinstated the latter’ powers. This happened because European MPs understood that there might be serious risks that incumbents may play with this model and arrange investments vehicles which are not genuinely opened to other coinvestors, with the sole scope to gain deregulation. Such scenarios are difficult to foresee and regulate ex-ante, therefore keeping competences of national regulators has been a sensitive decision, while incentives for investing in new fiber networks, in the form of regulatory divided, still remain. This is why the story telling whereby the Parliament would have affected future investment decisions is fundamentally wrong.

Interestingly, the European Parliament kept untouched another “pro-investment” model proposed by the European Commission, that is to say the wholesale-only operators caught by art. 77 and subject to a light regulatory regime. This is the case of operators concentrating their investments and resources into network business and then just providing high-speed connectivity to other telecom operators for their clients. Wholesale-only operators have no residential business indeed, such as Stokab in Sweden, Open Fiber in Italy, Siro in Ireland and various small operators in UK, France and Austria. Currently, no one of them is dominant in Europe.

The wholesale-only model has been frequently confused with coinvestment, however it is something really different. While the coinvestment model makes sense, in terms of actual regulatory dividend, only for incumbents which are dominant, currently regulated and therefore seeking deregulation, wholesale-only operators are in Europe still at infancy of their development and therefore possible light regulation is just a bet on the future. Such light regulatory regime is not an actual regulatory holiday (as it could have been for incumbents with the Commission’s text of the co-investment), it is rather a signal addressed to long-term investors to put their resources in new infrastructures starting from scratch, wait patiently and trust their development like for any public utility sector, with no room for playing in order to get a regulatory dividend today.

Interestingly, Berec has been conspiring against such operators, despite the fact there  no jurisprudence in Europe about anticompetitive behaviors by wholesale-only operators (unlike incumbents) which should alarm national regulators. Authorities have basically complained about losing part of their competencies, although the solution proposed by the Commission (and approved by the Parliament) allow them to recover the entire set of regulatory remedies if a dominant wholesale- only operator start to behave badly. At the end, it seems that this negative approach of Berec was mainly driven by its French constituency, that is to say French regulator Arcep, which is worried about small municipalities which invested in fibers and could escape their oversight. Just a French problem indeed.

To sum up, the approach taken by the European Parliament appears balanced and reflecting the business reality, that is to say lifting regulation only in case anticompetitive behaviors should not reasonably occur, and keeping the powers of national regulators for the rest.