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January 2001 Chapter
1 Introduction Chapter
2 Market analysis Chapter 3 Notice of proposed determination that Cable and Wireless Communications has Market Influence under Condition 56 of its Licence Chapter 4 Consultation Annex A Routes singled out by C&W Annex B Routes on which C&W retained WEO status following the February 1999 determination. Annex C Countries which have submitted commitments to the Fourth Protocol of the General Agreement on Trade in Services This Consultation Document gives notice that it appears to the Director General of Telecommunications (the Director) that Cable and Wireless plc (C&W) has market influence in: (a) the market for international retail services; and (b) the market for international services to other operators on the international routes listed at Schedules I and II of the Notice of proposed Determination at Chapter 3 of this Consultation Document. The Director’s view is based on a route by route analysis of each of these markets. A company has market influence when it is able to raise prices above the competitive level for a non-transitory period without losing sales to such a degree as to make this unprofitable. A determination that C&W has market influence will trigger conditions in its licence which require it:
The effect of the market influence determination which the Director proposes to make will be to reduce regulation on C&W in respect of approximately thirty routes. These are routes on which C&W formerly had ‘Well Established Operator’, status, but on which the Director does not now consider C&W to have market influence. The factors which the Director takes into account when deciding whether an operator has market influence are explained in Oftel’s Guidelines on Market Influence Determinations (March 2000). Oftel would be grateful for comments on the Notice of proposed determination and on the reasons set out in this Consultation Document.
Chapter 1 Background to the Market Influence provisions 1.1 In September 1999, C&W’s licence was changed, along with the licences of all other existing public telecommunications operators (PTOs), in accordance with the EC Licensing Directive (97/13/EC). Following these changes PTO licences now contain a new ‘Market Influence’ provision (contained at Condition 56). This has replaced the previous Well Established Operator (WEO) provisions in PTO licences. The WEO provisions 1.2 The WEO provisions were obligations triggered only in respect of markets on which an operator was determined to be a well established operator. For C&W, a WEO determination triggered licence obligations to publish prices (subject to any relevant consents) and a condition prohibiting undue preference and undue discrimination in relation to the specified markets. WEO was measured by assessing an operator’s market power (that is, the ability to raise prices above the competitive level for a non-transitory period without losing sales to such a degree as to make this unprofitable). 1.3 The Director has made three determinations relating to C&W’s status as a WEO.
1.4 Although the WEO provisions in C&W’s licence were removed in September 1999, C&W undertook to Oftel that, until the Director had made a market influence determination, it would continue to abide by the WEO obligations to which it had been subject prior to this licence modification. The Market Influence provisions 1.5 The WEO provisions have now been replaced by a market influence provision, contained at Condition 56 of all PTO licences. This provision allows the Director, in accordance with the specified procedure, to determine a licensee to have market influence in relation to any particular telecommunications market. 1.6 A market influence determination by the Director has the effect of triggering the following licence conditions, in respect of the markets in question:
1.7 Like WEO, market influence is considered to exist only where an operator has market power, meaning that it has the ability to raise prices above the competitive level for a non-transitory period without losing sales to such a degree as to make this unprofitable. market influence represents an identical position of market power to WEO. The restructuring of Cable & Wireless 1.8 On 15 February 2000, C&W, Cable & Wireless Communications plc (CWC) and NTL Incorporated (NTL) announced their intention to separate CWC into its corporate, business, Internet protocol and wholesale operations (CWC DataCo) and its residential cable, business cable, indirect residential telephony, residential Internet and digital television development and services businesses (CWC ConsumerCo). It was proposed that C&W would acquire the interest in CWC DataCo which was not already attributable to it, and that CWC ConsumerCo would be sold to NTL. Following receipt of the relevant clearances, the transaction was completed on 30 May 2000. C&W (now known as Cable & Wireless Global) therefore now incorporates the company’s corporate retail business and its wholesale operations. It no longer has any consumer retail business. Scope of this review 1.9 For the purposes of this Consultation Document, Oftel has reviewed whether C&W has market influence on those international markets on which it was previously found (following the February 1999 determination) still to have WEO. These routes are listed in Annex B to this Consultation Document. The analysis uses the same methodology as was used for the 1997 and 1998 WEO reviews, updated to take into account developments in the market since those reviews. First, the relevant markets are defined. Then the proposed method for determining whether C&W could be said to possess market influence is applied to each of the relevant markets. Notice of Determination 1.10 In light of Oftel’s analysis, the Director has considered whether C&W has market influence for these purposes on the routes under consideration. In Chapter 3 of this Consultation Document the Director gives formal notice, under paragraph 6 of Part 1 of Schedule 1 and Condition 56 of C&W’s licence, that he proposes to determine that C&W has market influence in: (a) the market for international retail services; and (b) the market for international services to other operators on a number of international routes, listed in the Schedules to the Notice. 1.11 Chapter 2 of this Consultation Document explains the reasons for the proposed determination and Chapter 4 gives details of the consultation under paragraph 6 of Part 1 of Schedule 1 of the licence. Oftel would welcome representations and comments on the Notice of proposed determination and on the reasons set out in this Consultation Document.
Chapter 2 The relevant markets 2.1 In its June 1997 review - Mercury as a Well Established Operator - Oftel outlined its approach to market definition. The approach follows that used by the UK competition authorities and is consistent with that used in European competition law. It focuses on the existence of constraints on firms’ ability to set prices. Constraints are characterised by the possibility of demand-side substitution, that is the ability of customers to respond to a price increase by switching to products which are good alternatives, or supply-side substitution, which occurs when firms producing other products switch resources into producing a product whose price has increased. This approach to market definition is explained further in Oftel’s Guidelines on Market Influence determinations (March 2000). 2.2 Using this approach, Oftel has looked separately at the market for international retail services and the market for international services to other operators, each of which has been examined on a route-by-route basis. These are the same market definitions that Oftel applied in its 1997 and 1998 reviews (see Oftel’s June 1997 consultation document on Mercury as a Well Established Operator and its October 1998 Review of Cable and Wireless Communications’ status as a Well Established Operator). The market for international retail services 2.3 This market generally consists of international retail calls (retail IDD and retail calls delivered via ISVR) only. However, where large corporate customers are concerned, IPLCs (normally considered part of the market for international services to other operators) may also be included insofar as they represent a substitute for international retail calls for large corporate customers. 2.4 Oftel has previously considered whether it would be appropriate to define separate markets for business and residential customers (see Oftel’s November 1999 consultation document on Competition in International Markets). It is Oftel’s view that these two groups do form separate markets, as suppliers of international retail services are able to (and do in practice) price discriminate between residential and business customers by offering separate prices and discount packages to the two groups of customer. Oftel has also regulated the retail business and residential markets separately in the past, for example, in setting controls on BT’s retail prices. 2.5 Since its restructuring in May 2000, C&W is now active only in the retail business market. As far as possible, therefore, Oftel has separately considered the competitive conditions facing business as opposed to residential customers. 2.6 The amount of market information by type of customer is quite limited. In particular, Oftel does not have data on individual international routes by type of customer, or disaggregated by size of customer. However, Oftel does have data on market shares for all business customers and for all residential customers across all international calls. These data suggest that there is considerably more competition for business customers than for residential customers, particularly with respect to the largest, high-spending business customers. It is therefore considered likely that there is greater potential for competition on routes which have high business usage. 2.7 Table 1 below compares the position in 1998/99 with the position in 1999/00 and shows a reduction of 3.6 percentage points in C&W’s share. Table 1 Business Market Shares for International Calls (shares of call revenue)
Source: Oftel Market Information 1994/95 to 1998/99 and Oftel Market Information 1995/96 to 1999/00 2.8 It can be seen that that WorldCom has now overtaken C&W in its percentage share of international business retail IDD calls. In the light of these figures, C&W has submitted that it should no longer be subject to a separate review of its market influence on international routes (when Oftel does not conduct such a review for other operators such as WorldCom). 2.9 Oftel has considered C&W’s representations, but does not think that it would be appropriate at this time, to withdraw from reviewing C&W’s market influence. Oftel notes that it is primarily on highly competitive routes, such as the those to the USA, Australia, Canada and EU countries, that WorldCom has made a significant impact; and these are not routes covered by this market influence review. Oftel also notes that C&W is the historically dominant operator on a number of routes. On the routes on which Oftel considers C&W to have market influence, C&W’s competitive behaviour does not appear to be sufficiently constrained by new entrants such as WorldCom. 2.10 Oftel would welcome further information from C&W or any other respondents on the extent to which new operators such as WorldCom now provide effective competition to C&W on any of the routes identified in this document as ones on which C&W has market influence. The market for international services to other operators 2.11 This market for international services to other operators (international wholesale services) encompasses the supply of underlying capacity for conveying international retail services which can be viewed as potentially substitutable for each other. The alternative ways of conveying international retail services are: (i) wholesale IDD (ie where one operator supplies IDD services through an interconnect arrangement with other operators for onward supply to retail customers); (ii) backhaul plus cable station access plus IRU/MIU plus correspondent agreement (if not self-corresponding). This method is also referred to as ‘the facilities based method of conveying international retail services’; or (iii) IPLC plus ISVR authorisation plus cost based call termination. 2.12 An operator’s degree of control over the market for international services to other operators, will be one of the factors that may contribute to market influence in the market for international retail services, given that the former market represents a vital upstream input into the latter market. The geographical definition of markets 2.13 When considering the geographical definition of the markets for international retail services and international services to other operators, it is usually appropriate to treat paired country routes as separate markets. On the demand side, substitution between different country routes is not possible as a call to one country is not a good alternative for a call to another country. 2.14 Similarly, on the supply side, the delivery of a call to one country is not generally a good substitute for the delivery of a call to another country. It could be argued, however, that the possibility of ‘hubbing’ (the routing of traffic via an intermediate third country), and other forms of indirect transmission such as ‘transit’, ‘re-origination’ and the use of ‘ring’ systems, means that defining geographical markets on a route by route basis may represent too narrow a focus. 2.15 Oftel recognises that it is possible that indirect transmission services may represent effective supply side substitutes. For the purposes of this review, and bearing in mind the difficulty in establishing the extent of indirect routing, Oftel has examined all individual routes separately. Factors affecting Market Influence 2.16 Market influence exists where an operator has the ability to raise prices above competitive levels, for a non-transitory period without this being unprofitable, and is considered to exist only where an operator has market power. Neither market influence nor market power relies on an operator being dominant, in that they do not require the operator to be able to act independently of competitors, customers and consumers. 2.17 In light of the large number of routes being considered, this Consultation Document does not set out Oftel’s detailed analysis on a route by route basis. For each route, however, Oftel has taken into account the following factors in considering whether C&W has market influence. Market share and trends in market share 2.18 Oftel has looked at the level C&W’s of market shares for retail and wholesale services on each route under consideration. Oftel has considered not only C&W’s current market share, but also the changes in market share over time which can be observed. Where, for example, market shares remain stable over time this could suggest market influence, whereas a volatile market share might be seen as a symptom of a dynamic and competitive market. Oftel considers that a market share of 25% can be used as a rule of thumb approximation below which there is unlikely to be market influence. However, there is no presumption that a market share in excess of 25% is indicative of market influence (see Oftel’s March 2000 Guidelines on Market Influence Determinations, paras 3.16 and 3.17). 2.19 In assessing C&W’s wholesale market share Oftel has taken the same approach as it used in its analysis of BT’s wholesale IDD market share in the November 1999 Consultation Document on Competition in International Markets. That is, the market has been taken to include not only the addressable wholesale market, but also in-house sales of wholesale services, because C&W’s retail business purchases wholesale services on a least cost basis so that C&W’s own wholesale services face competition. 2.20 On the retail side, although data by type of customer are not available on a route by route basis, Oftel has also taken into account data on the extent of competition in the retail market for business customers across all international calls. Number of competitors 2.21 Oftel has also considered the number of competitors on each route. On many of the retail routes, BT and C&W still convey the majority of traffic, although other operators such as WorldCom, ACC and Esprit are becoming increasingly significant. On the wholesale market, on the other hand, there are generally more competitors, including carriers such as Concert, WorldCom, Esprit and Facilicom. Entry barriers 2.22 If there are significant barriers to entry on a particular route, this may make it more likely that C&W has Market influence. Entry barriers may include, for example, the degree of liberalisation at the far-end of the route; limitations on capacity; problems in constructing new cables; restricted cable station access; and the need for alternative backhaul. 2.23 In considering barriers to entry Oftel has looked, in particular, at whether the country at the far end of the route is a signatory to the World Trade Organisation (WTO) Global Agreement on Trade in Basic Telecommunications Services (known as the Fourth Protocol to the General Agreement on Trade in Services). The Fourth Protocol provides a framework for the gradual liberalisation of market access and also establishes a framework of basic regulatory principles (such as measures to prevent anti-competitive behaviour and non-discriminatory and timely provision of interconnection and cost-oriented rates). 2.24 Seventy three governments have now submitted commitments to the Fourth Protocol. These countries are listed in Annex C. Such countries are committed to the provision of any-to-any call termination, meaning that it should increasingly be possible for UK licensees to negotiate correspondent arrangements with the main operators in many of these routes. ISVR is also becoming a viable means of entry into the telecommunication markets in these countries. However, the fact that a country has submitted commitments to the Fourth Protocol is not necessarily a reliable indicator of the barriers to entry there, as the particular commitments made vary from country to country and some countries have time derogations. Entry to and exit from the market 2.25 Oftel has also considered the extent to which there is evidence of market entry and exit on each of the markets considered. Recent entry or exit may indicate that barriers to entry are low and, consequently, make it less likely that C&W has market influence. Pricing behaviour and profit levels 2.26 Where this information is available, Oftel has considered evidence of C&W’s pricing policy on each route and its profit margins. High profit margins (compared to those achieved on routes which are known to be competitive) may be indicative of market influence. Leveraging of Market Influence 2.27 An operator’s degree of control over the market for international services to other operators is one of the factors that may contribute to market influence in the market for international retail services, given that the former market represents a vital upstream input into the latter market. In reviewing C&W’s position in the market for international retail services it has therefore been necessary also to consider its position in the market for international services to other operators. 2.28 Broadly, Oftel has taken a competitive wholesale market to suggest a contestable retail market. Oftel has therefore presumed that where C&W lacks market influence in the wholesale market it will not generally have market influence in the retail market. This is because a competitive wholesale market is likely to lead to relatively more opportunities to purchase the wholesale inputs required for entry into the retail market, and to do so at reasonable cost. This is consistent with the approach taken by Oftel in its February 1999 WEO determination. Market Influence in international markets: the position of C&W 2.29 Taking into account the factors described above, Oftel has evaluated whether C&W has market influence on each of the routes listed at Annex B in the market for international retail services and international wholesale services. Following such review, the markets on which the Director intends to make a determination that C&W has market influence are listed in the Schedules to the Notice of proposed Determination at Chapter 3 of this Consultation Document. A brief explanation of the Director’s conclusions is given below. Routes on which C&W has Market Influence in both markets 2.30 Oftel considers C&W to have market influence in both the international retail and the international wholesale markets on the following routes. WTO routes*:
* Note that for the purposes of this document ‘WTO routes’ refers to those countries which have submitted commitments to the Fourth Protocol. It may exclude some countries which are now members of the WTO but have not yet submitted any such commitments. Non WTO routes:
2.31 Oftel reached this conclusion based on its analysis of the market conditions in these countries with reference to the criteria for market influence discussed above. In most of the countries concerned Oftel found C&W to have a relatively high and relatively stable market share, at least in the wholesale market. This, combined with the small size of many of the routes, and the fact that many of the countries concerned do not have liberalised telecommunications regimes, meant that there appeared to be barriers to competition at the wholesale level, which might in turn hamper competition at the retail level. Oftel thought it unlikely that many of these routes would be subject to heavy business usage, which might have acted as a spur to competition, at least in the retail market. Oftel also took into account the fact that C&W is the historically dominant operator on certain of these routes (for example, Barbados, Belarus, Cayman, Dominica, Grenada, Jamaica, St Kitts, St Lucia, St Vincent, Turks & Caicos). 2.32 C&W asked Oftel to pay particular attention to eleven specific routes listed at Annex A to this Consultation Document. These routes included the Czech Republic, Hungary, Russia and the Slovak Republic– which are included in the list above. Oftel’s investigations suggested that C&W did have market influence at both a retail and wholesale level on these routes for reasons described in outline below.
Routes on which C&W has MI only on the wholesale market 2.33 Oftel found C&W to have market influence on the wholesale but not the retail market only on the route to Cyprus (which is a WTO route). 2.34 Cyprus was a route to which C&W had asked Oftel to give particular consideration. On the wholesale level, although C&W’s market share was not particularly stable and entry and exit had occurred, the market was generally quite concentrated and C&W appears able to earn margins significantly in excess of those earned on known competitive routes. Oftel therefore concluded that C&W does have market influence. On the retail market, C&W has a fairly unstable and relatively low market share, there has been entry and exit and other competitors appear to be gaining market share. C&W does not appear able to price above its competitors and is not making margins above those available on known competitive routes; although outpayments have increased it does not appear to have passed this rise on to consumers. C&W did not therefore appear to have market influence on the retail market. Routes on which C&W does not have MI on either market 2.35 Of the routes on which C&W was formerly found to have WEO status, Oftel has concluded that it does not now have market influence on either the retail or wholesale market on the following: WTO routes:
Non WTO routes:
2.36 At the wholesale level Oftel concluded that C&W did not have market influence on these routes partly because of consistently low or volatile market shares, but, where information was available, mostly on the grounds of evidence of other significant competitors, entry and exit, and margins similar to those available on known competitive routes. 2.37 At the retail level, Oftel concluded that C&W did not have market influence on these routes for similar reasons as those considered for the wholesale level. However, in considering the retail market Oftel also took account of the situation in the wholesale market. As explained at paragraph 2.28 above, a competitive wholesale market was broadly taken to suggest a contestable retail market, so that without market influence in the wholesale market C&W would not have market influence in the retail market. This is because a competitive wholesale market is likely to lead to relatively more opportunities to purchase the wholesale inputs required for entry into the retail market, and to do so at reasonable cost.
Chapter 3 Notice of proposed Determination NOTICE OF PROPOSED DETERMINATION THAT CABLE AND WIRELESS HAS MARKET INFLUENCE UNDER THE PROVISIONS OF CONDITION 56 OF ITS TELECOMMUNICATIONS ACT LICENCE NOTICE OF PROPOSED DETERMINATION (Under Paragraph 6(a) of Part 1 of Schedule 1 of Cable and Wireless’ licence) Whereas: 1. Condition 56 of the Licence granted by the Secretary of State for Trade and Industry to Cable and Wireless Communications (Mercury) Limited ("C&W") ("the Licensee") under section 7 of the Telecommunications Act 1984 ("the Licence") provides for a power of the Director General of Telecommunications ("the Director") to determine the Licensee to be an Operator having market influence in relation to any particular market specified by him; 2. In serving this Notice of proposed Determination, the Director has taken into consideration the matters described in this Consultation Document in accordance with Condition 56 of the Licence; 3. The Director considers that for the time being the relevant markets for the purposes of making a determination of market influence under Condition 56 of the Licence are the market for international retail services, and the market for services to other operators, each considered on a route by route basis. NOW THEREFORE THE DIRECTOR, FOR THE PURPOSES OF CONDITION 56 OF THE LICENCE, HEREBY GIVES NOTICE THAT: For the reasons given in the Consultation Document entitled 'Review of Whether Cable and Wireless has Market Influence on International Routes', it appears to the Director that the Licensee is an Operator having market influence as referred to in Condition 56 of its Licence on the following markets:
DAVID ALBERT EDMONDS Director General of Telecommunications January 2001 Schedule I – The Retail IDD Routes The following routes constitute the Retail IDD Routes for the purposes of this Notice of proposed Determination: Andorra Schedule II – The Wholesale IDD Routes The following routes constitute the Wholesale IDD Routes for the purposes of this Notice of proposed Determination: Andorra
Chapter 4 Consultation on notice of proposed determination under Condition 56 of the Licence of Cable and Wireless 4.1 In accordance with paragraph 6 of part 1 of Schedule 1 of C&W’s Licence, the Director invites comments from the Licensee and Interested Parties on the Notice of his proposal to make a determination under Condition 56 of C&W’s Licence that C&W has market influence in: (a) the market for international retail services; and (b) the market for international services to other operators on the routes listed in Schedules I and II to the Notice of proposed Determination at Chapter 3 of this Consultation Document. 4.2 The Director would be grateful for comments from the Licensee and other Interested Parties on both the Notice and the reasons set out in this Consultation Document by 7 February 2001. 4.3 Comments should be sent to: Vincent Affleck Tel: 020 7634 8819 4.4 Representations made during this period will be available for public inspection in Oftel’s Research and Intelligence Unit, except where respondents indicate that their response, or part of it, is confidential. Respondents are therefore asked to separate out any confidential material into a confidential annex which is clearly marked as such. In the interests of transparency, respondents are requested to avoid confidentiality markings wherever possible. Appointments to view written comments in Oftel’s Research and Intelligence Unit, which must be made in advance, can be arranged by ringing: 020 7634 8761. 4.5 After 7 February 2001, C&W and interested parties will be given a further period ending on 8 March 2001 during which to make observations on the representations received and published before 7 February 2001. 4.6 When the Director has considered the representations and any observations made, he shall prepare a draft decision and statement of reasons for that decision and send it to the Licensee, and any Interested Party who has submitted representations or observations giving those persons a period of not less than 14 days within which to comment. 4.7 After considering any comments received, the Director will inform the Licensee of his decision, with reasons, and publish that decision.
Annex A Routes singled out by Cable & Wireless Brazil
Annex B Routes on which C&W retained WEO status following the February 1999 determination Routes on which C&W retained its WEO status in the market for international services to other operators (but not international retail services) EU routes: Greece Non-WTO country routes Bahamas Routes on which C&W retained its WEO status in both markets WTO routes Antigua and Barbuda Non-WTO routes Andorra
Annex C Antigua and Barbuda * Note that the 15 member states of the European Union are often listed as a single signatory.
Key definitions This glossary contains definitions of terms used in this Statement. Backhaul: Backhaul is a high capacity inland circuit. It represents the connection between a cable landing station and an operator’s existing domestic infrastructure (usually the operator’s international switching centre). Barriers to entry: An additional cost which must be borne by entrants but not by firms already in the industry; or other factors, which enable an incumbent to maintain prices above the competitive level without inducing entry. C&W – Cable and Wireless plc: Although Cable and Wireless Communications (Mercury) Ltd is the operator of the licence, this company is a wholly-owned subsidiary of Cable & Wireless plc (C&W). This Consultation Document therefore refers to C&W throughout (rather than Cable and Wireless Communications (Mercury) Ltd. International facilities: Infrastructure owned and operated by a licensed operator for conveying traffic between countries. In the United Kingdon the international facilities licensees are licensed to own and operate international facilities at the UK end on all international routes. International Facilities Licence (IFL): IFL licences were granted under the Telecommunications Act 1984 to authorise the connection of a UK telecommunication system to a telecommunication system outside the UK and the provision of telecommunication services over the system to countries outside the UK. International Private Leased Circuits (IPLCs ): International circuits leased from facilities operators in order to provide international services which cross one or more international boundary. International Simple Voice Resale (ISVR): ISVR is an international service provided by an operator to customers using the international facilities owned by other operators. In the case of an outgoing call, the operator collects traffic from the public telecommunications network, transfers it to a line leased from a facilities operator, and then hands it over to a Public Telecommunications Operator in an overseas country who will deliver the call to its destination. It therefore involves breakout onto the public telecommunications network at both ends, but with the international leg of the call being carried on leased circuits. ISVR traffic bypasses the accounting rate system EU Licensing Directive: Directive 97/13/EC of 19 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ [1997] L117/15). Public Telecommunications Operator (PTO): A PTO is a network operator providing services to the public with powers granted by the Secretary of State for Trade and Industry under the Telecommunications Act 1984 to enable it to install its systems on public and private land, property etc. Retail International Direct Dialled Calls (Retail IDD): Calls made by end-users dialling direct to subscribers in other countries. Well Established Operator (WEO): A regulatory concept applied in the context of specific product markets. A WEO is an operator with 25% or more of what is in the opinion of the Director General the relevant market, unless the Director General determines that the operator is not a WEO, or an operator with less than 25% of what is in the opinion of the Director General the relevant market which is determined by the Director General to be a WEO. World Trade Organisation (WTO): International body that deals with the trade between countries. The WTO provides the legal framework for international commerce.
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