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Draft BEREC Report on Access to physical infrastructure in the context of market analyses BoR (18) 228

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During its 37th plenary meeting (5-7 December 2018, Prague) the Board of Regulators has approved the draft BEREC Report on access to physical infrastructure in market analyses  (BoR (18) 228) for public consultation.

The EU needs significant investment in next generation access (NGA) networks that are capable of supporting a wide range of services in order to meet the needs of end-users (both residential and business consumers). Physical infrastructure (such as ducts and poles used to deploy networks) represents a significant proportion of the investment in NGA networks. Civil engineering works are lengthy and costly processes, for instance due to the need to gather the necessary permissions and the intensive use of human resources, among other issues. Moreover, replicating existing physical infrastructure is sometimes not technically feasible and, in many cases, not economically profitable. Measures aimed at facilitating greater use of existing physical infrastructure can reduce the civil engineering works required to deploy new networks, significantly lowering costs.

In this context, most NRAs in the EEA currently regulate access to physical infrastructure in the market for wholesale local access provided at a fixed location (market 3a). Some NRAs also regulate access to physical infrastructure in market 3b or market 4.  BEREC has not previously studied how NRAs have chosen to precisely address access to physical infrastructure in their market analyses. Therefore, following a questionnaire completed by NRAs, this report depicts the different approaches taken regarding the regulation of access to physical infrastructure.

The public consultation will run from 12 December 2018 to 23 January 2019 (17:00 CET)

Enquiries about the consultation, including registration problems with the online platform, should be sent to the following email address: PC_Physical_Infrastructure@berec.europa.eu

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P1

BoR (18) 228 Public Consultation
Draft BEREC Report on
Access to physical infrastructure in the context of market analyses

P2

Physical infrastructure (such as ducts and poles used to deploy networks) represents a significant proportion of the investment in NGA networks. Measures aimed at facilitating greater use of existing physical infrastructure can reduce the civil engineering works required to deploy new networks, significantly lowering costs.

In this report, “physical infrastructure” refers to civil engineering infrastructure able to accommodate electronic communications networks, such as ducts, chambers, manholes and poles, in line with the definition used in the Broadband Cost Reduction Directive (BCRD). As a consequence, dark fibre and the unbundling of fibre or copper lines are not included in the scope of physical infrastructure.

Based on a questionnaire completed by NRAs, this report depicts the different approaches taken regarding the regulation of access to physical infrastructure. Out of the 34 NRAs that provided answers to the BEREC questionnaire, 26 are regulating access to physical infrastructure as a result of their market analysis. Eight NRAs do not impose any remedies with regard to physical infrastructure on any of the markets, either because the relevant market is deregulated or because other remedies/legal instruments are deemed to be sufficient or more appropriate. Almost all NRAs dealing with access to physical infrastructure in their market analysis (25 out of 26) answered that it is regulated under market 3a, while three of these NRAs also regulate it under market 3b (in addition to 3a) and two of these NRAs also regulate it under market 4 . Further details, notably on the remedies applied, can be found in section 4.

There are potential challenges to the existing regulatory structures, which might arise in the future due to a number of factors, including:

Technological changes that might require a redefinition of the markets and physical infrastructure remedy. This might include greater convergence in wireless and fixed services, or between markets 3a, 3b and 4;
Increased infrastructure-based competition (promoted by access to physical infrastructure) within Markets 3a or 4, such that continued regulation of access to physical infrastructure within these markets might need to be derived from a modified greenfield assessment (see Annex 3 for consideration of modified greenfield arguments in this context);
The development of offers of access to physical infrastructure from alternative operators (notably under the BCRD), to the point where the SMP status of the incumbent operators regarding physical infrastructure could be questioned;
A recognition that the competition concerns which might need to be addressed by the physical infrastructure remedy are wider than the concerns identified by the NRA under the market review process (the remedies on physical infrastructure thus being constrained by reference to the existing market’s competition concerns).

Several responses to these potential challenges can be considered, one of which would be to define a standalone market for physical infrastructure. For instance, in Switzerland a separate market for ducts was analysed. However, in the EU no NRA has so far defined a separate market for physical infrastructure. Section 5 elaborates upon the different factors that an NRA should consider if such an option is chosen.

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P3

The EU needs significant investment in next generation access (NGA) networks that are capable of supporting a wide range of services in order to meet the needs of end-users (both residential and business consumers).

Physical infrastructure (such as ducts and poles used to deploy networks) represents a significant proportion of the investment in NGA networks. Civil engineering works are lengthy and costly processes, for instance due to the need to gather the necessary permissions and the intensive use of human resources, among other issues. Moreover, replicating existing physical infrastructure is sometimes not technically feasible and, in many cases, not economically profitable. Measures aimed at facilitating greater use of existing physical infrastructure can reduce the civil engineering works required to deploy new networks, significantly lowering costs.

In this context, the European Electronic Communications Code (EECC) places the promotion of efficient investment at the forefront of the legislative reform that will set the terms for the activity of telecommunications operators in the EU over the next decade. With this aim, the EECC contains a number of measures intended to promote access to the available physical infrastructure. Facilitating a greater use of existing physical infrastructure has also the benefit of promoting competition, as incumbent operators usually own a large portion of the physical infrastructure already in place to deploy networks; therefore, having to replicate such physical infrastructure would create an important barrier to entry in the ECS markets. As such, effective access to the incumbent operators’ physical infrastructure is crucial to promote the deployment of high capacity (fixed and mobile) networks, and ultimately connectivity. However, the importance of access to physical infrastructure for the deployment of high capacity networks heavily depends on the extent of physical infrastructure that can be reused for such deployment. In cases where the amount of reusable physical infrastructure (especially in the access segment of the network) owned by the incumbent is limited, effective access to this infrastructure is likely not one of the crucial aspects for network deployment by alternative operators.

Most NRAs in the EEA currently regulate access to physical infrastructure in the market for wholesale local access provided at a fixed location (market 3a). Some NRAs also regulate access to physical infrastructure in market 3b or market 4.[1] BEREC has not previously studied how NRAs have chosen to precisely address access to physical infrastructure in their market analyses. Therefore, following a questionnaire completed by NRAs, this report depicts the different approaches taken regarding the regulation of access to physical infrastructure. Further details on the approaches taken by NRAs are covered in section 4.

In section 5 the report discusses developments that may lead NRAs to consider defining a separate market for access to physical infrastructure in the future. This section also discusses issues which need to be taken into account should such a market be defined. Section 6 concludes.

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P4

This section sets out how the current and prospective regulatory frameworks address access to physical infrastructure under both ex ante (market-related) powers and symmetric regulation. Of particular relevance in the current framework are the Framework and Access Directives, which are discussed immediately below. We also consider the related Broadband Cost Reduction Directive (BCRD) before covering the prospective framework, which relates to the European Electronic Communications Code (EECC).

Framework and Access Directives and related guidance

EU Directive no. 2002/21/EC (Framework Directive[2]), as amended, anticipates the possibility for NRAs to decide to mandate sharing of electronic communications networks (ECN) facilities or property, including ducts, and ensures that this is allowed as a potential response to a concern about market power (see in particular, Article 12 – Co-location and sharing of network elements and associated facilities for providers of electronic communications services).

On the other hand, under EU Directive no. 2002/19/EC (Access Directive[3]), as amended, NRAs may impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, on the basis of the ex ante (asymmetric) market review process that is foreseen under EU legislation. This may include access to physical infrastructure, as the practice of NRAs up to date shows (see below).

Subsequently, additional “soft-law” instruments have been adopted by the European Commission that also refer to physical infrastructure access. Of particular relevance in this regard are Commission Recommendation no. 2010/572/EU[4] as well as Commission Recommendation no. 2013/466/EU[5] . The former contains detailed guidance regarding the way access to the civil engineering infrastructure of the SMP operator may be structured under the SMP regime, while the latter sets out the recommended costing methodology that may be used by NRAs when determining the prices for access to physical infrastructure.

BEREC’s Common Position[6] (BoR (12) 127) also includes guidance on duct access.

Regarding State aid, reference should be made to the EU Guidelines for the application of State aid rules in relation to the rapid deployment of broadband networks (2013/C25/01)[7]. It should be noted that, according to the Guidelines (footnote 43), the public funding of civil engineering works may fall within the notion of State aid if the economic measures are clearly geared towards the broadband sector. The Guidelines also note (footnote 105) that whenever the State aid measure covers the funding of new passive infrastructure elements, such as ducts or poles, access should in principle be granted and be unlimited in time.

Broadband Cost Reduction Directive

EU Directive no. 2014/61/EU[8] (Broadband Cost Reduction Directive - BCRD) aims to facilitate the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost. The BCRD is divided into four parts:

1. The first part is dedicated to access to existing physical infrastructure and establishes that “network operators” (understood broadly to include all kinds of entities that own physical infrastructure, such as utilities or economic agents providing transport services) have the obligation to meet all reasonable requests for access to their physical infrastructure under fair and reasonable terms and conditions, including price. Therefore, any refusal of access must be based on objective, transparent, and proportionate criteria. This part of the BCRD also promotes transparency concerning the availability of minimum information regarding physical infrastructure through a Single Information Point (SIP).
2. The second part of the BCRD concerns the coordination of civil works.
3. The third part of the BCRD relates to permit-granting.
4. The last part of the BCRD establishes the right of access to existing in-building physical infrastructure with a view to deploying a high-speed electronic communications network if duplication is technically impossible or economically inefficient.

The BCRD also contains several provisions on dispute resolution.

European Electronic Communications Code (EECC)

Article 44[9] of the EECC states general principles on the imposition of co-location and sharing of network elements and associated facilities for providers of electronic communications networks. In turn, on the basis of Article 61 of the EECC, NRAs shall be able to impose symmetric obligations (i.e. obligations that apply generally to a whole category of operators, regardless of SMP) to the extent that this may be necessary to impose end-to-end interconnectivity or ensure interoperability. Importantly, paragraph 3 of Article 61 also enables NRAs to impose obligations to grant access, upon reasonable request, to wiring and cables and associated facilities inside buildings or up to the first concentration or distribution point (under certain conditions also beyond this point), under the terms and procedures set in the EECC.

Regarding ex ante regulation, the EECC provides for the imposition of remedies regarding access to civil infrastructure to be examined before imposing obligations of access to specific network elements and associated facilities, as the former remedy is usually considered to be conducive to more sustainable competition, including infrastructure competition.

Bearing this in mind, Article 72 (on access to civil engineering) establishes that a national regulatory authority may […] impose obligations on undertakings to meet reasonable requests for access to, and use of, civil engineering including, but not limited to, buildings or entries to buildings, building cables, including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, conduits, inspection chambers, manholes, and cabinets, in situations where, having considered the market analysis, the national regulatory authority concludes that denial of access or access given under unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market and would not be in the end-user's interest. NRAs may impose obligations of this kind, irrespective of whether the assets that are affected by the obligation are part of the relevant market in accordance with the market analysis, provided that the obligation is necessary and proportionate to meet the objectives set in the EECC. The EECC therefore recognises access to physical infrastructure as a possible ‘standalone’ remedy (and not only as an ancillary remedy to other remedies imposed).

Along the same lines, Article 73 (on obligations of access to, and use of, specific network facilities) states that national regulatory authorities may […] impose obligations on undertakings to meet reasonable requests for access to, and use of, specific network elements and associated facilities, in situations where the national regulatory authorities consider that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, and would not be in the end-user's interest.” Before imposing specific access obligations, NRAs shall analyse whether other forms of access to wholesale inputs, either on the same or a related wholesale market, would be sufficient to address the identified problem in the pursuit of the interests of end users. NRAs shall also examine whether the sole imposition of obligations on civil engineering in accordance with Article 72 would be a proportionate means to promote competition and the interests of the end-user.

In addition, it is useful to refer to Article 74 (Price Control and cost accounting obligations), which may have a bearing on the prices of access to physical infrastructure:

A national regulatory authority may, […], impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users.

In determining whether price control obligations would be appropriate, national regulatory authorities shall take into account the need to promote competition and long-term end-user interests related to the deployment and take-up of next-generation networks, and in particular of very high capacity networks. In particular, to encourage investments by the operator, including in next-generation networks, national regulatory authorities shall take into account the investment made by the operator. Where the national regulatory authority consider price control obligations to be appropriate, they shall allow the undertaking a reasonable rate of return on adequate capital employed, taking into account any risks specific to a particular new investment network project.

National regulatory authorities shall consider not imposing or maintaining obligations pursuant to this Article, where they establish that a demonstrable retail price constraint is present and that any obligations imposed in accordance with Articles 69 to 73, including in particular any economic replicability test imposed in accordance with Article 70 ensures effective and non-discriminatory access”.

These provisions are in line with those of Recommendation 2010/572/EU (NGA Recommendation) as well as Recommendation 2013/466/EU (non-discrimination obligations and costing methodologies).

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P5

This section discusses how access to physical infrastructure has been dealt with in the analysis of markets 3a, 3b and 4. It is based on answers from 34 NRAs to a questionnaire sent out by BEREC in May 2018.

NRAs from the following 34 countries (out of 38) provided feedback on the questionnaire: Austria, Belgium, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Former Yugoslav Republic of Macedonia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, The Czech Republic, The Netherlands, The United Kingdom.

In the questionnaire, and hence also in this document, “physical infrastructure” refers to civil engineering infrastructure able to accommodate electronic communications networks, such as ducts, chambers, manholes and poles, in line with the definition used in the BCRD. As a consequence, dark fibre and the unbundling of fibre or copper lines are not included in the scope of physical infrastructure. The questionnaire also included questions on the regulation of dark fibre, which can be found in Annex 1.

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P6

Out of the 34 NRAs that provided answers to the BEREC questionnaire, 26 are regulating access to physical infrastructure as a result of their market analysis. Eight NRAs do not impose any remedies with regard to physical infrastructure on any of the markets, either because the relevant market is deregulated or because other remedies/legal instruments are deemed to be sufficient or more appropriate: AT, CZ, DK, FI, HR, MT, NL, RO.

BEREC also asked the NRAs which type of physical infrastructure (e.g. ducts, poles, chambers) were included in the context of the market analysis performed. All NRAs which imposed access to physical infrastructure in the context of a market analysis stated that they included ducts and pipes, 18 NRAs also imposed access to chambers and manholes, while only 12 NRAs imposed access to poles (Table 1).

Table 1: Type of physical infrastructure to which access was imposed in the market analysis

NRAs were also asked under which relevant market(s) the access to physical infrastructure is regulated, considering their most recent market decision. Almost all NRAs dealing with access to physical infrastructure (25 out of 26) answered that it is regulated under market 3a, while three of these NRAs also regulate it under market 3b (in addition to 3a) and two of these NRAs also regulate it under market 4 (i.e. under markets 3a, 3b and 4) (see Table 2). Switzerland and Liechtenstein defined separate markets where access to physical infrastructure is regulated. The Swiss NRA defined a separate market in 2009 for ducts, where a dominant position was found. According to the Swiss law, access to ducts is an explicit obligation (if capacity is available) for operators having a dominant position in the access market. Similarly, the Liechtenstein regulator defined a specific market for physical access to infrastructure in the core network. In Liechtenstein, vertical separation is in place and the state-owned Liechtensteinische Kraftwerke (LKW) is obliged to grant access to its networks (including the physical infrastructure).

No NRA within the EU has so far defined a product market exclusively for physical infrastructure such as ducts and chambers.

Table 2: Markets in which access to physical infrastructure is imposed

The NRAs were specifically asked whether access to physical infrastructure was included in the product market definition, geographic market definition and/or in the SMP assessment, or just in the remedies imposed. It should be noted that only NRAs that included physical infrastructure in a relevant market were asked by BEREC to provide details on their market product definition (regarding the products and areas that were included in those cases) and if physical infrastructure was subsequently incorporated in the SMP assessment.

In market 3a, eight NRAs included physical infrastructure in the relevant product market, two NRAs also considered it in the geographic market definition and six NRAs considered it in the SMP assessment. Most NRAs (25) considered physical infrastructure only when determining the remedies for market 3a. With regard to market 3b and market 4, in all cases (three for market 3b and two for market 4) physical infrastructure was considered exclusively in the remedies stage.

Table 3: Role of physical infrastructure in the market analysis process

In conclusion, access to physical infrastructure, both underground (e.g. ducts, chambers/manholes) and aerial (poles), was addressed by the majority of the NRAs in the scope of wholesale market 3a. However, a smaller proportion of these NRAs included such physical infrastructure in the product market definition. The majority of the NRAs addressed this issue in the context of remedies – i.e. in terms of the obligations imposed on the physical infrastructure of the SMP operator (e.g. access, transparency, non-discrimination, price control) – which are analysed in the following section.

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P7

NRAs were asked about the scope of the physical infrastructure obligations to which the remedies apply (with regard to the relevant network elements, such as ducts and poles).

In most countries, the regulation applies to the local access segment and the backhaul segment. Some NRAs (HU, IT, PL, SI) also included in-building infrastructure.

The following subsections analyse the set of remedies associated with physical infrastructure that were applied by the NRAs to the SMP operator in the scope of their market analysis.

Price control and accounting separation

Table 4 gives an overview of the price control and accounting separation remedies which have been applied by the NRAs to physical infrastructure. Cost orientation is the most prevalent pricing remedy. Only two NRAs applied other concepts, such as fair and reasonable pricing or benchmarking.

Table 4: Price control and cost accounting obligations related to physical infrastructure

Transparency

Table 5 shows the obligations with regard to transparency. In most cases, the SMP operator is obliged to publish a reference offer. Several NRAs also oblige the SMP operator to run a database with information about the location of the infrastructure (some also require information about occupation to be included) and automatic systems for sending wholesale requests and answers (e.g. a web-interface), in particular in market 3a.

Table 5: Transparency obligations related to physical infrastructure


Access services

Table 6 shows different types of wholesale services that the SMP operator is obliged to offer in the context of access to physical infrastructure. Several NRAs imposed obligations related to feasibility analysis and cable works (installation, removal, interventions, etc.).

Table 6: Access obligations related to physical infrastructure

The access models for physical infrastructure in Portugal and Spain foresee that cable installations and interventions are performed (or can be performed) by the alternative network operators (ANOs). Thus, these are wholesale services that may not necessarily be supplied by the SMP operator.

Non-discrimination

Table 7 shows that most NRAs which imposed access to physical infrastructure in a market analysis also imposed SLAs, SLGs and KPIs.

Table 7: Non-discrimination obligations related to physical infrastructure

NRAs were asked further questions about the remedies imposed: (i) the rationale for imposing remedies on physical infrastructure, (ii) the market outcome (the extent to which regulated access been used), (iii) whether wholesale-only operators and/or publicly funded NGA networks are also regulated under the remedies on access to physical infrastructure, similar to the SMP remedies, and (iv) whether any changes to the remedies are foreseen in the future. The answers are summarised in the following subsections.

Rationale for imposing remedies

The main justification for NRAs to impose SMP remedies regarding physical infrastructure was to promote competition and to avoid unnecessary costs that would result from infrastructure duplication. The underlying motivation was to facilitate faster and more efficient deployment of alternative operator NGA networks.

Market outcome

In several countries access to the physical infrastructure of SMP operators has been used by alternative operators as the main solution to deploy their own NGA networks and seems to be fundamental to ensure sustainable competition on the broadband retail market. Several NRAs consider such kind of access to be of particular importance in ensuring a level playing field, providing alternative operators with the same opportunities as the SMP operator when making their broadband investment decisions. In many cases the imposition of this type of access resulted in a higher level of investment in NGA. Due to cost efficiency, the use of physical infrastructure is even more relevant in sub-urban areas, where the replication of such infrastructure is more difficult. However, there are also some countries where remedies related to access to physical infrastructure have not been taken up or have a low level of take-up (partly because they have only recently been introduced). In this context, one has to bear in mind that the extent of available and reusable physical infrastructure owned by the incumbent operator may be limited, which would clearly constrain its importance in the deployment of NGA networks by alternative operators.

Wholesale-only operators

In general, wholesale-only operators (where they exist) are not subject to remedies relating to physical infrastructure similar to the SMP operator.[19] However, networks funded by State aid (which may also be wholesale-only networks) usually have obligations to grant access to their infrastructure. In some cases, these obligations are similar to those imposed on the SMP operator (e.g. Italy, Portugal, Estonia and Norway).

Future changes

Most NRAs will evaluate this issue after a final version of the EECC[20] is available. There are also some NRAs which are already taking into account new approaches to regulation of physical infrastructure according to the proposed EECC, such as the EoI rule or co-investment commitments. Some NRAs are of the opinion that regulation of access to physical infrastructure is likely to become more important.

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4.3 Issues raised by the EC and national courts

P8

BEREC also asked NRAs about issues raised in the context of Article 7 and 7a of the Framework Directive proceedings or in national courts regarding the regulation of access to physical infrastructure. Four NRAs reported such issues: Slovenia, the Czech Republic, Germany and Denmark.

In Slovenia, the SMP operator appealed the NRA’s decision regarding access to physical infrastructure in a national court. The SMP operator considered that other means of access exist based on the BCRD, but the NRA was of the opinion that these are limited and cannot efficiently address the competition problems that were identified. The case is still pending.

In the Czech Republic, the EC commented on the absence of cost-oriented prices for access to passive infrastructure of the SMP operator in market 3a (CZ/2018/2067) and the NRA’s reference to obligations under national law (Act No. 194/2017) implementing the BCRD. The EC considered that the (symmetric) obligations were insufficient and therefore asked CTU to monitor the application of the BCRD in practice and, where appropriate, impose a cost-orientation obligation for access to the SMP operators passive infrastructure.

Regarding the German case, the EC urged BNetzA to impose a duct access obligation that would not be limited to the distance between the local exchange and street cabinet.[21] BNetzA considered that the remedies concerning duct access in the notified decision were appropriate and sufficient to address the competition problem in question and did not change them.

In Denmark, the NRA withdrew the duct access obligation because it considered that the obligations from the BCRD were sufficient. The EC invited DBA to re-consider whether the lack of a price control obligation would give consistent buy-or-build signals to alternative operators, and whether access on reasonable terms, negotiated case by case, without a requirement of a clear reference offer, would be sufficient to promote infrastructure competition, wherever economically efficient, through access to passive infrastructure.

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P9

The NRAs were also asked whether the symmetric obligations in place had any impact on the results of the market analysis (in particular on the remedies imposed on the SMP operator regarding access to physical infrastructure). This was the case only in four countries: Denmark (market 3a), Spain (market 3a), the Czech Republic (market 3a) and Austria (market 4).

In Denmark, the SMP operator’s duct access obligation was withdrawn, as the obligations from the BCRD were considered sufficient.

In Spain, the NRA adopted a decision in 2009 imposing symmetric regulation, on which basis the first operator deploying the fibre local access segment within a building (i.e. the segment of an NGA network that connects end-user premises to the first distribution point) must make it available to third parties at reasonable prices. The decision was adopted on the basis of provisions in Spanish law that were similar (but not identical) to those existing under Article 5 of the Access Directive and Article 12 of the Framework Directive, and which enabled the NRA to impose, in exceptional circumstances, symmetric obligations on operators regardless of their SMP status. As a consequence, access to the fibre local access network available within buildings is excluded from the scope of SMP regulation in market 3a, since it is already covered by the symmetric obligations imposed by CNMC in 2009.

According to the Czech NRA, the BCRD affected the scope of remedies for market 3a, thus access to physical infrastructure was not imposed (due to duplication of remedies with obligations under the BCRD), and only access to dark fibre was imposed.

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P10

The aim of this section is to consider how we might approach an analysis of physical infrastructure (PI) as a standalone market under the framework set for the review of markets susceptible of ex ante regulation.

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