International Journal of Communications Law & Policy

OPEN ACCESS FROM THE EU PERSPECTIVE
By Michael Rosenthal

Download the Paper in PDF Format: IJCLP Web-Doc 5-7-2003

Abstract

In a converged communications environment in which the same communications services can be delivered over a variety of platforms, the issue of open access to these platforms, in particular with regard to broadband services, is of critical importance. Furthermore, vertical integration of content providers and delivery systems raises the issue of open access to content. Accordingly, Herbert Ungerer, Head of Division Media and Music Publishing in DG Information, Communication and Multimedia, has made clear that "access to content for the new platforms will be a focus of attention for both regulation and competition law enforcement in the European Union during the next months - and years - as will be the inverse problem of access to these platforms for content providers". Against this background, the article will discuss the current key open access issues under European law covering both sector-specific regulation as well as general competition law. As to sector-specific regulation under the new EU regulatory framework for electronic communications, these are, first, the right to open access of Internet Service Providers; second, the right to open access and to open standards of TV Service Providers; and third, the issue of unbundled access to the local loop. Since only the transmission of content but not the content itself is regulated by the new framework, the upcoming revision of the Television without Frontiers Directive and its possible impact on the regulation of open access will be briefly discussed as well. In the second part, the article deals with the latest developments in general competition law with regard to open access, discussing some of the current open access cases under Articles 82 of the EC-Treaty as well as the major merger control decisions the Commission has rendered using merger control as a tool to impose open access remedies.

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