The Regulation of the Separate Sale of Regulated Retail Roaming Services in the EU

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In its Digital Agenda for Europe the European Union has set roaming as a “key performance target” for attaining the digital single market. The Commission aims to meet this target through the reduction of the difference between roaming and national tariffs to zero by 2015. Nevertheless, the 2002 regulatory framework for electronic communications has not provided national regulatory authorities with sufficient tools to take effective and decisive action with regard to the pricing of roaming services within the Union and has thus failed to ensure the smooth functioning of the internal market for roaming services.

In this context the EU has enacted EU Regulation no. 531/2012 of the European Parliament and the Council of 13 June 2012 “on roaming on public mobile communications networks within the Union” (“Regulation III”). This Regulation departs from the rules established under the 2002 regulatory framework for electronic communications, according to which the prices for service offerings in the electronic communications sector are determined by commercial agreement in the absence of significant market power (“SMP”), and thereby introduces complementary regulatory obligations for roaming services to undertakings without SMP (see article 1 παρ. 5 of the Framework Directive, recital 18 of the Regulation III).

Among others, Regulation III enacts rules for the separate sale of regulated retail roaming services in the Union in the form of access obligations imposed on domestic roaming providers. In specific, Regulation III introduces rules that oblige undertakings to meet reasonable requests by interested third parties for wholesale access to mobile communications networks / services for the purpose of separately selling retail roaming services to consumers.

In addition, by virtue of article 5 παρ. 2 of Regulation III, in order to ensure consistent and simultaneous implementation across the Union of the separate sale of regulated retail roaming services, the Commission has adopted Regulation 1203/2012, which sets detailed rules on the information obligations laid down in Article 4 παρ. 4 and on a technical solution for the implementation of the separate sale of regulated retail roaming services (“Separate Sale Regulation”).

In addition, if necessary, the Commission may give a mandate to a European standardisation body for the adaptation of the relevant standards that are necessary for the harmonised implementation of the separate sale of regulated retail roaming services (article 5 παρ. 5 of Regulation III). The Commission has not yet proceeded to such a mandate.

Finally, in the context of the the separate sale of regulated retail roaming services, the Body of European Regulators for Electronic Communications (“BEREC”) has, after conducting the relevant public consultation [BoR (12) 68], issued its 27.09.2012 Opinion on the Choice of Decoupling Method [BoR (12) 109].

Definitions
The Regulation III obligations regarding the separate sale of regulated retail roaming services establish a specific form of access on network facilities and relevant services.

Access is defined as the making available of facilities and/or services, to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services, including also cases where these services are used for the diffusion of information society services or radio and TV content services. It covers inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop), access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems, access to number translation or systems offering equivalent functionality, access to fixed and mobile networks, in particular for roaming, access to conditional access systems for digital television services; access to virtual network services (see article 2A λγ of the Act no 4070/2012).

In the Regulation III access to necessary facilities / services is defined as wholesale roaming access obligation should cover access to all the components necessary to enable the provision of roaming services, such as: network elements and associated facilities; relevant software systems including operational support systems; information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; number translation or systems offering equivalent functionality; mobile networks and virtual network services (recital 28 of the Regulation III). The facilities and services needed in the process of switching a customer are also considered as necessary (recital 7 of the Separate Sale Regulation). Necessary facilities / services shall cover inter alia (article 3 παρ. 2 of the Separate Sale Regulation) :

(a) facilities necessary for the procedure to change the roaming provider;
(b) facilities related to customer information, such as location data of the customer and customer data records for billing support, that are necessary for the provision of retail roaming services;
(c) facilities necessary to support the implementation of the financial limits for the specified period of use of data roaming services in accordance with Article 15 of Regulation III.

Furthermore, the Regulation III sets the definition of access to additional facilities / services. Thus, it is stated that if access seekers for wholesale roaming resale request access to facilities or services in addition to what is necessary for the provision of retail roaming services, mobile network operators may recover fair and reasonable charges for those facilities or services. Those additional facilities or services could, inter alia, be value – added services, additional software and information systems or billing arrangements (recital 29 of Regulation III).

According to Regulation III, roaming customers are customers of a roaming provider of regulated roaming services, by means of a terrestrial public mobile communications network situated in the Union, whose contract or arrangement with that roaming provider permits union-wide roaming (article 2 παρ. 2 g of Regulation III). In addition, roaming providers are defined as undertakings that provide roaming customers with regulated retail roaming services. Domestic are the roaming providers that provide roaming customers with domestic mobile communications services (“DSP”), whereas alternative are the roaming providers that are different from domestic providers (“ARP”) (article 2 παρ. 2 a-c of Regulation III). Resale of retail roaming services means a provision of regulated roaming services, provided as a bundle, and associated services, such as voice mailbox services, that are usually available to roaming customers, without the need for roaming customers to change their SIM card or mobile device, in accordance with a wholesale agreement concluded between an alternative roaming provider and a domestic provider (article 2 a of the Separate Sale Regulation).

Finally, union-wide roaming means the use of a mobile device by a roaming customer to make or receive intra-Union calls, to send or receive intra-Union SMS messages, or to use packet switched data communications, while in a Member State other than that in which the network of the domestic provider is located, by means of arrangements between the home network operator and the visited network operator (article 2 παρ. 2 f of Regulation III).

Aim
The EU regulatory framework on the separate sale of regulated retail roaming services the European Union aims (a) to increase competition, (b) as a result, lower the prices for customers, (c) create an internal market for roaming services in the Union with no significant differentiation between national and roaming tariffs and (d) stimulate the development of a relevant internal market in the Union (recital 2 and article 1 of Regulation III).

Scope
The scope of Regulation III only covers the provision of regulated roaming services (article 1 παρ. 1 of Regulation III). Regulated roaming services refer to :

  • Regulated roaming calls, i.e. mobile voice telephony calls made by a roaming customer, originating on a visited network and terminating on a public communications network within the Union or received by a roaming customer, originating on a public communications network within the Union and terminating on a visited network (article 2 παρ. 2 h of Regulation III).
  • Regulated roaming SMS messages, i.e. SMS messages sent by a roaming customer, originating on a visited network and terminating on a public communications network within the Union or received by a roaming customer, originating on a public communications network within the Union and terminating on a visited network (article 2 παρ. 2 k of Regulation III).
  • Regulated data roaming services, i.e. roaming services enabling the use of packet switched data communications by a roaming customer by means of his mobile device while it is connected to a visited network. A regulated data roaming service does not include the transmission or receipt of regulated roaming calls or SMS messages, but does include the transmission and receipt of MMS messages (article 2 παρ. 2 m of Regulation III).

As a consequence, the scope of Regulation III does not extend to non – regulated roaming services, which are not included in the services mentioned above. Thus, non – regulated roaming services refer to :

  • Roaming call services from and to non – EEA states, i.e. (a) the termination of mobile voice telephony calls made by roaming customers of the ARP, which originate on the DSP’s network, on public communications’ networks outside the European Economic Area and (b) the termination of mobile voice telephony calls received by roaming customers of the ARP on the DSP’s network, which originate on public communications’ networks outside the European Economic Area.
  • Roaming SMS messaging services from and to non – EEA states, i.e. (a) the termination of SMS messages sent roaming customers of the ARP, which originate on the DSP’s network, on public communications’ networks outside the European Economic Area and (b) the termination of SMS messages received by roaming customers of the ARP on the DSP’s network, which originate on public communications’ networks outside the European Economic Area.
  • Roaming call and SMS messaging services from and to non-geographical numbers hosting premium rate services (recitals 43 and 67 of Regulation III).
  • Roaming call services providing access to video telephony.

Articles 4 and 5 of Regulation III, which impose obligations on DSPs regarding the separate sale of retail roaming services, explicitly refer to “regulated” roaming services. Therefore, there are no obligations under Regulation III for DSPs towards ARPs or their customers regarding the separate sale of non-EU roaming services.

Moreover, the scope of Regulation III is limited to undertakings that fall under the definition of domestic and alternative roaming providers (article 2 παρ. 2 a-c of Regulation III). Both Mobile Network Operators (MNOs) and Mobile Virtual Network Operators (MVNOs) qualify as DSPs. In addition, since roaming providers are defined as undertakings that provide roaming customers with regulated retail roaming services, undertakings shall qualify as ARPs only if they have followed the notification procedure related to ARPs at the member state where the service is contracted.

Entry Into Force
The obligations of DSPs towards roaming customers and ARPs on the separate sale of regulated retail roaming services, as imposed by Regulation III, come into force on 1 July 2014 (articles 4 παρ. 6 and 5 παρ. 6 of Regulation III).

Nevertheless, in order to allow timely implementation of the separate sale of regulated retail roaming services, DSPs should not refuse testing of technical interfaces before the commercial roll-out of retail roaming services provided by ARPs prior to 1 July 2014 (recital 5 of the Separate Sale Regulation).

DSPs’ Obligations towards Roaming Customers
According to Regulation III, from 1 July 2014 DSPs shall bear the following obligations towards their customers :

  • Enable their customers to access regulated voice, SMS and data roaming services, provided as a bundle or not, by any ARP (article 4 παρ. 1 and 5 of Regulation III, recital 5 and article 4 παρ. 3 of the Separate Sale Regulation) without the need for the roaming customers to change their SIM card or mobile device (article 3 παρ. 1 of the Separate Sale Regulation).
  • Abstain from any acts that prevent their customers from switching to an ARP (article 4 παρ. 2 of Regulation III).
  • Provide the ability to switch free of charge and without undue delay, but under no circumstances exceeding three working days from the conclusion of the agreement with the new roaming provider (article 4 παρ. 2 and 3 of Regulation III). In the case of the single IMSI technical modality, any switching time period to and from an ARP that exceeds the time period established for portability will be considered as an undue delay (recital 21 of the Separate Sale Regulation). In particular, in the case of the single IMSI technical modality DSPs shall collaborate with ARPs in order to ensure that roaming customers who have concluded a contract with an ARP are able to use the services provided by the latter within one working day (article 3 παρ. 5 of the Separate Sale Regulation).
  • Enable their customers to conduct such a switch to any ARP without changing their number (recital 35 of the Regulation III).
  • Ensure that roaming customers of the ARPs continue to use their existing voice mailbox services (article 3 παρ. 4 of the Separate Sale Regulation).
  • Roaming outside the Union or by third-country customers inside the Union should not be impeded due to the technical implementation solution (recital 35 of the Regulation III).

In addition, from 1 July 2014, DSPs shall be obliged to inform all their roaming customers in a clear, understandable and easily accessible form about their rights on accessing regulated roaming services from ARPs at the time of making or renewing a contract on mobile communication services (recital 32 and articles 4 παρ. 2 and 3 of Regulation III, article 6 παρ. 1 of the Separate Sale Regulation). In particular, DSPs shall provide the following information (article 6 παρ. 2 of the Separate Sale Regulation):

(a) details on the necessary steps to be taken by roaming customers to switch to or between ARPs;
(b) the possibility to switch to or between ARPs at any moment and free of charge;
(c) the changes which will be brought to the existing contractual conditions, which have to ensure that no charges are applied to the customer by the donor roaming provider in relation to the switch;
(d) the period in which the switch to or between alternative roaming providers will be effected;
(e) a reminder, that in case of the change of the domestic provider, the new domestic provider does not have the obligation to support the roaming services provided by a specific alternative roaming provider;
(f) At the time of concluding a new contract or renewing an existing contract, customers shall confirm explicitly that they have been informed about the possibility to opt for an alternative roaming provider.

The information mentioned above shall be provided on a durable medium in a clear and comprehensible manner and in an easily accessible form. In case of pre-paid customers, whose contact information is not known to DSPs, the latter shall inform them via SMS or any other suitable means. Roaming customers shall have the right to request and receive, free of charge, more detailed information on the possibility to switch roaming providers at any time (article 6 παρ. 2 of the Separate Sale Regulation).

DSPs’ Rights & Obligations towards ARPs
According to Regulation III, from 1 July 2014 DSPs shall be obliged to meet all reasonable requests by ARPs for access to facilities and related support services necessary for the separate sale of regulated retail roaming services on a free of charge basis (article 5 παρ. 1 of Regulation III, article 3 παρ. 3 of the Separate Sale Regulation).

Furthermore, from 1 July 2014 DSPs shall be obliged to meet all reasonable requests by ARPs for access to facilities and related support services that allow for the processing of data roaming traffic in the visited network and for the retail provisioning of local data roaming services by ARPs on a free of charge basis (article 5 παρ. 1 of Regulation III, article 4 παρ. 1 of the Separate Sale Regulation).

The network elements and services that qualify as “necessary” do not include full end – to – end service solutions (functions like anti-bill-shock, prepaid accounting, billing etc), but rather the relevant standardized interfaces that will allow ARPs to develop and deliver their own functions at retail level.

There should be no obstacles to using alternative data roaming services, provided directly on a visited network, temporarily or permanently, regardless of existing roaming contracts or arrangements with domestic providers and without any additional charge levied by them. When it is required, in order to offer data roaming services provided directly on a visited network, domestic providers and providers of data roaming services should collaborate in order not to prevent customers from accessing and using those services and to ensure service continuity of other roaming services (recital 34 of the Regulation III).

Pricing of Wholesale Access for the Separate Sale of Retail Roaming Services
Whereas DSPs are obliged to offer access to their facilities / services that are necessary for the separate sale of regulated retail roaming services on a free of charge basis (article 5 παρ. 1 of Regulation III), additional facilities / services that do not fall within the scope of the Regulation’s obligations may only be offered, if agreed by both parties, via commercial negotiations on fair and reasonable charges (recital 29 of Regulation III).

As a result, ARPs have no right under the Regulation to get access to unregulated roaming services and may only gain such a right after commercial negotiations and the finalisation of a commercial agreement with a DSP (recital 7 of the Separate Sale Regulation).

Technical Implementation
The technical solution to implement the separate sale of regulated retail roaming services shall meet the following criteria (article 5 παρ. 3 of Regulation III) :

(a) consumer friendliness, in particular allowing consumers to easily and quickly switch to an alternative roaming provider while keeping their existing mobile phone number and while using the same mobile device;
(b) ability to serve all categories of consumer demand on competitive terms, including intensive usage of data services;
(c) ability to effectively foster competition, taking also into account the scope for operators to exploit their infrastructure assets or commercial arrangements;
(d) cost – effectiveness, taking into account the division of costs between domestic providers and alternative roaming providers;
(e) ability to give effect to the obligations referred to in Article 4 παρ. 1 of Regulation III in an efficient manner;
(f) allowing a maximum degree of interoperability;
(g) user friendliness, in particular in respect of the customers’ technical handling of the mobile device when changing networks;
(h) ensuring that roaming by Union customers in third countries or by third country customers in the Union is not impeded;
(i) ensuring that the rules on protection of privacy, personal data, security and integrity of networks and transparency required by the Framework Directive and the Specific Directives are respected;
(j) taking into account the promotion by national regulatory authorities of the ability of end users to access and distribute information or run applications and services of their choice, in accordance with article 8 παρ. 4 g of the Framework Directive;
(k) ensuring that providers apply equivalent conditions in equivalent circumstances. It is particularly stated that DSPs shall be obliged to abstain from acts or omissions that may lead to differences between the technical characteristics of the regulated roaming services, including the quality parameters, as provided to the customer before and after the switch (article 4 παρ. 5 of Regulation III). As a result, DSPs shall not be obliged to deliver services to ARP roaming customers, if those services are not delivered to DSP roaming customer. If the basic service provided by the DSP within the regulation has restrictions, those restrictions also apply to the ARP. ARPs do not have the right to oblige DSPs to enhance their services.

The technical solution may combine one or several technical modalities (article 5 παρ. 4 of Regulation III). In specific, if not all of the criteria stated above can be met by only one technical modality, several technical modalities will have to be implemented (recital 3 of the Separate Sale Regulation).

Thus, there are currently several ways in which the separate sale of regulated retail roaming services could be technically implemented, including dual International Mobile Subscriber Identity (IMSI) (two separate IMSI on the same SIM card), single IMSI (the sharing of one IMSI between the domestic and roaming providers) and combinations of dual or single IMSI together with the technical modality that does not prevent the customer from accessing regulated data roaming services provided directly on a visited network, by means of arrangements between the home network operator and the visited network operator (recital 33 of the Regulation III).

The dual IMSI technical modality is based on a second profile on the roaming customer’s SIM card that can be used by the alternative roaming provider for the sale of regulated roaming services, while the first profile is still used by the domestic provider for the sale of domestic services and possibly non-regulated roaming services (recital 6 of the Separate Sale Regulation). Given that this technical modality would also require upgrading of the currently used SIM cards to include dual-IMSI functionality, the dual-IMSI technical modality fails to provide a cost-effective and consumer friendly option for the separate sale of regulated retail roaming services (recital 8 of the Separate Sale Regulation).

Under the single IMSI technical modality the separate roaming services are technically still provided by the domestic provider, which serves as the host mobile network operator to the alternative roaming. The separate roaming services are provided on a wholesale basis to the alternative roaming provider, which resells the services to the roaming customer at retail level. The most basic version is a pure resale option. Furthermore, there are a number of potential enhancements to the pure resale technical modality that enable the alternative roaming provider to control which visited networks are to be used preferably and to recover discounts on the wholesale roaming services purchased from the host mobile network operator (MNO), based on wholesale agreements with visited network operators or wholesale aggregators (recital 6 of the Separate Sale Regulation). The single IMSI technical modality appears more appropriate in the light of the criteria set out in Regulation III, even though it fails to meet criteria (b) and (e), which are only partly met (recitals 9 and 10 of the Separate Sale Regulation).

The technical solution combining the two technical modalities, namely the single IMSI technical modality, implemented as a roaming resale service, and the technical modality allowing access to local data roaming services on a visited network, meets all the criteria of Regulation III. Whereas neither the single IMSI technical modality nor the technical modality allowing access to local data roaming services alone fully meet criteria (b) and (e), they are complementary and meet criteria (b) and (e) only in combination (recital 20 of the Separate Sale Regulation). As a result, DSPs shall implement cumulatively the technical modality for the implementation of the separate sale of regulated retail roaming services provided as a bundle and the technical modality for implementing access to local data roaming services on a visited network (article 5 of the Separate Sale Regulation). Accordingly, ARPs shall have the right to request for access regarding the retail resale of either regulated voice, SMS and data roaming services as a bundle (full ARP) or of local data roaming services (Local Break Out – LBO ARP).

Access to facilities and related support services that allow for regarding the retail resale of either regulated voice, SMS and data roaming services as a bundle shall cover inter alia (article 3 παρ. 1 and 2 of the Separate Sale Regulation) :

(a) the necessary network interfaces and the relevant services that allow the resale of retail roaming services as a bundle;
(b) facilities necessary for the procedure to change the roaming provider;
(c) facilities related to customer information, such as location data of the customer and customer data records (CDRs) for billing support, that are necessary for the provision of retail roaming services;
(d) facilities necessary to support the implementation of the financial limits for the specified period of use of data roaming services in accordance with Article 15 of Regulation III.

Access to facilities and related support services that allow for the processing of data roaming traffic in the visited network shall cover inter alia (article 4 παρ. 2 of the Separate Sale Regulation) :

(a) facilities necessary for the roaming customer to switch between a roaming provider using a home network and an alternative roaming provider of local data roaming services for the purpose of using data roaming services;
(b) facilities allowing for the establishment of user access profiles for the EU-internet APN in the home network and for a mechanism in the home network that enables the processing of data roaming traffic in the visited network, routing of data roaming traffic to the selected alternative roaming provider and the retail provision of the data roaming service by the visited network operator for these user’s access profiles;
(c) facilities ensuring that traffic steering, network barring, or other mechanisms applied in the home network do not prevent the users from selecting the visited network for local data roaming services of their choice;
(d) facilities ensuring that the user is not disconnected from the visited network for local data roaming services of its choice due to traffic steering or other mechanisms applied in the home network.

DSPs shall collaborate with ARPs in order to ensure that roaming customers who have concluded a contract with an ARP for the provision of local data roaming services are able to use the services provided by the ARP instantaneously from the moment the latter sends a request to the DSP (article 4 παρ. 4 of the Separate Sale Regulation).

Supervision & Enforcement
National regulatory authorities (NRAs) supervise and enforce within their territory the obligations arising from the regulatory framework on the separate sale of regulated retail roaming services by requiring cessation of breaches, solving disputes and imposing penalties (article 16 παρ. 1, 5 and 6 and articles 17 and 18 of Regulation III). The penalties provided for shall be effective, proportionate and dissuasive (article 18 of Regulation III). Furthermore, NRAs have the powers to request information by undertakings relevant to the implementation of the regulatory framework (recital 92 and article 16 παρ. 4 of Regulation III).

In particular, the Greek NTPC has the power to intervene and resolve disputes between undertakings, whether national or cross border, and to impose administrative fines of up to 3.000.000 Euros or even revoke the general authorisation of undertakings in cases when the Act no. 4070/2012 or the secondary regulatory framework are violated (see articles 34 and 77 of the Act no. 4070/2012). For the execution of its duties the NTPC also has powers to conduct inspections, inquiries and confiscations for reasons of collecting information and investigating cases of the Act no. 4070/2012.

More
EU Regulation no. 531/2012 of the European Parliament and the Council of 13 June 2012 on roaming on public mobile communications networks within the Union.
EU Regulation 1203/2012 on the information obligations laid down in Article 4 παρ. 4 and on a technical solution for the implementation of the separate sale of regulated retail roaming services.
BEREC Opinion on the Choice of Decoupling Method [BoR (12) 109].