The Triangular Relationship between the Commission, NRAs and National Courts Revisited



126


COMMUNICATIONS
«.STRATEGIES


No. 64, 4th Q. 2006


Preliminary issue: the nature of regulatory decisions

Before dealing with the Article 7 and Article 4 procedures, however, it is
useful to reflect on the nature of the decisions taken in regulatory procedures
concerning electronic communications.

These decisions take place against a context of uncertainty regarding the
evolution of the sector. Uncertainty is common in many sectors of the
economy, but there is a general consensus that the evolution of
communications is especially hard to predict. This is certainly the case with
respect to technology. Indeed, besides the few cases of "calculated
success" (GSM), recent history is littered with instances of unforeseen
technological developments that shook up the sector (the rise of the
internet), as well as predictions that failed to materialize (convergence
stories of the early 1990s) or were outright failures (work on HDTV
standards in the 1990s). Technological uncertainty is compounded, in the
current context, by the liberalization wave of the 1990s, which led to more
open markets. This implies firstly that technological progress is now a
competitive factor, thus increasing the chances that operators and providers
will try to introduce differentiated technological solutions and leave the
market (i.e. customers) to choose what it prefers 3. Moreover, competitive
pressures might accelerate the rate of technological evolution 4. Secondly,
as a consequence, marketing might now be as important a factor as intrinsic
technical quality in determining technological evolution 5.

The main challenge for lawmakers and regulatory authorities is to factor
uncertainty properly into their course of action. The current EC electronic

3

Alternatively, if it is thought that a single solution should be adopted beforehand, market
players (equipment and software manufacturers, operators, providers) might fight a standards
battle behind the scenes before a technological advance is brought to the market. Witness the
high-stake game that surrounded the specification of the 3G standard.

4 Pressure to salvage existing copper pair local loops in the face of impending competition from
cable might have played a role in research leading to the various xDSL standards in the past 10
years (the authors do not have any evidence regarding this point). Certainly, in retrospect, it
would have been a massive waste to embark on a large-scale program of laying fiber in the
local loop in the 1990s, as was advocated before xDSL arrived to give a new lease of life to
copper pairs. That experience would dictate caution before enacting any legal measure that
would mandate the laying of fiber in the local loops throughout a given territory, at least before
this technology has proven its usefulness and attractiveness to customers (in the form of
demand for services that can only be provided via local fiber networks).

5 Witness the golden age of ISDN as a beefed-up internet access technology in the 1990s and
the prevalence of SMSs today: none of these two technologies were designed for the respective
uses which made them famous. Good marketing and network effects did the trick.



More intriguing information

1. The name is absent
2. The name is absent
3. Environmental Regulation, Market Power and Price Discrimination in the Agricultural Chemical Industry
4. Do Decision Makers' Debt-risk Attitudes Affect the Agency Costs of Debt?
5. Evidence of coevolution in multi-objective evolutionary algorithms
6. Opciones de política económica en el Perú 2011-2015
7. 101 Proposals to reform the Stability and Growth Pact. Why so many? A Survey
8. Monetary Policy News and Exchange Rate Responses: Do Only Surprises Matter?
9. The Variable-Rate Decision for Multiple Inputs with Multiple Management Zones
10. The name is absent
11. The Role of State Trading Enterprises and Their Impact on Agricultural Development and Economic Growth in Developing Countries
12. The name is absent
13. Robust Econometrics
14. The name is absent
15. EU enlargement and environmental policy
16. SME'S SUPPORT AND REGIONAL POLICY IN EU - THE NORTE-LITORAL PORTUGUESE EXPERIENCE
17. Shifting Identities and Blurring Boundaries: The Emergence of Third Space Professionals in UK Higher Education
18. Structural Conservation Practices in U.S. Corn Production: Evidence on Environmental Stewardship by Program Participants and Non-Participants
19. The name is absent
20. Linking Indigenous Social Capital to a Global Economy