Thailand Law Journal 2009 Spring Issue 1 Volume 12

Although the doctrine has been well established from the lower courts, the Supreme Court declined to recognize the doctrine in the Trinko case. The Court stated that “the 1996 Act's extensive provision for access makes it unnecessary to impose a judicial doctrine of forced access”.⁷¹ Then Trinko is likely lead to preemption of the antitrust laws.⁷² Although this had brought again a swing-back of sector-specific regulation, the virtual report of the death of the doctrine may be an exaggeration.⁷³ Despite the controversial reasoning on the ruling of the Trinko case, the lower courts continue to apply the doctrine.⁷⁴ Then the standard of the doctrine could be developed further, perhaps narrower application⁷⁵, to fit with the requirement of general competition.

The asymmetric obligations requiring the incumbents to allow interconnections are fading out. Even the light requirement of essential facilities doctrine has been reviewed. In addition to the problem of interconnection, U.S. Court of Appeal in United States Telecom Association v. FCC (USTA I)⁷⁶ has overturned the rules on network unbundling⁷⁷ which specifies network elements that ILECs must provide to their competitors on an unbundled basis at cost-based rates. This is another emphasis of unnecessary asymmetric regulations that it would no longer require essentially the incumbents to share their copper loops with entrants.

In sum, the U.S. telecommunications are transitioning to general competition according to the development of its market. Interconnection regulation is the major existing sector-specific regulation, which is always required to ensure the competition by imposing duty to interconnection on carriers. However, there is also the essential facilities doctrine which could probably help transitioning the interconnection in the foreseeable future. Therefore U.S. telecommunication is in the very well position of transitioning due to its business environment. It could now be noted that both of sector-specific and general competition scheme of the U.S. are very strong and mature in term of its underlying principles developed by extensive court rulings and collective arguments. Those organizations relating to the telecommunications industry have evolved through its long history. Every organization has experienced, positioned, and functioned its role in shaping the system, which have brought the system developed and operated effectively thus far. The fact that developing countries trying to imitate or adopt the U.S. telecommunication regulations may not result in the same functioning system as does the U.S.

The EU Telecommunications
One of difficulties in transitioning towards general competition is that Europe’s telecommunications industry originated in state-run monopolies, leaving a legacy of imperfect competitive conditions. Sector-specific regulation is therefore essential for as long as these former monopolists have market power, to ensure a level playing field for new market entrants. While liberalization measures were binding to the member states, the EU did not stipulate any privatization program, but left the choice to national governments. With the exception of the UK, which had privatized British Telecom in the early 1980s, most member states begun selling state owned telecommunications service providers during the 1990s. Therefore, Public Telecommunications Operators (PTOs) has been privatized typically by gradual sales in tranches. Britain and Denmark had fully relinquished ownership rights; Portugal and Spain had only retained a “golden” share. Bauer (2005) has done a survey which help to give informative statistics here about privatization in the EU.⁷⁸ In summary, the role of the state in fixed and mobile telecommunications as owner has continually declined.

The EU new framework determines the scope of sector-specific regulation only according to the necessity for sector-specific regulation. To develop in the short term, EU finds its way to support new market entrants gaining access to the networks of incumbent operators and to provide the benefits to end users where it is effectively competitive. The EU new regulatory framework sets out a harmonized and technology neutral regime for the regulation of communications companies across the EU, which will provide industry with greater certainty and a transparent more uniform approach across the member states. This new scheme sets out a technology neutral⁷⁹ framework, and avoids discrimination between different technologies that might be converged to compete in the same field. In order for introducing new and innovative services and technologies, the administrative constraints should be relaxed. Then market success will depend on choices of business and investment. This market-based approach seems more preferable than the government-led approach, and closer to general competition.

An important objective underlying for technological neutrality is to promote European standards for interactive digital television.⁸⁰They emphasized this proposition mainly in Access Directive⁸¹ and Universal Service Directive⁸² in order to maintain the obligations formerly laid down in the previous provision⁸³ of fully digital electronic communications networks used for the distribution of television services and open to the public to be capable of distributing wide-screen television services and programs, so that users are able to receive such programs in the format in which they were transmitted.⁸⁴ The new framework also provided a decisive provision of “conditional access system”⁸⁵ to ensure the technological neutrality subjected to market analysis and review. The provision focuses on considerations that denial of access or unreasonable terms and conditions having an effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest.⁸⁶ This could be considered in the same reasoning of “essential facilities”⁸⁷ but more procedural.

71 Verizon Communications., Inc. v. Law Offices of Curtis V. Trinko, LLP, 539 U.S. 980 (U.S. 2003)
72 See, for thorough critics, supra note 67, p. 58-73.
73 Hawker,Norman. Network Access, Regulation and Antitrust. The Economics of Legal Relationships. 8, The essential facility doctrine – A brief overview. Diana L. Moss. New York: Routledge, 2005. p.35-43.
74 See, for example, Nobody In Particular Presents, Inc. v. Clear Channel Communications, Inc., U.S. Dist. LEXIS 5665 (D. Colo. 2004)
75 Philip Areeda "Essential Facilities: an Epithet in Need of Limiting Principles" (1990) 58 Antitrust Law Journal 841.
76 United States Telecom Association, et al. v. FCC and USA, No. 00-0012 (DC.Cir. 2004).
77 47 U.S.C. § 251 and “Triennial Review Order”, <http://www.fcc.gov/wcb/cpd/triennial_review/>
78 Bauer, Johannes M. “Regulation and State Ownership: Conflicts and Complementarities in EU Telecommunications”. Department of Telecommunication, Information Studies and Media: Michigan State University. <http://quello.msu.edu/wp/wp-05-01.pdf>. February 22, 2005.
79 Directive 2002/21/EC, Recital (18), (31), Article 8(1)
80 Directive 2002/21/EC, Recital (18), (31)
81 Directive 2002/19/EC, Recital (4), (10), (14), Article 2(a), 4(2), 5(1)(b), 6(1), 6(3)(b)(i), Annex I
82 Directive 2002/22/EC, Recital (32), (33), Article 24, Annex VI
83 Directive 95/47/EC
84 Directive 2002/19/EC, Recital (8)
85 Directive 2002/19/EC, Article 6
86 Directive 2002/19/EC, Article 12
87 Additionally, “essential facilities” often referred to as the definition of "abuse" provided in article 82 of the Treaty establishing European Union as the ECJ used.

This article is published with the kind permission of Piyabutr Bunaramrueang, Professor of Law at the School of Law, University of the Thai Chamber of Commerce. This article was presented at the 2007 ALIN International Academic Conference at Chulalongkorn University. Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 3.0 License, <http://cc.in.th/wiki/by_f>