OPTA: KPN not to have access to the UPC cable network at present

The Commission of OPTA, the Independent Post and Telecommunications Authority, has rejected a request by KPN for access to UPC’s cable network. KPN does not comply with the conditions of access which apply at present. In addition, it is not entirely clear to OPTA that there is actually a dispute between KPN and UPC, because the parties have not conducted appropriate negotiations with each other. As a result, OPTA cannot hand down any binding ruling in this matter and is unable to make a substantive assessment of this matter at present.

On 21 November 2004, KPN brought a case before OPTA to secure access to UPC’s network with the aim of providing a range of digital radio and television programmes. In this respect KPN bases its actions on a section (8.7) in the former Telecommunications Act. It appears to OPTA that KPN is seeking basic network capacity from UPC, which it wishes to use and fill at its own discretion. However, the scope of the above-mentioned section does not extend that far, as OPTA previously ruled in a dispute involving Canal+ and UPC (on 21 December 2000). Access may only be sought for the transmission of specific programmes, whereas so far KPN has failed to clarify which programmes are covered by its request.

In addition, there is no evidence that there is an actual dispute between KPN and UPC, because the former has not yet afforded the latter an opportunity to make a final decision about its request for access. The information provided by KPN appears to be incomplete.

For the time being, the above-mentioned Section 8.7 applies to requests from companies for access to cable networks until about the summer of 2005. Access may be secured on the basis of that section. However, whether KPN could gain access will largely depend on the findings of the economic analysis of the broadcasting market which OPTA is currently conducting. Its initial findings will be presented on 1 April 2005. As soon as any final decision is taken in respect of the market following a period of consultation and after the European Commission has assented to it, Section 8.7 of the former Telecommunications Act will lapse. Then it will also be clear whether any obligations will be imposed on UPC and, if so, what, and whether KPN or other prospective parties will consequently also obtain access to UPC’s cable network under the new regime.