Summary

  • A threshold can make a regulator’s spreadsheet tidy. It cannot, by itself, show that every network above it has the same market power or needs the same remedy. Brussels has put Sweden’s proposed 5,000-home line under that test.
  • PTS sent 63 draft decisions to the Commission. The Commission opened Phase II on 29 October, questioning the cutoff, the exclusion of smaller networks and the proposed common remedies. No final list of regulated networks exists yet.

A regulator can put 5,000 in a table and draw a clean line. Sweden’s PTS has done so for fibre networks serving detached homes. Brussels now wants to know what that line proves.

On 30 September, PTS notified 63 individual draft decisions to the European Commission. Its proposal treats each owner’s local fibre footprint as a separate geographic market. It says operators with more than 5,000 connections to single-dwelling homes have significant market power; those below the cutoff would not be regulated because the burden would be disproportionate. The proposed obligations include wholesale access on transparent, non-discriminatory terms and at fair and reasonable prices.

The Commission did not challenge the choice to define each local fibre network as its own market. Its objections start one step later. On 29 October it opened an in-depth investigation, asking whether a threshold can automatically turn every operator above 5,000 homes into an SMP operator without enough case-by-case analysis. It also questions why all smaller markets are excluded and whether different operator types should receive the same remedies.

That distinction matters. A local network can be the only fibre network serving its footprint, yet the obligations still need to fit the actual competitive problem and the owner’s circumstances. The Commission says its concern is not the number 63 by itself. It has not concluded how many networks, if any, should be regulated.

PTS’s own consultation record shows the threshold was contested before Brussels opened its case. In its 30 September response, PTS says it received 36 submissions during the March–April consultation and kept the 5,000 line. Its stated rationale is that regulation of smaller networks could cost more than the consumer benefit it expects. PTS also argues that each network owner has a 100% share in its own network-based geographic market. Those are the regulator’s reasons in a draft process, not final findings adopted by the Commission.

The legal process now runs on two clocks. Under Article 32, the Commission has two months to investigate concerns about market analysis and SMP. Under Article 33, remedy concerns have a three-month period. BEREC’s opinion forms part of the review. While it proceeds, PTS cannot adopt the draft measures. If the Commission’s concerns about market definition or SMP stand, Article 32 allows a veto; remedy concerns can lead to a recommendation. The Commission’s own overview says the veto power is limited to market definition and SMP assessment.

A spreadsheet threshold is attractive because it is cheap to administer. A per-network review costs more, especially when 63 individual decisions are involved. But the alternative is not “regulate everyone” or “regulate no one.” It is to show why each market crosses the legal test, then match access duties to the problem found there.

The next decisive records are BEREC’s opinion, the Commission’s final decision or recommendation, and PTS’s eventual decisions for each network. Until those are published, 63 is a count of draft files—not a count of regulated operators.

Primary records