BT's Response to Oftel 's
Consultation Document of
February 2001:
“Effective Competition
Review: Mobile”
British Telecommunications plc
Regulatory Affairs Department
4 May 2001
BT’s Response to Mobile Market Effective Competition Review
Contents:
Executive Summary
A Introduction
B Competition in the mobile market
C International comparison of market concentration
D Implications for industry regulation
E Asymmetric regulation of BT Cellnet
(i) BT Cellnet’s SMP status
(ii) BT Cellnet’s status as an operator with ‘Market Influence’
(iii) Profitability and revenue per customer
F Market Influence is inconsistent with EC policy
G Concluding comments
Annex 1 Responses to Oftel’s questions
Annex 2 International comparison of market shares
This document sets out the views of British Telecommunications plc (BT) in a formal
response to Oftel’s Consultation Document "Effective Competition Review: Mobile”,
issued in February 2001. BT Cellnet will be responding separately.
BT plc would welcome further discussion on the contents of this paper with interested
parties. In the first instance comments, questions or requests for further details
should be addressed to:
Lisa Francis
Senior Regulatory Economist
BT
5th Floor, Dowgate Hill House
14-16 Dowgate Hill
London EC4R 2SU
Tel: 020 7728 4100
Email: lisa.francis@bt.com
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BT’s Response to Mobile Market Effective Competition Review
Executive Summary
BT is disappointed that Oftel does not believe the UK mobile market is yet “effectively
competitive”. As Oftel acknowledges, “results show UK prices comparing sufficiently
favourably to suggest that the target of achieving the best or near-best deal
compared with consumers in similar economies is being met”. Despite this, there is
little evidence that Oftel is looking to reduce the extent of regulation. This suggests
this review will become another example of Oftel failing to act upon its strategy of
rolling back regulation in favour of competition.
The market share of the two largest UK operators is below 55% compared to circa
80% in most other leading economies. Indeed, the UK mobile market is unique in
having four well-established operators. With the entry of Hutchison 3G, there will
soon be five UK mobile network operators, all of whom will be competing fiercely
either to build or maintain market share.
Against such a background, BT cannot see what justification exists for regulation of
two suppliers which goes beyond that recommended by the European Commission
(EC), for example in Oftel’s implementation of Market Influence (MI) based regulation
on Vodafone and BT Cellnet. MI represents an extra layer of regulation which does
not exist in other Member States. Its application in the UK is inconsistent with the EC
goal of harmonised regulation across the EU. MI based obligations will also be
invalid under the EC’s proposed new Framework Directive which will take effect
within the time span under consideration by Oftel.
There is a particular inequality in the extent of obligations that currently apply to BT
Cellnet given its market position. BT Cellnet has circa 25% of mobile customers,
virtually the same as Orange and only 5% more than One2One. Orange also earns
almost exactly the same revenue per customer, has a similar financial performance,
and based on current trends will very shortly overtake BT Cellnet. Yet of these three
operators only BT Cellnet is a designated having both Significant Market Power and
MI.
Given the market is now irrefutably more competitive, BT requests that Oftel desist
from the temptation to “gold plate” regulation and identifies areas where, in line with
its strategy, it can withdraw regulation in favour of market forces. This would
recognise that whilst markets rarely attain the competitive ideal of the textbook they
can, by rewarding innovation and maintaining a keen customer focus, better meet
customer needs than regulation.
BT believes the evidence of market competitiveness and comparisons with regulation
in other Member States justifies Oftel releasing BT Cellnet from both SMP and
Market Influence obligations. BT Cellnet could then compete on an equal basis with
Orange and One2One. It is time to stop regulating the market as if it were a duopoly.
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BT’s Response to Mobile Market Effective Competition Review
A. Introduction
1. Before responding to some of the specific questions posed by Oftel in the
Consultative Document, BT provides below a brief overview of the state of
competition in the UK mobile market. We believe that this shows there is
powerful evidence that competition in the provision of mobile services is effective
in the UK and that the UK mobile market is one of the most competitive in the
world. Indeed, the Director General of Telecommunications, said:
“The cost of using a mobile phone continues to tumble as operators offer
increasingly competitive packages.”1
BT believes this would only occur if the marketplace was effectively competitive.
2. In light of the evidence, we suggest that, rather than seek only to impose more
regulation in the UK, Oftel follows this Competition Review by acting in a manner
consistent with its strategy of light touch and proportionate regulation. This
implies identifying areas where regulation can be rolled back.
B. Competition in the UK Mobile Market
3. As Oftel recognises in its consultation document, “If no mobile operator has
market power, reasonable demand for services should be met by the operation of
market forces, and there should be no need for any mobile specific regulation
designed to promote competition.” 2 The first question is therefore whether there is
evidence that mobile operators are withholding output (to drive up prices) and
denying customers services they demand. We would suggest there is no
evidence that this is the case.
4. Whilst there have been recent comments by Mobile Network Operators (MNOs)
about the percentage of their subscriber base that is “active”, it is still clear that
mobile penetration in the UK is very high. Mobile penetration is estimated at 69%
as at the end of March 2001 3.
1
Oftel, “Falling cost of using a mobile phone”, media release, 7 November 2000.
2
Paragraph 1.19 of the Oftel consultation document.
3
The 69% is quoted by JP Morgan, in “Orange – Portfolio Manager’s Snapshot, It’s a
Passion Fruit, April 2001”, p.90. On the issue of the number of mobile phones which are now
inactive, the Financial Times reported on 17 April 2001 that recent research by the Gartner
Group, based on a poll of 4,000 people, found 63% of adults were active users of mobile
phones.
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BT’s Response to Mobile Market Effective Competition Review
5. There has also been a huge increase in the number of calls made both to and
from mobile handsets. For example, from the quarter ending September 1998 to
the quarter ending September 2000, the volume of mobile call minutes increased
from 3,250 million to 9,340 million, a 290% increase.
6. In a market where there is a lack of competition, one would not expect to see
output expanding so greatly. As it is, there is no question that reasonable 4
consumer demand is being met and hence competition is effective.
7. Oftel makes specific reference in the consultation document to the margins made
on providing off-net calls and international roaming services. BT would like to
point out that even if these margins are greater than those for other mobile
services, this does not imply that competition in the overall market is ineffective.
It would simply mean that within the package of services supplied by MNOs,
some services are more profitable than others – in fact, handsets have
traditionally been subsidised by MNOs in order to encourage take-up of services.
It does not mean overall prices are too high. The central purpose of Oftel’s
Review is to assess whether the market is effectively competitive, and not to
determine the appropriate balance of individual prices within a package.
8. Fierce competition in the UK mobile market is also indicated by the rapid change
in market shares of the mobile operators in the last few years, as evidenced in
Table 1 below. Vodafone’s and BT Cellnet’s market share has been declining,
indicating they do not have market power, while Orange and One2One’s market
share has been rapidly increasing.
9. As a result, the combined share of the market accounted for by the two operators
subject to special regulatory obligations in the UK, Vodafone and BT Cellnet, has
fallen from nearly 80% to less than 55% in the last four years. This should have
important implications for regulatory policy, which should not to continue to treat
the market as if it were a duopoly.
Table 1: Change in market shares (%)
Vodafone BT Cellnet Orange One2One
March 1997 40.3 38.4 12.6 8.7
March 2001 28.2 25.6 25.3 20.8
% change -12.1 -12.8 +12.7 +12.1
Source: Oftel Market Update and latest estimates for March 2001 based on operators’
announcements for Q1 net additions.
4
The issue of “reasonable demand” and services provided by mobile ISPs are discussed in
the response to Question 6
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BT’s Response to Mobile Market Effective Competition Review
10. Nor do Oftel’s initial conclusions that BT Cellnet has Market Influence, and that
the mobile market is not yet effectively competitive, tally with the evidence of
significant price reductions. Oftel’s research demonstrates that overall mobile
prices declined by 24% in the period January 1999 to September 20005. One
would not expect to see such price reductions if operators could act
independently of competitors – the primary indicator of market power.
11. Indeed, the results of Oftel ’s international benchmarking of mobile prices in
February 2000 demonstrate that overall mobile prices in the UK are the cheapest
of all countries surveyed. Oftel state in its consultation document,
“results show UK prices comparing sufficiently favourably to suggest that the
target of achieving the best or near-best deal compared with consumers in similar
economies is being met.”6
C. International comparison of market concentration
12. Available evidence suggests the UK has the least concentrated mobile market
sector of main industrialised economies, indicating the relative strength of
competition. Figure 1 below shows the two largest mobile operators in the UK
have a combined market share well below the two leading operators in Australia,
Denmark, Finland, France, Germany, Ireland, Italy, Spain and Sweden –
countries where the two leading operators have shares of circa 80%. Indeed, the
UK is the only country where there are well-established third and fourth mobile
operators providing a competitive constraint on the market. We do not believe a
wider selection of countries would alter this position. We would be interested if
Oftel has any examples of mobile markets with such powerful “third and fourth”
suppliers.
5
Oftel, “A Price Index for Mobile Telephony”, September 2000.
6
Paragraph 2.4, Oftel Consultation Document on Effective Competition: Mobile Services.
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BT’s Response to Mobile Market Effective Competition Review
Figure 1 - Market share of 2 largest operators
Source: See Annex 1
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D. Implications for Regulation
13. The material above has indicated why BT considers the UK mobile market should
be viewed as effectively competitive. Yet, despite the undeniable
competitiveness of the market, there is extensive regulation of Vodafone and BT
Cellnet, including regulation that goes beyond that imposed in other Member
States and other industrialised economies. This includes requirements to publish
prices, keep separated regulatory accounts and to provide airtime to ISPs and
not to “unduly discriminate”.
14. As described on page 1 of Oftel ’s “Strategy Statement: Achieving the Best Deal
for Telecomms Consumers”, January 2000,
“Oftel ’s strategy is to match the level of regulation to the level of competition in
the market, removing formal regulation as competition develops”.
15. Consistent with this policy, BT requests that, given the irrefutable increased
competitiveness of the mobile market, Oftel identify regulatory obligations it can
remove. Any decision to impose further regulatory obligations on mobile
operators, or maintain the extent of those already in place, would contradict
Oftel’s strategy of light touch and proportionate regulation.
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BT’s Response to Mobile Market Effective Competition Review
E. Asymmetric regulation of BT Cellnet
16. The information above has described the industry as a whole, rather than focus
on the specific position of BT Cellnet. The current situation is that Oftel perceives
Vodafone and BT Cellnet as being able to exercise market power in the UK – that
is, to price and act independently of competition. BT believes there is certainly
no longer any justification for the continued asymmetric treatment of BT Cellnet
compared to the regulatory obligations which apply to One2One and, in
particular, Orange. This applies both to Oftel’s determination that BT Cellnet has
Significant Market Power (SMP) status and Market Influence.
E (i) BT Cellnet’s SMP status
17. BT Cellnet is currently deemed to have SMP status, which means certain
regulatory obligations follow (and which do not apply to Orange and One2One).
A comparison of decisions taken by NRAs in other EC countries is provided in
Table 2 and shows this position is out of line with practice and policy in other
Member States, even though regulation is intended to be harmonised throughout
the EC.
18. Note that operators with market shares of as high as 41% in Sweden and
Germany do not have SMP. The only other Member State in the sample where
an operator with around 25% market share has SMP is Denmark. However,
Denmark’s mobile market is far more concentrated than that in the UK. For
example, the market leader in Denmark has market share of 50%, compared to
Vodafone’s 29% in the UK.
Table 2 - Comparison of UK Regulation with that in other Member States
• Member Market share of Additional comment
State smallest operator
deemed to have
SMP
• UK 26% BT Cellnet has the lowest share of all
operators with SMP, in a market with “best or
near-best deal compared with consumers in
similar economies” [Oftel] and faces 3 other
well-established competitors
• Denmark 26% Third and fourth operators combined share is
25%, equal to Orange’s share in the UK
• Spain 30% Third operator has circa 14% share
compared to 25% in the UK
• France 34% Third operator has circa 17% share
compared to 25% in the UK
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BT’s Response to Mobile Market Effective Competition Review
• Member Market share of Additional comment
State smallest operator
deemed to have
SMP
• Italy 36% Third operator has circa 11% share
compared to 25% in the UK
• Finland 36% Effectively a duopoly – no established third
operator
• Ireland 41% A duopoly – there is no third operator
• Sweden 52% An operator with circa 33% share is not
designated as having SMP
• Germany None have SMP Operators with circa 41% and 40% share are
not designated as having SMP
Source: Official Journal of the European Communities, Notification under the EC
Interconnection Directive, February 2001 and Cullen, “Study on national regulation of access
to mobile networks”, February 2001.
E (ii) BT Cellnet’s status as an operator with “Market Influence”
19. Besides SMP, UK regulation also has another regulatory overlay (a “UK special”)
in its concept of “Market Influence” – something not recognised by other NRAs.
This again catches BT Cellnet. This section explains why BT believes that BT
Cellnet’s Market Influence status can no longer be objectively justified, especially
as it does not apply to Orange which has a very similar market position.
20. In February 2001, Oftel set out eleven factors on which it measures market
influence7. BT has provided on the following page a comparison of these factors
as they apply to BT Cellnet and Orange and One-2-One. BT believes this allows
for no other conclusion than that the discrepancy between these two operators
and BT Cellnet should cease.
7
“Determinations that Vodafone and BTCellnet have Market Influence under Condition 56 of
their respective licences”, April 2001
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BT’s Response to Mobile Market Effective Competition Review
Table 3 – Absence of rationale for BT Cellnet to face more onerous regulation
than Orange or One2One
Market influence Position BT Cellnet
factor compared to
Orange and
One2One
Level of entry Oftel perceives the unavailability of spectrum as No difference which
barriers an ‘absolute barrier to entry’. justifies singling out
of BT Cellnet from
Orange and/or
One2One.
Vertical integration All operators are vertically integrated. No difference
Control of access to Implications of “calling party pays” principle No difference
end users currently under review by Oftel.
Number of active 4 plus Dolphin, 5 plus Dolphin following No difference
competitors introduction of 3G.
Market share Vodafone 28.2%; Cellnet 25.6%; Orange 25.3%; No difference against
and One2One 20.8%. share of Orange.
Trends in market Market share of Cellnet is declining whilst that of No difference
share and Orange and One2One is increasing.
concentration
UK has the least concentrated mobile sector of all
industrialised economies.
Extent of Oftel believes there is no evidence this is as yet No difference
countervailing having a significant impact on competition.
power
The extent of Entry from Dolphin and soon Hutchison 3G. No difference
recent market entry
or exit
Pricing behaviour BT Cellnet and Orange have almost identical No different to
revenues per customer. Orange
BT Cellnet introduced cheapest ever pre-pay rate
of 2p per minute.
The level of profits Vodafone is most profitable operator in the UK. No difference - BT
EBITDA for Orange £424m in 2000; EBITDA for Cellnet and Orange
BT Cellnet was the same at £424m for FYE 3/00. equally profitable.
The influence of It is unclear to BT what this indicator means No difference.
other members of exactly. We note however, Oftel has not given Orange is the second
the Licensee’s this as a reason why BT Cellnet has Market biggest mobile
group Influence, or why the Competition Act would not operator in Europe.
cover exploitation of this “influence”.
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BT’s Response to Mobile Market Effective Competition Review
E (iii) Profitability and Revenue per Customer
21. We would like to draw specific attention to two aspects of conduct which Oftel
may consider distinguishes BT Cellnet from Orange – profitability and
prices/revenue per customer. Oftel has pointed to the higher profits BT Cellnet
earns compared to Orange as an indicator of BT Cellnet’s market power8. The
supposition that BT Cellnet is earning more than Orange is not supported by
most recent financial data.
22. Earnings Before Interest Tax Depreciation and Amortisation (EBITDA) measures
cash generation before tax and interest (which are effected by companies’
financial structures) and funds needed to maintain capital stock. It has become
the established method of comparing the financial performance of companies
which have high levels of investment and/or who are making acquisitions 9 and is
therefore widely used to compare the financial performance of telecommunication
companies.
23. BT Cellnet’s EBITDA in FYE 3/2000 was £424m, while in the FYE December
2000, Orange’s UK EBITDA was €679m – which also works out at £424m using a
£:Euro exchange rate of 1:1.6. In other words, both companies are generating
the same levels of cash.
24. Another indicator of company performance, and one increasingly seen by
analysts as more meaningful than subscriber numbers, is Average Revenue Per
User (ARPU) 10.
8
Oftel, “Effective Competition Review: Mobile”, page 21 and 22, February 2001.
9
EBITDA is widely used for comparative performance as it is not effected by differences in
depreciation policies or financial structuring, both of which can obstruct like-for-like
comparisons due to different policies which companies may adopt (an example would be in
different accounting treatment of the 3G Licence fee).
Oftel tends to use Return on Capital Employed (ROCE) as a measure of profitability.
However, this is not particularly suitable for comparative purposes of relative financial
performance, as returns in any one year will depend critically on companies’ accounting
policies. EBITDA expressed as a percentage of capital employed would provide a rough
proxy for ROCE, but BT has been unable to calculate this for Orange, as Orange does not
publish its UK mean capital employed. Orange’s accounts are also presented on an HCA
basis rather than the CCA basis usually used by Oftel in calculating ROCE.
Nonetheless, the information on EBITDA suggest strongly Orange’s ROCE should be similar
to that of BT Cellnet if the comparison is made on a like-for-like basis.
10
See for example, Schroder Salomon Smith Barney, “Orange, Quantity of Quality”, April
2001.
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BT’s Response to Mobile Market Effective Competition Review
25. Here again there is little to differentiate BT Cellnet and Orange - BT Cellnet’s
ARPU for year to 31 December 2000 was £284 and for Orange it was £280. As
shown below in Table 3, the figures were also similar for both Pre-Pay and Post-
Pay customers11.
Table 4 - Revenues per customer per year – comparison between BT Cellnet
and Orange
Customer type BT Cellnet (£) Orange (£)
Pre-pay customers 103 126
Post-pay customers 515 525
Average 284 280
Source: Latest company press announcements
26. Orange earns more per minute from interconnect revenues than BT Cellnet, and
also carries circa 15% more interconnect minutes. Total UK revenue for Orange
in the period January to March 2001 was greater than that earned by BT Cellnet
in its last reported quarter (October to December 2000).
27. BT believes the evidence of comparable financial performance demonstrates the
continued asymmetric regulation in the UK market can no longer be objectively
justified. Its continuation would be discriminatory and inconsistent with the EU
Licensing Directive.
F. Market Influence is Inconsistent with EC Policy
28. By imposing MI, Oftel is inconsistent with the EC’s goal of promoting a
harmonised regulatory approach across the EU. Moreover MI based obligations
are inconsistent with EC policy that recognises “Raising the threshold of
regulatory intervention and the reliance on competition law are important in
creating a suitable environment for investment.”12
11
These results differ from those published by Oftel in its Market Information: Mobile Update
in January 2001, which shows earnings per customer by BT Cellnet to be 50% above Orange
for July–September 1999.
BT does not know why there is such a disparity between Oftel’s figures and those quoted
elsewhere. One contributory factor may be Oftel’s exclusion of termination charges, which
are in fact higher for Orange than BT Cellnet. BT believes this revenue should be included for
both companies for the simple reason that call termination is earned revenue.
12
European Commission, “The Introduction of Third Generation Mobile Communications in
the European Union: State of Play and the Way Forward”, COM (2001) 141 final, page 10,
March 2001.
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BT’s Response to Mobile Market Effective Competition Review
29. The concept of MI, which does not exist in other in Member States, will be invalid
under the EC’s proposed new Framework Directive, which is expected to take
effect in 2003. Accordingly, Oftel should not impose regulatory obligations such
as MI that will become untenable during the forthcoming two-year regulatory
control period.
G. Concluding comments
30. In considering whether the UK mobile market is “effectively competitive”, Oftel
lists many different factors. To mention just a few: consumers should be
confident/knowledgeable in using information and in taking advantage of market
opportunities; prices are in line with costs; there is market entry and exit; there is
change in market structure over time, especially a tendency to reduce industry
concentration; and profitability is the same as the cost of capital. This is textbook
economics, and a market meeting these criteria would be called “perfectly
competitive” in such a book.
31. In the real world, there are very few, if any markets that meet all these criteria.
However, this does not mean economic regulation is ubiquitous. No market is
perfect. BT believes Oftel must change its focus from “regulate until an ideal is
met” to a recognition that even an “imperfect” market can better meet customer
needs than one managed by economic regulation.
32. In practice, this would mean more attention to the purpose of the intervention. It
would mean less use of Market Influence as a blunt instrument whenever Oftel
judges competition is not close enough to its ideal.
33. It is high time to stop regulating the market as if it were a duopoly.
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BT’s Response to Mobile Market Effective Competition Review
Annex 1 Responses to Oftel’s Questions
Q1. Oftel believes that the updated market definitions will prove to be a useful
tool to support future analysis of the mobile sector. Oftel seeks comments on
its updated market definitions presented in Chapter 1 and the underlying
analysis in Annex 2.
As is recognised in the OFT Competition Act Guidelines, market definition will
depend upon the issue under investigation 13. This is also consistent with Ofgem’s
Draft Competition Act Guidelines. The approach of both of these authorities reflects
the fact that anti-trust analysis needs to consider market definition on a case-by-case
basis. Likewise, BT does not consider anti-trust markets can be prescribed in
advance by Oftel without reference to the conduct (or its counterpart, the regulation)
under consideration. BT therefore supports moves by Oftel to consider this issue
carefully in future.
An example of the confusion that can be caused when market definition is
approached without recourse to the exact conduct under investigation is provided by
Oftel’s suggestion that there may be a distinct retail market. In fact, there is already
in place regulation that creates a distinct retail space and hence “retail market”.
Given that one of the outputs of the Market Review is to decide whether to impose a
distinct retail market on the industry, it cannot be right to prescribe such a definition
at the outset.
In the current case, the central issue under review is whether competition is effective
“in the supply of mobile services”. The conduct which would show whether
competition is effective is not however clear. This contrasts with the normal situation
in anti-trust analysis where one type of conduct is under investigation to guide one
market definition. This creates a problem in that broad conduct is being matched
with market definition, rather than specific conduct matched with a precise market
definition.
The only real solution to this dilemma is to stay consistent with the principle that
market definition should be matched to the subject under consideration. Given the
generally imprecise conduct under investigation, this suggests a matching market
definition would also be wide. This is one reason (there are others, but this is a
discussion more relevant to the call termination debate) why we consider that this
review should focus on the linked national market for mobile services.
13
See “Market definitions are not unique” in OFT Market Definition Guidelines, March 1999.
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BT’s Response to Mobile Market Effective Competition Review
Q2. Oftel considers that: competition on price for domestic calls and access,
particularly on pre-pay tariffs, is very much in evidence; competition on the
price of international calls is also evident; competition on the price of off net
calls and international roaming calls is not evident. Comments on these initial
conclusions are sought, as is further market information on these issues.
As discussed in Question 1 above, for the purposes of the overall review of
competition in the mobile marketplace, the appropriate questions for Oftel to consider
are where the linked national market for mobile services is heading and what the
price trends in this market are. The evidence of rapidly declining prices in this market
is very much there. Oftel may believe prices are not falling fast enough, but that
judgement is a complex qualitative decision by a regulator. No empirical evidence
has been cited that demonstrates market failure.
Intervention within a marketplace that displays strong competitive characteristics will
inevitably involve an adjustment of tariffs, that is a change to the balance of prices for
mobile services. The right question for Oftel then to be asking is whether
intervention, and the adjustment it will cause, is likely to be in the public interest.
This is a question of economic efficiency, not of competition. This issue has not been
given sufficient consideration in the consultative document.
Q3. Oftel welcomes any independent research that adds to its understanding
and assessment of the deal the UK consumer gets in terms of price, choice
and quality. BT plc has no comment to make on this question.
Q4. Oftel believes that competition has delivered some benefits to consumers
in terms of price, quality and choice but areas of concern remain. In particular,
Oftel has expressed concerns: that it can be difficult for consumers to choose
the best mobile deal; about price trends for off net mobile calls and
international roaming and price transparency. In addition, Oftel is concerned
that business consumers may have benefited less than average.
We are extremely disappointed Oftel considers only that “competition has delivered
some benefits to customers”(italics added). In fact, prices fell by 24% in the 21
months to September 2000. Indeed, such has been the extent of competition for
mobile customers that elsewhere in the consultation document Oftel add,
“results show UK prices comparing sufficiently favourably to suggest that the target
of achieving the best or near-best deal compared with consumers in similar
economies is being met.”14
14
Paragraph 2.4, Oftel Consultation Document on Effective Competition: Mobile Services.
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BT’s Response to Mobile Market Effective Competition Review
Mobile network operators compete vigorously for customers. If customers are
dissatisfied with the service they receive they will look to other providers. The level
of churn experienced by all operators is an illustration of customers’ willingness to
move between suppliers in order to benefit from the best available service.
In such an environment, being able to respond satisfactorily to customer
requirements is critical, as failure to do so would have serious implications for a
business. Indeed, failure to respond in a way that addresses customer demands
would tend to lead to static, standard propositions aimed at the generality of
customers rather than innovative, differentiated customer propositions that have the
effect of stimulating the market.
Off-net and roaming prices
We have commented in the main body of our response that as long as there is
competition for customers, it is legitimate for Oftel to find the overall mobile market is
competitive. (Even if there was market power in the supply of some services,
operators would not have any overall market power given there is competition for the
right to supply these services.)
Concerns about the margins on certain services within a package involve
considerations of the balance of charges. This calls for specific economic analysis
that goes beyond considering whether the overall market is competitive.
Awareness and price transparency
BT supports considered measures to increase price transparency. Oftel has
introduced an on-line price comparison service for the fixed line market. We suggest
Oftel comments on its learning to date regarding this initiative. In particular, has the
website stimulated customers to change suppliers in order to obtain better prices.
Business users
It is rather strange that so much is being made of Oftel ’s analysis that business
users, “may have benefited less than average”. It is obviously impossible for all
consumers to do better than average.
In fact, any disparity may be no more than a reflection of the fact that the business
sector became competitive before the consumer sector which has been catching up.
Indeed, Oftel ’s international survey of February 2000 conducted by Teligen found
the UK residential and business customers benefited from the lowest mobile phone
prices compared to the other European countries surveyed – France, Germany,
Sweden and Italy.
BT requests Oftel indicates what implications it draws from its data. Does Oftel
consider that relative prices between business and consumer markets should never
alter? Or that the business sector is less competitive than the consumer sector?
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BT’s Response to Mobile Market Effective Competition Review
Q5. Oftel believes that the widespread practice of SIM locking is a concern and
consumer information seems poor in this area. Oftel believes that in some
other countries consumers benefit from the extra choice that SIM unlocked
handsets make possible and the practice in the UK of SIM locking handsets
cannot assist the development of competition. Do respondents agree with
Oftel’s impact assessment of SIM locking?
Further information on SIM locking practices and consumer behaviour in other
countries would be very welcome.
BT does not agree that SIM locking “cannot assist the development of competition” ie
it impairs the effectiveness of markets.
SIM locking allows suppliers to subsidise handsets because the supplier is
guaranteed subsequent revenue from the hardware. This is advantageous as it
lowers the upfront charge of taking service thus encouraging consumers who might
not otherwise choose to take up a mobile phone to do so. This is especially
important to consumers who may not be confident that a mobile service, (perhaps
simple voice, but also WAP access and GPRS) will be valuable to them.
SIM locking is therefore a way of reducing risk for consumers. In this way, SIM
locking is an important tool in the effective marketing of mobile services, and will
remain so looking ahead to the introduction of GPRS and 3G services.
Prohibiting SIM locking would therefore be likely to reduce service penetration and
slow down the take up of new mobile services in the UK. Given the UK mobile
industry has such an impressive record to date, we very much doubt prohibiting SIM
locking will be in consumers’ ultimate interests. Nor will it aid efforts to keep the UK
at the forefront of the mobile communications revolution.
BT does not have further information on SIM locking practices and consumer
behaviour in other countries.
Q6. Oftel discussed the declining trend in market shares of ISPs and attributed
these trends to the inability of ISPs to offer pre-pay services. Do you agree
with Oftel ’s assessment of the position of ISPs? Do you agree with Oftel ’s
assessment that corporate consumers value the services of ISPs? If possible,
support your answer with evidence and data.
If customers do value the services of ISPs, then there will be competitive advantage
to be gained by MNOs aligning themselves which align themselves with ISPs. In
doing so they will improve their competitive position against those MNOs who choose
not to market in this way. In a competitive market, one might expect different MNOs
to have different views about whether such a competitive advantage exists.
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BT’s Response to Mobile Market Effective Competition Review
The evidence from mobile suppliers who do not have an obligation to use ISPs
demonstrates this is the case. One2One do use this channel to market. Indeed, as
stated by Oftel in paragraph A10.5 of the consultation document, “the volume of
customers connected to that network [One2One’s] by ISPs is now greater than the
volume of independent service provider customers on the BT Cellnet network…and
One2One has stated publicly that it plans gradually to increase the number of
partners”. Thus One2One sees advantage in this arrangement.
In contrast, in their Portfolio Manager’s Snapshot of Orange, “It’s a Passion Fruit” of
April 2001, JP Morgan suggests why a supplier might take a different route. It says
because Orange is not obliged to offer wholesale tariff rates to mobile ISPs, it has
been able to keep the direct ownership of the customer and develop end-to-end
relationships. According to JP Morgan, this has allowed Orange to (i) offer consistent
customer services; (ii) better respond to changes in usage levels; and (iii) build
customer loyalty.
The different views expressed above illustrate that there are different opinions within
the marketplace as to the value of ISPs. It does not suggest that the market would
deny a role for ISPs if they genuinely add value. There is no reason to expect that
Oftel will be better placed than consumers to decide which form of supply is
preferable. This being the case, the presumption should be that market forces are
more effective at promoting consumers’ interests than regulation. It may also be
relevant that, as JP Morgan points out, Orange has been rated number one in terms
of customer satisfaction in 1998, 1999 and 2000.
Unfortunately, we do not know exactly what would happen in the UK in the absence
of regulation as two operators (with circa 55% of customers) are required to provide
service to ISPs whilst two operators (with circa 45%of customers) do not have this
obligation. Dissimilar treatment of similarly situated suppliers is discriminatory
regulatory practice, which is not justified.
Q7. Oftel put forward the view that since the coverage offered by the four GSM
networks is now largely equal; the introduction of number portability and the
availability of pre-pay packages have meant that barriers to switching mobile
networks are reducing; and the total market shares between the four operators
have substantially narrowed, the indications are that One2One and Orange
have become firmly established in the mobile sector. Do you agree that
One2One and Orange are now firmly established in the sector?
Yes.
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BT’s Response to Mobile Market Effective Competition Review
Q8. Oftel put forward the view that, in the future, there will be much more
scope for retail ISPs to add value as more sophisticated services are
developed and m-commerce transactions grow in volume. This being the case,
the incentives to abuse market power at the network level to hamper the
development of competition in related retail markets will also increase. Of
particular concern is the potential for an abuse of market power to have a
detrimental impact on the emerging markets for mobile Internet access and
portals. But Oftel’s view is that there is no evidence of such abuse yet
occurring. Do you agree with this view? Why?
The issue Oftel raises in terms of ensuring that emerging markets are competitively
supplied is an important one but raises a number of regulatory issues which need to
be addressed before any change in policy.
Innovation is spurred on by the prospect of reward for projects that are successful in
order to provide a return on capital and to offset losses on unsuccessful ventures.
We have discussed elsewhere that with two SMP operators and “Market Influence
Determinations” the UK already has one of the most heavily regulated mobile
markets in the world. More regulation risks reducing the incentives that operators
have to take risks. This will not support the UK economy or promote the process of
“creative destruction” which has long been recognised as the key to economic growth
in dynamic industries.
The crux of this issue is not whether there should be more regulation because there
is supposedly more incentive to abuse market power but how ex-ante regulation will
enhance the process of competition. If there is to be any change in policy, BT
requests that in its follow-up Statement Oftel sets out a practical policy for ensuring
that rewards for innovation can go to the companies which are willing to invest in
projects with uncertain outcomes. Unless this can be done, there is a strong
likelihood that a “regulatory failure” more pernicious than any posited “market failure”
could be unwittingly introduced by Oftel.
Q9. Oftel put forward the view that the existing mobile operators might
anticipate the 3G new entrant towards the end of the period considered by this
review. Do you agree? What impact on competition might this have?
Third generation services will be commercially relevant within the time frame of any
further price cap for call termination services. Third generation technology will be
used be predominantly for voice services during the initial phase. In an industry with
high fixed costs, small reductions in market share can have a significant impact on
profitability and hence suppliers’ behaviour. This means that the introduction of a
new entrant should add materially to the level of competition.
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BT’s Response to Mobile Market Effective Competition Review
Q10. Oftel ’s initial view is that the level of Vodafone’s profits is inconsistent
with operations in an effectively competitive market. Oftel has also put forward
the proposal that differences in accounting profitability can be explained by
differences in the relative efficiencies of the mobile operators. Do you agree
with Oftel ’s analysis? Why? What is your view of the relative efficiencies of the
UK mobile operators? What is your view of the future profitability of the UK
mobile operators collectively and individually?
(a) Profitability as an indicator of market power
BT is concerned that Oftel places so much reliance on the rate of return made by one
operator in assessing the level of competition in an industry. High profits may be
earned in many ways and are the reward for a whole range of successful competitive
strategies. Indeed, prices and returns must be above normal for a while if firms are
to take the risk of developing and investing in new services. High profitability is not
equivalent to market power that necessitates regulation 15.
BT further suggests Oftel is on very uncertain ground in making inference about a
market from observations about the profitability of one supplier in that market.
Variability in profitability it to be found in all markets and is a normal feature of a
competitive industry. Indeed, were competition authorities to base regulation on
such a standard, one would see intervention wherever the leading supplier is making
high returns. But Oftel goes even further than this and suggests the regulation of one
or more suppliers that are not making high returns – presumably to force the “trailing
suppliers” to compete more effectively.
Regulation of the leader supplier is one question it is legitimate to consider.
Regulation of other suppliers due to their (alleged) relative inefficiency is not justified
for the simple reason that private incentives already exist for their suppliers to
improve their performance. That is, there is no “market failure” which warrants
intervention.
(b) Mobile operators’ efficiency
BT believes that there is no indication that any of the UK mobile operators are
performing inefficiently against a reasonable benchmark. There are a number of
reasons why the UK mobile operators could achieve differing levels of unit costs that
would not suggest a failing on the part of any of the operators in terms of efficient
cost performance. These differences will include volume-related effects,
technologies applied and any other competitive advantages achieved through
innovation.
15
Indeed, one would typically expect successful firms on average to be earning in excess of a
normal return, even in a competitive market – simply because those firms which turn out to be
‘unlucky’ or less capable and earn sub-normal returns will eventually exit the market, leaving
the average ex post return of the survivors above the ex ante expected return.
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BT’s Response to Mobile Market Effective Competition Review
In the long term, one might expect these differences to be, at least partially, eroded.
In the results recorded by operators to date, however, these effects (eg volumes,
900/1800 Mhz, etc) can reliably be assumed to exist. Oftel's proposal gives no
allowance for these legitimate differences and cannot therefore be considered sound.
Furthermore, the choice of ROCE as a comparator of cost is inherently flawed given
the lack of comparability of this measure between companies in view of variability of
financing and accounting policies.
(c) Future profitability of the UK mobile operators
As has been widely discussed, the future profitability of the UK mobile operators will
also clearly be adversely effected by the costs of acquiring 3G licences in the UK.
On a per capita basis, these costs are the highest in the world and have obvious
implications for suppliers’ profitability. The imminent arrival of 3G networks also
means that the whole life profitability of “2G infrastructure” is unclear. To impose
onerous regulation on these operators can only increase commercial challenges
further.
Q11. Oftel has proposed that the market share information, the lack of well
informed consumers, the results of the profitability analysis, the observed high
static prices for some services, together with the fact that the structure of the
market is consistent with a finding that there is some competition yet overall
prices are set above the competitive level, supports the view that the mobile
sector is not yet effectively competitive. Do respondents agree or disagree
that this is the case? Why?
BT disagrees with Oftel ’s view that that the mobile market is not effectively
competitive and with the sweeping statement that, “overall prices are above their
competitive level”. This is based not on any rigorous comparison of basket of prices
across countries, or indeed on Oftel indicating what it thinks is the “competitive level”
for mobile prices.
Given the clear interdependence of the prices in a package of mobile services, BT
considers regulators will not find that any market has the lowest prices for all mobile
services. For example, the lowest charges for roaming services will tend not to go
with the lowest charges for call origination or handsets. Oftel is chasing a chimera.
The UK mobile industry may not resemble a perfectly competitive market of the
textbook, but real world markets never do. The evidence provided in the main body
of this response shows that overall, the UK is one of the most competitive mobile
markets in the world.
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BT’s Response to Mobile Market Effective Competition Review
Q12. If it is found that the mobile sector is not effectively competitive, Oftel
has outlined how it will conclude whether 2, 3 or 4 mobile operators have
market power. Which conclusion do you believe is the correct one and why?
Please consider the evidence required, set out in Table 5 [6!] and provide any
relevant information that is available to you.
We have explained in this Response why the mobile market is effectively competitive
and accordingly Oftel should conclude that no mobile operators have market power.
Further, there is no justification for the asymmetric treatment of BT Cellnet compared
to One2One, and particularly Orange.
The above question does not indicate in which market either 2, 3 or 4 MNOs are
perceived to possess market power (despite Question 1 indicating that Oftel intends
to use "updated market definitions" to support future analysis of the mobile sector).
BT understands Oftel is considering three levels of intervention - the imposition of
SMP obligations; those which follow from "Market Influence" and (although subject to
a complementary consultation) call termination regulation. It does not follow that
there should be the same answer – 1,2,3 or 4 MNOs – for each of these sets of
regulations.
Q13. Annex 11 sets out Oftel ’s calculation of the cost of capital for the UK
mobile operators. What is your view on Oftel ’s conclusions about the
appropriate levels for elements in the cost of capital calculation discussed in
Annex 11?
BT Cellnet will respond to this question in its own response on behalf of the BT
Group.
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BT’s Response to Mobile Market Effective Competition Review
Q14. Oftel has set out the steps that may be taken if it concludes that effective
competition does not exist. Oftel has, in those circumstances:
• considered that MI designations are necessary and that existing MI
triggered obligations are appropriate but suggested that a useful
development might be the supply of unbranded airtime;
• explained that it does not appear appropriate to issue regulatory guidance
on the types of wholesale product that the network operators should offer
ISPs wishing to move into the provision of mobile Internet services; and
• proposed that retail and wholesale price caps may not be an appropriate
regulatory response to the problems identified in the mobile sector.
Do you agree with Oftel ’s assessment and proposals? Why?
Oftel welcomes views on whether the supply of unbranded airtime can be
achieved by commercial negotiation within the framework established by the
present triggered licence obligations or whether Oftel should consider a
change to the present regime.
(i) MI designations
We have explained in this Response why we do not consider that MI designations
are appropriate. In particular:
• BT Cellnet has a very similar market position in the UK to an Orange, which does
not have MI. This situation is unsustainable and Oftel should remove the MI
designation of BT Cellnet so that regulation is non-discriminatory.
• The concept of MI does not exist in other Member States and is inconsistent with
the EC’s goal of promoting a harmonised regulatory approach across the EU.
• MI based obligations will be untenable under the EC’s proposed new Framework
Directive which is expected to take effect from 2003.
The mandatory supply of unbranded airtime is discussed after the comment on
wholesale and retail price caps.
(ii) Retail and wholesale price caps
BT agrees with Oftel ’s view that it is inappropriate to impose retail and wholesale
price caps. As the mobile market is increasingly competitive, the imposition of
additional and intrusive regulation such as price caps is contradictory to Oftel ’s
strategy of light touch and proportionate regulation. BT knows of no industry
anywhere in the world where there are four well-established competitors and price
caps.
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BT’s Response to Mobile Market Effective Competition Review
The introduction of such a regime would signal that the UK telecommunications
industry is to be subject to a uniquely intrusive system of economic regulation.
(iii) Compulsory availability of unbranded airtime
The wording of this last question presumes that the availability of unbranded airtime
from designated operators would represent a desirable change to the UK mobile
market. This is essentially because it would promote service provider competition,
underpinned by a “commoditised” mobile network services industry, at the expense
of brand-based competition based on network differentiation.
BT does not consider that this structural change would be in consumers' interests.
There are two reasons for this. First, mobile operators can already supply
“unbranded airtime” if they wish and One2One has effectively such an arrangement
with Virgin. Other operators have not followed this path, but kept a closer guard on
keeping together their network and retail brand. This does not mean a “useful
development” in promoting competition has been missed, as brand reputation
provides a powerful incentive for operators to improve quality of service and to
innovate. MNOs might also have less incentive to compete on this basis if they are
forced to share their network improvements and innovations with ISPs.
If the supply of unbranded airtime were mandatory rather than based on commercial
negotiations, it would inevitably raise the issue of the prices, terms and conditions of
supply. It is unrealistic for Oftel to suggest that any tension between MNOs and ISPs
would be defused by introducing such an obligation on its own. ISPs would not have
any interest in network development and funding and would want the lowest rates
possible. The matter would then inevitably be referred back to Oftel, who would need
to determine the charge, or the methodology to be used, for unbranded airtime.
In other words, Oftel would effectively need to impose charges directly and to repeat
this process regularly – or set a methodology for setting charges. This risks leading
to more intense monitoring of the sector and regulatory process would end up
becoming cumbersome, bureaucratic, rigidifying and expensive. Hay and Morris 16
describe this as the “tar baby” effect – every regulatory intervention to “solve” one
issue ends up causing another problem, to then be sorted out by yet more
intervention.
Unbranded airtime at mandatory prices, or at charges determined by a methodology
set down by Oftel, would also be almost identical in effect to a wholesale price cap
which Oftel does not consider to be an appropriate regulatory response in the mobile
sector.
16
Hay and Morris, “Industrial Economics and Organization”, 1991
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BT’s Response to Mobile Market Effective Competition Review
Annex 2 International Comparison of Market Shares 17
Country Largest 2nd largest 3rd largest 4th largest Market
operator share of 2
largest
operators
Australia Telstra C&W Optus Vodafone One Tel 80.5
18
47.4 33.1 18.5 0.6
Denmark TeleDanmark Sonofon Mobilix Telia 75.4
49.8 25.6 14.5 Danmark
10
Finland Sonera Radiolinja Telia N/a 96.3
60.5 35.8 3.7
France FT SFR Bouygues N/a 83
49 34 17
Germany Mannesmann T-Mobil E-Plus Viag 80.6
40.8 39.8 12.9 6.5
Ireland Eircell ESAT Digifone N/a N/a 100.0
51 49
Italy TIM Omnitel Wind Blu 87.9
51.8 36.1 10.7 1.4
Spain Telefonica Airtel Amena N/a 86.0
56 30 14
Sweden Telia Tele2/Comviq Europolita N/a 84.3
51.6 32.7 n
15.7
UK Vodafone BT Cellnet Orange One2One 54.7
29.1 25.6 24.6 20.7
17
Cullen International, sourced from Mobile Communications, December 2000
18
ACCC, ”Pricing methodology for the GSM Terminations service, December 2000”.
25