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Electronic Communications & IT

September 30, 2009

Other sections of this issue:
Privacy & Data Protection | ISP-Liability & Media Law | Contracts & E-Commerce |
Electronic Communications & IT

OPTA imposes 250,000 Euro fine on persistent spammer

OPTA, the Dutch Independent Post and Telecommunications Authority that regulates compliance with legislation and regulations in the areas of post and electronic communications has imposed a 250,000 Euro fine on a persistent spammer.

Regulatory background
Since May 2004, article 11.7 of the Dutch Telecommunications Act prohibits the sending of electronic messages with a commercial, idealistic or charitable purpose to consumers without their approval and without the possibility to opt out.

The Dutch "Onafhankelijke post- en telecommunicatieautoriteit" (the Independent Post and Telecommunications Authority, or "OPTA" in short) regulates compliance with the provisions of the Dutch Telecommunications Act pursuant to the Independent Post and Telecommunications Authority Act.

Within the scope of its regulatory powers OPTA sees to the proper compliance with the regulations concerning the sending of unsolicited electronic communications.

The Dutch Data Protection Authority ("DPA") supervises compliance with the Dutch Data Protection Act. Pursuant to article 6 of the Dutch Data Protection Act, personal data must be processed in accordance with the law. The word 'law' also refers to other laws concerning the processing of personal data, such as chapter 11 of the Dutch Telecommunications Act.

OPTA and the Dutch DPA reached agreement on carrying out oversight where their respective powers overlap. Concerning article 11.7 of the Telecommunications Act, the cooperation protocol provides that OPTA will exercise its powers where electronic messaging is used to deliver communications for commercial, non-commercial or charitable purposes. The Dutch DPA will exercise its powers in all other cases that involve the processing of electronic contact details for electronic messaging.

The infringement
A Dutch individual has sent, over a period of five years, at least 21 million spam e-mails. The unsolicited e-mails principally concern publicity for the website of the individual's one-man business.

The individual had already received a warning from OPTA in 2005.

Notwithstanding this warning, the individual continued sending unsolicited electronic messages. After the 2005 warning, the number of complaints even increased. OPTA received in total 379 complaints against the acts of this individual (via the official complaint site "") .

The decision
Given i.a. the seriousness of the facts, their long duration, the previous warning and the number of complaints, OPTA considered that it had to impose a 250,000 Euro fine.

The 250,000 Euro fine, is composed of a 150,000 Euro fine for the sending of the spam itself, and a 100,000 Euro fine for the failure to provide for a possibility to unsubscribe to the unsolicited messages.

The OPTA website now mentions that it appears from recent information that, notwithstanding the 250,000 Euro fine, the person concerned continues to send spam. Consequently, OPTA has also imposed a penalty of 5,000 Euro for each day the individual continues to send spam, with a maximum of 100,000 Euro.

The person concerned can still object against the decision or lodge an appeal.

For more information, contact: Frederik Van Remoortel.

European Commission endorses Belgian regulator's proposal to restore regulation in wholesale broadband markets

By letter of 21 August 2009, the European Commission has endorsed the proposal of the Belgian regulator IBPT to retroactively restore regulation in the markets for wholesale access to telecoms infrastructure and broadband services.

The Belgian telecoms regulator, the "IBPT", intends to reintroduce regulation on wholesale access to telecoms infrastructure and broadband services. The IBPT already set out rules for these markets (more specifically the market for wholesale unbundled access (including shared access) to metallic loops and sub-loops and the market for wholesale broadband access in Belgium - markets 11 and 12) on 10 January 2008, but these were partially annulled by the Brussels Court of Appeal on 7 May 2009.

The Brussels Court said that the IBPT had not presented sufficient arguments and facts to support its conclusions and the regulatory obligations it intends to impose. For instance, the Court annulled Belgacom's designation as an undertaking having a dominant position on the bitstream market. The Court found that the IBPT had failed to provide a sound and reliable analysis demonstrating Belgacom's ability to behave independently from its wholesale clients and retail competitors. Consequently the imposed remedies were annulled as well.

Since the majority of IBPT's measures that ensure wholesale access were annulled with retroactive effect, the Court's judgment caused major legal and economic uncertainty for the alternative operators in the market. The IBPT has therefore produced a new decision that aims to remedy the lack of motivation in the market analysis and for the annulled remedies, and which will have a retroactive effect up to 10 January 2008.

IBPT's proposal
In its new proposal, the IBPT further substantiates its finding that Belgacom has significant market power and restores all regulatory obligations previously imposed.

For instance, in order to counter the Court's decision that the IBPT had not sufficiently motivated the need for bitstream regulation , the IBPT referred to the concept of the ladder of investment. Given (i) the characteristics of demand in the retail market, (ii) the limited roll-out of LLU, (iii) Belgacom's move to an all-IP platform and (iv) the subsequent inability of alternative operators to recoup future LLU investments, the IBPT concludes that unbundled access and bitstream access can and must coexist in the Belgian market and that it is inappropriate to rely on unbundled access as the sole wholesale remedy to increase competition in the downstream retail markets.

Furthermore, with regard to the Court's finding that IBPT´s decision failed to take into account the indirect pricing constraint that is exerted by cable on Belgacom in the bitstream market, the IBPT referred to updated market data which confirm that retail prices have remained stable over time and that the cost of the wholesale input remains a relatively limited part of the retail price. This would confirm IBPT's position that the indirect pricing constraint that is exerted by cable on Belgacom cannot call into question the SMP finding.

With regard to some regulatory obligations which the Court considered to be unjustified, the IBPT focused on substantiating (i) geographic differentiation of the access remedy, (ii) prohibition to withdraw previously granted access without the prior consent of the IBPT and (iii) sub-loop unbundling.

The Commission's comments
The Commission largely restated its previous comments and endorsed the proposed plan of the IBPT.

I. With regard to promotion of investment on infrastructure in relation to wholesale unbundled access (including shared access) to the local loop and competition at the retail level

The Commission stated that the currently available market data do not point towards differentiated competitive conditions to an extent that would justify a delineation of sub-national markets. However, the Commission invited IBPT:

  • to examine in the national context the reasons for the high retail prices for broadband services in Belgium especially in relation to the significant margins existing between the wholesale inputs and the relevant retail products;
  • to ensure effective implementation of the remedies to further enhance the provision of local loop unbundling and, in particular, to ensure that the respective price levels of local loop unbundling and bitstream create the appropriate incentives for alternative operators to switch from the bitstream offer to the local loop unbundling offer;
  • to assess the impact of the regulation of LLU and Wholesale Broadband Access in its subsequent analysis, in particular by monitoring the development of the competitive conditions in the retail market, including checking whether the future market development may justify a more refined geographical market definition.

II. With regard to access to fiber infrastructure

The Commission did not object to IBPT's assertion that access to the NGN access network is not part of the market for wholesale unbundled access to the local loop. The Commission, whilst acknowledging that the remedies proposed by IBPT in the wholesale broadband access market guarantee access to high speed broadband technologies (including VDSL), nevertheless invited IBPT to reassess the market conditions in view of guaranteeing a level playing field in the future NGN environment.

Next step
The IBPT can now adopt the proposed measures and restore regulation in the wholesale broadband markets, but has to take utmost account of the Commission's comments.


For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Thomas De Meese
Partner – Brussels
Phone: +