The AUTHORITIES 'FOR THE COMMUNICATIONS In its board meeting of 10 July 2002; Given the Council Directive 90/387 / EC on the "Establishment of the internal market for telecommunications services through the implementation of open network" (Open Network Provision); Having regard to the Commission Directive 90/388 / EC, on "Competition in the telecommunications services markets"; Having regard to Directive 96/19 / EC, amending Directive 90/388 / EC on the implementation of full competition in telecommunications markets; Having regard to Directive of the European Parliament and Council Directive 97/33 / EC on the "interconnection in telecommunications with regard to ensuring universal service and interoperability 'through the application of the principles of open network provision (ONP) ", and in particular articles 4, 6, 7, 8, 18 and Annex I, parts 1, 2 and 3; Noting the recommendation of the European Commission 98/195 / EC of 8 January 1998 on "Interconnection in a liberalized telecommunications market (Part 1 - fixing of interconnection prices)" and subsequent updates; Noting the recommendation of the European Commission 98/322 / EC of 8 April 1998 on "The interconnection in a liberalized telecommunications market (Part 2 - accounting separation and accounting 'costs)" and subsequent updates; Having regard to Directive of the European Parliament and Council Directive 98/10 / EC on the "Application of the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment"; Having regard to Directive of the European Parliament and Council 2002/21 / EC establishing a common regulatory framework for electronic communications networks and services (Framework Directive); Having regard to Directive of the European Parliament and Council 2002/19 / EC on access to electronic communications networks and associated facilities and associated facilities (Access Directive); Having regard to Legislative Decree 17 March 1995, n. 103, the implementation of Directive 90/388; The Order of the President of the Republic September 4, 1995, n. 420, "Regulations determinations of the characteristics and mode 'of the provision of telecommunications in art. 2 services, paragraph 1 of Legislative Decree 17 March 1995, n. 103"; Having regard to Law 14 November 1995, n. 481 bearing "Rules for competition and the regulation of public utility services '. Establishment of the authorities' regulation of public utility services ''; Having regard to Law 31 July 1997, n. 249, concerning the '' Institution of 'to the Communications Authority and regulations governing telecommunications and broadcasting systems "; The Order of the President of the Republic September 19, 1997, n. 318 "Regulations for the Implementation of EU Directives", and in particular Articles 1, paragraph 1, letter m), 4, 5, 7, 8 and 22, paragraph 1, letter a), as well as' Annex A; Given the Ministerial Decree of 25 November 1997 on "Measures for the issuance of individual licenses in the telecommunications sector"; Given the determination of the Ministry of Communications on April 3, 1998 relating to the determination of telecommunications operators with significant market power; Given the Ministerial Decree of 23 April 1998 on "Measures for interconnection in the telecommunications sector", and in particular art. 8 and art. 9, paragraphs 1, 2, 3; the law views April 8, 2002, n. 59, on "Measures for the provision of Internet access"; Given the resolution no. 197/99 on the "Identification of telecommunications operators with significant market power"; Given the resolution no. 287/99, entitled "Procedure for conducting public consultations in the framework of research and fact-finding investigations"; Given the resolution 467/00 / CONS, on "Measures for general authorizations", published in the Official Gazette of the Italian Republic n. 184 8 August 2000; Given the resolution 6/00 / CIR on "Numbering Plan for the telecommunications sector and enforcement provisions", published in the Official Gazette of the Italian Republic n. 169 of 21 July 2000; Given the resolution no. 25/01 / CIR on "Measures with regard to the introduction of a reference interconnection offer the service of collecting flat rate for internet traffic", published in the Official Gazette of the Italian Republic n. 17 of 14 January 2002; Given the resolution no. 132/92 / CONS, "Consultation public part of the proceedings relating to the updating object of operators with significant market power on the Internet access market for the purposes of Articles 4, 5, 7, 8 and 9 of the Decree of the President of the Republic 19 September 1997 n. 318, under the law, April 8, 2002, n. 59 ", published in the Official Journal of the Italian Republic n. 106 of 8 May 2002, with the resolution no. 9/02 / CIR on" Implementing rules Art. 1, paragraph 1, of Law no. 59 8 April 2002: criteria for applying to Internet Service Providers of the economic conditions of reference "; Considering the contributions produced by the parties to public consultation; view the request for information sent to operators on 7 June 2002 and the responses received, view the note sent on 11 June 2002 the Authority 'competition and the market, view the note dated 13 June 2002 sent to the Commissioner of the Directorate general competition of the European Commission, Professor Mario Monti, the note view, passed June 24, 2002, by the Commissioner of the Directorate general competition of the European Commission, Professor Mario Monti; given the report of the Authority 'competition and the market, broadcast June 27, 2002; Look, dated June 19, the company' SEAT Pagine Gialle, Wind Telecomunicazioni, Albacom, Atlanet, Edisontel, Italy Welcome, Telecom Italy and associations @iip and Assoprovider, and, on 24 June 2002 the companies' BLUE, H3G, Telecom Italy Mobile, Vodafone Omnitel and Wind Telecomunicazioni ; Having regard to the proceeding; Whereas: 1. The significant market power and the role of the Authority 'to the Communications in the EU and national regulatory framework. Among the asymmetrical regulatory instruments aimed at achieving the objectives of harmonization, liberalization and promotion of competitive dynamics in the telecommunications markets, the current EU regulatory framework, implemented in Italy by the decree of the President of the Republic n. 318/1997, it provides for the establishment of significant market power (also called, in the national texts, such as "significant market power"), defining the concept and criteria for the application and linking timely regulatory obligations to the identification and consequent notification to the European Commission of this qualification on the part of one or more 'operators in relation to each relevant market. It is, in particular, the obligations of non-discrimination, cost orientation, publication of a reference offer and negotiation (respectively, in relation to interconnection and special access services), accounting 'costs and accounting separation (Articles 4, 5, 7, 8 and 9 of the decree of the President of the Republic n. 318/1997). Article. 1, paragraph 1, letter m) of the Decree of the President of the Republic n. 318/1997 (which reproduces the contents of art. 4, paragraph 3, of Directive 97/33 / EC) defines as an operator with significant market power "[....] an entity which holds more than 25% of the share of a particular telecommunications market at a national level or in the context of the geographic market where and 'authorized to operate "and continues, stating that" the Authority', consultation with the Authority 'competition and market, can' nevertheless determine that an organization holds in its respective market, a lower share than or equal to 25% have considerable strength and, conversely, that an organization in its respective market, a 25% higher price does not have a considerable strength. in both cases, the decision must take into account the capacity 'of the organism to influence market conditions, relative to the size of the market turnover, the control of the means of access to end-users, its access to financial resources, its experience in providing products and services on the market. " Under Article. 18, paragraph 2 of Directive 97/33, the Authority 'national regulators are obliged to identify operators with significant market power and to notify those bodies to the Commission. Article. 22, paragraph 1, letter a) of the Decree of the President of the Republic 318/1997, expressly assigns the Authority 'to the Communications competency in matters of discipline and mode' application of the significant market power; compete therefore the Authority 'the decision on the parameters to be taken to measure the market share of telecommunications operators, the evaluation of the weight of the different criteria of the market share covered by the EU and national legislation might be used in the determination of significant market power, as well as' the definition of the conditions for the application of resulting regulatory obligations. The national and EU legislation allows to identify four relevant markets for the purposes of SMP notification: 1) the market for services and the fixed public telephone networks (Annex A, Part 1 of the Decree of the President of the Republic n. 318 / 1997 and Annex I, part 1 of Directive 97/33 / EC); 2) market for the provision of leased lines (Annex A, Part 2, of the Decree of the President of the Republic n. 318/1997 and Annex I, Part 2 of Directive 97/33 / EC); 3) the market for services and mobile public telephone networks (Annex A, Part 3, of the Decree of the President of the Republic n. 318/1997 and Annex I, Part 3 of Directive 97/33 / EC); 4) the national market, with reference to the fixed public telephone networks (Annex A, Part 1 of the Decree of the President of the Republic n. 318/1997 and Annex I, Part 1 of Directive 97/33 / EC ) and public mobile networks (Annex a, part 3, first paragraph, of the decree of the President of the Republic n. 318/1997 and Annex I, part 3, point 1 of Directive 97/33 / EC). In compliance with the regulatory framework mentioned above, the Authority 'he has done, with the Council's resolution no. 197/1999, to designate and notify to the European Commission the operators with significant market power in the markets identified above. The list so far identified markets is not 'also a closed list; if, in fact, upon first application of the institute (which coincides with the start-up phase of the competition mechanisms defined by European standards), the Authority 'has deemed sufficient stock of the conditions of the markets expressly referred to by that legislation, there is no reason that , in a more 'advanced stage of the opening path of the telecommunications markets and in view of the strong dynamism of the technological environment, it is necessary to proceed to the identification of new relevant markets, including through the segmentation of the previously identified target markets. Such a possibility 'appeared already' expressly provided for by the Authority 'on the occasion of activities' that led to notifications pursuant to resolution no. 197/99; in particular, it refers to recital 3 of the above resolution, in which the Authority 'indicated that "[....] the evolution of the markets and the possible variations of the relevant elements for identification purposes", could have produced innovations the general framework, with "..l'eventualita 'to redefine the operators with significant market power, as well as' to segment its markets further, where you see fit." The very rationale of the institute suggests, on the other hand, the opportunity 'ongoing review of the adequacy of the list of relevant markets; and 'quite evident, in fact, that the regulatory instrument of notification, in order to be effective and consistent with the general principles governing the activities' on telecommunications markets, referred to in art. 2, paragraph 1, letter a) of the Decree of the President of the Republic n. 318/1997, should be as much 'as possible updated and calibrated based on the actual development of competitive conditions of the markets concerned. Those powers of audit compete the Authority '; a fortiori, an indication of new markets can 'be made by the legislature, subject to the Technical Authority' industry expertise in defining the application criteria of the former art. 22 of the Decree of the President of the Republic n. 318/1997. In this context, the law April 8, 2002, n. 59, intended to devote specific attention to the market of services of Internet access, in view of the extent and the conditions of development as well as' the spread requirements of the services, highlighting the need for a regulation to replace the present differentiation regulatory between Internet Service Providers (hereinafter, for brevity ', also indicated by the aeronimo ISP) independent, operating on the basis of a general authorization, in accordance with decree of the President of the Republic September 4, 1995, n. 420 and Resolution 467/00 / CONS, and operators of individual license holders, under the Ministerial Decree of 25 November 1997. Article. 1, paragraph 1, the law also provides that the Authority 'provide, within sixty days, the updating of the list of operators with significant market power on the Internet access market for the purposes of Articles 4, 5 , 7, 8 and 9 of the decree of the decree of the President of the Republic n. 318/1997. The provisions of the law thus devolved to the Authority 'the exercise of its powers concerning the identification and analysis of a new market segment and, if circumstances so require, the specification of the mode' application of the regulatory measures already 'defined under current rules. Serious thought deserves the classification of the activities' of identification of a new relevant national market in the evolution of the European regulatory regime perspective on the subject of significant market power and, specifically, pending the implementation in Italy of Directive 2002/21 / EC ( "framework Directive") and related application documents (in particular, the recommendation under art. 15, paragraph 1, of the Directive). That consideration applies both to procedural aspects and the potential impact of such activities' on the effectiveness of the regulatory tools will soon be implemented. In this regard, it notes first that the implementation of the significant market power in accordance with methods' effective and proportionate in relation to the specific national context been aim confirmed by Directive 2002/21 / EC; Article. 15, paragraph 3, of that directive, in fact, expressly grant to the authorities' national responsible for defining "[...] relevant markets appropriate to national circumstances," indicating a specific procedure for the identification of national markets other than those who will be identified by the Commission recommendation, set out at paragraph 1 of that Article. Procedural terms, pending the transposition of the new Directive and the consequent application of the new regulatory and procedural regime, the procedural matters relating to the activities' notification are necessarily addressed by current rules. From a substantive point of view, they are currently underway preparatory work of the Recommendation by the Commission; To date, this work led to the drafting of a preliminary text, currently subject to public consultation. In view of what ', it is essential, in order to ensure that measures taken in the transition period do not affect the full and correct implementation of EU legislation recently published concerning significant market power, provide, as of now, a total reconsideration the framework of the SMP notifications, including those carried out under the law n. 59/2002, through the instruments defined by the new European regulatory framework and in the light of the new list of the markets in the Recommendation, as soon as these tools will become legally enforceable at the national level. This approach and 'in line with the requirements defined by the Directive 2002/21 / EC as regards the transitional arrangements in relation to significant market power. It relies in that regard, Article. 27 (entitled, precisely, "Transitional provisions") which provides that Member States should retain the existing obligations under national legislation until they have completed the analysis in accordance with the new rules and using the tools defined by the directive. Given the current transition phase of the Community regulatory framework and the essential news' as it made the subject of significant market power, and in order to exclude any possible prejudice to the achievement of the objectives set by this new regulatory framework, the Authority 'it saw fit to bring to the attention of the Directorate general competition of the European Commission and the Authority' competition and regulatory framework of the market, the objectives, nature and the process of the present proceedings. In this sense, however, induces the consideration for which the new rules, set out in Articles 14-16 of Directive 2002/21 / EC, based the analysis of significant market power on the application of tools and economic analysis of its concepts competition law. The received notes confirm the correct setting of the Authority 'to proceed to the attivita' indicated by the law n. 59/2002, using the tools available under current rules, however, providing for an application such as to ensure a balanced transition to the new regulatory framework. The Commission letter of 24 June 2002, while confirming that the current EU regulatory framework allows for the identification at the national level of different markets than those defined in Directive 97/33 / EC, calls on the Authority 'to give special attention to the potential impacts - both in general and of the compatibility 'with the objectives pursued by the new rules, both in terms of the practical effects on market mechanisms and negotiating - arising from a possible identification, at national level, of relevant markets not included in the list of Annex I to Directive 2002/21 / EC and, in particular, the "... wholesale Internet access market." In this regard, the Commission notes that, as of 25 July 2003 (date of the application in Member States of the directive, according to its Art. 28, paragraph 1), Member States will have to activate the specific procedure laid down to 'art. 7, if they intend to proceed with the designation of operators with significant market power in markets not identified in the Recommendation. The Authority 'considers of fundamental importance to the information provided by the Commission and pledges to make an analysis of the markets identified under this provision, as soon as all instruments under art. 16 of Directive n. 2002/21 / EC will be available; based on the results of this analysis (to be concluded by the date of 25 July 2003), the Authority 'will proceed' to the possible activation of the consultation process mentioned above. It further notes that the Commission itself indicates criteria useful to prevent the application of the current regulatory framework regarding significant market power which conflicts with the objectives and instruments provided for the new institute discipline. In particular, the Committee stresses the opportunity 'the Authority', in the application of existing standards and regulatory instruments provided for therein, is not limited to apply the traditional criterion of the market share, but rather 'avails substantially and qualified than all other criteria defined by law (ability 'to influence market conditions, control of the means of access to end users, sales commensurate with the value of the market, access to financial resources, experience in providing products and services). What ', in order to ensure that the assessment of whether a significant market power is based in substance, in the current transitional phase, and pending the entry into force of rules that radically alter the operation, on the analysis tools market, thereby avoiding any possible discontinuities' than the application of the instruments provided by the new regime. The application of the criteria of the current regime, modulated according to the indications suggested by the Commission, and the overall immediate reconsideration of the framework of the SMP notifications (including those made in accordance with Law no. 59/2002) through instruments defined by the new European regulatory framework, thus permit, in the opinion of the authority ', to ensure that the measures taken in this transition does not affect the application of European rules on significant market power, soon to be applied. With specific reference to the needs of the renegotiation of contracts between operators in the light of notifications in the wholesale market and the attendant risks of legal uncertainty, it is observed that the same operators participating in the process (holding individual licenses or licensed Internet Service Providers) expressed, in an overwhelming majority, a positive opinion about the usefulness' of a notification intervention in that market and a strong interest in renegotiating the existing contract terms; for a more 'detailed analysis of the nature of that market and regulatory impacts of a possible notification on that market dynamics, reference is made to the considerations made in paragraph 3. Similarly, the opinion issued by the Authority' competition and market , as well as to propose some topics of regulatory and economic nature about the possibility 'to identify more relevant markets for regulatory purposes than those laid down in Directive 97/33 / EC and on the compatibility 'of such initiatives with the provisions of Directive 2002/21 / EC (with specific reference to the case of detecting a plurality' of markets related to the definition went by Law no. 59/2002 ), it underlines the importance of an activity 'definition of new markets for regulatory purposes at the national level should in any case be carried out in line with the guiding principles of the new Community guidelines and, in practice, is based on a thorough analysis of the dynamics of the relevant market and is not limited to the mere application of the criterion of market share. Regarding various legal aspects reported by the Authority 'competition and market, relative to the consistency of the measure with respect to the new Community regulatory framework, it is believed that they can be usefully framed in light of the regulatory reconstruction represented in the opinion of the European Commission. The need for an assessment of the opportunities' of the Internet access market segmentation more relevant markets for regulatory purposes (with particular reference to market segments related to intermediate services of the production chain) emerges on the other hand , unequivocally from the wording and the rationale of the law n. 59/2002. The rule of law opening (Art. 1, paragraph 1) has in fact equating Internet Service Providers to their licensee operators for access to the conditions of the reference interconnection offer published by an operator with significant power market and imposes on the Authority 'responsible for defining the criteria for operability' interconnection for Internet traffic. This' clearly highlights the crucial role of the intermediate service interconnection in the Internet access market dynamics. On June 26, 2002, with its own resolution 9/2 / CIR, the Authority 'gave timely fulfillment of this provision of the law. The next available (contained by the same art. 1, paragraph 1), which requires updating, edited Authority ', of the list of notified persons as holders of significant market power in the Internet access market, and' the logical corollary of the rule just referred to and aims, among other things, to identify the persons to whom the recalled impose obligations to publish a reference offer; a correct and complete application of the rule makes it essential therefore a careful analysis of the market dynamics of the intermediate interconnection services (also called "wholesale", or wholesale, in accordance with the equivalent notions mentioned in the Commission notes and Authority 'guarantor ). Comfort that interpretation reading and analysis of the preparatory work of parliamentary law and the analysis of market dynamics set out in paragraph 3. For the reasons mentioned above, it is believed, however, necessary action be taken now concluded, the date of 25 July 2003, an Internet access market analysis referred to in law no. 59/2002, applying procedures and instruments referred to in Article. 16 of 2002/21 / EC and, piu 'specifically, the guidelines referred to in paragraph 2, for the market analysis and the assessment of significant market power under the new European regulatory framework, and the recommendation referred to in subsection 3 laying down the list of relevant markets under the new framework, both forthcoming. 2. The process of the proceedings. The designation of an operator as having significant market power is based on a preliminary activity 'of economic analysis, divided into the following steps: a) identification of the relevant market, both in terms of product / service, and in geographical terms, and evaluation of possible relevance of intermediate markets for which a possible significant market power position to be able to influence the relevant market conditions; b) definition of the measurement parameter of the total market and market shares of individual operators; c) calculation of the market shares of the players in the individual target markets; d) assessment of the possible impacts of criteria other than market share as defined by national and European law. In defining procedural iter, the Authority 'has attached particular importance to the need' to standardize the particularly stringent limits set by law no. 59/2002 with contradictory guarantees, participation and transparency provided for the administrative procedure by the current provisions and the internal rules of procedure. In this context, with the opening of the proceedings, the Authority 'ordered the holding of a public consultation aimed at capturing comments and information on the subject of the procedure issues by all stakeholders; iter for maximum acceleration, the Authority 'and' made use of the opportunity 'provided for in point 6 of the Annex to its own resolution 278/99, to fix in thirty days, for cases of particular urgency, the deadline for the receiving response contributions to the public consultation. The consultation, which ended on May 29, 2002, 13 subjects responded: @iip, Albacom, Assoprovider, Atlanet, Edisontel, H3G, Omnitel, SEAT Pagine Gialle, Telecom Italy, TIM, Tiscali, Italy Welcome and Wind Telecommunications. On 7 June 2002, the Authority 'has prompted the operators with information and quantitative data for the year 2001 on a wide range of final and intermediate segments potentially attributable to the notion of "the Internet access market ", visited by the law n. 59/2002. In view of the competitive reflexes related to the definition of the identification of the relevant markets and their market share criteria, as well as' the potential impact of the definition of new markets on the markets identified by the decree of the President of the Republic n. 318/1997, the Authority ', as already' mentioned, has informed the Directorate General Competition of the European Commission and the Authority 'competition and the market about the criteria and tools used for the identification of the relevant markets. In order to ensure the stakeholders a further opportunity for discussion with the Authority 'about the issues at stake in the' scope of the proceeding, the Authority 'has set two days of hearings, on 19 and 24 June 2002. In this headquarters, the participants represented their views about the purposes of the procedure, the definition of the relevant markets and criteria for the calculation of market shares and regulatory offline brought to the identification of any significant market power positions . They have also provided clarifications and additions to the previously reported quantitative information to the Authority '. In this latter regard, and 'found, in some cases, a diversity' methodological approach among the various actors in the responses to the advanced quantitative data required by the Authority '(diversity', among other things, understandable, given the news 'analysis of the relevant market); what 'it has necessitated the integration of the data transmitted by some operators. Some individuals have also integrated their contributions to the process, by sending notes and documents containing their views on the proceedings. Based on the results of the analysis, the Authority 'then proceeded to the identification of the relevant markets for regulatory purposes, the calculation of its market share and to the analysis of additional criteria established by law, for the purposes of application of the institute significant market power and the definition of the resulting regulatory obligations, so 'as defined in articles 4, 5, 7, 8 and 9 of the decree of the President of the Republic n. 318/1997, as required by law no. 59/2002. 3. economic and regulatory assessment of the market. The identification of the relevant market and the assessment of potential relevance for regulatory purposes of intermediate markets is the first step for effective operability 'of the SMP notion. Economic theory and consolidated practice lead to make the identification of the "relevant market" in relation to the two traditional market concepts "product / service" and "market-geography." 3.1. The identification of the target market in terms of product / service. Article. 1, paragraph 1, of Law no. 59/2002 identifies, through a formula necessarily general, the "market for Internet access" as a relevant market for the purposes of updating the list of operators with significant market power, attributing the Authority 'the purpose of skills its application specification. Deepening this definition appears unavoidable, considering the particular characteristics of the relevant market: the multiple technological solutions for the provision of Internet access services to end customers and the many joints of the economic flows between the operators involved in the industrial chain of construction of these services makes it necessary: ​​a) in the first place, an analysis and a definition of a theoretical nature of all key market segments in which and 'divisible the general notion of "Internet access service" provided by law n. 59/2002; b) an assessment for regulatory purposes of the markets identified above based on a plurality 'of elements (competitive conditions and level of market development, degree of consolidation of technologies, the current regulatory regime), in order to ascertain which of them should be regarded as "relevant markets "the purpose of the law n. 59/2002. In conceptual terms, the service of access to the Internet and 'perceived by the generality' of end users such as the provision of services which allow the customer to exchange content with the Internet. A look more 'attentive to the industrial chain on which is based the function of such performance by the end customer stresses also, that the Internet access service consists of a plurality' of performance between their connected vertically and horizontally differentiable, in relation to special infrastructure and technologies used to achieve the connection between the user and the Internet. Under the regulatory point of view, in general terms, and 'already' made reference to the possibility ', on the part of the Authority', to carry out a segmentation of the relevant markets, where what 'is necessary for the purpose of an adequate framework of themselves. In this sense, in addition to the recall as the rationale and, more 'specifically, the considerations already' made at the resolution no. 197/1999, are subtle problem with the directions given by the Commission about the possibility 'of Member States to subject to regulation activities' and markets other than those identified by the Directive 97/33 / EC. With specific reference to the market for Internet access, and 'on the other hand a useful reminder to the objectives and content of the law n. 59/2002, in support of the need 'to carry out a segmentation of that concept for regulatory purposes; in this regard, please note that and 'the same law to focus his attention on the intermediate market segments and underlying the provision of the service to end users; what 'happens not only (and explicitly) in connection with the provision that allows Internet Service Providers to access the offerings of the reference interconnection offer, but also, just as clearly, even though they are' implied, in relation to the rule which provides for 'update of the list of subjects with significant market power. In conclusion, the need for further segmentation of the concept in the law no. 59/2002 'was unanimously highlighted by all stakeholders, in several occasions to participate in the proceedings. 3.1.1. Segmentation of the market of final services. A first segmentation can 'be made between Internet access from fixed network and Internet access services from mobile networks. On the demand side, the two types of services are not easily replaceable, since they respond to different conditions of use (immobility 'towards mobility), require different equipment (modem or mobile terminal) and are characterized by different technological characteristics (in terms of speed 'transmission and stability' of the connection), as well as 'for differences in cost and possibility' of navigation access. On the supply side, the market for access to mobile networks and 'characterized by its own peculiar system of authorization of mobile telephony (which prevents the fixed network operators and ISPs without mobile license to compete in the origination of the mobile line calls ), together with the unavailability 'of indirect access services from mobile networks. This' said, the data emerging from the inquiry highlighted the still small existence of a separate of mobile network access services (ie less than 1% of the corresponding fixed network access market) and being start-up, in which, however, have yet to stabilize the technological processes (poor quality ', protocols in the process of consolidation). These elements suggest to postpone to a later date the assessment of a regulatory intervention in this market. As part of the access to the fixed network market, a strong segmentation scientifically acquired and now, internationally, even in the regulatory environment, and 'one of the access services in mode' cd. Dial-up (which indicates commonly access services switched PSTN or ISDN network of up to 128 Kbit / s) and the Internet access services provided through other innovative technical solutions (think, first, to access services broadband DSL technology, but also, to a lesser extent, access to the options through fiber-optic connections, or through leased lines and satellite technologies). The two types of access have, in fact, a limited substitutability '. On the demand side, the access mode 'dial-up services are characterized by a speed' connection below those laid down by mode 'not to switched access (by limiting the range of accessible content) and do not meet optimally the' need for the type of always-on connections; what 'strongly influences the perception of these categories of services as substitutable by the end customers. At what 'should be added that, while the switched access services are widely available throughout the country, access services based on other modes' techniques (think, for. Example, the technology services DSL or fiber optic) himself 'in the process of diffusion, are available only on a limited portion of the country. On the supply side, radical differences are found in the structure of the underlying costs for the provision of access in two modes 'services, resulting in the intervening economic relations between operators in the various stages of the production chain, as well as' in the infrastructural and technological heritage of the operators. The Authority 'on the other hand does not consider appropriate to identify the market for Internet access from fixed network through innovative technical solutions referred to above (and, in particular, through DSL technology solutions) as a relevant market within the meaning of Law No . 59/2002; what ', on the basis of considerations relating to the degree of maturity' of the technologies and the current regulatory regime for these services. If and 'true that also in the case of Internet access services in DSL technology (as for the mobile network access services) and' in the presence of an innovative market segment, and 'also true that the degree of maturity' and reliability 'of DSL technology makes it' that the services based on these technologies (in terms of quality 'performance, the roll-out times and price levels) are to be considered as already' options on the market, characterized by under strong horizontal connection with the traditional offering of Internet access services in dial up and exposed to the risk of pre-emption by parties who hold control over the customers of traditional services. This concern 'was also immediately perceived, internationally, in a phase preceding start of commercial offers DSL services; both the Community institutions, both the main Authority 'European regulators (including the Italian) have in fact defined a set of constraints and controls in the historic operator (by its nature, holds a significant market power on the traditional markets) , precisely in order to ensure a competitive development of the new market segment of broadband access services. In particular, in Italy, there is specific legislation, according to the criterion of the retail minus, for the wholesale DSL services offered by Telecom Italy, while the installation chain necessary for the realization of such services by competing operators and ' adjusted, according to the strict principles of cost orientation, in the context of unbundled access to the local network discipline. In view of the current regulations and pending possible further market developments were not judged, the state, the need for further regulations on the incumbent with respect to offering retail services. In light of the above, the Authority 'has identified as relevant to the present case the final market market for switched internet access from fixed network. 3.1.2. Segmentation of intermediate services market. A complete and correct perception of end-market dynamics of switched Internet access services from fixed network also requires a careful analysis also along the vertical dimension of the intermediate markets for network access services; those suppliers to end services, whether they are independent or integrated with network operators, however, require a supply in terms of infrastructure elements and intermediate performance for the construction of its services. And 'therefore clear that a strong position in the supply of one or more' of services upstream of the final service, to the extent that it solves in a discrimination between the different users of these services (and, in particular, in a different treatment integrated ISP or controlled, and independent ISPs) and 'likely to affect the competitive dynamics in the final market. These general considerations, are of particular interest for the purposes of the balanced pursuit of the ratio of the law n. 59/2002 (consisting of the equivalence of ISP operators holding individual licenses), in the light of the current structure of the group of players on the market of final services, which sees some ISPs integrated with licensed operators, or controlled by them, to deal with ISP independent. In this context, the equal 'treatment of the actors on the market of final services in the use of intermediate inputs and' a prerequisite for effective competition on the retail services market. The law itself, on the other hand, placing (with a different standard than the one on which the present case, contained in the same art. 1, paragraph 1), the right to ISPs of access to equal 'footing with licensed operators the Offer reference interconnection, highlights the fundamental role of intermediate services market with the objective of balanced competition in the final market. The same subjects were participants in the proceedings on the other hand expressed by a large majority, the need for a full analysis of the services market dynamics Internet access, with particular regard to the various intermediate network services necessary for the provision of the final service . With reference to the traditional segmentation of their interconnection, and 'possible to identify the following intermediate markets: a) origination intermediate market: means the net call transport service along the route that goes by the user at the point of interconnection between operators origination (on whose network and 'physically connected to the user) and Internet-type terminating operator (which is responsible to deliver ISP traffic destined for the Internet), or to an operator that deals only with the transport of operator call termination. The economic entity that provides the service and 'the fixed network operator on whose telephone numnerazioni amounted end users. Market demand and 'constituted by the network operators that enable the end customer access to the Internet in carrier selection or pre-selection (ie, of the operators completing mere transport functions). On this market, Telecom Italy holds, and is' destined to still hold in the medium term, significant market power (as also recognized by Telecom Italy in contributions disclosed in the proceedings). Yet this condition is resolved within the existing regulatory framework, in a timely and stringent regulation ex ante conditions of the generality 'traffic origination interconnection and, more' recently (with Resolution 25/01 / CIR), in taxation at Telecom Italy for specific supply obligations of Internet traffic collection services in mode 'lump. Therefore, in this market, which is not 'subject to this proceeding, is still held by Telecom Italy, which notified operator in the interconnection market, the obligations currently applicable to the origination and collection of interconnected traffic. b) the intermediate market for the termination shall mean the Internet traffic delivery service to the POP (Point of Presence) of an ISP. The person who provides the service and 'the fixed network operator on whose network and' certificate to which the POP and 'intended the call. Market demand and 'constituted by the operator from whose network the call and' arising from or transported. The evolution of the termination interconnection services market, over the years since the full opening of the telecommunications markets, has changed considerably, precisely because of the dynamics related to Internet access services; in particular, licensed operators They have used the numbering resources available to them to concentrate on their networks termination direct Internet traffic to a plurality 'of ISP which feed into' the business model cd. free internet (in which the revenues of the licensed operators were assured precisely by termination revenues, net of the amounts paid to ISPs as a revenue sharing). In this context, some operators have subsequently taken steps to integrate within itself the ISP functions and, to varying degrees depending on the capillarity 'of their networks, to perform also transport functions (and consequent internal termination) of Internet traffic through the services Carrier Selection and Preselection. From what 'descends a termination market situation in which some operators have an almost total' control of the chain of intermediate services, integrating both activities' Internet traffic collection (because of which sign contracts with end customers and play activities 'billing), both the ISP functions. These operators have therefore a remarkable ease 'to transfer the final services market that position of strength of the intermediate services market. For these reasons, the termination market stands as the relevant market, for the purposes of the law n. 59/2002. 3.1.3. Identification of relevant markets in regulatory terms, according to the law n. 59/2002. In light of the above considerations, the Authority 'identified in the present state of development of telecoms markets, two markets at the end of identification of operators with significant market power and the consequent updating of the list, below described: 1) Closing market for network switched internet access services fixed: it is the access to the Internet service mode 'dial-up, PSTN or ISDN network of up to 128 Kbit / s. The economic entity that offers such a service and 'Internet Service Provider, either independently or also holds a fixed-line license. Market demand and 'constituted by end users; 2) the intermediate market for the termination of calls to the Internet mode 'dialup: refers to the delivery of Internet traffic to the ISP POP. The economic entity that provides the service and 'the fixed network operator on whose network and' attested the ISP's POP recipient of the call. Market demand and 'constituted by the operator from whose network the call and' originated or transited. 3.2. Identification of the target market in terms of geography. The Authority 'considers the geographical dimension of the relevant markets identified coincides with the country. The national dimension and 'in fact be consistent with the conditions observed in both identified relevant markets. As for the service termination by the licensed operators, the supply conditions are homogeneous throughout the country. Equally homogeneous and widespread nationwide and ', in terms of supply to end users, the spread of POP by ISPs; one gets the profile of a structured market nationwide. This orientation and 'results shared by the generality' of the participants in the proceeding, as well as 'by the Authority' competition and the market in previous measures (n. 7978 of 28 January 2000, n. 8141 of 13 July 2000 and no. 9142 of 23 January 2001); the substantial homogeneity 'of competitive conditions does not cause the other hand, at least in the current phase of market development, the need' to identify the sub-markets at regional or local level. 3.3. Parameters used to measure the market size, the degree of competition and the relative positions of the operators. Consistent with the approach taken on the occasion of the activities' of the notification referred to resolution no. 197/1999, and taking into account the consolidated guidelines of the European Commission and the Authority 'competition and the market, the Authority' deemed it appropriate to make an assessment of the size of each of the identified markets and their shares of operators from from the data in value (revenues recorded in the relevant market), as this indicator is more 'appropriate to identify the actual market power of firms. In this sense, however, and 'it expressed the almost all' of the companies that participated in the public consultation. However, for the interconnection market of termination, were also given the volume of traffic; the use of both criteria - highlighting any differences in market concentration (where calculated on the basis of volumes than applying the traditional criterion of revenues) - may 'in fact provide more food for thought about the real competitive structure of markets subjected to investigation. In particular, should it emerge a substantial difference between the market share of an operator calculated in terms of volume compared to the quota calculated in terms of value (in particular, in the condition in which the second is greater than the first), this' could lead to envisage the adoption of more 'valued customers selection practices by the operator in question, aimed at acquiring the most' profitable customers leaving for other operators those less profitable. Piu 'specifically and with reference to the year 2001 (data of the last year), the parameters considered were: for end users of dial-up access to the Internet from fixed network services: revenues recorded by the telecommunications operators (licensees and ISP ), distinguishing revenues from license fee revenues from traffic. If the licensed operators, have been deducted the portion of revenues poured ISPs (cd. Reverse charge); for the intermediate termination market, revenues from Internet traffic termination on POPs ISPs as well as 'the relevant amount' of traffic. At the end of a more 'precise identification of the actual market power of the operators, and' it decided to consider the internal termination in terms of minutes and value. In the case of the dominant operator, must post termination rates, revenues from internal termination were obtained by multiplying the minutes of internal termination for a weighted average of peak and off-peak termination rates at SGU level which takes account of different distribution of traffic in two time slots. In the case of other operators, not given to the publication of the termination rate, and that rate 'was valued on the basis of the relationship between revenues and minutes from external termination. Revenues from internal termination, so 'calculated, were added to those from external termination to form, for each operator, the total value of termination revenues. These revenues have been used to derive the market share. All data used for determining the size of the relevant markets and for the calculation of the quotas have been formally requested by the Authority 'to the persons active in affected markets on 7 June 2002. 3.4. Use of criteria other than market share. The market power, according to a generally accepted definition, and 'capacity' of a company to fix the price above the competitive level for a period of time not transitional, without this leading to a reduction in sales as to make such a strategy is not profitable. The market share held by an undertaking in the relevant market is a typical measure of the influence that the company in question may 'exert on the market. In this sense, WHERE 'the market share held by a firm reaches particularly high levels, it can' be considered that this finding will lead per se 'to the identification of a significant market power with the entity itself. Conversely, in all cases in which the level of both considerable market share (around 25% or higher), but does not reach particularly high levels, it is considered appropriate that, in order to ascertain the existence of a significant market power in to an undertaking, the criterion of market share is supported by the analysis of other elements. Therefore, consistent with the approach taken in the past by the Authority 'and in line with the Antitrust practical application, for companies that appear to be characterized by a significant market power, the following additional criteria are analyzed: the ability' to influence market conditions; revenues commensurate with the market size; the control of the means of access to end users; the possibility 'of access to financial resources; experience in supplying products / services on the market. 3.5. Assessment of operators' positions in the relevant markets. 3.5.1. Assessment of operators' positions in the final market switched internet access. The economic dimension of the final service market for dial-up access to the Internet from fixed network and 'represented by total expenditure of users, corresponding to the following revenues, necessary to the calculation of the market shares of the various operators: a) traffic revenues received by the licensee operators net poured out of proportion to ISPs (reverse charges); b) revenues from reverse charge ISPs; c) revenues from subscriptions. The analysis of the market shares of operators active in the retail market to switched from fixed network Internet has revealed the presence of one operator which holds a share of more than 25% of the market and, therefore, susceptible to such notification operator with significant market power. Piu 'precisely, in terms of revenues, the company' Telecom Italy holds a share of approximately 3/4 of the market: 66.7% directly, while 1'11,1% and 'held by the company' subsidiary SEAT Pages yellow. Moreover, the main competitor just over 15%, while the remaining 7% are dispersed among several licensees and ISP operators. The very high level of market share held by Telecom Italy, together with the presence of a very limited number of competitors with significant market shares (or at least higher than 1%), suggest that the criterion of market share alone proves in this case sufficient to identify a position of significant market power in this company Telecom Italy. However, merely supplementary, it is stressed that, in the case of this undertaking, recourse all the additional information indicative of a position of strength on the market. In particular, in addition to clearly established leadership of Telecom Italy on the entire telecommunications industry, detectable both in terms of turnover and capitalization, this enterprise certainly appears to be able to influence the market conditions in question, as is shown by, among other things: its high degree of vertical integration, which leads her to be present at all stages of the production chain of Internet access services; the high degree of concentration of the market in question, for which there is a concentration index C2 (combined share of the first two independents) of 93%; the crucial role played by Telecom Italy in the fixing of selling prices, the section on telephone tariffs for connection to Intemet. In this regard, and 'hardly necessary to observe that - given the substantial monopoly in the telephone access market - Telecom Italy and' the company that defines the price of Internet traffic for a large majority of Internet customers. In terms of access to financial resources Telecom Italy SpA and 'one of the main companies' capitalization of the Italian stock exchange, with possibility' of access directly to the capital market, both the bond market. Finally, indisputable and with few equivalents in the Italian economic system and 'the experience of Telecom Italy in the provision of services and its ability' to control the means of access to end users. With regard to this last aspect, refer - among others - two elements: a) the capillarity 'of the telecommunications network, with over 27 million active lines; b) the importance of the commercial network, direct and indirect, which is also highly branched throughout the national territory. 3.5.2. Assessment of operators' positions in the interim termination market. The total value of the market interconnection termination of Internet calls and 'determined by the sum of termination revenues of licensed operators, which should be added the so-called internal termination, valued according to the criteria mentioned above. Under this mode 'of computation, in this market we have the presence of two operators who hold more than 25% share and thus susceptible to notify such parties with significant market power. In terms of revenues, the company 'Wind Telecomunicazioni (hereinafter, for brevity', Wind) holds a share of 42% of the market, while Telecom Italy holds 33%. It follows a third operator (Tiscali), with a 17% share; the other operators is up the remaining 8%. An evaluation based on traffic volumes leading to substantially similar results, with an even more 'high share for Wind (47%), which corresponds to a share falling by Telecom Italy (31%). Given that the criterion of value, for the reasons mentioned above, is the priority application, it is noted, however, that both criteria lead to values ​​of market share significantly greater than 25% for the two mentioned companies. In this case, unlike what was recorded for the final market access, the level of market shares leads services - however - give greater emphasis to the criteria that contribute to identifying a significant market power on the part of undertakings. First, is that Wind Telecom Italy have a total turnover size significantly higher than the size of the specific market of the Internet terminal (about 320 million euro): Turnover of Telecom Italy Spa in 2001 and 'state of 17,309,000 euro ( 30.818 million euro for the parent company), while Wind has turnover of 3,300 million euro. Secondly, it appears out of the question the ability 'of the two companies to influence the market in question. In fact, it 'already' noted that the market is highly concentrated: the top three players account for over 90% of the market and the first two as much as 75%. Moreover, Telecom and Wind Italy are the only two players that operate at the level of SGU (Urban Group Stage) throughout the country and, therefore, can offer ISPs the possibility 'to attest to a network layer more' close to the end customer. In addition, consider that the relevance of the investments required to an operator in order to bear a number of presence on Italian territory to collect enough points to significant traffic volumes, is a major barrier to entry in the market of termination of Internet traffic. Both companies also denote a high level of integration, being engaged in all stages of the production chain of the Internet, and are able to achieve considerable economies of purpose, as a result of even their simultaneous presence on the other main telecommunications markets (networks and fixed telephony services, mobile telephone networks and services, leased lines). For these reasons, both Telecom Italy, Wind is can boast a considerable bargaining power in relation to other telecommunications operators (ISP licensees and operators), with particular reference to the definition of interconnection tariffs for calls to the Internet. Thirdly, in terms of experience in providing services on the market, the very fact that Telecom Italy is the only operator held for five years to prepare a reference offer for all of the network services necessary attributes to its competitors' former monopolist the maximum experience in providing intermediate services to telecom operators (whether they are licensors or ISP operators). As for Wind, experience in providing services to other operators' more 'recently certainly, given that only in recent years the company' has also begun to make wholesale offers. However, with specific regard to the ISP, you must observe how - to information provided by the same company - are now over one hundred ISPs that use of the second operator network. Fourth, about the possibility 'of access to financial resources for Telecom Italy are valid comments in the previous section, while in the case of Wind, and' sufficient to note that similar evaluations can be expressed with reference to the company ', which holds the majority share, Enel Spa, also listed on the Stock Exchange. Finally, in relation to the control of access to customers for transport, appear particularly important elements callback capillarity 'of the telecommunications network, which in the case of Telecom Italy extends to encompass about 27 million copper-pair (active) of the access network. In terms of customers, the two companies are by far the ones with the highest number of subscribers: while for Telecom Italy and 'sufficient to point out that this company still holds substantial monopoly of access and market share of around 80% with reference revenues from telephone traffic, in the case of wind, especially after the acquisition of the company 'Infostrada, the number of subscribers to the different services (voice telephony in the mode' of carrier selection and carrier pre-selection, mobile telephony, Internet) approaches now to 20 million, according to information disclosed by the company '. Even in terms of expansion of the commercial network (both direct, intended for larger companies, and indirectly, mainly targeted at residential customers and small businesses) and advertising expenses, the data relating to Wind Telecom and Italy denote an ability 'to access end customers of these two companies is not reflected among the competitors. Cosi ', if the firm for less time on the market, or Wind, you can' assess to about 5,000 the number of stores, while the budget is learned that the advertising expenses and customer acquisition touched 200 million euro in 2001 (6% of total revenue). In conclusion, the high level of market shares held by Wind and Telecom Italy in the interconnection termination market for calls to the Internet, together with the other factors indicative of a strong position on the market in question, lead to confer both companies the feature of operator with significant market power and, therefore, to provide for the appropriate notification. Having heard the report of Commissioner lawyer. Alessandro Luciano, rapporteur pursuant to art. 32 of the regulation governing the Authority's structure and functioning '. Resolves: Art. 1. 1. For the purposes of this provision, shall apply: a) the market for switched internet access from fixed network: the access to the Internet service mode 'Dial-up, PSTN or ISDN network up to 128 Kbit / s; b) the market of termination of calls to Internet mode 'Dial-up: the delivery service of Internet traffic to POP (point ofpresence) of an Internet Service Provider. 2. As not otherwise covered by this resolution, are applicable the definitions given by existing provisions.