Quality of Service (QoS), perhaps even more so than cost, is a key component of an access product for an access seeker. Whilst cost is undoubtedly important, cost is at least predictable for an access seeker and an access seeker can, if they have deep enough pockets, choose to defray some of the wholesale cost themselves rather than passing it all on to the customer. QoS on the other hand is far less predictable and is often highly visible to the customer in terms of delays in installation or repair or otherwise.
Where product delivery is delayed because of poor quality of service from an access provider, this not only has direct financial and resource implications for the access seeker but can also result in reputational damage with their end customer and can reduce the likelihood of switching. That QoS is more and more a defining factor can be seen from the fact that it, rather than price, has been one of the key arguments around Openreach in the UK. In addition, recently in Orange Polska v Commission (Case T-486/11), in which Shepherd and Wedderburn acted for ECTA as an intervener, the General Court upheld the Commission’s findings that Orange Polska’s non price behaviours were abusive and had prevented or at least delayed competition on the broadband markets. The rustle was the upholding of the significant fine imposed by the Commission.
The question of how to incentivise Quality of Service however is a thorny one. Regulators accept that the fulfilment journey for a product can be extremely complicated and that there are a number of parties involved; the access seeker, the access provider, the property owner or occupier, local councils, and roads and traffic authorities just to name a few. Trying to develop a quality of service process that strikes a balance between the access seeker and the access provider is therefore fraught with difficulty as the recent debates about “deemed consent” in the UK illustrate.