The scope of the economic sector regulation in electronic communications

In this paper, I propose a market-based approach relying on a combination of selection criteria and antitrust methodology to determine the scope of economic regulation and its balance with competition law. I suggest a clarified three criteria test related to the presence of high non-transitory and non-strategic entry barriers that are mainly of economic nature, the absence of dynamic competition behind those barriers and a cross-checking criterion related to the insufficiency of antitrust remedies to solve the identified problems. I remind the importance of using use antitrust methodology adapted to the characteristics of the sector. I also propose a clarification for the regulation of the emerging markets. I suggest to distinguish retail services and the underlying wholesale infrastructures, and that all wholesale access products used for the provision of similar retail services should be dealt with in the same way, independently of the infrastructures (being the old copper pair or upgraded VSDL network) and that only wholesale access products used to provide new retail services might possibly escape regulation.