'Publieksvriendelijk' versnellen van innovatie in netwerksectoren: een exploratie van wetstechnische mogelijkheden ter bevordering van innovatie in de telecomsector, met behoud van de bescherming van publieke belangen

The objective of network regulation is to achieve an optimal mix of public values, such as the prevention of infrastructure related nuisance, the availability of high quality universal services for reasonable prices and innovation of networks and services. This study’s aim is to expose potential legislative adjustments to accelerate the speed of innovation without comprising the prevailing legal protection of other public values. Although the study is focused on the Dutch telecom industries, it intends to also provide inspiration for similar research in other network markets. As the influence of sector specific regulatory concepts varies per scenario, several innovation scenarios – focusing on Next Generation Networks (NGN) as well as on Same Generation Networks (SGN) – are identified. In order to determine the expected influence of innovation speed determinants as found in innovation literature for each scenario, an (imaginary) ‘unregulated network market’ (UNM) is established where providers behave according to innovation timing theory, network effects and several rules of preference. In such a market it will be especially attractive to an incumbent to build on its existing network (SGN) instead of investing in NGN. After providing an inventory of prevailing determinants in Dutch telecom legislation and adding those determinants to the UNM, a conclusion is drawn about the influence of the Dutch telecommunications law on the probability of the identified innovation scenarios. In general, current legislation seems to focus merely on mitigation of the negative impact on innovation of arrangements safeguarding other public values than innovation, instead of stimulating (radical) innovation under the condition that this must not be at the expense of the protection of other public values - at least not too much. Hence, in the prevailing legal regime enhancing innovation appears to be subordinate to safeguarding other interests. Several legislative paths are identified to accelerate innovation without comprising the prevailing legal protection of such other public values. For many of the examples given, the choice to make such an adjustment involves a political choice about which innovation scenarios to stimulate. Legislative stimulation of all scenarios identified appears a mission impossible.