The Commission for the Protection of Competition (hereinafter ‘the CPC’) at its meeting convened on 11 September 2012, having evaluated all the evidence before it, unanimously concluded that the actions and/or omissions of CYTA and particularly the refusal to provide direct access to the Texting Centre SMS of CYTA, and to all related services that are essential to a provider of electronic communications to be able to offer services of SMS value added (Premium SMS) charged at the end of the message (mobile terminations), to the subscribers of CYTA, constitute an abuse in violation of section 6(1)(b) and 6(1)(c) of the Protection of Competition Law L.13(I)/2008 (hereinafter ‘the Law’).
The case subject was the review of the complaint of the company NETSMART (CYRPUS) LTD against CYTA, for which a decision No. 42/2010 had been issued, which was annulled by the Supreme Court as a result of the decision of the Supreme Court in appeal No. 1544/09, 1545/09, 1596/09 and 1601/09 (ExxonMobil Cyprus Ltd etc. and the Commission for the Protection of Competition).
The Commission in its decision held that CYTA as dominant in the relevant market concerned, failed to respond to its specific obligation to provide the complainant company Netsmart access in order to provide services of overpriced texting (using the method of Premium SMS - MT), directly to the mobile users of CYTA.
The Commission in its decision held that the infrastructure for the provision of services of Premium SMS-MT was essential to the development of competition in this area, and thus, CYTA ought to provide it and take the necessary actions that will help them overcome any obstacle, technical or of other nature.
The software implementation time from November 2005, the date on which the provision of this facility was specifically requested, up until April 2010, the date on which CYTA had found the technical solution, it was held by the Commission to be too long, provided that the data of the file shows that actions to solve the problem on behalf of CYTA had began in 2009 and were completed in 2010, that is, within just one year. The fact that the required software was not in hand and that neither could be bought can not constitute as an objective justification for the time that elapsed from 2005 to 2010.
The infringements concern the period from November 3, 2005, the date on which Netsmart had requested in writing, the ability to provide services of overpriced texting to the subscribers of CYTA with the charging at the end of the message, up to April 15, 2010, date during which the technical solution for the implementation of the service requested was found and notified to Netsmart by CYTA.
Therefore, CPC, acting on the basis of Section 24 (a) (i) of the Law decided:
(A) In respect to the infringement of Section 6 (1) (b) of the Law to impose a fine amounting to €318.556 (three hundred eighteen thousand five hundred and fifty six Euros), and
(B) In respect to the infringement of Section 6 (1) (c) of the Law, to impose a fine amounting to €318.556 (three hundred eighteen thousand five hundred and fifty six Euros).