Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Considering the constitution, convention and regulation of radiocommunications of the International Telecommunication Union;
Having regard to Directive 2002/20/EC of the European Parliament and the Council of 7 March 2002 on the authorization of electronic communications networks and services;
Having regard to Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services;
Considering the post and electronic communications code, including articles L. 36-5, L. 42-1 and L. 97-2;
Considering Act No. 2004-575 of 21 June 2004 for confidence in the digital economy;
Considering the Decision of 9 December 2005 amending the National Frequency Distribution Table;
Having regard to Notice No. 2002-1090 of the Telecommunications Regulatory Authority, dated 3 December 2002, on the bill on the digital economy;
Given the Minister's request for advice to the industry, dated March 13, 2006;
After deliberating on 30 March 2006,
I. Context elements
Act No. 2004-575 of 21 June 2004 on confidence in the digital economy introduced in the Post and Electronic Communications Code a title VIII on frequency assignments to satellite systems.
Thus, articles L. 97-2 to L. 97-4 of the Post and Electronic Communications Code (CPCE), in their drafting of the Law for Confidence in the Digital Economy, define the procedure for transferring the rights of use of frequency assignments to satellite systems, obtained by France from the International Telecommunication Union, to the operators of satellite systems on whose behalf the application was made.
Pursuant to these sections, the operation of a frequency assignment to a satellite system is subject to the authorization of the Minister responsible for electronic communications, after the instruction of the National Frequency Agency.
In its opinion No. 2002-1090, dated 3 December 2002, on the Digital Economy Bill, the Authority had issued an unfavourable opinion on the establishment of an authorization regime established by the National Agency for Frequencies for Satellite Systems.
As such, the AMF had emphasized that the provisions of the bill on the digital economy concerning frequency assignments to satellite systems would result in a double regulatory mechanism, which would be a source of unnecessary complexity, or even problems of coherence at the very moment when the new community directives of the "Telecom package" were intended to harmonize and simplify national regimes.
However, the observations made by the Authority were not taken into account by the legislator in the adoption of Act No. 2004-575 of 21 June 2004 for confidence in the digital economy.
The purpose of the draft decree submitted for advice to the Authority is to establish the terms and conditions for the application of Article L. 97-2 of the Post and Electronic Communications Code, including the following:
« 1° The procedure whereby authorizations are issued or withdrawn and that their caducity is found;
2° The duration and conditions of modification and renewal of the authorization;
3° The conditions for the commissioning of the satellite system;
4° The procedure for establishing and recovering the royalty in the second paragraph of 2 of I."
II. - On the competence of affection
The Authority recalls that, pursuant to sections 1.110 and 1.111 of the Radiocommunication Regulations, Earth radio stations are part of the satellite system as well as space stations.
The AMF notes that Earth stations, which are one of the components of satellite systems, enter the scope of the authorization for the operation of frequency assignments relating to a satellite system and are therefore subject to the provisions of the draft decree.
It should be noted, however, that the establishment of terrestrial radio stations, with respect to national territory, falls within the Authority's jurisdiction under Article L. 42-1 of the Post and Electronic Communications Code. It provides that "the Authority for the Regulation of Electronic Communications and Positions attributes the authorizations for the use of radio frequencies in objective, transparent and non-discriminatory conditions taking into account the needs for the development of the territory".
As a result, the system retained by this draft decree still leads to a double regulation situation that, if it concerns seemingly distinct fields, may pose problems of consistency with respect to Earth stations.
In addition, pursuant to the Decision of 9 December 2005 amending the National Frequency Distribution Table (TNRBF), the Authority is affective for fixed satellite, mobile satellite and mobile aeronautical satellite services. For example, in the frequency bands of which it is emotional, the Authority has full jurisdiction to assign the permissions to use the frequencies for these services.
Subsequently, the Autorité proposes to supplement draft article R. 52-3-1 so as not to modify its status as an employee.
III. - On the withdrawal procedure
The Authority notes that draft article R. 52-3-17 provides for the removal by the Minister responsible for electronic communications of the authorization to use frequency assignments when all assignments or part of them are no longer used.
However, the Authority wishes to draw attention to the consequences that may arise from the withdrawal of such authorization by the Minister responsible for electronic communications on the durability of the individual authorization for the use of the radio frequencies issued by the Authority under section L. 42-1 of the station code and electronic communications, in the case that the operator uses the capabilities of the satellite system authorized to operate its electronic communication hypothesis.
IV. - On the instruction of applications for authorization
IV-1. On receipt of requests
The Authority notes that draft article R. 52-3-5 provides that the National Frequency Agency shall inform the applicant by registered letter with a request for notice of receipt when the request is incomplete. The applicant is then invited to provide the additional documents.
For the sake of good administration, it appears useful that the National Frequency Agency also informs the applicant, by registered letter with a request for notice of receipt, that its file is complete and admissible.
This arrangement would allow for the date on which the six-month deadline for the Minister for Electronic Communications to issue the authorization or notify the refusal.
IV-2. On the instruction of applications
The Authority notes that draft article R. 52-3-6 provides that the National Frequency Agency shall consult with the affected radio frequency administrations and authorities and collect their opinions. These administrations and emotional authorities have a period of four weeks to render their opinion.
The Authority considers it necessary that this period be extended to six weeks. This period of time seems to be more appropriate to the technical constraints of developing the above-mentioned notices.
V. - On the conditions of commissioning the satellite system
The Autorité emphasizes that Article L. 97-2 expressly provides that the decree in the Council of State specifies "the conditions for the commission of the satellite system".
However, this draft decree does not provide a specific chapter on these conditions of commissioning the satellite system.
The Authority notes, however, that the draft decree provides a chapter II entitled "Requirements of the holder of the authorization provided for in Article L. 97-2". However, these provisions do not fall within the scope of the implementing decree of Article L. 97-2.
The Authority further notes that draft articles R. 52-3-13 and R. 52-3-14 contain provisions relating to the conditions for the commissioning of the satellite system, in particular with regard to the provision of financial, commercial and technical elements relating to the project or operation of the satellite system, as well as the maximum period of five years in which the operation of frequency assignments must have commenced.
In order to ensure consistency with the provisions of Article L. 97-2 of the Post and Electronic Communications Code, the Authority considers it necessary to amend the title of Chapter II and to complete draft article R. 52-3-9.
VI. - General conclusion
Subject to the comments set out above and the editorial amendments made in the annex, the Authority shall issue a favourable opinion on the draft decree.
This notice and attached editorial proposals will be forwarded to the Minister Delegate to the Industry and published in the Official Journal of the French Republic.
Done in Paris on 30 March 2006.
A N N E X E
DRAFT DECRET FOR ENGÉQUENCE ASSIGNATIONS TO SATELLITARY SYSTEMS
PREVU par L. 97-2 DU CODE DES POSTES ET DES COMMUNICATIONS ÉLECTRONIQUES
You can see the table in the OJ
n° 186 of 12/08/2006 text number 67
The president,
P. Champsaur
