Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Industry and Employment,
Having regard to decision 676 / 2002 / EC of the European Parliament and the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community;
Considering 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 Directive 2002 / 20 / EC of the European Parliament and the Council of 7 March 2002 on the authorization of electronic communications networks and services;
Considering the general code of public ownership;
Given the Post and Electronic Communications Code, including its articles L. 32-1, L. 42 to L. 42-3, R. 20-44-6 and R. 20-44-7 ;
Given the trade code, including its article L. 233-3 ;
Vu la Act No. 2008-3 of 3 January 2008 for the development of competition for consumers, including article 22;
Vu le Decree No. 2007-1532 of 24 October 2007 amended with respect to royalties for the use of radio frequencies due by licensees for the use of frequencies issued by the Electronic Communications and Post Regulatory Authority;
Considering the opinion of the Electronic Communications and Post Regulatory Authority dated 25 June 2009;
Considering the opinion of the Electronic Communications Advisory Commission dated 10 July 2009;
After the advice of the State Council (section of public works),
Decrete:
The above-mentioned Decree of 24 October 2007 is amended as follows:
I. ― Article 3 is thus written:
"Art. 3.-By derogation from section 2, licensees of a GSM and IMT band frequency usage licence operating a second or third-generation earthly mobile network open to the public are subject to the payment of a royalty determined by Chapter III. When not determined by Chapter III, this amount is specified in the specifications annexed to the respective authorities.
For authorizations to use GSM and IMT band frequencies, chapters I and II and the first paragraph of Article 14 of this Order are not applicable. »
II. Chapter III becomes Chapter IV.
III. ― After chapter II, a chapter III is inserted as follows:
“Chapter III
"Redevance due by operators operating a second or third generation mobile network open to the public
"Art. 13-1.-"Band 2, 1 GHz" means the frequencies between 1,900 and 1,980 MHz and between 2,110 and 2,170 MHz.
"The frequency between 880 and 915 MHz is defined by "900 MHz band" and between 925 and 960 MHz.
"The frequencies between 1,710 MHz and 1,785 MHz are defined by "1,800 MHz band" and between 1,805 MHz and 1,880 MHz.
"Art. 13-2.-The royalty due to the use of the band 2 frequencies, 1 GHz for the operation of a third-generation mobile network in the metropolis is composed for the 5 MHz duplex lot assigned following its reservation in 2009 to an operator not already licensed in this band:
" ― on a fixed share of 48,000 € per kHz duplex allocated over the entire territory for a period of twenty years, due upon the attribution of the permission to use frequencies;
"—a variable portion paid annually before June 30 of the current year for the use of the previous year's frequencies. This variable share is equal to 1% of the total revenue recorded as of December 31 of the year for which the frequencies are used. Revenue is determined in accordance with Article 13-4 of this Order.
"The amount of the variable share is calculated on the prorated number of days.
"Art. 13-3.-The royalty due to the use of frequencies in the 900 MHz bands and 1,800 MHz bands for the operation of a second or third generation mobile network in metropolitan France for the authorizations that were issued or renewed after January 1, 2006 or that allow for the use of part of the frequencies for the third generation of mobile phones consists of:
" – on a fixed part, paid annually before June 30 of the current year, in the amount of €1,068 per duplex kHz allocated on the entire metropolitan territory for the 900 MHz bands and €571 per duplex kHz allocated for the 1,800 MHz bands, calculated on the pro rata of the population of the areas on which the authorization relates;
" – on a variable share, paid annually, equal to 1% of the total turnover value as at December 31 of the year for which the frequencies are used. Revenue is determined in accordance with Article 13-4 of this Order. An instalment determined from the revenue recorded as of December 31 of the previous year is paid before June 30 of the current year. Its amount is corrected, if any, of the amount ensuring the regularization of the previous year.
"The amount of the fee is calculated on a prorated basis of the number of days.
"The turnover on second-generation services is not taken into account for the calculation of the variable portion of the fee payable by the operators with an authorization issued prior to January 1, 2006 not yet renewed.
"Art. 13-4.-The turnover taken into account includes the following operating revenues (excluding taxes) provided that they are realized through the use of the frequencies allocated to the operator in the bands considered:
« 1° Receipts for the provision of telephone service and data transport to direct and indirect customers of the operator. These revenues include those of the same nature carried out by companies whose operator holds control or which are controlled by a company that also holds operator control. A society is considered to be by controlling another if it meets the criteria of theArticle L. 233-3 of the Commercial Code ;
« 2° Receipts received by the operator on the basis of services or benefits provided to third parties in relation to the services referred to in 1, in particular advertising, referral or collection of commissions in the context of electronic commerce;
« 3° Receiving and connecting to the network;
« 4° Revenues related to the sale of services (including the provision of content) as part of a voice transaction or data. Payments to service providers are deducted from these revenues;
« 5° Interconnection-related recipes, excluding calls from another mobile network licensed in France;
« 6° Customer recipes in roaming on the operator's network;
« 7° Eventually any new service using the frequencies considered.
"The turnover taken into account does not include revenues from the sale of terminals.
"Art. 13-5.-The operator with a permission to use frequencies for the operation of a third-generation mobile network in metropolis maintains an information system and analytical accounting to determine the amount of the variable share.
"The operator shall, each year before 30 May, issue to the Minister for Electronic Communications, the Minister for Budget and the President of the Electronic Communications and Post Regulatory Authority, on the one hand, a report of the audited accounts containing, in particular, information to determine the amount of the variable share and on the other, forecast accounts for the following year.
"An order by the Minister for Electronic Communications specifies the conditions for the application of this section. »
The Minister of Economy, Industry and Employment, the Minister of Budget, Public Accounts, Public Service and State Reform, and the Minister to the Minister of Economy, Industry and Employment, responsible for the industry, are responsible, each with respect to it, for the execution of this decree, which will be published in the Official Gazette of the French Republic.
Done in Paris, July 29, 2009.
François Fillon
By the Prime Minister:
Minister to the Minister of Economy,
industry and employment,
responsible for the industry,
Christian Estrosi
Minister of Economy,
industry and employment,
Christine Lagarde
Minister of Budget, Public Accounts,
Civil Service
and state reform,
Eric Woerth
