Key Benefits:
The Autorité de régulation des communications électronique et des postes,
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 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;
Vu le general code of public ownership ;
Given the Post and Electronic Communications Code, including its articles L. 36-5 and L. 41 to L. 42-3 ;
Vu le Decree No. 2007-1531 of 24 October 2007 establishing a fee to cover costs incurred by the State for the management of radio frequencies;
Vu le Decree No. 2007-1532 of 24 October 2007 Amended for the use of radio frequencies due by the licensees for the use of frequencies issued by ARCEP;
Considering the amended decision of 24 October 2007 on the application of Decree No. 2007-1532 of 24 October 2007 Amended for the use of radio frequencies due by the licensees for the use of frequencies issued by ARCEP;
Having regard to the Minister for Industry's request for advice, registered on 25 August 2009;
After deliberating on 8 September 2009,
On the general framework:
According to Article 13 of Directive 2002 / 20 / EC of 7 March 2002 on the authorization of electronic communications networks and services ("Authorization"), the Member States may allow the competent authority to submit to the payment of a fee the allocation of the rights of use of radio frequencies, in order to take into account the need to ensure the optimal use of these resources. Member States ensure that these royalties are objectively justified, transparent, non-discriminatory and proportionate in view of the use to which they are intended.
The Authority notes that section L. 41-1 of the CPCE provides that the use by licensees of radio frequencies available in the territory of the Republic constitutes a mode of private occupation of the public domain. In this context, the State is in a position to collect royalties for the use of radio frequencies due to licensees for the use of frequencies.
The method of pricing of the royalty is based on the principle of the valuation of the benefit withdrawn by the private occupant.To this end, Article L. 2125-3 of the general code of public property provides that "the royalty due to the occupation or use of the public domain shall take into account the benefits of any nature granted to the holder of the authorization".
Thus, the Decree No. 2007-1532 of 24 October 2007 a principal objective is to establish an effective value of the spectrum, including based on the benefits provided to the user of the frequencies issued by the Authority for the regulation of electronic communications and posts.
This is on the amendments to the provisions of Decree No. 2007-1532 of 24 October 2007 that the Authority is required to render an opinion in accordance with Article L. 36-5 of the CPCE.
On the draft decree amending the Decree No. 2007-1532 of 24 October 2007 relating 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:
As an opening point, the Autorité is pleased that the work to which it has contributed has quickly reached a draft decree, which allows, inter alia, to specify the method of calculating fees for the use of alloted radio frequencies of the mobile service of independent networks. The AMF also welcomes the fact that its proposals regarding the period of royalties due and the updating of their amount have been taken into account.
On Article 1
The Autorité notes to article 1 of the draft decree the introduction of the definition relating to a temporary authorization to use frequencies.
However, the Authority is questioning the usefulness of introducing this definition to the extent that the notion of temporary use of frequencies is not mentioned anywhere in the draft decree.
On Article 3
The Autorité takes note of the amendments introduced by this draft article relating to royalties due to the use of alloted frequencies of the mobile service of independent networks and has no particular observations to be made on them.
On Article 4
The Autorité proposes to clarify the drafting of Article 4 of the draft decree amending theArticle 10 of Decree No. 2007-1532 defining the value for the annual update of the amount of fees available to frequencies.
Indeed, it appears simpler to refer to the value published by INSEE each month representing the annual variation of the Consumer Price Index over a twelve-month period including the index of the month concerned.
Thus, in October, INSEE publishes the Consumer Price Index for the month of September and the variation of this index over the past 12 months, from the October index of the previous year to the September index being published.
An alternative drafting is proposed in the annex.
On Article 5
The Autorité notes that Article 5 of this draft decree provides for the adoption of an order setting out the list of associations involved in the field of civil security that may benefit from the exemption of the royalty to be made available to radio frequencies.
With regard to fairness, effective management and spectrum enhancement objectives, it is necessary to ensure that the management of this list complies with the principles applicable to the valuation of the public domain.
On Article 7
The Authority notes with satisfaction that the draft article provides that the fact-generating and extinguishing fees for the provision of frequencies are now constituted by the dates of the authorization and repeal decisions taken by ARCEP and not by the dates of notification of these decisions.
Furthermore, the Autorité takes note of the establishment of a minimum billing threshold fixed by the order of 24 October 2007 in its amendment also submitted to the Autorité's opinion. The AMF includes this minimum threshold as applicable both to the royalty of disposition and to the management fee, since each of them is the subject of a separate calculation as set out in Decree 2007-1531 dated 24 October 2007.
However, the Authority questions the meaning of the sentence: "These minimum amounts apply only once to the same authorization. This sentence introduces ambiguity as the term of authorization is not defined. The Autorité recommends that this sentence be deleted which compromises the application of the above provisions.
On the draft decree implementing the decree relating to the royalties of use of radio frequencies due by the licensees of the use of frequencies issued by the Autorité de régulation des communications électronique et des postes:
The Authority wishes to report the omission, in article 3 of the draft decree, of an amendment introduced by the order of 2 July 2008 amending the order of 24 October 2007 referred to above. The Autorité therefore suggests an amendment to Article 3 to take it into account.
On the other provisions of the draft decree, the Authority has no observations to be made.
*
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The Autorité issues a favourable opinion on the draft decree and the draft decree.
This notice and its annex will be forwarded to the Minister of Economy, Industry and Employment, responsible for the industry, and published in the Official Journal of the French Republic.
A N N E X E À L ' A V I S N° 2 0 0 9 - 0 7 2 6
SUR LE PROJECT DECRET MODIFIANT LE DÉCRET N° 2007-1532 DU 24 OCTOBER 2007 RELATING TO USE REDEVANCES OF RADIOELECTRICAL FREQUENCES BY AUTHORIZATION OF FREQUENCES DELIVED BY THE AUTHORITY OF REGULATION
| Art. 4. ― Section 10 of the above-mentioned Decree No. 2007-1532 is replaced by the following provisions: | Art. 4 ― Article 10 of Decree No. 2007-1532 referred to above is replaced by the following provisions: |
| “Art. 10. ― The amounts of the royalties available in sections 5, 7, 8 and 9 are updated each year based on the variation in the Consumer Price Index (including tobacco) published by INSEE. This variation is calculated over a 12-month period from October 1 to September 30 and corresponds to the arithmetic mean of the twelve monthly indices for the specified period. The benchmark for updating is that of September 2007. » | “Art. 10. ― The amounts of the royalties available in sections 5, 7, 8 and 9 are updated annually based on the variation (in %) over the last 12 months of the Consumer Price Index (Included Tobacco) published by INSEE for the month of September preceding the year for which the royalty is due. The benchmark for updating is that of September 2007. » |
| Art. 7. ― Article 14 of the above-mentioned Decree No. 2007-1532 is as follows: | Art. 7. ― Article 14 of the above-mentioned Decree No. 2007-1532 is as follows: |
| “Art. 14. (...) | “Art. 14. (...) |
| The amount of royalties is calculated pro rata temporis in the number of days. If the amount resulting from the calculation of a royalty is less than a threshold set by order of the Minister for Electronic Communications, the amount corresponding to that threshold will be applied. | The amount of royalties is calculated pro rata temporis in the number of days. If the amount resulting from the calculation of a royalty is less than a threshold set by order of the Minister for Electronic Communications, the amount corresponding to that threshold will be applied. |
| These minimum amounts apply only once for the same authorization. | (...). » |
| (...). » | |
| Art. 3. ― The table in section 6 of the above-mentioned October 24, 2007 Order is replaced by the following table: | Art. 3. ― The table in section 6 of the above-mentioned October 24, 2007 Order is replaced by the following table: |
| (...) | (...) |
| Frequency of fixed and mobile satellite services 2.5 | Frequency of fixed satellite service 2.5 |
| (...). | Frequency of mobile satellite service 30 |
| | (...). |
Done in Paris, September 8, 2009.
The president,
J.-L. Silicani
