Key Benefits:
The Authority Regulation of electronic communications and posts,
In view of Decision 676 /2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the Community European;
In view of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Directive) Framework "), as amended by Directive 2009 /140/EC of the European Parliament and of the Council of 25 November 2009;
Having regard to Directive 2002 /20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of communications networks and services Electronic (directive) Authorization "), as amended by Directive 2009 /140/EC of the European Parliament and of the Council of 25 November 2009;
Given the general code of ownership of public persons;
Given the code of posts and electronic communications, in particular its articles L. 32-1, L. 36-5 and L. 41 to L. 42-3;
In the light of Decree No. 2007-1532 of 24 October 2007 relating to charges for the use of radio frequencies by the Holders of licences to use frequencies issued by The Electronic Communications and Postal Regulatory Authority;
In view of the public consultation on the allocation of authorisations in the 800 MHz and 2.6 GHz bands for mobile broadband services carried out by the Regulatory Authority Electronic communications and postal services (hereinafter " The Authority) From 5 March to 15 June 2009;
Due to the synthesis of the public consultation carried out by the Authority for the allocation of authorisations in the 800 MHz and 2.6 GHz bands for the deployment of mobile broadband networks published on 15 January 2010;
Due to the public consultation on the allocation of the spectrum bands 800 MHz and 2.6 GHz for the deployment of high-speed mobile networks conducted by the Authority from July 27 to September 3, 2010;
Due to the letter of the Minister for Industry, Energy and the Digital Economy as of May 13, 2011 Seeking the opinion of the Authority on the draft decree amending Decree No. 2007-1532 of 24 October 2007 ;
After having deliberated on 19 May 2011;
On the Context
The band 790-862 MHz (" 800 MHz "), from " Digital Dividend ", is assigned to electronic communications services, in accordance with the national scheme for the re-use of the frequencies released by the termination of the analogue broadcast adopted by the Prime Minister on 23 December 2008. This assignment is exclusively from the end of the switchover of analogue to digital television (terrestrial digital television) and its release from the systems of the Ministry of Defence and Veterans, either from 1 December 2011 (with the exception of localized and transient uses specifically defined in particular around certain military camps).
The band 2500-2690 MHz (known as " 2.6 GHz "), consisting of 70 MHz duplex in FDD mode (1), and 50 MHz in TDD mode (2), has also been assigned to electronic communications services. His release by the Ministry of Defence and Veterans extends from 2010 to 2014 according to a defined timetable region by region.
In this context, the ARCEP is preparing to propose to the Minister responsible for electronic communications two Call for applications in the 800 MHz and 2.6 GHz (FDD) bands, newly assigned to mobile services.
On the legal framework
Under Article L. 2111-17 of the general code of public ownership, The radio frequencies available on the territory of the Republic In the public domain of the State.
Article L. 41-1 of the electronic postal and communications code provides that the use by the holders of radio frequencies available in the territory of the Republic constitutes a mode of private occupation of the public domain of the State.
In view of the need to enhance the public domain and because of the limitations of its access resulting from private use, the The private occupation of the public domain is allowed under Article L. 2125-3 of the general code of ownership of public persons and Article L. 42-2 of the postal code and electronic communications and, in Community law, by Article 13 of Directive 2002 /20/EC of 7 March 2002 as amended,
Also, the fees payable by the holders of licences for the use of frequencies constitute royalties for the private occupation of the public domain of the State, including the method of calculation and the conditions of their payment as Of their recovery may be fixed by regulation.
The draft Pursuant to Article L. 36-5 of the Code of Postal and Electronic Communications, the purpose of the decree is to define, in accordance with Articles L. 42-1 and L. 42-2 of the same Code, the manner in which the charge shall be paid Which will be due by the licensees of the spectrum licences available in the 800 MHz and 2.6 GHz (FDD) bands.
The provisions of the draft order are introduced in the Order No. 2007-1532 of October 24, 2007 On charges for the use of frequencies issued by the Electronic Communications and Postal Regulatory Authority.
On changes to decree n ° 2007-1532 of 24 October 2007
The Authority notes, first, that Article 1 of the draft order amends article 3 of decree n ° 2007-1532 above and The heading of Chapter III of the same order, relating to charges payable by operators operating a land mobile network open to the public, to delete references to ' GSM and IMT bands " And to the land mobile network " '.
The Authority takes note of the changes introduced by the draft article whose purpose is to extend the scope of the provisions of Chapter III of the Decree of 24 October 2007 to the holders of authorisation The use of spectrum using a mobile network, regardless of the technology deployed, with a view to opening up to the technological neutrality of all bands allocated to the operation of mobile
. Second, that Article 1 of the draft decree inserts, in the Order No. 2007-1532 referred to above, new sections 13-4 and 13-5.
These new provisions provide that the royalties due for the use of the 800 MHz band (new section 13-4) and the 2.6 GHz band (new Article 13 (5) by the operators authorised for the operation of a mobile network in metropolitan France shall consist of:
-fixed part of an amount that the holder of the authorisation will be committed to pay in the selection procedure under Article L. 42-2 of the electronic communications and postal code;
-of a variable part, Equal to 1 % of the total amount of turnover shown as at 31 December of the year in respect of which the frequencies are used, which will be paid annually; a provisional instalment based on the turnover shown at 31 December of the previous year is paid before June 30 of the current year.
The Authority Notes that the draft decree specifies, in Articles 13-4 and 13-5, the scope of the turnover taken into account for the calculation of the variable share of the fee.
The Authority welcomes this provision which takes part in the effort Harmonisation of the method of calculation and the conditions for payment and recovery of charges for the use of mobile frequencies.
In effect, this provision aligns the rules which will be applicable to the calculation of the variable share of the Royalties due to the use of spectrum in the 800 MHz bands And 2.6 GHz on those applicable, since the modification of Decree No. 2007-1532 referred to above by the decree N ° 2009-948 of July 29, 2009, the charges for the use of the frequencies in the 900 MHz and 1800 MHz bands.
On the other hand, with respect to the royalties due for the use of the frequency band 2.1 GHz, the rules for calculating the Variable share of the royalties remain different. The Authority considers that a harmonisation of these rules would be a simplification of the arrangements for the scheduling and recovery of charges.
To the benefit of these comments, the Authority will give a favourable opinion on the draft decree
This notice will be sent to the Minister responsible for Industry, Energy and the Digital Economy and published in the Official Journal of the French Republic.
Done at Paris on May 19, 2011.
The President,
J.-L. Silicani
