JORF n ° 0070 March 23, 2013 text no. 63 notice n ° 2013 - 0360 28 February 2013 on the draft decree amending Decree No. 2007-1532 24 October 2007 amended relating to the use of the radio spectrum fees due by the holders of authorisations for the use of frequencies issued by the regulatory authority for electronic communications and posts NOR: ARTL1307039V ELI : Not available authority electronic communications and postal regulation, having regard to decision 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum in the European Community policy;
Having regard to directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications services and networks (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 networks and services of electronic communications (directive 'authorisation'), as amended by directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009;
Having regard to the general code of the property of public persons;
Seeing the code postal and electronic communications, particular articles L. 32 - 1, L. 36 - 5 and L. 41-L 42 - 3;
Saw order No. 2011 - August 24, 2011 1012 relating to electronic communications, including section 59;
Mindful of Decree No. 2007-1532 24 October 2007 amended relating to the use of the radio spectrum fees owed by holders of authorisations for the use of frequencies issued by the regulatory authority for electronic communications and posts;
Pursuant to Decree No. 2012 - 436 March 30, 2012 on transposition of the new European regulatory framework for electronic communications, including its article 29.
Having regard to the company mail Bouygues Telecom dated July 19, 2012;
Having regard to the letter of the Minister-delegate responsible for SMEs, innovation and digital economy dated February 15, 2013, requesting the opinion of the authority on the draft decree amending Decree No. 2007-1532 October 24, 2007.
February 28, 2013, having deliberated on the context of the introduction of technological neutrality in the band 1 800 MHz directive 2002/21/EC (directive 'framework') as amended by directive 2009/140/EC lays down a principle of technological neutrality in article 9, paragraph 3: "unless otherwise provided in the second subparagraph, Member States shall ensure that all types of technology used for electronic communications services may be used in the. frequency bands declared available for electronic communications services in their national allocation plan frequencies in accordance with Community legislation'. It also provides, in its article 9 bis, a procedure for review of the authorisations for the use of frequencies for the permissions assigned before its entry into force.
Order No. 2011 - 1012 August 24, 2011 for the transposition of directive 2009/140/EC provides, in article 59, the procedure of review of rights of use, on the one hand, from May 25, 2016 (III of article 59), and, on the other hand, in the case of a request for waiver of technological restrictions (II of section 59).
Pursuant to article 59 of this order II, Bouygues Telecom requested, by letter dated July 19, 2012, the lifting of restrictions on the use of its spectrum in the 1800 MHz band. In pursuance of the national texts, ARCEP shall notify within a period of eight months, the result of the examination of this request and, where appropriate, the new conditions applying to the use of the 1800 MHz frequency.
In its current version, Decree No. 2007 - 1532 24 October 2007 amended relating to the fees for the use of radio frequencies owed by holders of authorisations for the use of frequencies issued by the electronic communications and postal regulation authority, does, for the 1800 MHz, that the royalties in the case of the operation of second and third generation networks. It is therefore for the Government to amend the decree to set the amount of the fees payable by mobile operators for the use of the band 1 800 MHz for any networking technology. It is the purpose of the draft decree for which the ARCEP is asked for its opinion.
On the legal framework relating to the fees in which fits the seizin of the ARCEP by the Government under the terms of article L. 2111-17 of the general code of the property of public persons, available on the territory of the Republic radio frequencies fall under the public domain of the State.
Article L. 41 - 1 of the post and electronic communications code provides that the use by the holders of authorisations, of radio frequencies on the territory of the Republic is a private mode of occupation of the public domain of the State.
Taking into account the need to promote the public domain and due to the limitations of its resulting from use, private access, the expensive private public domain occupation character is admitted, in domestic law, by article l. 2125-3 general public property code and article L. 42 - 2 du code positions and electronic and communications in Community law, by article 13 of directive 2002/20/EC of 7 March 2002 as amended, above.
Also are the royalties payable by the holders of authorisations for the use of frequencies royalties for private occupation of the public domain of the State, including the calculation and the terms of their payment and their recovery may be fixed by regulation.
The draft decree which is brought before the authority, in accordance with article L. 36 - 5 post and electronic communications code, is intended to define, in application of articles L. 42 - 1 and L. 42 - 2 of the code, the terms of payment of the fee which will be due by the holders of the authorisations for the use of frequencies in the band 1800 MHz which made neutral technologically.
The provisions of the draft decree are introduced in Decree No. 2007-1532 24 October 2007 amended relating to the fees for the use of frequencies issued by the regulatory authority for electronic communications and posts.
Changes made to Decree No. 2007 - 1532 October 24, 2007 article 1 of the draft Decree seeks to amend article 13-3 of Decree No. 2007 - 1532 referred to above, which provides, in its current version, royalties in the 900 MHz and 1 800 MHz for the operation of networks of second and third generation. It removes any reference to the band 1 800 MHz and leaves unchanged the provisions relating to the 900 MHz band, which continue to apply the same.
Article 2 of the draft Decree creates a section 13-3-3 in the same Decree, which establishes the fees in the 1 800 MHz band. This new section provides that the fee payable in respect of the use of frequencies in the band 1 800 MHz by the operators who will be allowed to operate a mobile in metropolitan France network consists: ― to a fixed part which is paid annually by June 30 of the current year, calculated in proportion to the population of the areas covered by the authorization;
― a variable share, equal to 1% of the total amount of the turnover at 31 December of the year in respect of which frequencies are used, which is paid annually; an instalment determined from turnover at 31 December of the previous year is paid before 30 June of the current year.
The authority finds that the fees in the 1 800 MHz band fixed by the draft decree remain in their terms and conditions, similar to those currently established in the 1800 MHz frequency band.
Regarding the fixed part, the draft decree indicates that it is ' a 3231 EUR per duplex kHz allocated amount, calculated in proportion to the population of the areas to which the authorization relates, except when it allows its holder as a second generation mobile network operating. '' In the latter case, the fixed part is amount of 571 euros per duplex kHz allocated. "This change helps extend the royalty in the 1 800 MHz band for all types of networks: it is therefore consistent with the framework provided by the EU directives for a technologically neutral use of the frequency bands, in particular, in the case of an early lift technological restrictions to 1800 MHz.
In addition, the authority includes the drafting of the draft decree that the scale of 571 euros per duplex kHz applies only when a permission in the 1 800 MHz band allows its holder to operate a second generation network; If the authorization is not exclusively on the operation of a second generation network, the single scale of 3231 EUR per duplex kHz should apply. Authority therefore proposes to strengthen the writing in this sense by replacing, in the second paragraph, the terms "except when it allows its holder as a second generation mobile network operating» by" except when it allows its holder as the only second generation mobile network operating.
With regard to the amounts of the fixed part, the Authority notes the following.
The new section 13-3-3 of the Decree No. 2007-1532 provides the maintenance of the current amount of 571 euros to a mobile operator wishing to proceed with its 1800 MHz frequency for the operation of a network of second generation. There is therefore no change in charges to 1,800 MHz for a such actor. However, in the drafting of the draft article, the terms 'calculated in proportion to the population of the areas on which gate permission' which are provided for in article 13-3 of the decree were not included. This entry could be added at the end of the second paragraph of draft article 13-3-3 after the words "in the latter case, the fixed part is amounting to €571 per duplex kHz allocated" so particular to continue to take into account the current situation of Bouygues Telecom, which, for the operation of its second generation network, is allowed in "very dense" zones (defined in decision No. 2009 - 0838 November 5, 2009) and out of these areas with amounts of different frequencies.
Regarding the fees for the operation of all types of networks, it should be noted that the draft decree provides the fixed share of royalties amounting to much higher than those laid down for the operation of a network of second generation (multiplication by close to six). This amount can be compared to the fees in the bands 800 MHz and 2.6 GHz, which are the only other frequencies allocated to this day of technologically neutral manner and in which mobile technologies broadband standard LTE can be used today. Royalties in these two bands are formed for one fixed, paid at a flat rate for the allocation of frequencies, and a variable part equal to 1% of the turnover on these frequencies, as for the 1 800 MHz band. The amount of 3 231 euros by kHz duplex set to 1,800 MHz is intermediate between the amounts of fixed shares paid by operators in the other two bands of frequencies (higher than 2.6 GHz) but less than 800 MHz ― when these amounts are reduced on a discounted annual basis — just as the properties of propagation to 1,800 MHz , and therefore the intrinsic quality of these frequencies, are intermediate between 800 MHz and 2.6 GHz.
Finally, regarding the date of entry into force of the Decree, proposed on July 1, 2013, the authority includes that it has been fixed in accordance with the requirements of the circular of the Prime Minister as of May 23, 2011 about the common dates of entry into force of the standards for businesses. It is naturally not the date on which the lifting of the restrictions in the 1 800 MHz band would be authorized.
For the benefit of these observations, the Authority issues a favourable opinion on the draft decree.
This notice will be forwarded to the Minister-delegate responsible for SMEs, innovation and the economy digital and published in the Official Journal of the French Republic.
Done at Paris, on February 28, 2013.
President, j. Silicani