Key Benefits:
The Electronic Communications and Postal Regulatory Authority,
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 European Community;
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 networks and services of Electronic communications (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 view ofOrder No. 2011-1012 of 24 August 2011 on electronic communications, in particular Article 59;
Seen decree n ° 2007-1532 of October 24, 2007 , as amended relating to the charges for the use of radio frequencies by the holders of Frequencies issued by the Regulatory Authority for Electronic Communications and Posts;
Seen Decree n ° 2012-436 of 30 March 2012 transposing the new European regulatory framework for communications Electronic, in particular Article 29;
In view of the mail of Bouygues Telecom as of 19 July 2012;
In view of the letter from the Associate Minister responsible for SMEs, Innovation and the Digital Economy as of 15 February 2013 Seeking the opinion of the Authority on the draft decree amending Decree No. 2007-1532 of 24 October 2007 ;
After deliberating on 28 February 2013,
On the Context of the Introduction of Technological Neutrality in the 1 800 MHz Band
Directive 2002 /21/EC ("Directive") Framework ") Amended by Directive 2009 /140/EC lays down a principle of technological neutrality in Article 9 (3): ' Unless otherwise provided in the second subparagraph, Member States shall ensure that all types of technology used for electronic communications services can be used in the frequency bands declared available for Electronic communications services in their national frequency allocation plan in accordance with Community legislation ". Article 9a also provides for a procedure for reviewing authorisations for the use of frequencies for authorisations granted before it enters into force.
The order n ° 2011-1012 of 24 August 2011 transposing Directive 2009 /140/EC provides, in Article 59, the procedure for the review of rights of use, on the one hand, to On May 25, 2016 (III of Article 59), and, on the other hand, in the case of an application for early removal of restrictions Technological (II of Article 59).
Pursuant to Article 59 of that order, Bouygues Telecom requested, by letter dated 19 July 2012, the lifting of the restrictions on the use of its frequencies in the band 1800 MHz. In application of the national texts, the ARCEP must notify within eight months the result of the examination of this application and, where appropriate, the new conditions applying to the use of the frequencies at 1 800 MHz
Today, the amended Decree No. 2007-1532 of 24 October 2007 on for the use of radio frequencies by the holders of authorisations The use of frequencies issued by the Regulatory Authority Electronic communications and postal services, for the 1800 MHz band, only provides for the royalties applicable to the operation of second and third generation networks. It is therefore up to the Government to amend this decree to define the amount of charges payable by mobile operators for the use of the band 1 800 MHz for any network technology. This is the purpose of the draft order for which the ARCEP is seized for an opinion.
On the legal framework for royalties in which the Government has referred the matter to the PFRA
Under Article L. 2111-17 of the General code of ownership of public persons, the radio frequencies available on the territory of the Republic are in the public domain of the State.
Article L. 41-1 of the Postal Code and electronic communications Provides that the use by licensees of frequencies Radio 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 a Private use, the burdensome nature of the private occupation of the public domain is allowed, in domestic law, by Article L. 2125-3 of the General Public Property Code and Article L. 42-2 of the Postal Code and of the Electronic communications and, in Community law, Article 13 of the Directive 2002 /20/EC of 7 March 2002 as amended, referred to above.
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 mode The
decree before the Authority, in accordance with Article L. 36-5 of the Postal and Communication Code To define, in accordance with Articles L. 42-1 and L. 42-2 of the Same code, the terms and conditions for payment of the fee that will be due by the holders of the spectrum licences available in the 1800 MHz band that will have been made technologically neutral.
The provisions of the draft Shall be introduced in the Decree n ° 2007-1532 of 24 October 2007 as amended concerning charges for the use of frequencies issued by the Regulatory Authority Electronic communications and positions.
On the Changes to Order No. 2007-1532 of October 24, 2007
Section 1 of the proposed Order is intended to amend the article 13-3 of the aforementioned decree n ° 2007-1532, which provides, in its current version, the royalties in the 900 MHz and 1,800 bands MHz, for the operation of second and third generation networks. It removes all references to the band 1 800 MHz and leaves unchanged the provisions for the 900 MHz band, which continue to apply equally.
Section 2 of the proposed Order creates a section 13-3-3 in that Order, which sets out the Royalties in the 1 800 MHz band. This new section provides that the fee payable for the use of the frequencies of the band 1 800 MHz by the operators that will be authorized for the operation of a mobile network in metropolitan France consists of:
-a fixed share that is paid annually before June 30 of the current year, prorated to the population of the areas on which the authorization relates;
-a variable share equal to 1 % of the total revenue As at 31 December of the year in respect of which the frequencies are used, which is paid annually; an instalment determined on the basis of turnover as at 31 December of the previous year shall be paid before 30 June In the current year.
The Authority notes that the royalties in the 1 800 MHz band Fixed by the draft decree shall remain, in their terms and conditions, similar to those currently set in the frequency band 1800 MHz.
With regard to the fixed share, the draft decree states that it is " An amount of EUR 3231 per kHz duplex allocated, calculated in proportion to the population of the areas covered by the authorisation, except where the authorisation allows the holder only to operate a second-generation mobile network. In the latter case, the fixed share is EUR 571 per allocated duplex. "
This amendment extends the charges in the 1 800 MHz band to any type of network: It is therefore consistent with the framework laid down in the European directives for the technology-neutral use of frequency bands, in particular in the case of an early lifting of technological restrictions to 1 800 MHz.
In addition, the Authority understands from the drafting of the proposed Order that the 571 Euros per-duplex scale applies only when an authorization in the 1 800 MHz band allows the licensee to operate a second-line network. Generation; if the authorization is not limited to the operation of a network Of second generation, the only scale of 3231 euros per kHz duplex shall apply. The Authority therefore proposes to strengthen the wording in this sense by replacing, in the second paragraph, the words " Except where the latter only permits the operation of a second-generation mobile network " By " Except where it allows the holder only the operation of a second generation mobile network ".
As regards the amounts of the fixed share, the Authority notes the following elements.
New Article 13-3-3 of Decree No. 2007-1532 provides for the continuation of the current amount of 571 euros to a mobile operator who would like to continue using its 1800 MHz frequencies for the operation of a second-generation network. There is, therefore, no change in the royalties at 1 800 MHz for such an actor. Nevertheless, in the drafting of the draft article, the words " Calculated on a pro rata basis of the population of the areas on which authorisation is granted " Which are provided for in the current Article 13-3 of the decree have not been taken up. This statement could be added at the end of the second subparagraph of draft article 13-3-3 after the words " In the latter case, the fixed part is of an amount of 571 € per kHz duplex allocated " In particular to continue to take into account the current situation of Bouygues Telecom, which, for the exploitation of its second-generation network, is authorised in so-called zones " Very dense " (as defined in Decision No 2009-0838 of 5 November 2009) and outside these zones with different frequencies.
As regards the charges laid down for the operation of any type of network, it should be noted that the draft The decree provides for an amount on the part of the fixed share of the royalties much higher than those set for the operation of a second generation network (multiplication by almost six). This amount can be compared to royalties in the 800 MHz and 2.6 GHz bands, which are the only other frequencies allocated to this day in a technologically neutral manner and in which high-speed mobile technologies to the LTE standard Can be used today. The charges in these two frequency bands consist of a fixed share, paid on a flat rate to the allocation of frequencies, and a variable share equal to 1 % of the turnover achieved on these frequencies, as for the 1 800 MHz band. The amount of 3 231 euros per kHz duplex fixed at 1 800 MHz is intermediate between the amounts of fixed units paid by the operators in the other two frequency bands (higher than at 2.6 GHz but less than the one at 800 MHz) - where these Amounts are reduced on an updated annual basis-just as the propagation properties at 1 800 MHz, and thus the intrinsic quality of these frequencies, are intermediate between those at 800 MHz and those at 2.6 GHz
Date of entry into force of the decree, proposed on 1 July 2013, the Authority understands that It has been fixed in accordance with the requirements of the Prime Minister's circular of 23 May 2011 on the common dates for the entry into force of the standards for undertakings. This is, of course, not the date on which the lifting of the restrictions in the 1 800 MHz band would be permitted.
To the benefit of these comments, the Authority will issue a favourable opinion on the proposed Order.
This notice will be sent to: The Associate Minister responsible for SMEs, Innovation and the Digital Economy and published in the Official Journal of the French Republic.
Done at Paris, February 28, 2013.
The President,
J.-L. Silicani
