Key Benefits:
The Autorité de régulation des communications électronique et des postes,
Having regard to Directive 98/34/EC of the European Parliament and the Council of 22 June 1998 providing for an information procedure in the field of technical standards and regulations and rules relating to the services of the information society;
Considering the amended Directive No. 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 the amended Directive No. 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and user rights in relation to electronic communications networks and services;
Considering European Commission Decision No. 2007/98/EC of 14 February 2007 on the Harmonized Use of Radio Spectrum in Frequency Bands 2 GHz for the Implementation of Mobile Satellite Services Systems;
Considering the post and electronic communications code, including articles L. 32-2, L. 36-5, L. 36-6, L. 41 and L. 42;
Vu la Act No. 86-1067 of 30 September 1986 amended on freedom of communication, including article 12;
In view of the 3 January 2008 decision on radio broadcast in terrestrial microwave or satellite-based L-band or S-band mode setting the characteristics of the signals emitted;
Considering the decision of 18 March 2013 amending the National Frequency Distribution Table;
See?Opinion No. 2007-0351 of 24 April 2007 of the Autorité de régulation des communications électronique et des postes ;
In view of the Minister's letter to the Minister of Productive Recovery, responsible for small and medium-sized enterprises, innovation and the digital economy, dated May 2, 2013;
After deliberating on 11 June 2013;
1. Purpose of the draft decision submitted to the opinion of ARCEP
Section L. 36-5 of the Post and Electronic Communications Code (CPCE) provides that the Electronic Communications and Post Control Authority (ARCEP) shall be consulted on bills, decrees or regulations relating to the electronic communications sector and shall participate in their implementation.
By letter dated 2 May 2013, the delegated minister responsible for SMEs, Innovation and the Digital Economy requested ARCEP's opinion on a draft order amending the January 3, 2008 radio broadcast on terrestrial or satellite-based terrestrial or L-band or S-band radio setting out the characteristics of the signals emitted.
The draft decision submitted to ARCEP's opinion is intended to modify, in different frequency bands, the list of technology standards authorized for the use of digital radio. These standards are designated, if any, by their references to the European Telecommunications Standards Institute (ETSI).
Band III (174-230 MHz) and Band L (1 452-1 492 MHz) are assigned to the Conseil supérieur de l'audiovisuel (CSA) for the broadcasting service in accordance with the National Frequency Distribution Table Order. In these bands, the draft decree adds the European DAB+ standard (TS 102 563) to the T-DMB standard (TS 102 427 and TS 102 428), already provided by the decree of 3 January 2008 for the provision of terrestrial microwave radio services in digital mode. The draft decision also removes the requirement to use the MPEG-4 BIFS standard for associated interactive data services.
The band S (1 980-2 010 and 2 170-2 200 MHz) is assigned to ARCEP for the exclusive mobile satellite service in accordance with the National Frequency Distribution Table Order. In this band, the draft text adds the European standard SDR (TR 102 525, TS 102 550, TS 102 551-1 and TS 102 551-2) to the standard DVB-SH (EN 302 583 and TS 102 585), already provided for by the 3 January 2008 order for the provision of satellite and terrestrial hybrid radio services.
This decision-making project is intended to include the S to 2 GHz band whose ARCEP is exclusively affective. That is why, in addition to the CSA's view, the delegated minister responsible for SMEs, innovation and the digital economy also wished to obtain the opinion of ARCEP.
It is within this framework that ARCEP renders this notice.
2. Context of the use of the S band whose ARCEP is emotional
The European Commission adopted Decision No. 2007/98/EC on the Harmonized Use of Radio Spectrum, denoting the frequency band S to 2 GHz for systems providing mobile satellite services (MSS), to ensure, at the European Union level, the availability of the spectral resource for the implementation of these systems.
Solaris Mobile Limited (Solaris Mobile) and Inmarsat Ventures Limited (Inmarsat) were selected to operate pan-European systems providing MSS in the band 1 980-2 010 MHz and 2 170-2200 MHz (band 2GHz), by Decision No. 2009/1449/EC of the European Commission dated 13 May 2009, in accordance with the provisions of Decision No. 626/2008/EC of the European Parliament and of the European Parliament of 2008.
In France, Solaris Mobile was authorized, by Decision No. 2010-0210 of ARCEP dated 6 February 2010, to use the frequencies 1 995-2 010 MHz and 2 185-2 200 MHz to provide MSS until 12 May 2027, in accordance with the provisions of Article 7, paragraph I of Decision No. 626/2008/EC referred to above. Inmarsat has not filed an application for authorization with ARCEP to date. As a result, it is not licensed to use frequencies in the 2 GHz band on French territory.
In addition, in October 2011, the European Commission adopted Decision No. 2011/667/EU on the modalities for the coordinated implementation of the rules for mobile satellite services. This decision aims to define the modalities of the coordinated application of the rules of execution of the Member States concerning satellite operators authorized in the S band in the event of alleged breach of the common conditions of which their authorizations are coupled.
3. Analysis by ARCEP of the rules of jurisdiction
instructing the determination of the conditions of use of the frequencies of which it is affectar
Legal framework:
The draft amendment has as a legal basis theArticle 12 of Act No. 86-1067 of 30 September 1986 relating to freedom of communication, which provides that "The Conseil supérieur de l'audiovisuel is consulted on any project to make mandatory the standards relating to the materials and techniques for the dissemination or distribution of audiovisual communication services by a network of electronic communications within the meaning of 2° of Article L. 32 of the Code of Posts and Electronic Communications. It may make any recommendations regarding these standards.
However, the technical characteristics of the signals emitted for the provision of the terrestrial or satellite air services must be in accordance with technical specifications defined by interdepartmental order, taken after the advice of the Higher Audiovisual Council; when these signals are digitized, their technical characteristics are standardized. The order also specifies the conditions for the radio protection of the audiovisual communication services concerned. »
In addition, it is the result of the National Frequency Distribution Table, set by order of the Prime Minister, that the assignment of the "S band", the bands 1 980-2 010 MHz and 2 170-2 200 MHz, is entrusted to ARCEP.
According to Article L. 42 of the CPCE, "for each of the frequencies or bands of radio frequencies whose assignment has been entrusted to it pursuant to Article L. 41, the Authority for the regulation of electronic communications and fixed stations, under the conditions laid down in Article L. 36-6:
1° Technical conditions for the use of frequency or frequency band;
2° Cases in which the authorization of use is subject to the declaration provided for in Article L. 33-1;
3° Cases in which frequency use is subject to administrative authorization. »
Article L. 36-6 of the CPCE, to which the above-mentioned provision refers, provides that "the Authority for the regulation of electronic communications and posts shall specify the rules concerning: [...]
3° The conditions for the use of frequencies and frequency bands referred to in Article L. 42; [...]
Decisions taken pursuant to this Article shall, after approval by order of the Minister for Electronic Communications, be published in the Official Gazette".
The same article states that, "when these decisions have a significant effect on the broadcast of radio and television services," ARCEP specifies the above-mentioned rules "after the opinion of the Conseil supérieur de l'audiovisuel".
ARCEP analysis:
The combined reading of sections L. 36-6 and L. 42 of the above-mentioned CPCE indicates that it is the responsibility of ARCEP to determine "the conditions for the use of frequencies and frequency bands" assigned to it, including those relating to the band S to 2 GHz. Article L. 36-6 states that such a decision shall be adopted after notice by the CSA when it has a significant effect on the broadcast of radio and television services and shall be approved by order of the Minister for Electronic Communications.
It is up to ARCEP to set the technical specifications to which the characteristics of the signals are to be met, for the provision of services using the frequencies assigned to it.
TheArticle 12 of Act No. 86-1067 referred to above, on the other hand, gives competence to the ministers concerned to adopt an order "fixing the technical characteristics to which the signals issued for the provision of the services broadcast by terrestrial or satellite airs". This provision further states that: "This order also specifies the conditions for the radio protection of the audiovisual communication services concerned. It seems, therefore, that ministerial jurisdiction is aimed at "audiovisual communication services". But, in view of the competence of ARCEP provided for in Article L. 42 of the CPCE, this provision of the Act No. 86-1067 only applies to frequencies of which the CSA is emotional.
ARCEP had formulated a similar analysis in its Opinion No. 2007-0351 of 24 April 2007at the time of the adoption of the initial order dated 3 January 2008 relating to the radio broadcast in terrestrial microwave mode or via L-band or S-band satellite, setting the characteristics of the signals emitted.
4. ARCEP's analysis of the implementation of the principle of technological neutrality
Item 3 of Article 9 of Directive No. 2002/21/EC of the European Parliament and of the Council lays down the principle of technological neutrality. Thus, with the exception, "Member States ensure that all types of technologies used for electronic communications services can be used in the frequency bands declared available for electronic communications services". It can, in principle, be derogated from the principle of neutrality only for the pursuit of one of the following objectives, listed in the directive:
“(a) Avoid harmful interference;
(b) Protecting public health from electromagnetic fields;
(c) Ensure the technical quality of service;
(d) Optimize the sharing of radio frequencies;
(e) Preserving the effectiveness of spectrum use; or
(f) Achieving a general interest objective in accordance with paragraph 4. »
The objective of technological neutrality has been transposed, in national law, to Article L. 32-1 II of the CPCE: "In the framework of their respective responsibilities, the Minister responsible for electronic communications and the Authority for the regulation of electronic communications and posts shall take, in objective and transparent conditions, reasonable measures and proportionate to the objectives pursued and shall ensure: ... 17° To ensure that all types of technology and all types of electronic communications services can be used in the frequency bands available for these services where possible. »
This provision, which covers both ARCEP and the Minister responsible for electronic communications, is supplemented by section L. 42 of the CPCE, specific to bands whose ARCEP is emotional:
“II. ― The Authority for the regulation of electronic communications and posts may also, under the conditions set out in section L. 36-6, provide for restrictions on the types of equipment, networks and technologies used in the frequency bands assigned to the electronic communications services in the national table for the distribution of frequency bands and whose assignment has been assigned to it if necessary to:
(a) Avoid harmful interference;
(b) Protecting public health;
(c) Ensure the technical quality of service;
(d) Optimize the sharing of radio frequencies;
(e) Preserving the effectiveness of spectrum use; or
(f) Achieving an objective under Article L. 32-1.
These restrictions are proportionate and non-discriminatory. When the proposed restrictions have a significant impact on the market, the Electronic Communications and Post Regulatory Authority shall conduct a public consultation under the conditions laid down in Article L. 32-1. »
In this case, the draft Order submitted to ARCEP's Opinion aims, among other things, to ease the technical conditions of use of the S band by making the use of the SDR standard possible. However, the draft decision tends to maintain restrictions on the types of equipment, networks and technologies used in the S band, making it mandatory to use a limiting list of technology standards for the broadcast of digital radio services.
ARCEP also notes that the principle of technological neutrality is intended to provide a useful flexibility for the development of electronic communications services and the effectiveness of spectrum use. In addition, the European Commission's decision No. 2007/98/EC concerning the selection and authorization of mobile satellite operators in the S-band does not provide for any technological restrictions.
In this context, and in the light of the above-mentioned provisions, in particular the criteria set out in Article L. 42 of the CPCE, ARCEP questions the possibility of maintaining restrictions on the types of equipment, networks and technologies using the frequency of the S band.
5. Conclusion
ARCEP is pleased to note that the draft decision submitted to it tends to make the technical conditions for the use of band S frequencies more flexible, allowing the use of the SDR standard for the provision of digital radio services on these frequencies.
However, in the light of the above considerations, one may question the determination of the competent authority to enact the provisions in question.
In addition, ARCEP notes that, if it is not excluded that a limiting list of technology standards is provided for the provision of digital radio services in the S band, such restrictions must, in the light of the principle of technological neutrality, be justified by one of the reasons provided for by the Community and National provisions mentioned above. However, the elements brought to the attention of ARCEP do not allow it to identify the reason(s) justifying such restrictions in the S band.
This notice will be forwarded to the Minister of Productive Recovery, responsible for small and medium-sized enterprises, innovation and the digital economy, and published in the Official Journal of the French Republic.
Done in Paris, June 11, 2013.
The president,
J.-L. Silicani
