Opinion No. 2013-0803 Of The Regulatory Authority For Electronic Communications And Posts On A Draft Decree Amending The Decree Of 3 January 2008 On The Radio Broadcast In Digital Mode By Terrestrial Radio Or Vo ...

Original Language Title: Avis n° 2013-0803 de l'Autorité de régulation des communications électroniques et des postes sur un projet d'arrêté modifiant l'arrêté du 3 janvier 2008 relatif à la radio diffusée en mode numérique par voie hertzienne terrestre ou par vo...

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French Official Gazette No. 0208 of 7 September 2013
text No. 62

Opinion No. 2013-0803 of the Regulatory Authority for electronic communications and postal on a draft decree amending the Decree of 3 January 2008 on the radio broadcast in digital mode by terrestrial radio or by satellite L-band or S-band establishing the characteristics of the transmitted signals NOR
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ARTL1322664V ELI: Not available

The Regulatory Authority for Electronic Communications and Postal,
Having regard to Directive 98/34 / EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for information in the field of technical standards and regulations and of rules of information society services;
Having regard to Directive 2002/21 / EC amended the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services;
Having regard to Directive 2002/22 / EC amended the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services;
Having regard to Decision 2007/98 / EC of the European Commission of 14 February 2007 on the harmonized use of radio spectrum in the 2 GHz frequency bands for the implementation of systems providing mobile satellite services;
Considering the code of postal and electronic communications, in particular Articles L. 32-2, L. 36-5, L. 36-6, L. 41 and L. 42;
Considering Law No. 86-1067 of 30 September 1986 on freedom of communication, in particular Article 12;
Considering the order of 3 January 2008 on the radio broadcast digitally terrestrially or via satellite L-band and S-band establishing the characteristics of the transmitted signals;
Considering the decree of 18 March 2013 amending the national allocation table of frequency bands;
Considering the opinion No. 2007-0351 dated 24 April 2007 the Regulatory Authority for Electronic Communications and Posts;
Considering the letter of the Minister Delegate to the Minister of productive recovery, responsible for small businesses, innovation and the digital economy, dated May 2, 2013;
Having deliberated June 11, 2013;



1. Purpose of the draft decree submitted to the opinion of ARCEP
Article L. 36-5 of the Code of Posts and Electronic Communications (CPCE) provides that the Regulatory Authority for Electronic Communications and Posts (ARCEP) be consulted on the draft laws, decrees or regulations relating to electronic communications sector, and participates in their implementation.
By letter dated 2 May 2013, the Deputy Minister for SMEs, innovation and the digital economy sought the opinion of ARCEP on a draft decree amending the Decree of 3 January 2008 on the radio broadcast digitally terrestrially or via satellite L-band and S-band establishing the characteristics of the transmitted signals.
The draft decree submitted to the opinion of ARCEP aims to change in different frequency bands, the list of technology standards whose use is authorized for the distribution of digital radio. These standards are designated, if necessary, by their references to the European Telecommunications Standards Institute (ETSI).
Band III (174-230 MHz) and the L-band (1 452-1 492 MHz) are allocated to the Higher Audiovisual Council (CSA) for the broadcasting service in accordance with the Decree on the national allocation table frequency. 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 for by the Decree of 3 January 2008, for the provision of radio services broadcast terrestrially in digital mode. There the draft decree also abolished the obligation of using the MPEG-4 BIFS for interactive services associated data.
S band (1 980-2 010 and 2 170-2 200 MHz) is assigned to ARCEP for the mobile-satellite service, on an exclusive basis pursuant to Decree on the national allocation table frequency bands. In this band, the draft adds the SDR European standard (TR 102 525, TS 102 550, TS 102 and TS 102 551-1 551-2) to the DVB-SH standard (EN 302 583 and TS 102 585), already provided for by the decree of 3 January 2008, for the provision of radio services broadcast by satellite and terrestrial hybrid route.

The draft decree aims including the S band at 2 GHz which ARCEP is assignee exclusively. Therefore, in addition to the CSA, the Deputy Minister for SMEs, innovation and the digital economy also wished to obtain the opinion of ARCEP.
It is in this context that ARCEP, this opinion.
2. Context of the use of the S-band which ARCEP is assignee
The European Commission has adopted Decision 2007/98 / EC on the harmonized use of radio spectrum, indicating the frequency band S 2 GHz for systems providing mobile satellite services (MSS), to ensure, at level of the European Union, the availability of spectrum resources for the implementation of these systems.
Solaris Mobile Limited Companies (Solaris Mobile) and Inmarsat Ventures Limited (Inmarsat) were selected to exploit pan-European systems providing MSS in the band 1 980-2 010 MHz and 2 170-2 200 MHz (2 GHz band) by decision No 2009/1449 / EC of the European Commission dated 13 May 2009, pursuant to decision No 626/2008 / EC of the European Parliament and of the Council of 30 June 2008.
In France, Solaris Mobile was authorized by Decision No. 2010-0210 ARCEP dated l6 February 2010, to use frequencies in 1 995-2 010 MHz and 2 185-2 200 MHz to provide MSS up at May 12, 2027, pursuant to Article 7, paragraph I of decision No 626/2008 / EC mentioned above. Inmarsat has not filed to date of authorization request with ARCEP. Consequently, it does not hold a license to use frequencies in the 2 GHz band on French territory.
Moreover, the European Commission adopted in October 2011, the Decision 2011/667 / EU on modalities for coordinated application of the implementing rules for mobile satellite services. This decision aims to define the modalities for coordinated application of the rules of implementation of the Member States concerning satellite operators licensed in the S band in case of alleged breach of the common conditions to their authorizations matched. 3
. Analysis by ARCEP rules of jurisdiction
framing the determination of conditions of use of the frequencies it has been assigned
Legal framework:
The order amending draft legal basis of Article 12 of Law No. 86-1067 of 30 September 1986 on freedom of communication which provides that "The High Council of Audiovisual is consulted on any plan to mandating standards for material and technical dissemination or distribution of audiovisual communication services by an electronic communications network within the meaning of paragraph 2 of Article L. 32 of the code of postal and electronic communications. It can make recommendations concerning these standards.
However, the signal specifications issued for the provision of services broadcast by terrestrial radio or satellite must comply with technical specifications defined by ministerial decree, issued after the Higher Audiovisual Council; when these signals are digitized, their technical specifications are standardized. This decree also specifies the conditions for protection of radio broadcasting services considered. "
Moreover, it follows from the national allocation table frequency bands, set by the Prime Minister, that the assignment of the "S band" or the bands 1 980-2 010 MHz and 2 170-2 200 MHz, is entrusted to ARCEP.
Under Article L. 42 of the CPCE, "for each of the frequencies or radio frequency bands whose assignment entrusted to it pursuant to Article L. 41, the Regulatory Authority for Electronic Communications and fixed positions, in accordance with Article L. 36-6:
1. The technical conditions of use of the frequency or frequency band;
2. The cases in which permission to use is subject to the declaration under article L. 33-1;
3. The cases in which the use of frequencies is subject to administrative authorization. "
Article L. 36-6 of the CPCE, which returns the provision cited above, provides that "the Regulatory Authority for Electronic Communications and Postal precise rules concerning: [...]
3. The terms of use of frequencies and frequency bands mentioned in Article L. 42; [...]

Decisions taken under this Article shall, after approval by order of the Minister responsible for electronic communications, published in the Official Journal. "
The same article states that 'when these decisions have a significant effect on the distribution of radio and television services ", ARCEP specifies the above rules" after consultation with the Higher Audiovisual Council ".
Analysis of ARCEP:
According to the combined reading of Articles L. 36-6 and L. 42 of the CPCE above it belongs to ARCEP to determine "the conditions of use of frequencies and frequency bands" assigned to it, including those for the S band at 2 GHz. Article L. 36-6 specifies that such a decision is adopted after consulting the CSA when it has a significant effect on the distribution of radio and television services and is subject to approval by the minister arrested responsible for electronic communications.
It belongs to ARCEP to establish technical specifications to be met by the characteristics of the transmitted signals, for providing services using the frequencies assigned to it.
Article 12 of Law No. 86-1067 mentioned above, in turn, empowers the ministers to adopt a decree "fixing the technical characteristics which should conform the signals for the provision of services broadcast terrestrially or satellite ". This provision also states that: "This decree also specifies the conditions for protection of radio broadcasting services considered. "So it seems that the ministerial responsibility covers' audiovisual communication services." But, given the competence of ARCEP in Article L. 42 of the CPCE, this provision of the law n ° 86-1067 referred to above applies only to frequencies whose CSA is assignee.
ARCEP had made a similar analysis in its opinion n ° 2007-0351 dated 24 April 2007, during the adoption process of the initial order dated January 3, 2008 on the radio broadcast digitally over the air terrestrial or via satellite L-band or S-band establishing the characteristics of the transmitted signals.
4. ARCEP analysis concerning the implementation of the principle of technological neutrality
Point 3 of Article 9 of Directive 2002/21 / EC of the European Parliament and the Council established the principle of technological neutrality. Thus, without exception, "Member States shall ensure that all types of technologies used for electronic communications services may be used in the reported frequency bands available for electronic communications services". It can not, in principle, derogation from the principle of neutrality for the continuation of one of the objectives listed in the Directive:
"A) avoid harmful interference;
b) protect public health against electromagnetic fields;
c) Ensure the technical quality of service;
d) Optimize radio frequency sharing;
e) To preserve the efficiency of spectrum use; or
f) Conduct a general interest objective in accordance with paragraph 4. "
The aim of technological neutrality has been transposed into national law, Article L. 32-1 of the CPCE II: "In the context of their respective powers, the Minister responsible for electronic communications and the Communications Regulatory Authority electronic and posts shall, under objective and transparent conditions, reasonable and proportionate to the objectives and ensure: [...] A 17 ° that all types of technologies and all types of electronic communications services may be used in frequency bands available to these services when possible. "
This provision, which aims both ARCEP and the Minister responsible for electronic communications, is supplemented by Article L. 42 of the CPCE, specific bands which ARCEP is assignee:
"II. - The Regulatory Authority for Electronic Communications and Posts may also, in accordance with Article L. 36-6, provide for limitations on types of equipment, networks and technologies used in the frequency bands electronic communications services in the national allocation table and frequency bands whose assignment entrusted to it if it is necessary to:
a) avoid harmful interference;
b) To protect public health;
c) Ensure the technical quality of service;

d) Maximize the sharing of radio frequencies;
e) To preserve the efficiency of spectrum use; or
f) Conduct an objective set out in Article L. 32-1.
These restrictions are proportionate and non-discriminatory. When the proposed restrictions have a significant impact on the market, regulation of the Office for Electronic Communications and Postal conduct a public consultation in accordance with Article L. 32-1. "
In this case, the draft law submitted to the opinion of ARCEP aims to ease the technical conditions of use of the S-band, making possible the use of the SDR standard. However, the draft decree aims to maintain restrictions on the types of equipment, networks and technologies used in the S-band, making mandatory the use of a limited list of technology standards for the distribution of digital radio services .
ARCEP notes, moreover, that the principle of technological neutrality is to enable an advantageous flexibility in the development of electronic communications services and the efficiency of spectrum use. In addition, Decision 2007/98 / EC of the European Commission concerning the selection and authorization of mobile satellite operators by the S-band, provides no technological restrictions.
In this context, and in light of the above provisions, in particular the criteria set out in Article L. 42 of the CPCE, ARCEP examines the possibility of maintaining restrictions on the types of equipment, networks and technologies using frequencies in the band S.
5.
Conclusion ARCEP notes with satisfaction that the draft decree submitted to it tends to make more flexible the technical conditions of use of frequencies of the S-band, allowing the use of the SDR standard for the provision of radio services digital on these frequencies.
However, in view of the foregoing, one can question the determination of the competent authority to enact the provisions in question.
Furthermore, ARCEP notes that it is not excluded that a limited list of technology standards is provided for the supply of digital radio services in the S band, such restrictions must, under the principle of technological neutrality, be justified by one of the grounds provided by the Community and national provisions mentioned above. But the evidence brought to the knowledge of ARCEP does not allow him to identify the reasons for such restrictions in the S band
This notice will be forwarded to the Minister with the Minister of productive recovery, responsible for small businesses, innovation and the digital economy, and published in the Official Journal of the French Republic.
Done at Paris on 11 June 2013.


The President
J.-L. Silicani

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