The Path to LTE: Legal Challenges. Francesco Liberatore Total Telecom Breakfast, 14 March 2012

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1 The Path to LTE: Legal Challenges Francesco Liberatore Total Telecom Breakfast, 14 March

2 The Issue The Guardian, Technology Issue, 8 March 2012 Apple's new 'retina display' ipad: questions and answers Q: What's different or new in the physical object? A: [ ] LTE/4G networking capability Q: What use is LTE in the UK? A: At present, none at all, because the phone networks are all wrangling amongst themselves about who has the right to which frequencies. [ ] to be honest for most people the LTE networking isn't going to be any use soon. 2

3 Spectrum Allocation Ed Richards, CEO Ofcom: This is a crucial step in preparing for the most significant spectrum release in the UK for many years. The proposals published today will influence the provision of services to consumers for the next decade and beyond Anthony Walker, CEO BSG: There s a lot of work going on, but it s complicated and there s a lot to learn still about what the best and most effective approaches will be. It s important to recognise that nobody s really done this before in terms of building out next-generation networks into challenging rural locations and therefore it takes time to work out how to get it right. 3

4 EU Sector Specific Rules Member States must ensure that spectrum allocation through individual rights of use is based on: objective, transparent, non-discriminatory and proportionate criteria; the least onerous authorisation system; promotion of technology and service neutrality; the need to avoid harmful interference and to ensure quality; 4

5 EU Sector Specific Rules (cont.) promotion of competition through: spectrum cap or reserving spectrum for new entrants; refusing, or imposing conditions on, grants (e.g. minimum coverage, MVNO access or provision of information); prohibiting, or imposing conditions on, transfers; amending the existing rights when this is necessary to remedy ex-post the distortion of competition by any transfer or accumulation of rights of use of radio frequencies; and spectrum trading in harmonised bands (incl. 900/1800 MHz). Use of 800 MHz must be authorised by 1 January

6 Only 5 Out Of 27 Are on Track Country Award date Amount raised Award method Conditions Duration France Dec bn Auction Rural coverage and MVNO hosting 20 years Italy Sept bn Auction Rural coverage 18 years Germany May bn Auction Rural coverage and roll-out obligation 15 years Spain July bn Auction Rural coverage 19 years Sweden Mar m Auction Rural coverage 24 years 6

7 Competition Law in the EU EU competition law is a common set of rules that is directly applicable throughout the EU. National competition law mirrors EU competition law. Competition law in the EU can be used as: a shield to protect spectrum allocation a sword to challenge it. 7

8 Article 101 TFEU Prohibits agreements or concerted practices between two or more operators having as their object or effect an appreciable restriction of competition. Risk areas include: Cartel behaviour, such as fixing the auction price (bid rigging) or exchange of confidential information during auction; and Joint bidding between competitors whose combined market share exceeds 15%, unless necessary or justified on the basis of efficiencies. Safeguards for shared use of spectrum must be put in place. 8

9 Article 102 TFEU Prohibits abuses of single or collective dominant positions by one or more operators. Risk areas include: misuse of regulatory process; discrimination; and spectrum hoarding. Remedies: behavioural (access) or structural (divestment). 9

10 Market Definition is Key Geographic market is national, due to licensing requirements. Product market: Retail level: Mobile telecommunications services to end customers, without distinction of type of customers (corporate or private); type of payment (pre-paid or post-paid); or network technology (2G/GSM, 3G/UMTS or 4G/LTE). Wholesale level: mobile call termination, wholesale access and call origination, international roaming. Open questions: convergence with fixed broadband? spectrum markets? 10

11 Article 107 TFEU Prohibits spectrum allocation that would give a selective economic advantage to one or more operators. Rights to use spectrum have an economic value that depends on the time when the right holder can enter the market and the use that can be made of the spectrum. Awarding spectrum at different times does not amount to a State aid provided that the operators receive the same treatment with regard to fees. Open questions: do conditions (roll-out, coverage, access) affect the value of the spectrum? Would different conditions amount to prohibited State aid? 11

12 Consolidation Consolidation between operators may result in accumulation of contiguous spectrum at a given frequency that is materially larger than their competitors. Concerns if accumulated spectrum offers: better coverage, shorter migration times, higher speed, lower operational costs, than competing offers. Remedies: spectrum divestment to operators with lower market shares or re-allocation. Open question: will existing LTE auctions foster new entry and thus allow further consolidation in the sector? 12

13 Conclusion EU sector specific regulation sets out general principles but leaves it up to each EU Member State to decide how to allocate LTE spectrum. Regulators and stakeholders have different views as to how LTE spectrum should be allocated. This results in a patchwork of different approaches at national level and delays. EU competition law provides a common set of rules that can be used to protect or challenge access to LTE spectrum. In addition, sector consolidation may lead to LTE spectrum being returned or re-allocated. 13

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