January 2012

Workshop on Radio FrequenciesInternational Legal Expert Meeting, 19-20 January 2012Leiden University, The Netherlands

Gerry Oberst

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EU Principles for Radio frequencies

1. Legal principles set at the EU level

• Electronic Communications Regulatory Framework (in effect May 2011 in principle)

General regulatory principles – Framework Dir. Article 8 Framework Dir. Articles specific to spectrum management Individual rights of use – Authorisation Dir. Article 5

• Competition rules – large impact on spectrum decisions

• Radio Spectrum Policy Programme (policy to 2014)

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Expanding Impact of Competition Rules

2. Framework and new RSPP provisions

Original framework

2009 Framework

The RSPP

The 2002 Framework contained mainly general references to the need to promote competition, with limited direct application to spectrum regulation.

The 2009 amendments to the regulatory framework greatly expanded rules for planning, management and review in spectrum policy. Also expanded application of competition law concepts applied to spectrum regulation.

The RSPP will even further expand application of competition law concepts applied to spectrum regulation and give the Commission new tools for regulation / harmonisation

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Radio Spectrum Policy Programme

3. RSPP Article 5 "Competition"

1. Member States shall promote effective competition and shall avoid distortions of competition in the internal market for electronic communications services...

2. Member States may adopt, inter alia, the following measures:

a) Spectrum Caps or conditions

b) Reserve bands for new entrants

c) Conditions on transfers or accumulations

d) Amend existing rights of use – anti-hoarding

3. ***

4. Member States shall ensure that the authorisation and selection procedures for electronic communications services promote effective competition for the benefit of citizens, consumers and businesses in the Union.

.

paraphrased

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Competition Standards for Spectrum Regulation"Ensure no distortion

or restriction on competition"

Framework Directive,

Art. 8(2)(b)

"Safeguard competition to the

benefit of consumers"

Framework Directive,

Art. 8(5)(c)

"Promote effective competition" and

avoid distortions of competition

RSPP, Art. 5(1)

Take "appropriate measures to promote fair competition"

Framework Directive,Art. 9a(3)

Regulate transfers "likely to result in

significant harm to competition"

RSPP Art. 5(2)(d)

"Facilitate development of

competition"Authorisation

Directive, Art. 7(1)(a)

Avoid accumulations that result in

"significant harm to competition"

RSPP Art. 3(i) or which "distort competition"

RSPP Art. 5(2)(e)

"Promote competition"

Framework Directive, Art. 8(2)(b)

Are all these saying the

same thing ?

Probably not

4. Standards for competition assessments

The big picture

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Competition Standards for Spectrum Regulation

"Promote effective

competition" and avoid

distortions of competition

Art. 5(1)

Regulate transfers "likely to result in

significant harm to competition"

Art. 5(2)(d)

Avoid accumulations that result in "significant

harm to competition" Art. 3(i)

or which "distort competition" Art. 5(2)(e)

4. Standards for competition assessments (cont'd)

The RSPP picture

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