Paris, 11 March 2013
In response to a government request, the French Competition Authority (Autorité de la concurrence) today made public its decision on the terms governing mobile network sharing and roaming.
Having been invited to share its observations, ARCEP adopted an opinion on the matter on 20 December 2012, which it sent to the Competition Authority at the time and is now making public.
The Competition Authority reiterates its belief that infrastructure-based competition is vital to ensuring a healthy state of competition and strong capital investments. Roaming and network sharing are not incompatible with this goal of a competitive marketplace: they can even help stimulate competition and satisfy other regulatory objectives such as balanced regional development.
It is up to public authorities to guarantee a balance between infrastructure-based competition and infrastructure sharing, to achieve the various regulatory objectives set by European and national law, and particularly the goal of ensuring fair and balanced competition between mobile network operators, which is beneficial to consumers. To this end, roaming and network sharing schemes have been in place in France and abroad for a number of years, in some cases.
As to its analysis of the competitive risks associated with network sharing agreements, the Competition Authority recommends such agreements be examined in light of three criteria: the degree of competition between the two parties, their joint market power and the features of the areas covered by the agreement. The Authority also offers differing recommendations for high-density and sparsely populated areas. The Competition Authority thus echoes the case-by-case approach that ARCEP recommended in its opinion. It is therefore up to the Competition Authority or the magistrate to assess whether an agreement is likely to be detrimental to competition, when issuing authorisations that fall under their purview. The Competition Authority’s analysis also confirms the relevance – both from a legal standpoint and in terms of timeliness – of the network sharing regulations that ARCEP introduced back in 2011 when allocating 4G spectrum in the 800 MHz band.
On the matter of roaming, the Competition Authority also shares ARCEP’s belief that any assessment of a roaming agreement’s impact on competition cannot be theoretical, but rather based on an examination of each agreement’s economic and technical terms and conditions. As to the roaming privileges accorded to Free Mobile, the Competition Authority recommends that – as stated in its opinion of 14 June 2010 – national 3G roaming be switched off in 2016 or 2018, while not excluding the use of local roaming. It also suggests scaling back the 2G roaming enjoyed by Free Mobile customers, either by setting a time limit or by confining it only to customers with a 2G handset. Lastly, on the issue of 4G roaming, the Authority voices its support for the terms that ARCEP set in its call for applications for 800 MHz spectrum licences: in the priority rollout area, Free will be given roaming rights to the SFR network – SFR having been awarded two frequency blocks during the 800 MHz band licence awards. The Authority has, however, expressed reservations about the possibility of extending these roaming rights to higher density areas, which is not included in the terms set by ARCEP.
These recommendations, which match ARCEP’s position, are based largely on an approach rooted in competition law which must, when applicable, be enforced by the competent authorities. Meanwhile, ARCEP is also keen to reiterate that, as promised in early 2012, it will continue to keep a close watch on Free Mobile’s investments and coverage levels – particularly as part of the quarterly statistical survey introduced by ARCEP Decision 2013-0064 – to ensure that the operator’s rollout schedule complies with the obligations contained in its licence.
L'avis de l'ARCEP