25 May 2016
Mobile network sharing
The Act on Growth, business and equal economic opportunity of 7 August 2015 endows Arcep with a newfound authority, in accordance with Article L.34-8-1-1 of France’s Postal and Electronic Communications Code (CPCE), namely the power to request that mobile network operators amend their network sharing agreements (roaming (1), RAN sharing (2), etc.) – notably when required to achieve the objectives set out in CPCE Article L.32-1.
This power entrusted to Arcep is governed by sector-specific law, and is distinct from the enforcement of competition law. As the sector’s regulator, Arcep is not called upon to penalise violations of competition law as such, but rather to establish the framework within which the sector’s stakeholders can grow and evolve, in keeping with the regulatory objectives assigned to it by Law.
To provide the sector with clarity on the exercise of this newfound authority, today Arcep is publishing guidelines that set out an analytical framework for assessing network sharing agreements in relation to regulatory objectives. Arcep is also publishing the responses it received to the public consultation on the topic that ran from 12 January to mid-April.
The guidelines underscore that roaming can be beneficial, and can be justified in relation to regulatory objectives. However, roaming can only be transitory or limited in scale, particularly given the disincentive to invest it could otherwise induce. Network sharing can be a relevant solution in the more sparsely populated parts of the country, and acceptable provided that its negative impact, notably in the area of competition, can be offset by positive effects, and particularly in improving the coverage and quality of mobile services.
These guidelines also detail the procedure that Arcep will employ to analyse contracts, whether existing agreements or possible future ones. To this end, Arcep invites operators to submit a draft of all new mobile network sharing agreements to the Authority.
Changes to existing agreements
As concerns existing contracts, and primarily the roaming agreement between Free Mobile and Orange on the one hand, and the RAN sharing and roaming agreement between Bouygues Telecom and SFR on the other, Arcep is beginning an adversarial phase with the parties to these contracts, to assess the changes to be made in light of the guidelines, and based on Arcep’s preliminary analysis which was published in January 2016, which included trajectories and a partial timeline.
Arcep therefore invites all operators to review the guidelines and, if applicable, to submit before 15 June 2016 the resulting contractual amendments they plan to implement.
Arcep will then finalise its analysis after taking all of these elements into account and, if required, will submit a draft decision to the Competition Authority, determining the amendments to bring to these contracts, in accordance with Article L. 34-8-1-1.
Arcep already examined the third existing mobile network sharing agreement – which concerns all four mobile operators as part of the national programme to expand mobile coverage in France’s most rural areas (referred to as the “Town centre white spaces” programme) – early this year: a process that resulted in approval contingent on a few requested adjustments (3).
(1) Roaming refers to when one operator uses another operator's network and frequencies.
(2) RAN sharing is when two operators share the same network but each uses their own frequencies.
(3) Arcep Decision No. 2016-0076 (pdf - 1.65 Mo) of 2 February 2016, approving a draft mobile infrastructure sharing agreement for white spaces.