Ofcom today published proposals for consultation to:
- make 900, 1800 and 2100 MHz public wireless network licences tradable; and
- vary the terms of existing 2100 MHz Third Generation Mobile Wireless Telegraphy Act Licences.
The first proposal, implementing paragraph 7 of the Directions, will involve Ofcom making new Regulations which will permit various types of trade for 900, 1800 and 2100 MHz spectrum:
- outright total transfer;
- outright partial transfer;
- concurrent total transfer; and/or
- concurrent partial trades.
However, Ofcom proposes not to rely solely on competition law to constrain anti-competitive behaviour which may arise from trading, but also to create a new ex-ante trading consent process in which Ofcom will consider whether competition is likely to be distorted as a result of a trade. If Ofcom considers that a proposed trade is likely to distort competition they may either seek conditions or refuse the proposed trade. However, where any proposed trade is considered under general competition law, Ofcom proposes to follow the outcome of that review.
The introduction of an ‘ex-ante’ distortion of competition test is a significant change from Ofcom’s policy to date, and the proposals contain Ofcom’s detailed justification for that change. It will be interesting to see how industry reacts.
Variation of 3G Licences
The second proposal is to vary 3G licences as follows:
- by 30th June 2013 the licensee must provide an electronic communications network that is capable of providing mobile telecommunications services to an area within which at least 90% of the population of the United Kingdom lives and with a 90% probability that users in outdoor locations within that area can receive the service with a sustained downlink speed of not less than 768kbps in a lightly loaded cell;
- the licence will continue in force unless or until revoked by OFCOM;
- OFCOM may revoke the licence either:(i) for spectrum management reasons on not less than 5 years’ notice, such notice not to be given before 31st December 2016, or (ii) in accordance with their powers under the Wireless Telegraphy Act 2006; and
- that the licensee is to pay an annual charge for the licence that reflects the full market value of the frequencies in the 2100MHz band in respect of periods following 31 December 2021.
The proposed changes require the consent of the licensees.
Passive Infrastructure Access Update
A recent post on passive infrastructure access (ducts and poles) was very popular. If you want more detail, Olswang yesterday published a legal review of the relevant regulations.