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Draft BEREC Common Position on Mobile Infrastructure Sharing

Starting: 11 Dec Ending

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Public Consultation for the Common Position on Mobile Infrastructure Sharing

BoR(18) 236

In June 2018, BEREC adopted a report on infrastructure sharing which depicts a picture of different regulation and legal frameworks applicable in European countries, of the existing sharing arrangements, of the benefits and challenges related to such arrangements and of possible evolutions with regards to 5G.
BEREC expended its work on identifying common positions on the subject. The common position consists of:
1) a background section which describes the applicable legal framework and the benefits and drawbacks related to sharing agreements ;
2) a common position section which provides:

        a) common definitions for some types of sharing agreement;

        b) the main objectives to be pursued when considering network sharing agreements;

        c) the parameters to consider when assessing network sharing agreements;

3) an indicative analysis of different types of network sharing, according to the objectives and parameters.

The response to the public consultation will serve as inputs for the finalization of a BEREC common position on mobile infrastructure sharing.

This public consultation will run from 12 December 2018 to 18 January 2019, 17:00 CET.

Enquiries about the consultation, including registration problems with the online platform, should be sent to the following email address: Mobileinfrastructure-Consultation@berec.europa.eu


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BoR (18) 236

BEREC Common Position on Mobile Infrastructure Sharing

Executive Summary


This Common Position describes criteria which can be taken into account by NRAs in assessing mobile infrastructure sharing agreements where NRAs have competence to do so.
It is intended to provide NRAs, stakeholders and interested parties with information relating to the treatment of such agreements in Europe.

To this end, this document provides ‘background information’ relevant to the consideration of infrastructure sharing agreements which do not (on their own) constitute a Common Position. This includes information on relevant legal frameworks relating to the treatment of infrastructure sharing agreements and information on the potential benefits and drawbacks of infrastructure sharing agreements.

The Common Position itself consists of:

- common definitions of different infrastructure sharing types: passive sharing, co-location, site sharing, mast sharing, active sharing, RAN sharing, MORAN sharing, MOCN sharing, frequency (or spectrum) sharing, national/local roaming, core network sharing and backhaul sharing;
- common important objectives which NRAs should consider when assessing infrastructure sharing agreements (providing that it is within their competence to do so): effective competition, better connectivity and efficient use of spectrum;
- common factors which NRAs should consider when assessing infrastructure sharing agreements (providing that it is within their competence to do so): competitive market forces evolution, the feasible level of competition, type of sharing, shared information between the sharing parties and its impact on their ability to compete, reversibility and contractual implementation.
It should be noted that consideration of these factors, their relative importance to one another, and the relevance of potentially significant other factors not listed here are likely to be highly context specific. In all instances, therefore, assessing infrastructure sharing agreements will require evidence-based analysis on a case-by-case basis.

Finally, this document provides a description of potential treatment of specific infrastructure sharing types.

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1. Introduction


The sharing of mobile network infrastructure is an established feature of many European mobile markets. Several markets have more than one such system in place, which generally come about either as a result of commercial negotiation between participating parties, or – less frequently – as a result of regulatory intervention by NRAs and/or competent authorities.

A number of reports/positions on mobile network infrastructure sharing have already been published. BEREC itself has published two such documents:

a) In June 2011, BEREC published, jointly with the RSPG, a report on mobile infrastructure sharing in Europe[1] (‘the 2011 report’). This report described those sharing agreements which had been established at that time. It identified a number of potential benefits to infrastructure sharing (subject to market context). These are discussed in greater detail in this document.

b) In June 2018, BEREC published a report which described features of mobile infrastructure sharing in European markets and provided an outline of some of the potential benefits and drawbacks of such arrangements (‘the June 2018 report’).[2] The report was based on responses from thirty European NRAs. That report demonstrated that the majority of infrastructure sharing agreements in Europe are the result of commercial negotiation, rather than regulatory intervention and their impacts on the market are context-specific.

This document is intended to build on BEREC’s previous work on mobile infrastructure sharing by identifying and describing factors to be considered by NRAs when assessing any infrastructure sharing agreement, where they have competence to do so. Therefore, the remit of this common position is limited to NRAs acting under the electronic communication legislation.

It is intended to provide:

1. NRAs with a common non-exhaustive list of criteria for consideration in those situations where they assess network sharing;

2. information to stakeholders with an interest in infrastructure sharing agreements in Europe;

3. a contribution to a consistent application of the EU telecommunications rules in the context of infrastructure sharing, while taking into account the difference in national circumstances among EU Member States;

4. updated observations relating to the potential risks and benefits of infrastructure sharing.

It is to be noted that market context is likely to be highly significant in any assessment of infrastructure sharing agreements.

This document is organized in the following way:

1. Background information on mobile infrastructure sharing agreements relevant to the Common Position. This includes:

(a) An overview of the legal framework relevant to the assessment of infrastructure sharing agreements;

(b) Some of the potential benefits and drawbacks of such agreements;

2. Common Position about mobile network infrastructure sharing:

(a) A typology of different infrastructure sharing types;

(b) Important objectives

(c) Factors most likely to be relevant when assessing mobile network infrastructure sharing agreements;

3. An example assessment of different types of network sharing using factors defined in the Common Position.

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2. Background


This background section first provides an overview of the legal framework applicable to mobile network infrastructure sharing agreements. It then identifies some benefits and drawbacks that can stem from such sharing agreements.

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2.1 Legal Framework


This subsection describes the legal framework which applies to infrastructure sharing agreements and is organised in the following way.

First, the objectives and powers of competent authorities (being the NRA or another authority[3]) in the telecommunications-specific legal framework relevant for infrastructure sharing agreements are described. This includes both the current and the future framework, since the European Electronic Communications Code (here-after “the Code”) has been adopted by the European Parliament and is pending adoption by the European Council.

Secondly, the legal instruments provided for achieving the objectives are addressed.

Thirdly, the role of general competition law relating to infrastructure sharing agreements in Europe is briefly described. General competition law applies to all infrastructure sharing agreements. National law is not described in this document but is likely to apply to infrastructure sharing agreements in specific Member States.

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2.1.1. The objectives given by the European telecommunication regulatory framework


Under the current European framework, competent authorities have several objectives, including:

a) Promote competition;

b) Contribute to the development of the internal market, and;

c) Promote the interests of the citizens of the European Union.[4]

Under the Code, the main objectives of regulation include:

a) Promote connectivity and access to very high capacity networks;

b) Promote competition, including infrastructure-based competition;

c) Contribute to the development of the internal market and the promotion of the interests of the citizens of the Union.[5]

The new framework includes the additional objective of connectivity and access to very high capacity networks and emphasises that competition includes infrastructure-based competition.

After entering into force of the Code, Member States will have twenty-four months to transpose provisions relevant to infrastructure sharing into national law.

Independent of the Code, the Broadband Cost Reduction Directive has the objective to reduce the cost for deployment and to promote the joint use of physical infrastructure.[6]

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2.1.2 The legal instruments provided for achieving the objectives


To achieve these objectives, the European Directives on electronic communications grant competent authorities several regulatory instruments, including:

(i) Competent authorities may attach conditions to spectrum usage rights in order to achieve the objectives of regulation.[7] For example, they may attach conditions on coverage and/or quality and/or conditions on the provision of national or regional roaming.[8] This may concern active as well as passive sharing.

(ii) Competent authorities might impose passive sharing if the establishment of the passive infrastructure was based on rights of way.[9] This solely concerns passive sharing.

(iii) Competent authorities shall ensure that competition is not distorted by any transfer or accumulation of rights of use of radio frequencies.[10] In such a case, the competent authority may prohibit any transfer or impose conditions. Thus, for any spectrum sharing that requires a transfer of rights of use, the related transfer of rights requires approval by the competent authority and may be prohibited or conditions might be imposed. This primarily concerns active sharing.

Independent of the Code, the broadband cost reduction directive also requires MNOs to give access to their physical infrastructure. Competent authorities have to resolve disputes and may impose a price for access.

Under the Code, the instruments available with respect to infrastructure sharing are the following:

a) Within the conditions attached to individual rights of use of spectrum, competent authorities may provide for the possibility (a) to share passive or active infrastructure, or radio spectrum, (b) to enter into commercial roaming access agreements and (c) to jointly roll-out[11]. Of particular importance here is the effective and efficient use of the spectrum, the promotion of coverage and the rapid deployment of networks (especially in less densely populated areas). This instrument may concern passive as well as active sharing.

b) Competent authorities shall promote effective competition and avoid distortions of competition in the internal market when deciding to grant, amend or renew rights of use for radio spectrum. To pursue this objective, competent authorities shall take appropriate measures. For the assessment of the necessity of such measures, competent authorities shall take the approach of market analysis into account.[12] This may also concern infrastructure sharing under the appropriate conditions. For example, roaming might be imposed for entry assistance.

c) Competent authorities may impose passive sharing in order to protect the environment, public health, public security or to meet town- and country- planning objectives passive sharing if the establishment of the passive infrastructure was based on rights of way.[13] This solely relates to passive sharing and the measure should be/must be based on public interest grounds.

d) Furthermore, competent authorities will have the power to impose obligations either to share passive infrastructure and or to conclude localised roaming agreements These obligations would be imposed only under the following conditions: First, passive sharing or localized roaming must be directly necessary for the local provision of services which rely on the use of radio spectrum. Second, no viable and similar alternative means of access to end-users is made available to any undertaking on fair and reasonable terms and conditions. Third, the possibility to impose sharing is clearly provided for when granting the rights of use for radio spectrum. Fourth, market-driven deployment of infrastructure for the provision of networks or services which rely on the use of radio spectrum is subject to insurmountable economic or physical obstacles and therefore access to networks or services by end-users is severely deficient or absent. In those circumstances where access and sharing of passive infrastructure does not suffice to address the situation, sharing of active infrastructure may be imposed.[14] Upon failure of commercial negotiations, competent authorities shall resolve the dispute with a binding decision.[15]

Sharing implemented under such conditions shall remain subject to competition law.

To summarize, the most important new instruments in the Code are:

1. The Code introduces new powers to impose passive or even active sharing under exceptional circumstances. The code clearly indicates that passive sharing is the preferred solution and active sharing or even roaming shall only be relied on if passive sharing does not suffice.

2. The Code enables competent authorities to impose passive sharing based on public interest grounds.

3. The Code imposes strict conditions and requires a detailed assessment before sharing can be imposed on operators.

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2.1.3 Role of general competition law


Depending on the competences held by them, certain NRAs may also review cases according to competition law which serves to address and remove concerns in relation to agreement, concerted practices or unilateral behaviour which restrict or distort competition in the relevant market. However, in general national competition authorities and national courts are responsible for ex-post monitoring[16] and enforcing competition law.

In some situations NRAs – within their specific competences in the respective Member State – might be obliged to apply competition law based principles when adopting decisions on the basis of the relevant sector legislation. In those cases their assessments are required to be based on the same methodologies as under competition law, reflecting the applicable jurisprudence of the Court of Justice of the European Union and taking into account, to the extent relevant, the Commission's decisional practice in the enforcement of the European competition rules. In practice, it cannot be excluded that parallel procedures under ex ante regulation and EU competition law may apply with respect to different types of competition problem(s) identified on the relevant market(s).

The appendix details some elements and considerations from competition law which are likely to apply to existing/potential mobile infrastructure sharing agreements.
In any case, the remit of this common position is limited to NRAs acting under the electronic communication legislation.

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2.2 Benefits and drawbacks related to sharing agreements


This section details the potential benefits and drawbacks resulting from infrastructure sharing agreements. All outcomes resulting from infrastructure sharing agreements will depend on the wider structure and dynamics of a given market. Nonetheless, it is possible to identify potential benefits and drawbacks associated with infrastructure sharing agreements in general terms.

The potential benefits and drawbacks were identified at a high level in the June 2018 BEREC report, which simply described potential benefits and drawbacks identified by NRAs. Similarly, benefits and drawbacks (labelled ‘challenges’) were identified in the 2011 report. In this section, common benefits/drawbacks are identified by grouping the individual items identified by NRAs into seven different groups (four different benefits types, three different drawback types).

These benefits and drawbacks are described separately. Nevertheless, they are not necessarily distinct, in the sense that there might be an association between the presence of one factor with the presence of another one. Demonstrating a causal relationship between factors would require a detailed, quantified analysis of the relationship between them. It is, therefore, beyond the scope of this paper.

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2.2.1 Potential benefits of infrastructure sharing


The potential benefits of infrastructure sharing have been observed in many markets. The June 2018 report briefly described the common benefits that are collected from the NRA answers to the BEREC infrastructure sharing questionnaire. This position paper elaborates these benefits in more detail by grouping them into different categories. The first two categories listed below also match the observations reported in the 2011 report.

Benefit 1: cost reduction

Cost reduction is a driver for operators to engage in infrastructure sharing. Where NRAs have available estimates, there is a general view that sharing can save costs. As the saving potentials are highly context and network design dependent, the reported saving percentages vary. NRAs also indicate that active sharing (which typically includes passive sharing) can achieve greater savings than passive sharing. The cost saving is likely to differ depending on technology type (i.e. 4G vs. 3G), the location where the sharing takes place (i.e. city centre vs. rural areas), and the timing when the sharing is implemented (i.e. greenfield vs. network consolidation). Some NRAs indicated that operators need to have sufficient incentive to pass at least part of these savings to consumers, for instance by reducing prices and/or by improving network coverage and quality of service. In this context, an issue of relevance is whether the costs savings realized are fixed costs or variable costs, with the latter being more likely to be passed on to consumers in the form of price reduction or quality improvement.

Benefit 2: improved efficiency (with respect to administrative costs and efficient use of spectrum)

The 2011 report identified improved efficiency as a potential benefit of infrastructure sharing, in particular frequency re-use to allow spectrum users to exploit under-used spectrum and promote a more efficient use of resources.

This potential benefit clearly remains relevant for current infrastructure sharing agreements, given that spectrum is a finite resource. In addition to technology-related efficiency gains (i.e. spectrum, capacity) which were the focus of the 2011 report, administrative efficiency improvements (i.e. reducing the costs and efforts related to obtaining necessary documentation to set the network) were mentioned by a large number of NRAs as a potential efficiency-related benefit of sharing.

Benefit 3: enhancing consumer choice

The 2011 report noted that infrastructure sharing agreements can provide benefits to end users as long as they are not detrimental to competition. This remains the case. In addition, there is some anecdotal evidence from NRA experiences that infrastructure sharing has allowed the preservation of service-based competition in certain geographic areas. The reason for this is that it allows operators to operate or remain operating in areas where otherwise it would have been too burdensome and inefficient to individually deploy a network. As noted above, this will be highly market and context specific, and infrastructure sharing might also lead to competition concerns.

Benefit 4: public interest

The 2011 report briefly mentioned the environmental and health protection as a potential benefit to infrastructure sharing agreements. The results reported by NRAs in 2018 questionnaire demonstrate that these environmental benefits are not everywhere the same and the variety depends in general on each area type. For example, these benefits may be particularly relevant in areas where outstanding landscape needs to be protected (such as monuments and national parks) and in areas where operators can contribute to town/country planning during the establishment of network infrastructure.

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