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The secondary market de radioelectric phantom
I. Introduction:
The possibility de commercializing the radioelectric phantom and de turning the same into a negotiable right between the operators de telecommunications, has generated an ample debate at national and European level, by the social and economic relevance de this limited natural resource.
Indeed, the European Union has abierto the possibility de establishing and de regulating a true secondary market de the phantom, ex- lege , that facilitates the effective and efficient use, as well as the economic invigoration de a resource so demanded at present.
The radioelectric phantom is the unique resource able to limit the possible number de borrowers de certain services, based on the mobility and the ubiquity, that require the use de radio frequencies, like alternative to the traditional networks de access (WiFi, WiMAX-, etc.).
For this reason, it is necessary to modify his traditional and rigid system de management and administration on the part de the State, like titling de the same, eliminating the entrance barriers to accede to his use and facilitating the introduction de new services, promoting the innovation in new technologies.
II. Present regulatory frame applicable to the use de the radioelectric phantom.
The radioelectric phantom is defined in the Annex de Law 32/2003, de 3 de November, General de Telecommunications (LGTel) like the radio waves in the frequencies between 9 KHz and 3000 GHz; the radio waves are electromagnetic waves propagated by the space without artificial guide . The certain thing is that the radioelectric phantom is a public property whose ownership, management, planning, administration and control, in accordance with the general principles de demanio, is attributed to the State (43,1 article LGTel).
Nevertheless, the true and great newness de the new legal regime de use de the radioelectric phantom talks about to the possibility de transmission de the rights de use de the same, introduced in article 45 de the LGTel. Nevertheless, for want de its prescribed development, this forecast is empty at present de content in which to his reach and form de application it talks about.
For this reason, it will be the regulation that develops to this section de the LGTel the one that finally determines the terms, conditions and reaches de the transmissions de rights de use de the radioelectric public dominion and the one that, consequently, abra or definitively closes the doors to the legal possibility to establish and to regulate a true secondary market de radioelectric phantom ex- lege .
III. Secondary market de Radioelectric Phantom: Content and reaches.
Several opposed opinions exist as far as which it can or it is due to include in this secondary market, that is to say, with respect to the reach de the transmissible rights. Thus, the transference de use licenses, its rent, the transference, cession or rent from a license, its reconfiguration, the changes de use de frequencies under protection de a same license for certain services, etc. Really, the dilemma between liberalization (possibility de change de use/service) or simple commerce can be possible (without possibility de change de use/service).
IBER-X is convinced that the traditional system de management de the phantom suffers from the agility and flexibility necessary to satisfy the needs with services de the present and future electronic communications. Also, it does not favor an efficient and rationalized use de this resource, that allows to develop one more to a plural supply de services to the benefit de the citizen and a freedom de real election, with the consequent slope de prices and the increase de the competition in wireless technologies. Resulting all this in the necessary promotion and definitive development de the Society de the Information, avoiding the negative effects de denominated technological breach .
As far as the reach de this mechanism de the secondary market, IBER-X understands that, in one first stage, it would not be worth the trouble to introduce the flexibility de the use de the phantom, that is to say, the change de use de the frequencies, since neither the technology nor the structure de the industry in market allow the traditional it a priori. Therefore, in this first stage, the use would be maintained in those bands in which originally it was granted.
We would be speaking, then, de the commerce de rights de use de the phantom, like the right to transmit or to receive signals de the phantom, defined in terms de: Geographic area; Duration and access time; Grant de phantom; and Obligations (protection against interferences and effective use).
Later, in a following stage, once the market would have matured, and the industry has been able to adapt to the new paradigm, it would be possible to be progressively introducing the possibility de the change or reconfiguration in the use de the frequencies.
In this case, the term change de use talks about to the possibility de change on watch and change de technology (for example, fixed service, movable service, broadcasting, television, etc.). This would suppose a greater flexibility in the use de the phantom, allowing the use de the bands for more prdeitable uses, as long as they were not stopped fulfilling the obligations on watch public and problems de interferences would not be caused that affected the quality de the services public (radio and television).
The final result is a scene in which the parts in the agreement de cession de the use rights can choose the type de cession that agrees, irrespective de whether the use de the frequencies stays to them or not, or more settles down an effective combination de flexibility and coordination in the use de the phantom. In this way, it can get to exist a certain flexibility to reshape the rights in order to adapt them to the needs de the assigner and the purchaser, allowing a maximum use de the phantom. IBER-X anticipates that, this way, the operators will be able to take care de de more effective way the needs de traffic and quality de their networks, fitting their right ones on the frequencies to more real needs de demand.
Really, the secondary market de phantom abre to new and interesting opportunities and economic scenes, whereas it would allow certain operators like, for example, the holders de licenses for the benefit de broadband access via radio in the 3.5 band de GHz, to transmit its rights de phantom use since at present are not making a use effective de its capacity, in which could use a new technology like WiMAX, which would allow them to revalue the license in its power, and an efficient use de the underused radioelectric phantom.
Also, at the moment at which takes place denominated analogical blackout and begins was digital , the frequencies released by this change could be used by the manufacturers de devices and antennas for the manufacture in standards like WiMAX. On the other hand, the holders de these licenses will be able to put them in the market increasing the value de the same, question that at the moment is not viable, since we have seen.
IV. Conclusion
, IBER-X is really conscious that in the present regulatory frame de the telecommunications, - that turns on the base de the existence de a preexisting right de all the physical and legal people for the benefit de services and the operation de electronic communications networks, would be pending a deregulation de, among others, the radioelectric phantom, understood without a decrease in the quality assurance de the services use that it, since the Society de the Information cannot advance without assuring the exquisite fulfillment required the technical and legal rigor.
Married Oscar Olive
Lawyer, Director de departamento Jurídico de IBER BAND EXCHANGE, S.A.
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