The recently approvedÂ Royal Decree 863/2008 (the "Royal Decree")Â develops the Spanish Telecommunications Law ("LGTel") in respect of the use of the radioelectric public domain. The Royal Decree established in a clear and comprehensive way the regulations governing the use of radioelectric public domain (â€śRPDâ€ť), defining the types of use and licences necessary to be applied in front of the competent authorities, if any, to provide electronic communications services through it.
The recently approved Royal Decree 863/2008 (the "Royal Decree") develops the Spanish Telecommunications Law ("LGTel") in respect of the use of the radioelectric public domain. The Royal Decree established in a clear and comprehensive way the regulations governing the use of the radioelectric public domain (â€śRPDâ€ť), defining the types of use and necessary licences to be obtained fromÂ the competent authorities, if any, to provide electronic communications services through it.
In particular, one of the issues which has been discussed in the telecommunications sector, and which is regulated on the Royal Decree, is the possibility for right-holders to transfer, assign or otherwise deal with ownership or rights of use over the RPD (allowing the setting up of a â€śsecondary marketâ€ť to make the management and use of spectrum rights easier, as it was requested on the reports issued by the Radio Spectrum Policy Group of the European Commission). The possible options and goals for the configuration of that market are quite ambitious but at this moment the Royal Decree has only established its foundations. Therefore, Royal Decree has primarily developed the mandate included in Article 45 of the LGTel, which planned that further regulations would establish the conditions whereby it could be possible to trade with certain rights of use of the RPD.
The main features of the legal regime established by the Royal Decree for the transfer of rights over the RPD are as follows:
- There are conceptually two different ways for transferringÂ the rights of use of the RPD: the transfer of licences and the transfer of the rights of use (without transferring the ownership of the licence).
a.Â In the case of transferring the licence,Â its ownership is transferred in whole or in part. The receiving party takes the position of the former owner, becoming the new holder of rights and obligations deriving from the licence. In the partial transfer, this may be limited to the transmission of some of the frequencies or to the transmission of such frequencies on a given geographical area within the total geographical coverage of the licence.
b.Â The transfer of certain rights consists of lending the right of use of certain frequencies included in the licence, which remain the property of the transferor. Such transfer cannot be done by the entire time-frame of the title and for all the geographical area for which it was awarded (trying to avoid purely speculative businesses and preventing to awardÂ rights to companies devoted exclusively to deal with the transfer of rights over the RPD). It would then only be possible to deal with the capacity exceeding the effective use by the owner of the RPD rights granted with the licence. The Royal Decree has established two different regulatory frameworks for transfers of rights exceeding six months and to those made for shorter terms.
- In addition to the exclusions described in the following point, the rights and frequencies that can be transmitted may vary depending on the type of the transmission agreed between both parties. In this respect, the Royal Decree establishes that when the transfer agreed is for the whole rights of use and therefore for the whole licence, this can be done regardless of the frequencies involved (this is the only case where no limitations are imposed). To the contrary, when the transfer is partial or it is a lending for some rights to use the RPD the Royal Decree has established a list of frequencies that can be dealt with under this type of transmission agreements (such frequencies are defined in the Royal Decreeâ€™s Annex). The concerned frequencies are those specified in the Annex for the following services: - radio paging and radio messaging services provided to the public, - mobile communications in closed user groups, - radio access services available to the public, and - fixed point to point services.
- The Royal Decree defines certain exclusions from the possibility of transferring rights to use RPD. It would not be possible then to transfer any RPD rights when: - The licence to be transmitted is an affectation demanial or a special authorization; - The rights covered by the transmission are those related to public security and national defence or they are subject to public service obligations; - The concerned transfer may pose a restriction of competition in the market (in this case a report to the Commission for the Telecommunications Market will be requested to analyze that possibility); - The transferor/transferee is involved in an administrative proceeding, which may result in the revocation of the licence. Although the Royal Decree seems to limit this latter case to the existence of an administrative proceeding, the most reasonable interpretation is that the exclusion shall also operate when there are any legal proceedings which may derive in such licence revocation.
- The main requirement to carry out the transfer of rights by any of the regulated â€śens legisâ€ť in the Royal Decree, is to obtain an administrative authorisation on such transmission. Thus, the competent body shall authorize the agreement reached between the parties for the transfer to take effect (in the absence of such authorization the agreement will be void). The procedure to obtain the authorization will have to be started by the relevant individual/company with the relevant application which shall enclose the documents specified in Article 43.2 of Royal Decree, consisting basically in the description of the transmission to be performed and its main features.
It is important to analyze the ways whereby the administrative approval can be granted. For the transfer of the title there are no major differences since both the total transfers and the partial one require an administrative approval to be granted in the term of three months (if after that term it has not been issued the relevant authorization this must be understood as denied). The same rule applies for the lease of rights for periods longer than 6 months. However, for those assignments for periods shorter than 6 months, the Royal Decree establishes a one month period for the resolution to be issued. After that period, if no resolution has been issued the authorization shall be considered as granted. It is important to note that, to avoid circumvention of the rules applicable to transfers in general through this last type of transfer, the Royal Decree prohibits successive and simultaneous assignments. Unfortunately the regulations do not define clearly the parameters to interpret what successive transfers mean (it does not define whether there should be or not a minimum period from one to another transfer and what is that period).
- Finally, the authorization granted may be revoked by the administrative authority which granted it, through a decision based on motivated grounds, if: - There is a breach of the essential conditions for the transmission; - There are incompatibilities or interferences that impair or degrade services provided and; - In the case of transfers of rights of use, the original licence is revoked or expires.
Analyzing the present rules described for the transmission of rights to use RPD, it is possible to envisage that the framework established is still fairly rigid and embryonic. It is foreseeable that in the course of the operations of this secondary market and in light of the benefits of these rights transmissions it may be possible to extend the frequencies eligible for trading with. Especially this extension may take place when the â€śdigital dividendâ€ť from the analogue broadcasting is available, allowing an enlargement of the services to be provided through the RPD and a better efficiency in the management and use of the spectrum rights.