State Council rejects Free’s appeal against Arcep’s decision

12 Jul 2013

France’s Conseil d’Etat (State Council) has rejected the interlocutory appeal filed by Free Mobile against regulator the Autorite de Regulation des Communications Electroniques et des Postes’ (Arcep’s) decision No. 2013-0514 of 4 April 2013 to grant permission to rival Bouygues Telecom to use its 1800MHz spectrum (initially authorised for 2G usage) for 4G Long Term Evolution (LTE). The Council State judge ruled that the emergency condition, necessary for the suspension of the decision, was not fulfilled, since implementing Arcep’s ruling was not likely to prevent the presence of the applicant company and other competitors of Bouygues Telecom on the French telecoms market, nor could it threaten their survival. The regulator also stated that the contested decision did not infringe the principle of equality or the competition law. According to the State Council, although Bouygues Telecom might gain significant competitive advantage over other operators in the period from 1 October 2013 until the date at which they can operate 4G LTE networks in the 1800MHz frequency band themselves, this advantage would not result solely and directly from the contested decision, but also from strategic, technological and economic choices made by the mobile operators in recent years. As a result, in addition to rejecting Free Mobile’s appeal, the State Council also ordered the company to pay Bouygues Telecom the sum of EUR3,000 (USD3,922) under Article L.761-1 of the Code of Administrative Justice, to cover legal expenses.

As previously reported by TeleGeography’s CommsUpdate, Free Mobile filed an interlocutory appeal against Arcep’s decision to grant permission to rival Bouygues to use its 1800MHz frequency band for LTE in June 2013, arguing that the decision was in infringement of the competition law and violated the principle of equality between mobile operators. In end-2011 France’s four mobile service providers –Orange, SFR, Free and Bouygues – paid a total of EUR3.57 billion for the allocation of 800MHz/2600MHz spectrums to support LTE services. However, the 4G tender was later denounced for a lack of transparency by some of the mobile operators, as the cellcos were not informed at the time that the watchdog was also planning to authorise the 1800MHz frequency band for 4G use in 2013.