ComReg Takes A Leaf Out Of The Competition Authority’s Book In Its New Framework For Spectrum Trading

Author:Ms Helen Kelly and Nina Cummins

The new spectrum trading regime in Ireland has the potential to enable valuable spectrum to be used more efficiently and to enable operators to get their hands on spectrum without having to wait until the next spectrum auction or release of spectrum. Efficient use of spectrum should also help Ireland meet its broadband targets set by the European Digital Agenda 2020. However, given the amounts paid by existing operators in the last spectrum auction for spectrum in the 800 MHz, 900 MHz and 1800 MHz bands and spectrum needed for 4G services, it is uncertain whether any operators will have spare capacity to be sold-off. The Wireless Telegraphy (Transfer of Spectrum Rights of Use) Regulations 2014) (the Transfer Regulations) were signed into law on 29 January 2014. A few days later on 31 January, ComReg published its Spectrum Trading framework and guidance on the new trading regime (the Framework). The Transfer Regulations and Framework reflect the European Parliament's decision establishing a multiannual Radio Spectrum Policy Programme (RSPP). This decision set out policy objectives for spectrum planning and the harmonisation of spectrum use across the EU. Importantly, the decision mandated the trading of spectrum in the RSPP bands. The Framework outlines the notification procedures for undertakings intending to transfer rights of use to spectrum to ComReg. It also contains guidance on how ComReg will determine whether or not a proposed transfer should be permitted. The substantive test applied by ComReg is whether the proposed transfer would (in ComReg's opinion) distort competition. Those familiar with the Irish merger control regime will note similarities between the distortion of competition test to be applied by ComReg and proposed two-phase review process, with the substantial lessening of competition test (SLC) and two phase merger review process applied by the Irish Competition Authority. Some good news for operators however - the notification regime will not apply to transfers which form part of a wider transaction ie, a merger which is notifiable to the Competition Authority or to the European Commission. In such circumstances the Competition Authority or the European Commission will have responsibility for analysing the transfer from a competition perspective (as part of their review of the overall transaction) and a separate competition assessment by ComReg is not required. In these circumstances, all that is required...

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