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The latest trends in network sharing regulation - a snapshot (2018-2021)

European Union

In our last network sharing study, we discussed the (then) major legislative proposal for a 'European Electronic Communications Code' (EECC) which at the time encountered difficulties in being adopted. As briefly outlined below, the EECC was finally adopted and entered into force in 2018.

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EU regulatory developments you need to know

  • 14 June 2018 - BEREC issued its preliminary Report on infrastructure sharing comprising a provisional analysis of infrastructure sharing arrangements in place in various individual European Countries.
  • 20 December 2018 – EECC entered into force and repealed previous Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC. The EECC repeats the existing three primary general objectives (promoting competition, the internal market and end-user interests) plus a new objective prioritising connectivity and access to very high capacity networks.
  • 13 June 2019 – BEREC issued its Common Position on Mobile Infrastructure Sharing. The document is intended to build on BEREC’s previous work on mobile infrastructure sharing by identifying and describing factors to be considered by the competent national regulators when assessing any infrastructure sharing agreement.
  • 21 December 2020 – deadline for member states’ EECC implementation.
EECC

  • One of the regulatory principles embedded in the EECC is to promote efficient investment and innovation in new and enhanced infrastructures.
  • Allows for various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, whilst ensuring that competition in the market and the principle of non-discrimination are preserved.
  • The EECC however, still emphasises that competition includes efficient infrastructure-based competition.
BEREC 2019 report

  • Common definitions of different infrastructure sharing types.
  • Common objectives of infrastructure sharing agreements: effective competition, better connectivity and efficient use of spectrum.
  • Factors to consider when assessing infrastructure sharing agreements: competitive market forces evolution, feasible level of competition, type of sharing, shared information and its impact on ability to compete, reversibility and contractual implementation. 

Both the EECC and the BEREC 2019 Report address network sharing, and appear open to it, but in our view, these do not go far enough. One of the areas where we hoped to see further development is in relation to infrastructure-based competition which, as highlighted throughout this study, becomes less important both from the perspective of:

  • end-users - as 5G allows for significant service-based competition on the same infrastructure (e.g., network slicing and virtual networks);
  • electronic communication operators – which are increasingly separating and even divesting their infrastructure by setting up new InfraCos and TowerCos; and
  • the environment – as 5G will require significantly more equipment (especially in urban areas where available space is already scarce).

Network sharing is now a reality, and we believe all regulators should modernise rules to promote investment in, deployment of, and use cases for - next-generation technologies such as 5G. Further information on the response of national regulators to the new legislative and network sharing frameworks are below.

Response of national regulators

Even though the EECC and BEREC reports intended to harmonise a framework for the regulation of electronic communications networks in the EU, the response of national regulators remains fragmented, static and divergent. For this reason, we recommend that clients, if allowed by local law, engage the relevant authorities in open communication early on in the process. As the regulatory environment is still evolving, early planning will make both dealings with the regulator and meeting access requirements far easier.

While some jurisdictions are putting up barriers to network sharing, others are thinking more creatively by enabling new and existing players to compete on a service level.

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Some regulators are becoming more flexible

Our global study has also found that national regulators are increasingly willing not only to accept, but to also to mandate network sharing in specific instances. 

For example, in March 2020 the UK government announced the creation of the Shared Rural Network, and agreement with the four largest MNOs (EE, O2, Three and Vodafone) to end poor mobile coverage in rural areas by increasing 4G network coverage. The roll-out will be managed by Digital Mobile Spectrum Limited, a JV between the four MNOs, and deliver 4G coverage to 95% of the UK. The Shared Rural Network has a legally binding target to extend coverage to 28,000 premises and 16,000 km of roads by the end of 2025. Ofcom may issue a fine of up to 10% of the MNO’s gross revenue if the targets are not met. 

However, such close public-private programmes for network sharing have been rare. 

In most jurisdictions, existing rules and regulations have been moulded around an evolving market in a bid to address new opportunities and risks. Not surprisingly then, the most recent focus for regulators has been the roll-out of 5G and the additional spectrum required.

As gatekeepers to new spectrum, some regulators have begun to attach sharing obligations to spectrum awards or issue licences that encourage sharing. 

For instance, the spectrum winners of Ofcom's recent £1.4bn spectrum auction were permitted to broker trading deals. O2 and Vodafone took the opportunity to bolster their airwaves coverage by agreeing to share certain licences of their newly acquiring spectrum blocks. Read about it here.

  • The European Commission continues its investigation into network sharing agreements involving current and legacy technologies (2G/3G/4G) in the Czech Republic (mainly criticising active sharing in densely populated areas). This is despite the EC’s somewhat contradictory statement that the investigation is without prejudice to any future network agreements involving 5G.
  • Italy’s Competition Authority is also pursuing a flurry of investigations. Our research shows that there have been four investigations or decisions conducted in relation to domestic network sharing deals in the last 12 months. The deals that have been cleared are subject to strict commitments relating to non-discriminatory access and transparency.  

    To this end, we would highlight the decision on the TIM/Vodafone Network Sharing deal (INWIT), where the EC maintained its position that active network sharing should not be implemented in densely populated areas. This seems to be in line with the investigation into the Czech network sharing arrangement.

As our research shows, the trend toward spectrum sharing regimes has been accelerating worldwide. As it stands, 28 countries out of 33 surveyed in the table below allow a MNO licensee to share spectrum; whether with or without prior approval/notification. This provides hope that future regulatory regimes can respond to the new possibilities offered by network sharing.

However, while there is consensus on what regulatory objectives should be - promoting investment, innovation, competition, protecting users and security - the regulatory response itself remains fragmented, static and often divergent. Given this uncertainty, it is important that future developments are closely monitored, and that regulators remain engaged in both new and existing network sharing arrangements.

Network sharing regulation – the lay of the land

We considered the time period of July 2017 to April 2021 and noted, in relation to mobile network sharing,

  • Where regulatory measures have been introduced or changed;
  • The occurrence of merger clearance decisions or monitoring procedures regarding network sharing;
  • Whether a MNO licensee is able to share spectrum with an electronic communications provider;
  • Where regulatory guidelines or decisions have been made with regards to spectrum sharing; and
  • Countries where there are published, ongoing or announced investigations, inquiries or studies related to network sharing.
CountryAuthority measures changed

Merger clearance decision/monitoring procedure

MNO licensee able to share spectrum

Spectrum sharing regulation or guidelines

Investigations or inquiries

Albania  ✓* National
Angola ✓** 
Austria  ✓* 
Belgium ✓* National
Bosnia     
Brazil ✓* 
Bulgaria   
Chile    
China     
Colombia ✓*  
Czech Republic  EU
Finland ✓* 
France  ✓** 
Germany ✓* 
Hungary ✓*National
Italy ✓* National
Mexico ✓* 
Montenegro    
Netherlands ✓*** 
North Macedonia  ✓*  
Norway  
Peru  
Portugal National
Romania     
Russia ✓* 
Serbia ✓*  
Singapore  ✓* 
Slovakia ✓** 
South Africa ✓*National
Spain  ✓* 
Switzerland   
UAE  ✓* 
UK✓ (mostly)National
Ukraine   

*  = With prior approval
** = But must notify regulatory authority
*** = Based on proposed Telecommunications Act 2020

Authors

Claudia Nagy
Claudia Nagy
Counsel
Bucharest
Cristina Ciomos
Cristina Ciomos
Associate
Bucharest
James Samson
London