Secondary Spectrum Market

The concept of the secondary spectrum market encompasses the legal business of transferring qualifying titles, assigning and mutualising rights for the private use of the public radio domain, as well as the provision of relevant wholesale services.

The regulation of the different legal businesses of the secondary spectrum market is contained in Title VI of the Regulation on the use of the public radio domain, approved by the European Commission. Royal Decree 123/2017, of 24 February. The validity of the legal business of the secondary market is always subject to its prior authorization by the Minister of Economic Affairs and Digital Transformation or by the Secretary of State for Telecommunications and Digital Infrastructures, as appropriate. In the mutualisation or sharing of rights, two or more holders of rights of use of the public radio domain, or one or more holders of rights of use with one or more operators who do not have rights of use subject to mutualisation, share in a certain geographical area the individual rights of use. Mutualisation applies only to frequency bands reserved for electronic communications services.

A relevant wholesale service consists of any agreement between two operators who are holders of rights of use of the public radio domain granted by tender procedure, whereby one of the operators, acting as service provider, allows the customers of the other operator, acting as service provider, to receive services in the provision of which use is made of the spectrum and network elements of the former. A particular case of a relevant wholesale service is the roaming agreements between operators.

Legal transactions involving the mutualisation of rights and the provision of wholesale markets between operators are rare cases, while transfers of securities and transfer of rights of use are more common. A summary of the regulation of the latter is indicated below.

The transfer or transfer of rights is applicable to practically any qualifying title with some specific exceptions such as that of the affectations granted to the Public Administrations or those related to experimental uses or short-term events. For concessions obtained through the tendering procedure, there is a delay period of two years from the date of award of the original title. In both cases, on the transferred or ceded spectrum, the technical and usage conditions of the public radio domain are maintained and, in general, new rights holders must meet the same conditions as the initial holder. On the date of authorization of the transfer or assignment, the holder must be aware of the fulfillment of any obligation inherent in the enabling title object of the Jurí businessdico.En the transfer is transmitted the totality of the rights of private use of the radio public domain derived from the title, for the entire period of time that remains in force and throughout the geographical scope of the title. It will be understood that there is a transfer of title when the rights are transferred to a new holder for the interest of the applicants as well as for reasons of merger, division or significant transfer of the shares of the initial holder. The new holder will be subrogated in all the rights and obligations of the previous holder, derived from the title to be transferred, which expressly, by means of a responsible declaration, will declare to know. Successive transfers of the same title are admissible, applying in the case of concessions granted by tender, between two successive ones, the two-year interval established in the tender specifications.

In the transfer of rights of private use of the public radio domain, the right is transmitted to use all or part of the frequencies granted in the title, in all or part of the corresponding geographical area and for all or part of the period of time that this title remains in force, without affecting all the rights of use, in which case it would be a transfer of the title. The assignor will be responsible to the Administration for compliance with all the obligations associated with the qualifying certificate for the use of the original public radio domain, except those derived from the use of the assigned spectrum, including in this aspect the corresponding procedures for the stations that make use of the assigned spectrum. The transferred rights of use may not be the subject of new assignments by the assignee. The revocation or extinction of the title enabling the use of the original public radio domain will also cause the revocation of the authorization of the assignment.

The documentation to accompany the requests for authorization of transfers or transfer of rights of use, of concessions granted through a tender procedure, is established in Articles 69, 73 and 76 of the Regulation on the use of the public radio domain (Royal Decree 123/2017, of 24 February) and by way of summary is indicated below:

• a) Documents proving the capacity of the applicants, and where appropriate, documents proving the representation.
• b) In the case of administrative concessions, the new owner of the transfer or assignment must be registered in the Registry of Operators provided for in article 7 of Law 9/2014, of 9 May, General of Telecommunications.
• c) In the case of concessions, declaration responsible for not incurring the applicants in any of the prohibitions of contracting regulated in Law 9/2017, of November 8, on Public Sector Contracts, by which the Directives of the European Parliament and of the Council 2014/23/EU and 2014/24/EU, of February 26, 2014, are transposed into the Spanish legal system.
• d) Declaration of foreign persons to submit to the jurisdiction of the Spanish Courts and Tribunals of any order for all incidents that, directly or indirectly, may arise from acts carried out under the enabling title granted for the use of the public radio domain, waiving, where appropriate, the foreign jurisdictional jurisdiction that may correspond to the applicant.
• e) Reference of the title or titles enabling the use of the public radio domain affected by the legal business.
• f) Copy of the legal business to subscribe among the holders.
• g) Characteristics of the networks and services in which it is planned to use the rights of use of the public domain object of the legal business.
• h) Responsible declaration of the previous holder in the case of transfers or of the assignor in the case of assignments, if he has communicated to the new holder of the rights, the conditions associated with the corresponding enabling title, as well as responsible declaration of the latter that he knows the aforementioned conditions.

In the case of transfers of securities not awarded by tender, part of the documentation listed above may be replaced by a duly signed responsible declaration, the model of which is accessible here (a declaration by each of the parties involved in the business) that must accompany the transfer request.

The time limit for issuing a decision shall be three months from the date of entry of the request into the Secretary of State for Telecommunications and Digital Infrastructures, after which, without an express decision having been notified, the request shall be deemed rejected, without prejudice to the obligation of the said Secretary of State to expressly resolve, in accordance with the provisions of article 24 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations.

The grounds for refusal of applications for transfer or cession are the fact that one of the common exclusions referred to in Article 67 of the Regulation on the use of the public radio domain concurs, or that the requirements referred to in Article 68 of the Regulation have not been accredited by the applicants, and also, where cases of spectrum hoarding occur, there is a risk of a restriction of competition in the market or the holder of the corresponding rights of use, is involved in an administrative procedure from which the revocation of the qualifying title subject to transfer or cession of rights of use may result.