It may move outside the time of connection

By Alexandre Entraygues and Sabine Beausseron, counsel to the firm Gide Loyrette Nouel Court

WiMax (1) is currently experiencing a resurgence. Altitude Telecom was up to this single operator to operate this technology (2), Arcep has issued last July 49 permissions regional frequency WiMax, band 3, 4-3, 6 GHz. Unlike frequencies WiFi, which are of free use, WiMax frequencies were the subject of a procedure for call for applications launched on the basis of article l 42 - 2 of the Code of the post and electronic communications (CPCE)Arcep found a higher available frequency application. In the end, only 15 operators, including 6 regional councils, obtained the authorization to establish and operate a WiMax network for twenty years. These operators, which include Bollore Telecom-12 regions including Brittany, Corsica, and the Ile-de-France - or the Regional Council of Poitou-Charentes, ensure the presence of two new holders of frequencies in each point of the territory, in addition to Altitude Telecom. These new frequencies include major issues: provide broadband in areas not covered ("white") and compete in the term networks broadband mobile operators.

According to the latest data of Arcep, 98 of the population now has access to the Internet broadband. This figure may seem satisfactory, but nevertheless prevents 2 French, across many thousands of municipalities, to benefit from the advantages of this technology. However, the introduction of the right to broadband as a component of the universal service is not in the order of the day, including for reasons of practical implementation. In addition, geographical extension cable or DSL networks or the establishment of satellite networks to deliver broadband to isolated populations (3) seem to hardly feasible economically.

In this context, the WiMax technology is an especially attractive alternative for the development of broadband in white areas. It includes of at the outset the interest of private for this Virgin market operators, but also the intervention of public authorities, who saw an opportunity to improve the land-use planning in WiMax. It should be noted that, under article l. 32 - 1 - II (7 ) of the CPCE, the Minister of electronic communications and the Arcep are responsible for ensuring "taking into account the interests of the territories and users ..." in"the access to services and equipment." (article l. 32 - 1 - II - 7 of the CPCE).

In the performance of this legal mission, the Minister and the Arcep and retained as the first criterion of selection of candidates to licensed WiMax "the contribution of the territorial development of the broadband project" (decision 2005-0646 July 7, 2006, annex). This same concern is reflected in the final frequency allocation WiMax, Arcep, for example, repeated the commitment of Bolloré Telecom "cover 87 of the population and 92 of the companies in the white zone" in the Ile-de-France region (decision 06-0732 dated July 25, 2006). Further, it notes that this national spatial planning policy was relayed to the local level, as fourteen councils regional stepped candidates and six received a WiMax licence to their respective regions. In this connection, it is expected that allottees communities partner communities infra-regional and local operators in the operation of WiMax networks, including through the mechanism of provision and assignment of frequencies. In the end, the commitment of public authorities and the mobilization of private operators, Arcep believes that the arrival of WiMax will eliminate half of the existing white areas and connect 99 of broadband households.

Some recipients of the WiMax licenses see also in this technology the opportunity to compete in term 3 G mobile operators offering to end users of similar services, such as surfing the Internet, voice over Internet (VoIP) services, or access to personal mail. From the point of view of the Act, 3 G and WiMax operators are also subject to a similar regime. On the one hand, they must make a declaration with the Arcep prior to the establishment and operation of their networks (article l. 33 - 1 of the CPCE), and, on the other hand, for a licence for the radio-electric resource use (section l 42 - 2 of the CPCE). Several differences between them nonetheless. First, the new WiMax licences were regional in scope, and not national. Moreover, they do not contemplate the provision of mobile WiMax services, since only fixed and nomadic services are authorized. Nomadic services are defined by Arcep as: "a service offering for customers (that have a suitable terminal equipment) to connect to the network of the incumbent in matters covered by its network, the terminal equipment remaining fixed through communication with the network of base stations." "It may move outside the time of connection."

The true mobility, i.e. the possibility to move during the communication mechanisms of roaming and "handover" (maintenance of sessions in a change of pillar-relay), is not yet authorized. However, this mobility technology is already available, certified by the IEEE (Institute of Electrical and Electronics Engineers, Inc.) and designated under the terms "standard mobile WiMax 802. 16" (see articles online below). In addition, in decision 2005-0646 July 7, 2005, the regulator mentions that other WiMax frequencies will be available later and will be assigned by him in service including the new needs expressed by the players. It is therefore not excluded that the WiMax operators may in the future mobile services and come directly compete with 3 G operators.

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