Author: Ceyhun Pehlivan, Associate, Madrid

Spain’s Competition Supervision Authority (CNMC), currently in charge of both competition and regulatory matters has ordered the main Mobile Network Operators (MNO) in Spain, namely Telefónica (Movistar), Vodafone and Orange, to ensure wholesale 4G network access for the Mobile Virtual Network Operators (MVNO).

This decision is made in response to the consultation filed by the Spanish MVNOs’ association on 1 July 2014 following a number of allegedly unattended requests from the MVNOs to access the 4G network of the MNOs.

In its recent decision, the CNMC states that the MNOs are generally required to provide, at reasonable prices, access to the Spanish wholesale market for mobile access and call origination, so that the MVNOs may compete at retail level.

Moreover, the CNMC points out that, according to the Resolution of the former Telecommunications Market Commission (whose powers are currently vested in the CNMC) dated 2 February 2006, the wholesale market for mobile access and call origination includes all those wholesale services which allow the MVNOs to offer mobile communication services, voice calls as well as data services, to the final users. In other words, that decision did not refer to a specific technology, but rather to the whole mobile communication services.

Thus, this also implies that the MNOs shall give third parties a right of access to any element and specific resources of their network, and negotiate in good faith with the authorized access seekers, among others the MVNOs existing in the Spanish market.

Furthermore, the CNMC confirms in its decision that the MNOs shall ensure reasonable prices for the provision of such access services pursuant to the recently passed Spanish General Telecommunications Act 9/2014.

According to the CNMC, the current legal framework is adequate to allow the MVNOs to request from any of the MNOs to have access to their 4G networks, provided that the MNOs have been offering such 4G services to their final retail clients for a reasonable time period and that the access to 4G is now a differentiating element of the offerings and appreciated by the final users.

In this respect, the CNMC considers also that the reasonableness of an access request shall be assessed in concrete terms on the basis of the negotiations of the MNO and the MVNO, in view of the abovementioned principles, general objectives of the Spanish General Telecommunications Act 9/2014 as well as the existing agreements executed between the operators.

If no agreement is reached between the mobile network operators, the CNMC would be entitled to intervene in order to settle the conflict, owing to its power of intervention in the relations between the operators, either upon the request of the operators or on its own initiative when justified, to promote and to ensure adequate access, interconnection and interoperability of services, pursuant to the Spanish General Telecommunications Act 9/2014.

The decision of the CNMC may be consulted here (in Spanish).