Summary
The European Commission (EC) has initiated an infringement procedure against Germany for failing to respect the principle of service neutrality in its regulations for use of the valuable 2.6GHz band. Yet the EC's own 2008 Decision on this 2.6GHz band is internally inconsistent, and likely to place more unnecessary handicaps on users, operators, and national regulators than the restriction it is criticizing.
Analysis
In June 2008 the EC published its Decision 2008/477/EC on harmonization of the 2.6 GHz band (2,500-2 ,690 MHz ) for terrestrial systems capable of providing electronic communications services in the Community. Unfortunately because of its failure to appreciate adequately the implications of frequency management or frequency coordination, this Decision establishes conditions which if followed are almost guaranteed to ensure that harmonization will be difficult or unlikely to be achieved. The outcome could well create significant (and avoidable) financial and operational obstacles that inhibit users of such electronic communications services in this band in one Member State from gaining access to equivalent services in any other Member State. The Commission's mistake lies in a misunderstanding of the principle of technology neutrality as it applies to wireless spectrum. This principle means that any constraints applied on the wireless technologies that operators may deploy (and whatever the band plan it is impossible to eliminate constraints entirely) should be kept to a minimum, while ensuring that interferenceis dealt with as efficiently and effectively as possible in the interests of all spectrum users. The laudable goal of technology neutrality is to facilitate maximum freedom of choice and stimulate innovation in wireless technologies subject to the condition that they not harm or unfairly interfere with other legitimate uses and users. However, In its decision the EC conflated technology neutrality with flexibility for national regulators and operators seeking licenses in the band in their allocations of paired and unpaired spectrum blocks within this band (2500-2690MHz). This flexibility will lead inevitably to varied configurations of paired and unpaired frequencies in neighboring countries, such as in the imminent auctions in Germany and the Netherlands in which the same frequencies may well end up in paired and unpaired blocks respectively on the two sides of their border. Consequently there will be a need to find complex and difficult (and unpredictable before the auctions are completed) solutions for interference management and frequency coordination that will entail loss of coverage and reduced usable spectrum, higher costs for equipment, and increased regulatory burdens. The EC's own goal of harmonization will be frustrated. It should revise this decision in light of evidence and analyses of the consequences of alternative band plans for interference management. It should adopt instead a plan with judicious, ITU-approved pre-configured allocations of paired and unpaired spectrum that in practice comes closer to satisfying the principle of technology neutrality than the plan embodied in its current decision, while greatly simplifying the challenge of cross-border frequency coordination for the benefit of users, operators, and national regulators.
