On February 10, Supreme Decree No. 005-2024-MTC («DS 005») was published, which approves the Rule to regulate the Sharing of Active Infrastructure with Radioelectric Spectrum.
The purpose of the regulation is to promote technological innovation, reduce the telecommunications infrastructure gap and expand the coverage of mobile public services, improving their provision through the sharing (or shared use) of active infrastructure with radioelectric spectrum.
It should be noted that, unlike previous regulatory projects, DS 005 limits its scope of application only to the sharing of active infrastructure with radioelectric spectrum (Multi-Operator Core Networks – MOCN) and does not regulate the shared use of active infrastructure without radioelectric spectrum (Multi Operator Radio Access Network – MORAN).
The new regulation empowers operators to share active infrastructure with spectrum through the subscription of a sharing agreement that must be approved by the Ministry of Transportation and Communications («MTC»). The sharing of active infrastructure with spectrum must meet one of the following conditions:
1. Sharing of active infrastructure with spectrum in rural areas, to provide 4G or higher public mobile services.
2. Sharing of active infrastructure with spectrum in urban areas, to provide public mobile services 4G or higher, in places that do not have mobile services coverage.
According to the First Final Complementary Provision of the regulation, the MTC publishes and updates, on its website, the list of rural and urban areas to be taken into account for the subscription of sharing agreements.
The procedure for the approval of the sharing agreement is provided for in the new regulation and is subject to Negative Administrative Silence. Operators with sharing agreements must submit to the MTC, in the first quarter of each year, a report with information on the implementation of sharing, including voice and data coverage in the implemented areas.
The regulation also highlights that the sharing of active infrastructure with spectrum may be used by operators to comply with the obligations of their coverage plans, as well as with the applicable spectrum usage goals, except for the carrier service through point-to-point links and for satellite services.
Additionally, the regulation establishes grounds to annul sharing agreements approved by the MTC, among which is the issuance of a final resolution by OSIPTEL that determines the existence of anti-competitive or discriminatory conduct and/or any other conduct that affects the telecommunications market.
An important aspect of the regulation is provided in its Second Final Complementary Provision which establishes that a mobile public service operator interested in joining a sharing agreement may request it to the parties to such agreement, communicating its request to OSIPTEL. It is also established that OSIPTEL’s Collegiate Bodies and the Dispute Resolution Tribunal are competent to resolve disputes arising between mobile service operators.
Finally, the new regulation creates the Active Infrastructure Sharing Registry in charge of the MTC, which will be publicly accessible and free of charge and will include information on sharing agreements and their modifications.
For further information, please contact Maria del Rosario Quiroga (rquiroga@estudiorodrigo.com), Andrea Morelli (amorelli@estudiorodrigo.com) and/or Luis Fernando Roca (lroca@estudiorodrigo.com).
