Context: The European Telecommunications Standards Institute (ETSI) requires cooperation partners to have IPR policies compatible with its FRAND-based (fair, reasonable, and non-discriminatory) framework. ACT | The App Association withdrew its ETSI membership application (December 2, 2025 ip fray article), but is now pursuing a cooperation agreement with ETSI, having recently introduced an IPR policy governing its participation.
What’s new: ACT’s newly published IPR policy applies only to participation in ETSI activities under the proposed cooperation agreement, rather than operating as an organization-wide framework. This raises questions as to how ETSI’s IPR policy compatibility requirement will be assessed in this context, and as to the approval process.
Direct impact & wider ramifications: The development puts ETSI’s approach to IPR policy compatibility under scrutiny, particularly whether a limited-scope FRAND commitment satisfies its framework. It may affect expectations around how consistently FRAND obligations apply across participants. The case highlights a broader tension within ETSI between flexibility in participation and consistency of FRAND commitments. How ETSI addresses this balance may shape future cooperation frameworks and influence the stability of its IPR regime.
What does “IPR policy compatibility” require, and is ACT structurally aligned?
ETSI’s directives require that any cooperation partner’s IPR policy be “compatible” with its own framework, which is based on FRAND licensing principles. However, the directives do not define what “compatibility” entails in structural or substantive terms. This leaves open a key question: whether compatibility requires formal alignment, a policy structured in the same way and applied at the organizational level, or whether functional equivalence, where the policy delivers comparable FRAND outcomes regardless of design, is sufficient.
Against this background, ACT’s IPR policy raises immediate questions. While ETSI’s model is generally associated with broad, organization-wide FRAND commitments, ACT adopts a more limited and conditional approach. Its policy applies only “to the extent that participation at ETSI occurs pursuant to the 2026 Cooperation Agreement”, meaning its obligations are activity-specific rather than entity-wide. This departs from the more stable and uniform commitment typically associated with ETSI’s framework, which is designed to ensure consistency and predictability in FRAND licensing. A context-dependent commitment of this kind introduces a structural distinction between ETSI-related conduct and broader licensing behavior.
At the same time, ETSI’s directives do not explicitly require partner policies to mirror its structure or operate at an organization-wide level. Compatibility may therefore depend less on identical design and more on whether the policy can operate effectively within the ETSI system, leaving room for interpretation.
Does ACT’s policy achieve FRAND in practice, and at what cost?
While ACT’s policy differs structurally from ETSI’s framework, the key question is whether it delivers substantive FRAND compliance in practice. On its face, the policy incorporates core elements of ETSI’s IPR regime, including FRAND licensing commitments, disclosure of potentially essential IPR, and licensing undertakings for implementers. Notably, in the absence of a declaration, participants are deemed to have given a licensing undertaking, reinforcing access to FRAND licensing and aligning with ETSI’s underlying objectives.
In this sense, the ACT policy appears to replicate the functional mechanisms of FRAND within its defined scope. However, these obligations are limited to specific ETSI-related activities, rather than applying across all conduct of ACT members. This creates a distinction between behavior within ETSI and outside it.
This limitation raises concerns about consistency and predictability. Where FRAND obligations apply only in a defined context, there is a risk of inconsistent licensing positions, with an entity bound by FRAND in one setting but free to act differently in others. Such fragmentation may undermine the coherence of ETSI’s IPR framework. In particular, a context-dependent commitment may enable strategic behaviour, allowing compliance within ETSI while preserving flexibility elsewhere.
The issue, therefore, is not the absence of FRAND mechanisms, but the risk of divergent FRAND conduct depending on context. That said, ETSI’s framework does not explicitly require uniform conduct beyond its activities, leaving open whether such flexibility is an inherent feature or an omission resulting in a structural weakness.
Was the ETSI approval process properly followed?
A further question is whether the procedural requirements for cooperation with external organizations have been properly followed.
ETSI’s directives provide that cooperation agreements require General Assembly approval and an assessment of IPR policy compatibility. Concerns have been raised as to whether ACT’s policy was available and assessed at the relevant stage, and whether the compatibility check was carried out on a fully informed basis. However, the available information does not allow for a definitive conclusion. These concerns, therefore, point to a potential procedural issue rather than a confirmed breach. The outcome depends on ETSI’s internal processes and timing, which are not publicly available.
Is the criticism legally grounded or strategically biased?
The concerns raised in the standards ecosystem reflect both legitimate structural issues and a potentially stricter interpretation of FRAND compatibility. On the one hand, the criticism has merit. The activity-specific scope of ACT’s policy departs from the more common model of entity-wide FRAND commitments, raising concerns about consistency and predictability. Questioning whether such a policy satisfies ETSI’s compatibility requirement is therefore justified.
On the other hand, the criticism may reflect a more rigid view of FRAND alignment, often associated with SEP-holder perspectives favoring uniform and comprehensive frameworks. From this standpoint, any deviation from a fully harmonized commitment may be seen as problematic, even where the policy reproduces core FRAND mechanisms. The concerns, therefore, appear partly well-founded, but may also reflect a preference for structural uniformity as opposed to a clear requirement under ETSI’s directives.
What systemic and institutional implications does this have for ETSI?
Beyond ACT, this raises a broader question about how ETSI balances flexibility in participation with coherent and predictable IPR commitments. Allowing more flexible, context-specific policies may enable broader participation and adaptability. However, this may come at the cost of consistency, particularly where FRAND obligations are not applied uniformly across an organization’s conduct. This risks a more fragmented IPR landscape, where licensing obligations vary depending on context. The ACT approach, therefore, highlights a structural tension: whether compatibility should prioritize uniformity or allow for functional equivalence across different policy models. How ETSI resolves this balance may shape expectations around FRAND commitments and the stability of its framework going forward.