The International Comparative Legal Guide to:

Telecommunication Laws and Regulations 2010

A practical insight to cross-border Telecommunication Laws and Regulations

Published by Global Legal Group with contributions from:

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The International Comparative Legal Guide to: Telecommunication Laws and Regulations 2010

General Chapters:
1 An Overview of the EU Regulatory Framework - Purvi Parekh & Christoph Enaux,
Olswang LLP 1
2 EU Regulation and Competition Frameworks for the Telecommunications Sector -
George Houpis & Claire Brinkman, Frontier Economics Ltd 8
Contributing Editor 3 Recent Developments in U.S. Broadband Policy - Maureen R. Jeffreys & Stefanie Alfonso-Frank,
Colin Long and Rob Bratby, Arnold & Porter LLP 18
Olswang LLP
Country Question and Answer Chapters:
Brand Manager
4 Albania Boga & Associates: Sokol Elmazaj & Iva Çuçllari 24
Oliver Smith
5 Argentina Sanchez Elia Abogados: Juan Sanchez Elia & Adriana Tucci 31
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6 Australia Mallesons Stephen Jaques: Renae Lattey & Neil Carabine 38
Matthew Hill
7 Austria Dr. Norbert Wiesinger, Law Offices: Dr. Norbert Wiesinger &
Cover Design Mag. Alina Schindler 45
F&F Studio Design 8 Bahrain Charles Russell LLP: Andrew Sharpe & Jason Logendra 52
9 Belgium Olswang LLP: Dirk Van Liedekerke & Philippe Vernet 58
Senior Editor
Penny Smale 10 Brazil Mundie e Advogados: Kevin Louis Mundie & Eduardo H. Carvalhaes Neto 65
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Editor Lilia H. Kisseva 72
Caroline Blad
12 Canada Burnet, Duckworth & Palmer LLP: John E. Lowe & Alicia K. Quesnel 79
Managing Editor 13 China Lovells LLP: Michael Aldrich & Gaston P. Fernandez 85
Alan Falach
14 Cyprus Harris Kyriakides LLC: Michalis Kyriakides 92
Publisher
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15 Czech Republic Kinstellar, s.r.o., advokátní kancelár: Michaela Lodlová 99

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34 Slovakia Cechová & Partners: JUDr. Simona Haláková & Mgr. Jakub Ondrejka 232
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 EDITORIAL

Welcome to the third edition of The International Comparative Legal Guide to:
Telecommunication Laws and Regulations.
This guide provides the international practitioner and in-house counsel with a
comprehensive worldwide legal analysis of the laws and regulations of
telecommunications.
It is divided into two main sections:
Three general chapters. These are designed to provide readers with a
comprehensive overview of key telecommunications issues, particularly from
the perspective of a multi-jurisdictional transaction.
Country question and answer chapters. These provide a broad overview of
common issues in telecommunications laws and regulations in 35 jurisdictions.
All chapters are written by leading telecommunications lawyers and we are
extremely grateful for their excellent contributions.
Special thanks is reserved for the contributing editors Colin Long and Rob
Bratby of Olswang LLP for all their assistance.
Global Legal Group hopes that you find this guide practical and interesting.
The International Comparative Legal Guide series is also available online at
www.iclg.co.uk

Alan Falach LL.M.

Managing Editor
Alan.Falach@glgroup.co.uk
Chapter 1
An Overview of the EU
Regulatory Framework
Olswang LLP
1. Introduction
The EU regulatory framework for electronic communications
networks and services (the “Regulatory Framework”) is the basis
for all national telecommunications laws in the EU Member States.
The Regulatory Framework provides general and technology
neutral rules applying to all electronic communications networks
and services covering fixed and wireless telecoms, data
transmission and broadcasting. It contains provisions for the
structure and functioning of national telecommunications
regulators, general rules applying to all providers of electronic
communications networks and services in the European community
and particular rules which may only be imposed by national
regulatory authorities (“NRAs”) on operators with significant
market power (“SMP”). The Regulatory Framework only relates to
the provision of electronic communications networks and services,
and does not cover the content of these services.
One of the main objectives of the Regulatory Framework is to align
the sectoral regulation of the electronic communications market
with general competition principles. As a consequence, the
Regulatory Framework adopts the principle that ex ante regulation
should only be imposed where there is ineffective competition, i.e.
in markets where there are one or more undertakings with SMP and
where competition law remedies are not sufficient to address the
problem.
The Regulatory Framework consists principally of four key
directives:
a Directive on a common regulatory framework for
electronic communications networks and services (the
“Framework Directive”) [see end note 1];
a Directive on the authorisation of electronic
communications networks and services (the “Authorisation
Directive”) [see end note 2];
a Directive on access to, and interconnection of, electronic
communications networks and associated facilities (the
“Access Directive”) [see end note 3]; and
a Directive on universal service and users’ rights (the
“Universal Service Directive”) [see end note 4].
This framework is supplemented by the Commission’s Radio
Spectrum Decision [see end note 5], the Privacy and Electronic
Communications Directive [see end note 6], and the Commission
Directive on competition in the market for electronic
communications networks and services [see end note 7]. These
main documents are accompanied by various supporting
Regulations, Decisions and Recommendations of the Commission.
Each of the four key Directives (and the amendments under the
2009 reforms) and supporting Recommendations and Decisions
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Purvi Parekh
Christoph Enaux
related to these Directives is described in more detail below.
The Regulatory Framework entered into force in July 2003.
Following consultations in 2006, the European Commission
published proposals to reform the Regulatory Framework in
November 2007 and - as we write - the revised package (of two
amending Directives and a Regulation) is anticipated to be adopted
by the end of 2009. Once enacted, EU Member States must
transpose these amendments into domestic law in accordance with
the deadlines provided in the amending Directives.
The amendments will involve the enactment of three legislative
measures: a Directive to amend the Framework Directive, the
Access Directive, and the Authorisation Directive, (referred to as
the “Better Regulation” Directive) [see end note 8]; a Directive to
amend the Universal Services Directive and the Privacy and Data
Protection Directive (referred to as the “Citizens’ Rights Directive”)
[see end note 9]; and a Regulation to establish the new Body of
European Regulators for Electronic Communications (“BEREC”)
[see end note 10].
2. Regulatory Framework
2.1 The Framework Directive
The Framework Directive [see end note 1] concerns the more
structural and procedural elements of the Regulatory Framework. It
covers the establishment, objectives and procedures of NRAs. As a
general principle, NRAs must be legally distinct and functionally
independent from all operators on the market. In addition to the
general obligation for NRAs to promote competition in the
provision of electronic communications networks, communications
services and associated facilities and services, the Framework
Directive also contains special tasks in particular areas, e.g.:
management of radio frequencies; numbering and addressing;
rights of way; and facility sharing.
The Framework Directive also sets out how NRAs have to define
the relevant national communications markets and analyse whether
there are any operators with SMP on this market. Article 14(2) of
the Framework Directive provides that “an undertaking shall be
deemed to have significant market power if, either individually or
jointly with others, it enjoys a position equivalent to dominance,
that is to say a position of economic strength affording it the power
to behave to an appreciable extent independently of competitors,
customers and ultimately consumers”.
In the event of finding that there are undertakings with SMP in
relevant markets, NRAs must propose appropriate regulatory
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 Olswang LLP An Overview of the EU Regulatory Framework
remedies to ensure that effective competition is restored. In such
cases, NRAs have the option to use the remedies permitted under
the Universal Service Directive and the Access Directive, ranging
from simple transparency obligations to highly complex access
obligations.
In order to ensure transparency and consistency throughout the
Community, NRAs must notify their findings and proposed
measures to the Commission, BEREC (once established) and other
NRAs, prior to implementation, in accordance with Article 7 of the
Framework Directive and the Commission’s Recommendation on
Notifications, Time Limits and Consultations [see end note 11].
The Commission has the power to veto the NRA’s market definition
or determination of providers with SMP. Once the 2009 revisions
have entered into force, the Commission and BEREC will also have
further consultation rights in relation to the particular remedies to
be chosen by the NRAs without, however, having a formal right to
veto these remedies. The Better Regulation Directive will, once
enacted, also make several other amendments to the Framework
Directive. Of note is a new Article 8a which obliges Member States
to co-operate closely with each other and the Commission in the
strategic planning and co-ordination of radio spectrum policy in the
European Community. For these purposes, the Commission may
submit legislative proposals to establish multi-annual radio
spectrum policy objectives. Furthermore, the 2009 proposals also
contain provisions in relation to risk sharing and cooperation in
respect of the build-up of new infrastructures and transmission
facilities, and to the introduction of spectrum trading in the EU.
Recommendation on Relevant Product and Service Markets
In accordance with Article 15 of the Framework Directive, the
Commission adopted a Recommendation on Relevant Markets in
2003 [see end note 12] which was revised in 2007 [see end note 13].
The purpose of the Recommendation is to identify the product and
service markets (at wholesale and retail level) in which it is
recognised by the Commission that ex ante regulation may be
warranted because the market is not yet effectively competitive.
NRAs must take account of the Recommendation and guidelines for
market analysis and the assessment of SMP when defining relevant
markets and assessing the extent to which such relevant national
markets are effectively competitive. The following communications
markets are identified in the Annex to the Recommendation
published in 2007 as being susceptible to ex ante regulation:
Retail level
1. Access to the public telephone network at a fixed location for
residential and non-residential customers.
Wholesale level
2. Call origination on the public telephone network provided at
a fixed location.
3. Call termination on individual public telephone networks
provided at a fixed location.
4. Wholesale (physical) network infrastructure access
(including shared or fully unbundled access) at a fixed
location.
5. Wholesale broadband access.
6. Wholesale terminating segments of leased lines, irrespective
of the technology used to provide leased or dedicated
capacity.
7. Voice call termination on individual mobile networks.
The Recommendation seeks to ensure that the same markets are
subject to review and/or regulation in all Member States, and to
give notice to industry participants of the markets in which ex ante
regulation is likely to continue to be applied. The Recommendation
sets out the cumulative criteria which should be used by NRAs
when identifying markets susceptible to ex ante regulation, those
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criteria being:
the presence of high and non-transitory entry barriers
(whether of a structural, legal or regulatory nature);
the structure of the market not tending towards effective
competition emerging; and
the application of competition law alone not adequately
addressing the market failure(s) concerned.
NRAs can intervene in markets not listed in the Recommendation
but they must ensure that such a market is defined on the basis of
competition principles under the Commission Notice on the
definition of relevant market for the purposes of Community
competition law [end note 14], that it is consistent with the
Commission’s Guidelines on market analysis and the assessment of
SMP [end note 15] and that it satisfies the cumulative criteria set out
in the Recommendation. The identification, analysis and regulation
of a market not listed in the Recommendation is subject to the
procedure under Article 7 of the Framework Directive (outlined
above).
Guidelines on market analysis and the assessment of
significant market power
The Guidelines on market analysis and the assessment of SMP [see
end note 15] set out the principles which NRAs should use to define
markets and analyse effective competition under the Regulatory
Framework. The major objective of the Guidelines is to ensure that
NRAs take a consistent approach in applying the Regulatory
Framework, especially when designating undertakings with SMP.
They are also intended to explain to interested parties and
undertakings operating in the electronic communications sector how
NRAs should undertake their assessments of SMP under the
Framework Directive. This serves to maximise the transparency and
legal certainty of the application of the sector specific legislation.
Recommendation on notifications, time limits and
consultations
The Commission’s Recommendation on notifications, time limits
and consultations [see end note 11] sets out the procedural rules
NRAs must follow before adopting regulatory measures in
accordance with the provisions of the Universal Service and Access
Directives.
2.2 The Authorisation Directive
The key objective of the Authorisation Directive [see end note 2] is
to harmonise and simplify authorisation rules and conditions
throughout the EU. Pursuant to the Authorisation Directive, the
provision of communications networks or services (with the
exception of the use of radio frequency) may only be subject to a
general authorisation, for which the party concerned may be
required to submit a notification but must not be required to obtain
an explicit decision or other administrative act from the NRAs.
Information required in any notification must be limited simply to
what is necessary for the identification of the provider, a short
description of the network or service and an estimated date for
launching the service.
The conditions that may be attached to general authorisations, to
rights of use for frequencies, and to rights of use for numbers are
listed exhaustively in an annex to the Authorisation Directive.
Specific additional obligations, which may be imposed pursuant to
the Access Directive and the Universal Service Directive, must be
set out separately by the NRA, together with the criteria and
procedures for imposing such obligations. Conditions imposed
must be objectively justified in relation to the network or service
concerned, as well as being non-discriminatory, proportionate and
transparent.
Olswang LLP An Overview of the EU Regulatory Framework
Member States have the right to impose administrative charges on
undertakings providing electronic communications services and
networks but these must only cover the administrative costs
incurred in the management, control and enforcement of the general
authorisation scheme. Member States may also impose fees for the
right to install facilities on, over or under public land that reflect the
need to make optimum use of that land. The Directive recognises
that it will not be possible, under a system of general authorisation,
to attribute administrative costs to individual undertakings in the
form of licence fees, and therefore identifies turnover-related
administrative charges as a possible fair, simple and transparent
alternative.
The Authorisation Directive will be amended once the 2009 reforms
are adopted [see end note 8]. In short, the reforms will align the
Authorisation Directive to the new policy for spectrum, create an
efficient procedure for companies needing rights of use to provide
pan-European services and ensure a smooth transition to the
introduction of spectrum trading in the EU.
2.3 The Access Directive
The Access Directive [see end note 3] regulates the rights and
obligations of network operators to access each others’ networks
and to interconnect with each other. Furthermore, the Directive also
governs the rights of service providers to access third parties’
networks. Broadly, Member States must ensure that there are no
restrictions preventing negotiations taking place between operators
regarding the technical and commercial arrangements for access
and/or interconnection.
As a general rule, all operators of public communications networks
have the right and obligation to negotiate interconnection with each
other for the purpose of providing publicly available electronic
communications services. In support of this obligation, NRAs can
require undertakings that control access to interconnect their
networks where this is necessary to ensure end-to-end connectivity.
All such obligations and associated conditions must be objective,
transparent, proportionate and non-discriminatory.
Apart from the provisions applying to all network providers, the
Access Directive also contains the ex ante obligations which NRAs
may impose on operators with SMP. Potential remedies include:
transparency (e.g. pricing policy, terms and conditions for
access or interconnection or interoperability, technical
interfaces);
non-discrimination (where market analysis indicates that
discriminatory behaviour by the operator concerned could
lead to a distortion of competition);
accounting separation in order to make transparent wholesale
prices and internal cross transfers within a vertically
integrated company;
access to, and use of, specific network elements and/or
associated services or facilities; and
price controls and cost accounting, particularly for cost
orientation of prices for interconnection and/or access.
The options listed are meant as a regulatory “toolbox” from which
the NRAs may pick the appropriate and adequate measures
necessary to regulate the market failure identified in the market
definition and analysis process mentioned above.
The Access Directive will also be revised once the 2009 reforms
[see end note 8] are adopted. One of the key amendments is the
introduction of a functional separation remedy which may be
imposed by NRAs, subject to the approval of the European
Commission. In addition, the revised Access Directive also
contains particular information requirements in case an operator
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with SMP intends to undergo a voluntary separation (such as
transferring assets to a separate legal entity or establishing a
separate business entity to provide all retail providers with fully
equivalent access products).
2.4 Universal Service Directive
In contrast to the Access Directive, which covers the relations
between providers of electronic communications providers on a
wholesale basis, the Universal Service Directive [see end note 4]
concerns the relation between electronic communications providers
and end customers. One of the main goals of the Directive is to set
out obligations for Member States to ensure end-users have access
to a “universal” service (i.e. good quality publicly available
services) and a range of associated services, such as directory
enquiries, public payphones, measures for disabled end users and
quality of service. The Directive enables NRAs to provide for a
minimum set of services of specified quality to be offered on an
affordable basis to all users independent of geographical location
and, where such services are provided at prices or on other terms
and conditions which are not set on a commercial basis, to ensure
the most efficient and appropriate approach to providing these
services.
If no undertaking active on the respective market offers such
services on a voluntary basis, Member States may designate one or
more undertakings to provide one or more, or all, of the minimum
set of services pursuant to this Directive. In designating
undertakings, Member States must use an efficient, objective,
transparent and non-discriminatory mechanism, which can also
address itself to determining the net cost of meeting the universal
service obligations.
Further to these general provisions on universal service, the
Directive also contains a list of obligations that NRAs may impose
on operators with SMP, such as retail price cap measures, measures
to control individual tariffs, or measures to orient tariffs rewards,
costs or prices on comparable markets in order to protect end-user
interests whilst promoting effective competition.
“Must carry” obligations may also be imposed on the transmission
of specified radio and television broadcast channels and services,
where the relevant network serves as the primary means of access
to the services for a large number of users. “Must carry”
obligations may only be imposed if necessary to meet general
interest objectives and on the basis that the obligations are
proportionate and transparent. Following amendments to this
Directive, Member States will be obliged to review these “must
carry” obligations on a regular basis.
Finally, the Universal Service Directive contains various consumer
protection rules including minimum requirements for customer
contracts, minimum standards for number portability or directory
services, pan-European emergency numbers or pan-European
prefixes.
As well as the other Directives contained in the Regulatory
Framework, the Universal Services Directive will be revised once
the 2009 reforms are adopted [see end note 9]. The revisions will
include amendments to the regulatory controls which can be
imposed on undertakings with SMP in specific retail markets.
In order to facilitate the ability of end-users to switch between
operators, the amended Directive also foresees that subscribers who
have concluded an agreement to port a number to a new
undertaking shall have that number activated within one working
day, and Member States will ensure appropriate sanctions are
provided for under national rules, including an obligation to
compensate subscribers in case of delay in porting or abuse of
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 Olswang LLP An Overview of the EU Regulatory Framework
porting by them or on their behalf. Furthermore, the revised
Directive contains various provisions on the necessary level of
detail to be provided in contracts with end customers, including:
whether or not access to emergency services and caller
location information is being provided;
information on any other conditions limiting access to and/or
use of services and applications;
information on procedures put in place to measure and shape
traffic and their likely impact on service quality; and
the duration of the contract and the conditions for renewal
and termination of services and of the contract.
Member States must also ensure that fixed and mobile network
operators make caller location information available to authorities
handling emergencies in response to all calls to the European
emergency call number “112”. This requirement allows the use of
caller location data by the emergency services without the consent
of the user concerned and is therefore an exception to the Privacy
and Data Protection Directive which generally requires that privacy
and data protection rights of individuals should be fully respected
and adequate technical and organisational security measures should
be implemented for that purpose.
A separate Recommendation [see end note 16] requires Member
States to draw up detailed rules for public network operators with
respect to calls made to the European emergency call number “112”
and to provide adequate information to their citizens about the
existence, benefit and use of the European emergency call number
“112” service. The Recommendation encourages Member States to
foster and support the development of services for emergency
assistance, including handling procedures for forwarding location
and other emergency or accident related information to public
safety answering points.
3. Regulation Establishing the Body of
European Regulators for Electronic
Communications
Under the 2009 revisions to the Regulatory Framework a new
European authority, BEREC will be established to act as an
exclusive forum for co-operation among NRAs [see end note 10].
One of BEREC’s key roles will be to enable the NRAs to harness
their joint expertise. BEREC’s role will complement, at an EU
level, the regulatory tasks performed at a national level by NRAs.
As well as providing general information and advisory functions, it
is proposed that once established BEREC will:
provide a framework for co-operation between NRAs;
assist NRAs in providing regulatory oversight of market
definition, analysis and implementation of remedies;
assist in the definition of trans-national markets;
advise on radio frequency harmonisation; and
help with the administration of numbering and numbering
portability.
4. Competition Directive
The Competition Directive [see end note 7] provides the
background for the various other Directives of the Regulatory
Framework by obliging Member States to remove exclusive and
special rights for the provision of all electronic communications
networks to the extent that they have not already done so. It also
obliges Member States to apply a general authorisation regime -
which is further specified in the Authorisation Directive - and open
up directory services within their national territory, including both
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the publication of directories and the directory enquiry services.
The Directive further requires Member States to abolish any
regulatory prohibition or restriction on the offer of space segment
capacity to any authorised satellite earth station network operator,
and to ensure that dominant providers of electronic communications
networks and publicly available telephone services operate their
public electronic communications network and cable television
network as separate legal entities.
5. Radio Spectrum Decision
The Radio Spectrum Decision [see end note 5] provides the legal
framework for the co-ordination of spectrum policy across the EU.
To aid the Commission in pursuing the co-ordination of policy and
its implementation, the Decision also established a Radio Spectrum
Committee.
Since the Radio Spectrum Decision was adopted in 2002, the
Commission has subsequently adopted a number of decisions, in
accordance with the opinion of the Radio Spectrum Committee, in
order to harmonise the conditions for the availability and efficient
use of spectrum. Member States are required to keep the use of the
relevant frequency bands under scrutiny and report their findings to
the Commission to allow regular and timely review of the
decisions.
The allocation and management of radio spectrum is undertaken on
a national basis. The Commission established the Radio Spectrum
Policy Group (“RSPG”), in order to provide a forum for discussing
and co-ordinating the harmonisation of spectrum policy and
allocation [see end note 17]. The RSPG adopts non-binding
opinions to assist and advise the Commission in its development of
European spectrum policy and in harmonising the availability and
use of spectrum across the internal market.
As already set out above, the new Regulatory Framework will also
contain various provisions in order to further harmonise the use and
award of spectrum within the Member States and to enable
spectrum trading.
6. Privacy and Data Protection
6.1 Privacy and Data Protection Directive
The primary objective of the Privacy and Data Protection Directive
[see end note 18] is to harmonise national provisions regarding
personal data throughout the EU. Cross-border flows of personal
data, important to the fluidity of the internal market, could be
hampered by different levels of protection of individual rights and
freedoms in the different Member States and thus require
harmonisation.
Every data subject is given the right of access to personally
identifiable data relating to him/her, and a right to rectification of
that data where it is shown to be inaccurate. In addition, individuals
must be provided with information as to the purpose of processing
and the identity of the data controller, so that they can exercise their
right of access. The Directive also provides that personal data and
its processing must respect the following basic principles, namely
that it be:
processed fairly and lawfully;
collected for specified, explicit and legitimate purposes and
not further processed in any manner incompatible with that
purpose or those purposes;
adequate, relevant and not excessive in relation to its
Olswang LLP An Overview of the EU Regulatory Framework
purposes;
accurate and, where necessary, up-to-date;
kept in a form permitting identification of data subjects for
no longer than is necessary; and
processed in accordance with the rights of the data subject
under the Directive.
Compliance with these principles is the responsibility of the data
controller (i.e. the person or entity which determines the purposes
and means of processing of personal data). The above safeguards
for the protection of access to personal data may only be restricted
by Member States where necessary to safeguard national security,
defence, public security, the prevention of criminal offences,
economic or financial interests of a Member State, regulatory
functions in certain cases and the protection of the data subject or
the rights and freedoms of others.
Individuals who suffer damage as a result of unlawful processing
operations or of any other acts incompatible with national
provisions implementing this Directive are to be entitled to receive
compensation from the data controller for the damage suffered.
Under this Directive personal data may not be transferred out of the
EU for processing unless the third country in question ensures an
“adequate level of protection”. The adequacy of protection is to be
assessed in the light of matters such as the nature of the data, the
purpose and duration of the proposed processing operation, and the
rules applicable in the third country in question.
6.2 Directive on Privacy and Electronic Communications
The Directive on the processing of personal data and the protection
of privacy in the electronic communications sector [see end note 6]
amends and specifies the general data protection Directive in the
area of electronic communications services.
This Directive contains a range of provisions relating to:
security of a network or communications service;
confidentiality of the communications;
processing and storage of traffic data and location data of a
user; and
particular services, e.g. itemised billing, caller line
identification, automatic forwarding or telephone directories.
The Directive also ensures protection for individuals in respect of
their rights to prevent direct marketing by various technical means
unless they have “opted-in” to such use.
Once the amendments contained in the 2009 revisions to this
Directive [see end note 9] are enacted, publicly available electronic
communication services will need to adhere to mandatory
notification requirements where end-users’ personal data is
breached (i.e. lost or compromised).
6.3 Data Retention Directive
In March 2006, the European Parliament and the Council adopted
the Data Retention Directive which amended Directive 2002/58 on
privacy and electronic communications [see end note 19]. The
purpose of the Data Retention Directive is to harmonise Member
States’ provisions on obligations for electronic communications
network operators and service providers to retain data generated or
processed by them in order to ensure that the data is available for
the purpose of investigation, detection and prosecution of serious
crime. The Directive specifies particular data which must be
retained in the provision of fixed network telephony and mobile
telephony, Internet e-mail, Internet telephony, and Internet access
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for a period of at least six months up to a limit of two years.
Member States were required to implement the majority of
provisions necessary to comply with the Data Retention Directive
into national law by 15 September 2007, but had the opportunity to
postpone the obligation to retain communications data relating to
Internet access, Internet telephony and Internet email until 15
March 2009. Therefore all provisions should now be enacted at a
national level throughout the EU.
7. Roaming Regulation
In June 2007, the European Parliament and Council introduced a
Regulation on roaming on public telephone networks [see end note
20]. This Regulation aims to ensure that consumers travelling
within the EU are not charged excessive prices for roaming services
when making and receiving voice calls. It lays down rules on
charges to be levied by mobile operators and applies both to charges
levied between network operators at wholesale level and to charges
levied by home providers at retail level. The European Commission
reviewed the Regulation in 2008 and determined that it would be
necessary to extend its validity beyond 30 June 2010 (the initial
date for expiry) for an additional two years. Furthermore, the
Commission found that the scope of the Regulation ought to be
extended to include the provision of SMS and other data roaming
services. To this end, the European Parliament and Council adopted
a Regulation on 18 June 2009 to amend the 2007 Regulation in
order to ensure that users of public communications networks do
not pay excessive prices for EC-wide roaming services including
voice calls, SMS and MMS services [see end note 21]. The
Commission will review the functioning of this Regulation in 2011.
End Notes
[1] Directive 2002/21 of the European Parliament and of the
Council of March 7, 2002 on a common regulatory
framework for electronic communications networks and
services ([2002] O.J. L108/33).
[2] Directive 2002/20 of the European Parliament and of the
Council of March 7, 2002 on the authorisation of electronic
communications networks and services ([2002] O.J.
L108/21).
[3] Directive 2002/19 of the European Parliament and of the
Council of March 7, 2002 on access to, and interconnection
of, electronic communications networks and associated
facilities ([2002] O.J. L108/7).
[4] Directive 2002/22 of the European Parliament and of the
Council of March 7, 2002 on universal service and users’
rights relating to electronic communications networks and
services ([2002] O.J. L108/51).
[5] Decision 676/2002 of the European Parliament and of the
Council of March 7, 2002 on a regulatory framework for
radio spectrum policy in the European Community ([2002]
O.J. L108/1).
[6] Directive 2002/58 of the European Parliament and of the
Council of July 12, 2002 concerning the processing of
personal data and the protection of privacy in the electronic
communications sector ([2002] OJ L201/37).
[7] Commission Directive 2002/77 of September 16, 2002 on
competition in the markets for electronic communications
networks and services ([2002] O.J. L249/21).
[8] Proposal for a Directive of the European Parliament and of
the Council amending Directives 2002/21/EC on a common
regulatory framework for electronic communications
network and services, 2002/19/EC on access to, and
interconnection of electronic communications networks and
5
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 Olswang LLP An Overview of the EU Regulatory Framework
services and 2002/20/EC on the authorisation of electronic
communications networks and services COM (2007) 697,
November 13, 2007. See also European Parliament’s
position adopted at second reading on 6 May 2009 COD
(2007) 0247.
[9] Proposal for a Directive of the European Parliament and of
the Council amending Directive 2002/22/EC on universal
service and users’ rights relating to electronic
communications networks, Directive 2002/58/EC
concerning the processing of personal data and the protection
of privacy in the electronic communications sector and
Regulation (EC) No 2006/2004 on consumer protection co-
operation COM (2007) 689, November 13, 2007. See also
European Parliament’s position adopted at second reading on
6 May 2009 COD (2007) 0248.
[10] Proposal for a Regulation of the European Parliament and of
the Council establishing the European Electronic
Communications Market Authority COM (2007) 699,
November 13, 2007. See also European Parliament’s
position adopted at second reading on 6 May 2009 COD
(2007) 0249.
[11] Commission Recommendation 2003/561/EC of July 23,
2003 on notifications, time limits and consultations provided
for in Article 7 of Directive 2002/21 of the European
Parliament and the Council on a common regulatory
framework for electronic communications networks and
services ([2003] O.J. L190/13).
[12] Commission Recommendation 2003/311/EC of February 11,
2003 on relevant product and service markets within the
electronic communications sector susceptible to ex ante
regulation in accordance with Directive 2002/21/EC of the
European Parliament and of the Council on a common
regulatory framework for electronic communication
networks and services ([2003] O.J. L114/45).
[13] Commission Recommendation 2007/879/EC of December
17, 2007 on relevant product and service markets within the
electronic communications sector susceptible to ex ante
regulation in accordance with Directive 2002/21/EC of the
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European Parliament and of the Council on a common
regulatory framework for electronic communication
networks and services ([2007] O.J. L344/65).
[14] Commission Notice on the definition of relevant market for
the purposes of Community competition law ([1997] O.J.
C372/5).
[15] Commission guidelines on market analysis and the
assessment of significant market power under the
Community regulatory framework for electronic
communications networks and services ([2002] O.J.
C165/6).
[16] Commission Recommendation of July 25, 2003 on the
processing of caller location information in electronic
communications networks for the purpose of location-
enhanced emergency call services ([2003] O.J. L189/49).
[17] Commission Decision 2002/622/EC of July 26, 2002
establishing a Radio Spectrum Policy Group ([2002] O.J.
L198/49).
[18] Directive 95/46 ([1995] of the European Parliament and the
Council of October 24, 1995 on the protection of individuals
with regard to the processing of personal data and on the free
movement of such data ([1995] O.J. L281/31).
[19] Directive 2006/24 of the European Parliament and the
Council of March 15, 2006 on the retention of data generated
or processed in connection with the provision of publicly
available electronic communications services or of public
communications networks and amending Directive 2002/58
([2006] O.J. L105/54).
[20] Regulation No 717/2007 of the European Parliament and of
the Council of June 27, 2007 on roaming on public mobile
telephone networks within the Community and amending
Directive 2002/21/EC ([2007] O.J. L171/32).
[21] Regulation No 544/2009 of the European Parliament and of
the Council of June 18, 2009 amending Regulation 717/2007
on roaming on public mobile telephone networks within the
Community and Directive 2002/21/EC ([2009] O.J.
L167/12).
Olswang LLP An Overview of the EU Regulatory Framework

Purvi Parekh Christoph Enaux

Olswang LLP Olswang LLP
90 High Holborn Potsdamer Platz 1
London WC1V 6XX D-10785 Berlin
United Kingdom Germany

Tel: +44 20 7067 3524 Tel: +49 30 700 171 140

Fax: +44 20 7067 3999 Fax: +49 30 700 171 900
Email: purvi.parekh@olswang.com Email: christoph.enaux@olswang.com
URL: www.olswang.com URL: www.olswang.com

Purvi is a Partner in the Media, Communications and Technology
Group.
Purvi specialises in commercial, outsourcing, procurement and
regulatory work in the telecoms and technology sector. She has
extensive experience in both private and public sector outsourcing
and offshoring where she has acted for both customers and
suppliers. Purvi represents a wide range of operators, service
providers, resellers and purchasers of technology services.
Purvi has specific experience in India focussed technology and
sourcing work, both inbound and outbound. She has worked on
BPO and ITO transactions in this area.
Purvi’s practice also includes advising on technology regulation,
compliance, data protection and privacy.
Christoph is a Senior Associate in the Media, Communications and
Technology Group.
Christoph specialises in advising clients in the telecommunications
and media sector on corporate, commercial and regulatory matters.
He has specific expertise in regulatory telecommunications law, in
particular access and fee regulation, satellite communications,
digital TV including Mobile TV and IPTV, broadcasting law and the
application of competition law in the telecommunications and media
sector.
Christoph is co-author of a leading German textbook on
telecommunications law.
Christoph has been described as “one of the best young lawyers for
regulatory issues” with “impressive quality” (Juve 2006). Chambers
2008 mentions that he is “an excellent lawyer with impressive
knowledge” and “a rising star in the field of regulatory telecoms
law”. He is also listed in the German edition of Best Lawyers 2009
both for media and telecommunications law.

Olswang has a market-leading telecommunications team, acting for many of the best-known UK and international
operators. Our telecoms practice is led by Rob Bratby, Purvi Parekh and Colin Long in London, Dirk Van Liedekerke in
Brussels and Christoph Enaux in Berlin.
Olswang’s lawyers have played a major part in the development of the telecommunications industry since the 1980s
when it was opened up to competition first in the UK, then Europe and more widely.
Our deep understanding of the industry and market context is a real strength of our telecoms practice and is pivotal to
us providing advice to help clients achieve their objectives. Olswang lawyers have featured prominently in many of the
industry’s landmark cases and projects and have been involved as advisers in all of the industry’s era-defining events,
from industry-wide interconnection, to 2G and 3G mobile, local loop unbundling, functional separation and next
generation access. We have detailed practical experience of dealing with industry-specific issues such as network
sharing, network outsourcing, MVNOs, interconnection and roaming.

7
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 Chapter 2
EU Regulation and
Competition Frameworks for
the Telecommunications
Sector
Frontier Economics Ltd (Economic Consultancy Firm)
Introduction
This chapter describes the regulation and competition frameworks
which are applied to the telecoms sector in the EU. It discusses
some of the key competition issues which arise in this industry and
explains how they are dealt with.
The relevant legal framework for pursuing competition issues in the
telecoms sector in the EU consists of:
the EC Telecoms Regulatory Framework, which is used to
support ex-ante intervention in order to prevent anti-
competitive behaviour; and
Articles 81 and 82 of the EC treaty, which supports ex-post
intervention to deal with competition issues.
Although these frameworks differ, they are also complementary and
work together to prevent undertakings within the telecoms sector from
behaving anti-competitively. The main types of anti-competitive
behaviour which have been of concern within the telecoms sector
across the EU in recent years include margin squeezing, behaviour
which restricts or prevents access to a vital infrastructure asset, and
anti-competitive bundling. Each of these types of behaviour is
described in more detail below, including a presentation of how each
one of these potential competition concerns are dealt with on an ex-
ante, and ex-post basis. We start with an exposition of the EC
telecoms regulatory and competition law frameworks.
Legal Frameworks
EC telecoms regulatory framework
The EU adopted the New Regulatory Framework (NRF) for
electronic communications in 2002. The NRF applies across all
electronic communications services in a technologically neutral
manner, and was introduced to govern the process of liberalisation
and deregulation of these services across the EU.
National Regulatory Authorities (NRAs)1 are required to carry out
an assessment of market power in seven markets identified by the
European Commission2. These markets are defined in accordance
with established principles of market definition under EC
competition law, and selected by the Commission for possible ex-
ante regulation on the basis of three cumulative criteria:
the market having high and non-transitory barriers to entry;
there being no realistic prospect of the emergence of effective
competition; and
the inability of competition law to address the market failure.
Using standard competition law principles, and the list of
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George Houpis
Claire Brinkman
recommended markets proposed by the EC as a starting point,
NRAs must identify those markets within their Member State in
which competition is not effective, and is unlikely to become so in
the near future3. This involves determining which undertakings
have Significant Market Power (SMP), a concept which is
equivalent to dominance, and which encompasses both single firm
and collective dominance. They must then introduce proportionate
ex-ante regulatory remedies into those markets.4 The
proportionality of the remedies is important, as ex-ante intervention
is potentially the most intrusive form of market intervention. Hence
NRAs must select remedies that will create the minimum disruption
and distortion, whilst addressing the identified market failure.
In 2007, the EC proposed a raft of reforms to the NRF and it is now
in the process of finalising these reforms. These include:
focusing ex-ante regulation on those markets where
competition is not yet effective, (such as the broadband
market), leading to a reduction in the number of markets that
the EC propose could be susceptible to ex-ante regulation,
from 18 in 2002, to only seven since 2007. We note the list
of markets in not expected to change as the reforms are
ratified;
strengthening the ability of NRAs to be able to take the
necessary measures where competition is inadequate, by
introducing an additional, exceptional remedy of ‘functional
separation’, whereby a regulator can force an incumbent to
split (in ‘functional’ but not legal terms) its infrastructure
network from the provision of retail services;
introducing a new overarching body called the “European
Telecom Market Authority” which would be able to consult
with the EC on issues including spectrum use, NRAs failing
to complete market analyses on time, and on the possible
imposition of remedies such as price control, accounting
separation, or indeed functional separation;
strengthening the independence and enforcement powers of
national telecoms regulators and limiting the day-to-day
involvement of other public bodies;
preserving and enhancing consumer protection and user
rights in a rapidly changing market environment; and
enhancing the security and reliability of Europe’s
communication networks.
Most Member States have found that there is no effective
competition in to the provision of retail fixed narrowband access
services. They have also found so far limited competition in the
provision of fixed (wholesale) broadband access. In contrast,
effective competition has developed in some Member States in
retail fixed call services. In some Member States, effective
competition has developed in (wholesale) transit services and trunk
segments of leased lines. Meanwhile, in mobile networks, nearly
all NRAs have found effective competition in wholesale access and
Frontier Economics Ltd EU Regulation and Competition Frameworks
call origination. NRAs in contrast typically have found all
operators have SMP in the (wholesale) provision of termination
services (fixed and mobile) to their own subscribers.
EC competition law
EC competition law is the set of laws and regulations that governs
market behaviour and seeks to encourage competition across a
common harmonised EU market. It focuses in particular on
agreements and concerted practices that restrict competition as well
as conduct which amounts to an abuse of a dominant position.
Article 81 of the EC Treaty prohibits, under certain circumstances,
agreements which prevent, restrict, or distort competition. This
applies to agreements within the common market and those which
may affect trade between Member States. The provisions apply to
those agreements which:
(i) directly or indirectly fix purchase or selling prices or any
other trading conditions;
(ii) limit or control production, markets, technical development
or investment;
(iii) share markets or sources of supply;
(iv) apply dissimilar conditions to equivalent transactions with
other trading parties, thereby placing them at a competitive
disadvantage; or
(v) make the conclusion of contracts subject to acceptance by the
other parties of supplementary obligations which, by their
nature or according to commercial usage, have no connection
with the subject of such contracts.
Article 81
Article 81 applies where the effect of the agreement is to prevent,
restrict or distort competition. However, certain types of agreement
are considered not to appreciably restrict competition if:
the parties to the agreement are competitors and their
aggregate market share does not exceed 10% of any of the
relevant markets affected by the agreement; or
the parties to the agreement are not competitors and each of
their market shares does not exceed 15% of any of the
relevant markets affected by the agreement.
Any agreement which falls within the boundaries of Article 81 and
does not meet these requirements is void and unenforceable. The
companies concerned may be subject to a financial penalty, whether
the infringement is intentional or due to negligence.
Article 82
Article 82 of the EC Treaty states that “Any abuse by one or more
undertakings of a dominant position within the common market or
in a substantial part of it shall be prohibited as incompatible with
the common market in so far as it may affect trade between Member
States.” To assess if a party is acting counter to Article 82, it is
therefore necessary to assess whether that undertaking is dominant
in a relevant market and if so, whether it is abusing that dominant
position.
In order to assess dominance, firstly the relevant market must be
defined, in terms of both the products and the geographic area
affected. The next step is to determine whether the undertaking has
a dominant position within that market. Dominance is defined as:
“a position of economic strength enjoyed by an undertaking, which
enables it to prevent effective competition being maintained on a
relevant market, by affording it the power to behave to an
appreciable extent independently of its competitors, its customers
and ultimately of consumers.”5
Evaluating dominance requires an assessment of market shares and
any factors affecting the ability of the undertaking to operate
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independently of all other market players.
A dominant undertaking’s conduct may constitute abuse if it has the
effect of restricting the degree of competition that it faces or if it is
exploiting its market position in an unjustified manner. Abusive
conduct generally falls into two categories:
conduct which is exploitative - i.e. charging unjustifiably
high prices; and
conduct which is exclusionary - i.e. removing or weakening
competition from existing or potential competitors.
Of the two articles, Article 82 is particularly relevant in relation to
the electronic communications sector. This is because, based on
standard competition tests for assessing dominance, a number of
fixed incumbent telecommunications operators have been found to
be dominant in a range of telecoms markets by NRAs.
The relationship between the two frameworks
The key difference between the two frameworks is related to the
abuse of a dominant position (or position of significant market
power). Ex-ante regulation exists to ensure that an operator which
has “significant market power” within a telecoms market is unable
to abuse that position. However, it is not necessary for the operator
to have behaved in an anti-competitive manner for ex-ante
regulation to be introduced, the motivating factor is that it is
capable of such behaviour. Meanwhile, ex-post regulation exists to
deal with actual anti-competitive behaviour. In this case, the
prohibition relates solely to the abuse of a dominant position, not
the holding of such a position.
In order to ensure consistency in approach between the NRF and
EC competition law, the EC applies a three-step test when
determining whether a market is susceptible to ex-ante regulation.
The third step of this test involves assessing whether ex-post
competition law would be sufficient to deal with a potential abuse.
If this is the case, the market would not be considered susceptible
to ex-ante regulation. It has been argued, therefore, that in applying
the NRF, regulatory authorities need to be very cautious, as it
requires them to form a view about what would happen without ex-
ante regulation. Before imposing remedies NRAs therefore need to
assure themselves that, absent ex-ante regulatory intervention, the
competitive pressures facing a dominant undertaking would not be
sufficient to prevent it from abusing its position of dominance.
Furthermore, the telecoms regulatory framework explicitly refers to
the fact that in defining markets and assessing SMP, an NRA should
apply the same methodologies as proposed under EC competition
law. However, this analysis could potentially lead to different
outcomes. Under Articles 81 & 82 of the EC Treaty, markets are
normally defined on an ex-post or backward-looking basis and start
from a specific form of conduct over which concern has been
raised. In relation to sector-specific regulation however, markets
will be defined on an ex-ante or forward-looking basis and can have
a rather broader focus.
In order to support the objective of achieving consistency, the most
recent guidance published by the EC in relation to the application
of Article 82, makes also a reference to the use of EC competition
law in relation to regulated industries:
“In applying the general enforcement principles set out in this
document, the Commission will take into account the specific facts
and circumstances of each case. For example, in cases involving
regulated markets, the Commission will take into account the
specific regulatory environment in conducting its assessment. The
Commission may therefore adapt the approach set out below to the
extent that this would appear to be reasonable and appropriate in a
given case.”6
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 Frontier Economics Ltd EU Regulation and Competition Frameworks
Typical Types of Competition Issues Seen in
the Telecoms Sector
Network access
What is the competition issue?
In some telecommunications markets, potential suppliers of retail
services require access to the infrastructure of another operator.
Where the incumbent both owns the infrastructure (or network) and
provides retail services, there can be an incentive for them to refuse
to offer access, or offer access to their infrastructure under terms
and conditions that seek to protect their own position in the retail
market.
If a dominant vertically integrated firm refuses to grant direct
access on suitable terms and conditions to certain network facilities
or infrastructure and potential competitors have no credible
alternative to using that network (including it not being
economically feasible to duplicate the network), this behaviour
could restrict or limit competition at the downstream level. This
could create consumer detriment, by limiting customer choice in the
retail market, and potentially enabling the vertically integrated firm
to maintain prices above a competitive level.
How is this dealt with in an ex-ante context?
The guidelines published by the EC in relation to the application of
Article 82 provide some guidance on the issue of refusal to supply
in the context of a regulated industry. This is based on the
hypothesis that in a regulated industry, unlike an unregulated
industry, introducing an obligation to supply could be expected to
be less likely to be detrimental to incentives to invest and innovate
in the upstream market. Therefore, in a regulated network industry,
the guidelines suggest that the EC could more readily consider a
case of refusal to supply as an enforcement priority.
The EC 2002 Access Directive, which is one of the five directives
that constitute the NRF, deals specifically with access to, and
interconnection of, electronic communications networks7 and
associated facilities and provides guidance on how it should be
regulated.
Access to network
The directive states that in the interests of end-users, NRAs should
be able to secure adequate access, interconnection and
interoperability of services. As a result, a dominant incumbent that
is required to provide access, should only refuse requests for access
on the basis of objective criteria (for example, technical feasibility).
However, in imposing access obligations it also notes that NRAs
should balance the rights of the incumbent to use its own
infrastructure for its own benefits with the rights of other service
providers. In addition, any network access provided should not
reduce the incentives for competitors to invest in alternative
facilities that will improve competition in the longer term.
As competition develops, this regulation can be progressively
reduced, although the directive recognises the potential for new
bottlenecks to develop, due for example to technological
development (such as in broadband).
Pricing of access
An NRA should ensure that the owner of a network does not
discriminate between its own retail arm and its retail competitors.
There should be transparency of the terms and conditions that it offers,
including prices. Accounting separation should ensure that internal
transfer pricing is visible to the NRA, enabling them to take any
necessary action. This action could entail price controls which may
just require the prices offered to be “reasonable” or, where the
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incumbent faces no competition and therefore there is risk that it will
behave in an exploitative manner, for prices to be “cost-oriented”.
Under the proposed reforms to the NRF, mentioned above, NRAs
may also have the ability, under exceptional circumstances, to
enforce “functional separation” of vertically integrated incumbents.
Functional separation seeks to ensure the provision of network
access to both new entrants and the incumbent’s own retail division
on the same (or equivalent) terms. It requires an incumbent
operator to separate its network infrastructure from its operations
which offer services which are dependent on this infrastructure.
Incumbents should therefore be discouraged from unfairly
discriminating against new entrants in relation to the non-price
dimensions of the provision of access. However, although these
business entities will be operationally separate, overall ownership
will remain unchanged (and hence legally, the operations will
belong to the same entity). Functional separation has already been
introduced in the UK.
How is this dealt with in an ex-post context?
The potential anti-competitive behaviours associated with network
access include:
refusal to supply by an incumbent network owner (i.e. refusal
to grant access to a fixed or mobile network);
margin squeezing created by a vertically integrated dominant
operator setting its wholesale (network access) price at too
high a level; or
price discrimination at a wholesale level between a vertically
integrated dominant operator’s retail competitors, or between
its own retail arm and its retail competitors.
The treatment of a margin squeeze in an ex-post context is
described in detail in the following section. Price discrimination is
not specifically covered however, as it is normally successfully
dealt with using ex-ante measures.
Case study: Provision of access to ‘last mile’ of
telecommunication networks (local loop unbundling)
Whereas new entrants have often invested in additional backhaul or
transport networks, a complete duplication of an incumbent’s
access network, especially where such networks cover the majority
of households, remains costly. In some cases alternative
infrastructures (i.e., cable networks, satellite-based networks, or
wireless local loops) have developed, but where such
infrastructures do not offer an adequate alternative to incumbents’
fixed infrastructure, mandating third party access to the existing
access network of an incumbent has been an important regulatory
option to try and facilitate competition. This has been commonly
referred to as local loop unbundling (LLU). There are several forms
in which LLU services may be offered.
Full unbundling. Full unbundling gives the access seeker
full access to the local loop. The alternative operator can
then offer voice, broadband and other services over the loop
and its retail customers do not need to take a voice service
from the incumbent.8
Line sharing/shared access. In the case of shared access,
the alternative operator can deliver broadband services over
the local loop by sharing the loop with the incumbent, who
may continue to offer basic voice services to the final
customer.
Regulatory requirements to enable LLU services
Where the provision of LLU is mandated, enabling the provision of
LLU-based products requires a set of regulatory actions including:
Reference Unbundling Offer (RUO). Typically
incumbents will be required to publish a clearly specified
RUO, which is approved by the regulatory authority. A RUO
should contain information on, amongst others:
Frontier Economics Ltd
the access services to be provided and their prices;
the general terms and conditions (e.g., delivery times,
penalties for any delay), ordering process and steps in
the provision of the services;
detailed technical and geographical information about
the co-location sites (e.g. location of sites where
unbundled facilities can be accessed, area and number
of lines served from such sites and characteristics of
copper cables in the network); and
information on the network elements available (e.g.
unbundled copper loops, non-voice segment of shared
loops and/or unbundled or shared access to sub-loops)
and co-location rules at the exchanges (e.g.
collocation space and rules for allocating equipment
that may be installed).
Cost-orientated LLU charges. Access charges will often
be required to reflect the costs of providing the service.
Determining cost-oriented LLU charges requires generally
the production of separated regulatory accounts, and often,
specific cost models.
Requirement of non-discrimination on non-price terms.
In addition to the approval of LLU charges, regulatory
authorities will typically seek to ensure that the incumbent
does not discriminate on any non-price terms. Key non-price
elements a RUO should provide clarity on include:
the access to information (e.g. site locations where
unbundled facilities can be accessed, area and number
of lines served from such sites, areas not served by
copper lines, characteristics of copper cables in the
network, apparatus and arrangements which might
require network conditioning, technical specifications
to support unbundling, site and line forecasting
procedures, site surveys prior to requesting
collocation facilities, and the arrangements for access
to restricted information considered to be in
commercial confidence);
the access to network elements (e.g. unbundled
copper loops, non-voice segment of shared loops,
unbundled or shared access to sub-loops, internal and
external tie cables, and frames and frame
terminations);
the access to facilities (e.g. collocation space, rules for
allocation space within exchanges, equipment that
may be installed, safety requirements, security
arrangements for building and people, access for
access seeker’s staff or their agents, and power
arrangements); and
the access to services (e.g. backhaul services that may
be used in conjunction with unbundled facilities, the
access to operational support systems such as fault
handling, repair and billing).
Key issues in LLU implementation
Implementing LLU is a time consuming undertaking and most
regulatory authorities have been confronted with various issues
during the implementation phase:
Rationale for regulatory intervention. Mandated LLU
service provision commonly requires the regulatory
authorities to designate the incumbent as a SMP operator in
the wholesale broadband access market. However, this is not
always straightforward, and increasingly requires
consideration with the development of alternative fixed and
wireless technologies.
‘Technical’ issues. Regulatory authorities often receive
complaints from access seekers about LLU processes. These
include delays in preparing exchanges to be able to provide
LLU or on the provision of co-location space in the
incumbent’s exchanges.
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EU Regulation and Competition Frameworks
LLU charges. The level of LLU charges (in absolute terms
and relative to other available access products) is essential.
Such determination may be based on a number of
approaches, including detailed cost modelling. As an
illustration of the range of charges used, in October 2008, the
monthly average total cost (i.e. connection and monthly
rental charge) for fully unbundled lines across EU Member
States ranged from €7.92 per line in Estonia to €17.68 in
Ireland.9
Quality of service offered. There are some cases where the
quality of service of LLU services can be an issue, in
particular ensuring that the quality of service offered to third
parties is equivalent to the service quality available to the
incumbent’s retail operation.
EU experience
In the EU, implementation of LLU in situations where there was
absence of effective competition in the provision of access services
became mandatory from January 2001.10 Regulatory authorities
faced several issues in the early implementation stages11, including:
pricing and collocation issues;
insufficient supervisory powers and effectiveness of dispute
resolution procedures; and
RUOs not being sufficiently developed.
However, recently LLU services have grown significantly across
Europe. According to the latest European Commission report12, by
January 2009, there were more than 23 million fully unbundled
PSTN lines across all EU Member States, representing 15% of all
activated PSTN lines. The corresponding estimate for shared
access lines was 7 million (5% of all activated PSTN lines).
Margin squeeze
What is the competition issue?
A margin squeeze occurs when a vertically integrated firm with
market power in the provision of an input essential to the
production of a downstream (or retail) service sets the prices of the
upstream (or wholesale) product and the retail product such that the
margin between them is “squeezed”. This means that a competitor
in the provision of the downstream service that relies upon the
upstream product of the other firm is unable to earn a normal profit
and therefore may be weakened or have to exit the market. In other
words, competitors cannot profitably replicate the retail offers of
the vertically integrated firm. This is shown below:
Figure 1. Margin squeeze diagram
Such a margin squeeze can have adverse effects on competition. It
can weaken, deter or limit downstream competition as the
acquisition and servicing of existing customers is loss making for
the competing operator. Ultimately, a margin squeeze may be
detrimental to consumers as it may allow the vertically integrated
firm to establish a dominant position in the downstream market and
hence to insulate itself from competitive pressures. Margin squeeze
may also adversely impact competition at the upstream level by
undermining the business case of potential vertically integrated
entrants which may wish to build up a retail customer base to a
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critical level before investing in their own upstream infrastructure.
A dominant operator can create a margin squeeze in two possible
ways:
Increasing the wholesale price relative to the retail price
The vertically integrated operator increases the price at which it
sells the wholesale (upstream) input above cost, while pricing the
retail (downstream) product at a competitive level. This puts
downstream competitors at a competitive disadvantage as the
margin they can earn is lower than the margin available to the
vertically integrated firm. This would result in a margin squeeze if
the margin is not sufficient to recover downstream costs.
Reducing the retail price relative to the wholesale price
The vertically integrated operator prices the wholesale input at cost
but reduces the price of the retail output. In order to be able to
compete, the competitors at the downstream level will have to
match the vertically integrated operator’s retail price. If they are
not able to recover their downstream costs, they will face a margin
squeeze.
There are two important pre-conditions for a margin squeeze to be
feasible (although these are not sufficient):
vertical integration - the vertically integrated firm must enjoy
substantial market power in the upstream market and also
operate in the downstream market in order to be able to
leverage upstream market power to the downstream market
to affect the margin squeeze; and
upstream bottleneck - the upstream product must be an input
which is essential to compete downstream. The vertically
integrated firm will otherwise not be able to affect the
squeeze as competitors could switch to alternative upstream
products.
In the electronic communications sector, there have been multiple
margin squeeze cases in relation to the provision of retail broadband
services. Typically non-vertically integrated rivals have to purchase
network access from vertically integrated incumbents and hence the
risk of such behaviour is high. There have been more than 20 such
cases in recent years in the EU, and we discuss some examples
below.
How is this dealt with in an ex-ante context?
According to the ERG’s (European Regulatory Group) “Common
position on the approach to appropriate remedies in the new
regulatory framework”, there are two potential ways of preventing
margin squeezing in the telecoms sector using ex-ante regulation. If
the relevant wholesale access price is “cost-oriented” - i.e. there is
a price control to ensure that this price is set at a level which only
allows the operator to recover the costs associated with wholesale
access, the operator will be unable to raise their wholesale price
relative to the associated retail price. If, however, there is a risk of
predation at the retail level (i.e. of the operator reducing the retail
price relative to the wholesale price) then the regulator may also
need to impose some form of regulation on the undertaking’s retail
price. For example, an SMP operator could be required to notify
proposed changes in their retail price to the NRA, which will then
assess the price in line with a set of assessment “guidelines”. If they
are concerned about the price change leading to a margin squeeze,
they should be able to prohibit it. This is generally considered a
regulatory tool of last resort however.
Alternatively, a retail-minus approach to regulating the wholesale
access price should preclude a margin squeeze. This is because a
constant (percentage) margin between retail and wholesale prices
will be maintained, even if retail prices change. However, such a
rule could be difficult to enforce, in particular where there is a wide
range of retail offerings associated with one wholesale service. In
addition, in order to ensure that entrants and incumbents compete
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on a level playing field, certain adjustments may be necessary. For
example, a new entrant may incur customer-switching costs which
the SMP operator will not face. In addition, the incumbent may
benefit from economies of scale and scope which the new entrant
cannot initially access. Consequently, the “minus” within the retail
minus regulation could be adjusted to allow for these differences in
new entrants’ cost base.
How is this dealt with in an ex-post context?
The EC’s most recent guidance on the application of Article 82
deals with a number of specific forms of exclusionary abuse,
including margin squeeze. It begins by indicating that margin
squeeze is a form of refusal to supply, as it can similarly constrain
the ability of a potential competitor to compete effectively at the
downstream level.
The general conditions under which the EC would consider any
such practice as an enforcement priority are that:
it relates to a product or service that is objectively necessary
to be able to compete effectively on a downstream market;
it is likely to lead to the elimination of effective competition
in the downstream market; and
it is likely to lead to consumer harm.
However, the guidance also notes that these criteria do not need to
be satisfied in circumstances where imposing an obligation to
supply is not capable of having a detrimental impact on incentives
to invest and innovate in the upstream market. The Commission
considers this more likely when either:
regulation compatible with Community law already imposes
an obligation to supply on the dominant undertaking and it is
clear, from the considerations underlying such regulation,
that the necessary balancing of incentives has already been
made by the public authority when imposing such an
obligation to supply; or
the upstream market position of the dominant undertaking
has been developed under the protection of special or
exclusive rights or has been financed by state resources.
In the case of a regulated industry, the guidance also highlights that
where the price in the upstream input market is regulated and the
price in the downstream market is not regulated, the dominant
undertaking, by excluding competitors on the downstream market,
is able to extract more profit from the unregulated market than it
would otherwise do and that this is detrimental to consumers.
Imputation testing is typically used to analyse whether there is a
margin squeeze. The purpose of a margin squeeze test is to assess
whether the margin between the price of the upstream service and
the retail price would allow an equally efficient competitor to
recover its downstream costs, and to make a reasonable profit over
a reasonable period of time.
Setting up such a margin squeeze test raises many interrelated
empirical issues including:
the choice of test (i.e. whether the margin of an “equally
efficient operator” is calculated using the downstream cost
data of the incumbent or its competitor);
the choice of cost standard (i.e. what is the appropriate costs
to be included in the calculation, and the treatment of joint
and common costs);
the scope of the test (i.e. the set of relevant products to be
included in the analysis);
the relevant wholesale product(s);
the relevant time horizon for the test, and in particular the
appropriate life cycle of the product or customer; and
the appropriate profitability indicator and the relevant
benchmark against which it should be compared.
The Article 82 guidance indicates that in margin squeeze cases, the
Frontier Economics Ltd
proxy which the Commission will generally rely upon to determine
the costs of an equally efficient competitor, is the long run (average)
incremental cost (LRAIC)13 of the downstream division of the
integrated dominant firm. In some cases, they state that the LRAIC
of a non-integrated downstream competitor may be relied upon, if,
for example, it is not possible to allocate the dominant firm’s costs
between its upstream and downstream operations. Therefore, the
margin will be calculated as:
Retail price - Wholesale input price - Downstream costs (LRAIC)
Case Studies
The European Commission is actively encouraging the spread of
high speed broadband internet access across the EU. It has sought
to apply EC antitrust rules to try and ensure that the expansion of
broadband services is not hampered. In 2003, the Commission
fined Deutsche Telekom for abuse of a dominant position in the
form of a margin squeeze in the German telecommunications
markets. That year the Commission also fined Wanadoo, the
internet arm of France Télécom, for charging prices below cost
(predatory prices) in the French retail broadband market. In the
same year, a case was also made against Telefonica in Spain. This
is described in more detail below.
In July 2003 Wanadoo Espana, a provider of retail broadband
services to Spanish consumers, complained to the European
Commission about alleged margin squeeze abuses by Telefonica,
the formerly state-owned telecommunications company that
manages the Spanish national fixed telephony network and is also
active in the provision of retail broadband services.
Like other retail providers of ADSL broadband products, Wanadoo
depended heavily on wholesale access to Telefonica’s national and
regional fixed telephone network. Wanadoo argued that, as
wholesale prices for access to the fixed telephone network were
mostly unregulated, Telefonica was able to charge wholesale prices
which were sufficiently high relative to retail prices to make it
impossible for Wanadoo and other non-vertically integrated
providers to profitably compete in the retail broadband market.
The Commission found that neither of the potential alternatives
available to competitors (cable networks, or the purchase of
unbundled access to local loops) imposed a sufficient constraint on
the power exercised by Telefonica in the upstream market. In its
July 2007 decision, the European Commission found Telefonica
guilty of the alleged abuses and fined it 155 million Euros. The
Commission’s decision seems to have also been inspired by the
approach outlined in the Article 82 guidelines, as it sought to
complement the price-cost test with an investigation into the
conditions that made it possible for Telefonica to exercise and
preserve its market power in the wholesale market, and the
consequences of its conduct for competition and consumer welfare
in the retail broadband market.
Bundling
What is the competition issue?
Bundling occurs when two or more goods or services can or must
be purchased together. This can be achieved either via contractual
means, in which case a supplier contractually binds a customer to
buying both products together, or as a result of technical
restrictions. This means that a product or service may have been
designed such that it is technically only compatible with one other
associated product or service. Tying on the other hand, occurs
where a specific good or service is tied to another good or service
but this does not hold in the other direction. Therefore a bundle can
be described as a “two-way tie”.
Bundling and tying are not necessarily anti-competitive practices.
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EU Regulation and Competition Frameworks
The potential benefits of bundling/tying include:
Economies of scope - bundling reduces some of the costs associated
with providing the products or services at the retail level. Examples
include marketing, joint billing, and customer service, all of which
may be less costly when products are provided as a bundle than if
the products or services are supplied separately. Consequently, the
price charged to the consumer may be reduced.
Reduction in transaction costs - as the consumer will no longer need
to purchase the products separately, the associated transaction costs
will be lower and there could therefore be an improvement in
convenience for the consumer. Consequently, the overall cost of the
products to the consumer may be reduced.
Improved product valuation and demand expansion - the
availability of the bundle may improve consumers’ valuation of the
products. This could increase the number of consumers prepared to
buy the products, relative to the number that would buy them
separately and hence increase take up of the products and improve
consumer welfare.
There are two forms of bundling, pure and mixed. “Pure” bundles
are those where the products can only be purchased in the form of
a bundle. “Mixed” bundles are those where the products are
available both as a bundle and on a stand-alone basis. A tie falls
somewhere between the two, as the “tying” product is only
available in the form of the tie, while the “tied” product is also
available separately.
A pure bundling strategy or a tying strategy raises anti-competitive
concerns if a dominant firm ties the supply of a product or service
in which it is dominant, to the supply of a product or service which
it supplies competitively. This is described as “horizontal
leveraging” of market power from one market into another. If the
bundle is pure, there are two potential anti-competitive scenarios.
The dominant firm is the only or main supplier of one of the
products (or in the case of a tie, the tying product) and
therefore the market may be foreclosed by the tying of the
two products, as no other supplier is able to produce the
bundle (i.e. it is not replicable). In addition, consumer choice
is constrained.
The dominant firm is not the only/main supplier of one of the
products but prices the bundle/tie ‘aggressively’ (i.e. in a
predatory14 fashion). Although potential competitors could
supply the same bundle, the aggressive pricing behaviour of
the dominant firm could prevent them from being able to
compete.
A mixed bundling strategy raises anti-competitive concerns if, as
above, a dominant firm is leveraging its market power from one
market to another. Two scenarios are possible:
If the bundle is not replicable (as the first scenario above)
then there is a risk that the pricing of the bundle relative to
the prices of the individual products is such that suppliers of
the separate products cannot compete.
If the bundle can be replicated by other suppliers, but a
dominant firm prices it ‘aggressively’ then this could be
considered predatory behaviour which could weaken
competition.
In telecommunications, the main sectors in which bundling
potentially poses an issue are typically the provision of voice,
internet and TV services - namely the bundling of fixed voice and
broadband internet access (double play), bundling of fixed voice,
broadband internet access and pay-TV (triple play), or quadruple
play where mobile is added to a triple play offer.
How is this dealt with in an ex-ante context?
According to the ERG’s (European Regulators Group) “Common
position on the approach to appropriate remedies in the new
regulatory framework”, there are two potential ways of preventing
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 Frontier Economics Ltd
anti-competitive bundling in the telecoms sector using ex-ante
regulation. Firstly, an SMP operator could be required to report
new bundles to the NRA to allow them to be assessed, relative to a
set of clear guidelines. Any bundles considered to be potentially
anti-competitive could then be prohibited, unless action is taken to
amend them such that they do not raise any competition concerns.
Alternatively, NRAs may require a vertically integrated SMP
operator to make additional wholesale services available, to resolve
any bundle replicability issues.
In 2006, the Spanish telecoms regulator (CMT) proposed a new
methodology for evaluating, on an ex-ante basis, bundles
introduced by the incumbent operator. This approach was
introduced in light of the many new innovative offers being offered
and the growing importance of bundles.
The decision process that is followed is set out diagrammatically
below:
Figure 2. CMT’s ex-ante bundle review process
(See end of chapter.)
Pure bundles are prohibited, unless firstly, they can be justified for
technical reasons and secondly, they are not expected to distort
competition.
Mixed bundles on the other hand are allowed or prohibited
depending on their specific characteristics. The bundle must firstly
pass the “replicability” imputation test. This involves confirming
whether:
the price of the bundle exceeds the incremental cost of that
bundle (i.e. the input prices + retail costs).
In addition, the bundle must comply with one of the following
criteria:
there is competition for the bundle - i.e. suppliers
predominantly offer and consumers predominantly buy the
goods in the form of a bundle; or
there is no competition for the bundle, but the incremental
price of the product which is supplied competitively (i.e. the
price of the bundle less the price of the other product(s))
exceeds the incremental cost of that product; or
the bundle is not expected to distort competition for the
product which is supplied competitively, even though its
incremental price is below incremental cost15.
So far, most bundled offerings proposed in Spain have passed the
criteria associated with this methodology.
How is this dealt with in an ex-post context?
The EC’s most recent guidance on the application of Article 82
dealt with a number of specific forms of exclusionary abuse,
including tying and bundling. This indicated that the Commission
will normally take action under Article 82 where:
an undertaking is dominant in the tying market (or the market
of at least one of the bundled products);
the products within the tie or the bundle are distinct; and
the tying/bundling is likely to lead to anti-competitive
foreclosure.
If the products are “distinct” then in the absence of the tying or
bundling, consumers would have purchased the products separately.
There are a range of factors which would be considered important
when determining whether the tie or bundle could result in the
foreclosure of the market for the product(s) which is/are supplied
competitively. Foreclosure is considered more likely to occur by
the EC if any of the following hold.
The tying/bundling strategy is “lasting” - i.e. by using
technical tying/bundling.
There are many products in the bundle which the operator is
dominant in, especially if the bundle is difficult to replicate.
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EU Regulation and Competition Frameworks
There are insufficient customers who demand the tied
product alone to sustain competitors and hence prices for the
tied product increase.
The products can be used in variable proportions as inputs.
The bundling/tying will prevent any such substitution and so
increase prices.
The tied product is an important complement for the tying
product. The tying will reduce the number of operators
providing the tied product and hence it will become difficult
to enter the market for the tying product.
Prices in the tying market are regulated and therefore tying
can enable an operator who is dominant in the market for the
tied product to raise prices to compensate for the loss of
revenue in the tying market.
The EC guidance also refers to certain price tests that will be taken
into account. Firstly, if the bundle is mixed, they will ensure that
the incremental price of each product (this is typically estimated as
the price of the bundle minus the stand-alone price of the other
product (or products) in the bundle) exceeds the LRAIC of that
product. This implies that an equally efficient operator could
compete by providing the products separately. If, however, there is
competition for the bundle then it will be important to ensure that
the price of the bundle exceeds the LRAIC of the bundle. Again,
this ensures that an equally efficient operator could compete as the
bundle is not being priced in a predatory manner.
Finally, the EC make it clear that they would consider arguments for
the potential efficiencies associated with bundling. These include:
savings in production, packaging or distribution costs;
reductions in consumer transaction costs; and
scale economies in relation to an increase in the volume of
the tied product.
Case Study
We provide below two case studies of bundling by incumbent
telecommunications services providers that raised competition
concerns. In one case (Ireland), this led to the NRA indicating they
had concerns about the potential competition issues raised by the
introduction of bundles, leading to a prohibition of certain bundles
being introduced, and in another case (UK), the NRA indicated that,
any competition concerns raised by bundling were not sufficiently
strong to prevent the introduction of bundles.
Ireland
In October 2008, the Irish fixed line incumbent operator Eircom
launched a range of promotional “TalkTime” bundles which
incorporated line rental, broadband, and free calls to Meteor (a
mobile operator owned by Eircom). Following investigations, the
Irish NRA (ComReg) found that two of these bundles (the “October
bundles”) were in breach of Eircom’s obligations as an operator
with SMP.16 In particular, ComReg found that the two bundles
would impair the ability of new entrants and Other Authorised
Operators (OAOs) to compete in the line rental and related
markets.17
The two bundles (“TalkTime Family and 1 MB broadband” and
“Talktime Family and 3 MB broadband”) are currently the subject
to an enforcement action taken by ComReg, which Eircom
subsequently appealed.18
In March 2009, Eircom presented new bundles (the “April
bundles”) to ComReg, which were intended to replace the October
ones. Eircom planned to offer the bundles for a six-month sign up
period. Customers who signed up would enter into a twelve-month
contract, renewable at their discretion, and could potentially benefit
from the bundle offer over an unlimited time period.
After an initial assessment, ComReg found that Eircom was
unlikely to be compliant with its obligations. On 8th April 2009,
Frontier Economics Ltd EU Regulation and Competition Frameworks
ComReg directed Eircom (the “April Direction”) to refrain from
launching the bundles for the following three months. According to
ComReg, the revised bundles threatened competition for three
reasons:
The bundles failed a net revenue test based on average total
cost and, therefore, could not be profitably replicated by an
OAO.19
They would have a deterrent effect on market entry and the
ability of OAOs to compete by foreclosing a share of the
market.
They could have a prolonged effect by capturing customers
due to the potential lifetime duration of each contract.
Eircom lodged an appeal20 against the April Direction (which is still
pending as off August 2009) with both the April and the October
bundle cases being due for hearing in the Irish court in October
2009. Following a consultation period, on 7th July 2009, ComReg
extended its April Direction for six additional months21.
UK
In March 2004, British Telecom (BT) announced changes to its “BT
Together” payment plans. In particular, the fixed line rental fees
within the package were increased while call prices were reduced.
Following BT’s price changes Ofcom received complaints from a
number of Carrier Pre-Selection (CPS)22 providers stating that BT’s
revised tariffs may be anti-competitive. In particular, it was alleged
that:
the effect of the new “BT Together” pricing plans was a
margin squeeze between charges CPS providers were
required to pay to BT and retail prices charged by the
incumbent; and
BT’s revised retail prices effectively bundled the provision of
line rental with calls and that the bundle was claimed to be
anti-competitive. CPS providers accused BT of “cross-
subsidizing” call discounts by increasing its revenues from
line rental.
Ofcom rejected the first allegation on the basis of standard margin
squeeze tests23. With respect to the second accusation, it concluded
that the “BT Together” package may, in effect, represent bundling.
However, the report stated that bundling of line rental and call
prices was not prohibited per se and that only bundling offers that
may distort competition constitute an abuse of dominance. In
particular, Ofcom’s decision stated that:
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“The bundling of services by a dominant undertaking may be of
concern where the undertaking’s conduct is seeking to exploit its
position of dominance in the provision of one service by requiring
a second, more competitive service to be bundled with the first, and
where a customer has an incentive to purchase the second more
competitive service from the dominant provider as well as the first.”
(Paragraph 131); and
“Such potential foreclosure effects might arise where the secondary
product were supplied below cost such that even equally efficient
competitors in the secondary market were unable to compete.”
(Paragraph 132).
Since Ofcom’s analysis of potential margin squeeze demonstrated
that BT had not reduced call prices below cost it concluded that the
“BT Together” offer did not constitute anti-competitive bundling.
Conclusion
This chapter has presented the frameworks used in the EU to seek
to prevent anti-competitive behaviour in the communications sector
and has contrasted the different frameworks, focusing in particular
on the implications of the general competition law principles for the
use of the communications regulatory framework. It has also
provided a review of the key areas of competition concerns in the
EU communications markets, and examples of how regulatory and
competition authorities have approached such competition
concerns.
As the liberalisation process of the communications sector
develops, we would expect an increasing focus to be placed on
ensuring that there is a vibrant, innovative but also competitive
provision of broadband access services, given the increasing
significance of accessibility for all consumers to high speed,
reliable, and widely available broadband services. Ensuring that
such services are universally available, at an affordable price, whilst
maintaining the necessary incentives for investment and innovation,
is likely to be the main challenge facing regulatory and policy
authorities in the EU in the next few years.
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Figure 2
Endnotes
1. NRAs (National Regulatory Authorities) are public institutions
which oversee the operation of the telecommunications industry
and have responsibility for regulation, including issuing licenses,
overseeing the setting of prices of dominant operators, resolving
disputes, etc.
2. See the Commission Recommendation on relevant markets
2007/879/EC of 17 December 2007. NRAs may define
additional relevant markets in accordance with competition law
principles, and subject to Commission approval.
3. See the Commission’s Guidelines on market analysis 2002/C
165/03.
4. The list of permissible remedies is set out in the Access Directive
and the Universal Service Directive. These are transparency,
non-discrimination, separate accounting, mandatory access at a
reasonable price, and inclued obligations of cost-oriented
pricing.
5. Article 10, Guidance on the Commission’s Enforcement
Priorities in Applying Article 82 EC Treaty to Abusive
Exclusionary Conduct by Dominant Undertakings, 3 December
2008.
6. Article 8, Guidance on the Commission’s Enforcement Priorities
in Applying Article 82 EC Treaty to Abusive Exclusionary
Conduct by Dominant Undertakings, 3 December 2008.
7. Access is defined as “the making available of facilities and/or
services, to another undertaking, under defined conditions, on
either an exclusive or non-exclusive basis, for the purpose of
providing electronic communications services. It covers inter
alia: access to network elements and associated facilities, which
may involve the connection of equipment, by fixed or non-fixed
means (in particular this includes access to the local loop and to
facilities and services necessary to provide services over the
local loop), access to physical infrastructure including buildings,
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ducts and masts; access to relevant software systems including
operational support systems, access to number translation or
systems offering equivalent functionality, access to fixed and
mobile networks, in particular for roaming, access to conditional
access systems for digital television services; access to virtual
network services”. Interconnection is defined as “the physical
and logical linking of public communications networks used by
the same or a different undertaking in order to allow the users of
one undertaking to communicate with users of the same or
another undertaking, or to access services provided by another
undertaking”. Services may be provided by the parties involved
or other parties who have access to the network. Interconnection
is a specific type of access implemented between public network
operators. See Article 1(a) & 1(b), respectively, DIRECTIVE
2002/19/EC OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL of 7 March 2002 on access to, and
interconnection of, electronic communications networks and
associated facilities.
8. Going forward, given the demand for high speed broadband,
there may be increasing focus on subloop unbundling (i.e. where
the line is unbundled at the street cabinet).
9. European Commission’s Progress Report on the single European
Electronic Communication market 2008, EC COM (2008) 140.
10. Regulation EC No. 2887/2000.
11. See, for example, the sixth, seventh and eighth Commission’s
Progress Report on the single European Electronic
Communication market [EC COM(2000) 814, EC COM(2001)
706 and EC COM(2002) 695, respectively).
12. EC COM (2008) 140.
13. Long-run average incremental cost is the per unit incremental
cost of a product in the long-run when all costs are considered to
be variable (i.e., both labour and capital costs). As joint and
common costs are not considered incremental to the production
of any one service these are generally excluded.
Frontier Economics Ltd EU Regulation and Competition Frameworks

14. Predatory pricing involves setting price below the associated 21. ComReg Document No. 09/53 and Decision No. D02/09.
short-run costs in order to weaken or knock out actual or 22. Carrier Pre-Selection (CPS) is a mechanism that allows end-
potential competitors. users to select, in advance, alternative Communications
15. Incremental price of product X = Price of bundle containing X - Providers to carry their calls without having to dial a prefix or
Prices of all other products in the bundle; Incremental cost = install any special equipment at their premises. The end-user
LRAIC (see note 10). subscribes to the services of one or more CPS operators and
16. ComReg Document No. 07/26 and Decision No. D07/61. chooses the type of calls (e.g. all national calls) to be carried by
them.
17. ComReg Document No. 09/08.
23. Ofcom (2004), “Investigation against BT about potential anti-
18. ComReg Document No. 09/43 par. 2.2.
competitive exclusionary behaviour” Decision of the Office of
19. ComReg Document No. 09/43 par. 5.2.2. Communications, Case: CW/00760/03/04, 12 July 2004.
20. ComReg Document No. 09/53 par 6.3.

George Houpis Claire Brinkman

Frontier Economics Ltd Frontier Economics Ltd
71 High Holborn 71 High Holborn
London, WC1V 6DA London, WC1V 6DA
United Kingdom United Kingdom

Tel: +44 20 7031 7000 Tel: +44 20 7031 7000

Fax: +44 20 7031 7001 Fax: +44 20 7031 7001
Email: george.houpis@frontier-economics.com Email: claire.brinkman@frontier-economics.com
URL: www.frontier-economics.com URL: www.frontier-economics.com

George leads the Frontier Economics telecoms practice. He has
more than 15 years experience advising regulatory authorities and
operators on the application of the EU regulatory framework,
liberalisation strategies, market analysis, fixed and mobile
interconnection, regulation and costing of NGNs, broadband internet
margins, spectrum refarming, USO design and costing, retail and
wholesale price control design and implementation, development of
standards and auctioning of spectrum. George has also advised
clients on competition cases and disputes, including providing
expert reports in cases including margin squeeze, mergers and
appeals of regulatory decisions before the UK and other competition
authorities. George also has extensive quantitative experience,
including the production and review of business plans and market
forecasts and has provided support on a number of bids for
telecommunications, TV and radio licences. George joined Frontier
Economics from KPMG Consulting in 2001. At KPMG he was a
Director in its Strategy group, leading its economic work in the
telecoms and postal sectors. Prior to joining KPMG, he undertook a
PhD thesis at the London School of Economics where he also taught
Economics and Mathematics for several years.
Claire is an experienced consultant at Frontier, specialising in
regulation and competition policy analysis, with particular
experience in the telecoms sector. Her main interests within this
sector are competition issues and regulatory finance. Recently,
Claire was involved in producing competition and tariff guidelines for
a telecoms regulator. In addition, she has recently reviewed the
regulatory interconnection offer submitted by an incumbent fixed
telecommunications operator, and the first set of regulatory
accounts. In the last few years, Claire has led two studies on the
mobile sector and specifically the impact of the prevailing tax regime
on the industry and the potential effects of altering that regime. As
well as having degrees in Economics, Claire is a qualified
accountant and previously spent four years as an auditor at PwC,
during which time she gained her Chartered Accountancy
qualification.

Founded in 1999 by a group of highly skilled and experienced consultant economists, Frontier Economics Limited is
one of the largest economic consultancies in Europe, employing over 80 economists in London, Brussels, Cologne and
Madrid. Combined with Frontier Economics Pty, located in Australia, we advise senior decision makers in government
and business around the world, applying economic principles and tools to provide practical solutions to complex
problems. Members of our telecommunications practice have been closely involved for more than a decade in the
development of best practice regulatory frameworks in the sector, including in Europe, Caribbean, the Middle East and
Africa.

17
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 Chapter 3
Recent Developments in
U.S. Broadband Policy
Arnold & Porter LLP
Introduction and Background
U.S. policy has encouraged nationwide broadband deployment for
over a decade, but the recent stimulus package - the American
Recovery and Reinvestment Act of 2009 (“Recovery Act”) - has
brought an increased intensity and focus to this goal. The statutory
framework for U.S. communications policy, the Communications
Act of 1934, as amended by the Telecommunications Act of 1996
(“Communications Act”), directs the Federal Communications
Commission (“FCC”) - the agency with principal regulatory
authority over telecommunications, including broadband - to
encourage the deployment of advanced telecommunications
capability or high-speed broadband to all Americans. The new
administration of President Barack Obama has made ubiquitous
broadband deployment a top priority.
The US$787 billion Recovery Act that President Obama signed into
law on February 17, 2009 is aimed at providing a direct fiscal boost to
the U.S. in the current economic crisis and lays the foundation for
future growth. To this end, the Recovery Act provides up to US$7.2
billion in broadband stimulus funds to develop and expand broadband
in order to facilitate economic development and tasks three federal
agencies with implementing certain broadband initiatives.
The U.S. Commerce Department’s National Telecommunications
and Information Administration (“NTIA”) - the agency that serves
as the President’s principal advisor on telecommunications and
information policies and is responsible, together with the FCC, for
developing federal telecommunications policies - is tasked with
creating a grant programme to fund broadband infrastructure
programmes to unserved and underserved areas, public computer
centers, and broadband education campaigns. NTIA also is charged
with creating a nationwide broadband map. The U.S. Agriculture
Department’s Rural Utility Service (“RUS”) is charged with
administering a grant and loan programme aimed at improving
broadband access in rural areas. RUS already administers several
broadband programmes and has long played a role in bringing
telecommunications to rural areas. The Recovery Act expands
RUS’s existing authority to make loans and authorises new
authority and funding to provide grants and grant/loan
combinations. RUS and NTIA recently announced the general
policy and grant application procedures and guidelines for their
respective broadband programme initiatives and have already
accepted applications for grants and loans. The first round of
awards is expected to be made before year end. In addition, the
Recovery Act tasks the FCC with developing a national broadband
plan, and the FCC has initiated a proceeding to begin the process.
These agencies are charged with defining certain nondiscrimination
and network interconnection obligations set forth in the Recovery
Act.
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Maureen R. Jeffreys
Stefanie Alfonso-Frank
In addition to the broadband measures in the Recovery Act, the FCC
also has several ongoing proceedings and programmes aimed at
encouraging the deployment of broadband.
Bringing broadband services to rural America is expected to
improve education, healthcare, public safety, and America’s
economy as a whole. Stakeholders are watching carefully the
regulatory approach that the FCC, NTIA and RUS - with new
Democratic leadership in all three agencies - take in implementing
the nondiscrimination and network interconnection provisions of
the Recovery Act. Ultimately, the success of the new
administration’s efforts in stimulating additional build-out of
broadband infrastructure may depend on whether the federal
agencies allow the provision of broadband services to remain free
from regulation.
This article provides an overview of the Recovery Act broadband
provisions, the federal agencies’ actions to implement their directives
under the Recovery Act, and other recent congressional and FCC
efforts relating to broadband deployment. (See Endnote 1.)
Recovery Act Broadband Provisions
The funds allocated and initiatives created under the Recovery Act
place a primary focus on ubiquitous access to broadband.
Specifically, the Recovery Act includes a variety of broadband-
related programmes, such as:
US$4.7 billion for the Broadband Technology Opportunities
Program (“BTOP”), which includes:
US$350 million for NTIA to develop and make
publicly available on a website within two years a map
of the United States that identifies broadband
deployment and availability;
US$200 million for grants expanding public computer
center capacity;
US$250 million for programmes to encourage
sustainable adoption of broadband service; and
Authority and funding for the FCC to issue a national
broadband plan, within one year of enactment of the
Act, that establishes benchmarks and strategies for
universal broadband access and use in the United
States.
US$2.5 billion for grants, loans and loan guarantees for
broadband infrastructure under programmes administered by
RUS.
Of the US$4.7 billion for the BTOP, which is to be established by
NTIA, US$4.35 billion must be spent on, among other things,
grants to build out broadband in “unserved” and “underserved”
areas. The terms “unserved area”, “underserved area”, and
Arnold & Porter LLP Recent Developments in U.S. Broadband Policy
“broadband” are not defined by the Recovery Act. Rather,
Congressional Conferees instruct the NTIA to coordinate with the
FCC its understanding of these terms. With regard to “broadband
service”, “the Conferees intend that the NTIA take into
consideration the technical differences between wireless and
wireline networks, and consider the actual speeds that broadband
networks are able to deliver to consumers under a variety of
circumstances”.
BTOP grants, which must be made by the end of the fiscal year
2010, may be made for several purposes, including: (i) acquiring
equipment, networking capability, hardware and software, digital
network technology, and infrastructure for broadband services; (ii)
constructing and deploying broadband infrastructure; (iii) ensuring
access to broadband service by community anchor institutions; (iv)
facilitating access to broadband service by vulnerable populations,
such as low-income and aged, to provide educational and
employment opportunities; (v) constructing and deploying
broadband facilities to improve public safety broadband
communications services; and (vi) other projects that the Assistant
Secretary of NTIA finds consistent with the purposes of the
programme.
Numerous entities may qualify as grantees under the BTOP. For
example, grantees may include (i) a state or local government or
Indian tribe, (ii) a nonprofit foundation, corporation, institution or
association, or (iii) “any other entity, including broadband service
or infrastructure provider, that the Assistant Secretary finds by rule
to be in the public interest”. In determining whether “any other
entity” will be eligible, the Assistant Secretary of NTIA must do so
in a “technologically neutral manner” to the extent practicable to
promote the purposes of the programme.
The Recovery Act also directs NTIA to consider certain factors in
awarding grants, including whether a grant will: (i) increase the
affordability or subscribership to the greatest population of users in
the area; (ii) provide the greatest broadband speed possible to the
greatest population of users in an area; (iii) enhance service for
health care delivery, education, or children to the greatest
population of users in the area; and (iv) not result in unjust
enrichment because the entity has applied for support for non-
recurring costs through another federal programme in the area. In
addition, NTIA must award at least one grant in each state. NTIA
also must consider whether the applicant is a socially and
economically disadvantaged small business.
In addition to the requirements described above, BTOP grantees are
required to adhere to the nondiscrimination and network
interconnection obligations determined by the Assistant Secretary
of NTIA in coordination with the FCC. Those nondiscrimination
and network interconnection obligations must be at least as strict as
those contained in the FCC’s 2005 Internet Policy Statement, which
provides, with respect to wireline facilities: (i) consumers are
entitled to access the lawful Internet content of their choice; (ii)
consumers are entitled to run applications and use services of their
choice, subject to the needs of law enforcement; (iii) consumers are
entitled to connect their choice of legal devices that do not harm the
network; and (iv) consumers are entitled to competition among
network providers, application and service providers, and content
providers.
The Recovery Act also allocates US$2.5 billion to be administered
by RUS for grants, loans and loan guarantees for broadband
infrastructure in any area of the U.S. through a programme run by
RUS. At least 75 percent of the area to be served by a project
receiving such funds must be in a rural area without sufficient
access to high-speed broadband service and priority must be given
to projects serving the most rural residents without broadband
service and that will deliver end users a choice of more than one
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provider. The Recovery Act also mandates that priority be given to
projects of current or former RUS borrowers and are fully funded
and ready to start once Recovery Act funding is received. A project
receiving these funds also may not receive funds to provide
broadband service through the BTOP.
RUS and NTIA Grant Application Procedures
and Guidelines
In July 2009, RUS and NTIA announced the general policy and
application procedures associated with the broadband initiatives
established by the Recovery Act by publishing a Notice of Funds
Availability (“NOFA”). In the NOFA, RUS established the
Broadband Initiatives Program (“BIP”) to administer the Recovery
Act funds and NTIA established the BTOP. The deadline for
submitting applications for both programmes was in August 2009,
and awards will be announced starting on or around November 7,
2009. Approximately US$4 billion of programme level funding
was created in this NOFA. In addition, the NOFA established
definitions for purposes of the NOFA and application process for
certain key terms that had not been defined by the Recovery Act,
such as “broadband” (see Endnote 2), “underserved”, “unserved”,
and “rural area”. These definitions are subject to change. RUS and
NTIA also established nondiscrimination and interconnection
requirements for all applicants, described in detail below.
Broadband Initiatives Program (BIP). The Recovery Act
appropriates US$2.5 billion of budget authority for RUS to extend
loans, loan/grant combinations, and grants to projects where at least
75 percent of an RUS-funded area is in a rural area that lacks
sufficient access to high-speed broadband service to facilitate rural
economic development. Under this NOFA, US$2.4 billion in
programme level funding has been set aside for the BIP.
Specifically, US$1.2 billion in funding is available for last mile
projects (i.e., to provide broadband service to end users, such as
households or businesses); US$800 million for non-remote
projects; and US$400 million for remote projects (i.e., unserved,
rural area 50 miles from the limits of a non-rural area). There is
also a national reserve available of up to US$325 million.
Grants awarded under the BIP will be used to serve exclusively
remote, unserved, and rural areas. The BIP loan and loan/grant
funds will be used to provide funding to applications proposing to
serve non-remote and underserved rural areas. Projects that wish to
include both remote and non-remote areas will be funded by loans
or loan/grant combinations. The size of the grant cannot exceed the
size of the loan. Furthermore, RUS wants a rapid disbursement of
funds for the BIP and asks for a commitment of transparency in the
award process. The BIP consists of a two-phase application
process. Phase I will determine whether the application is eligible
and Phase II will rank/grade the application based on a set of
criteria.
Broadband Technologies Opportunities Program (BTOP). The
Recovery Act also appropriates US$4.7 billion to NTIA to provide
grants for broadband initiatives throughout the United States,
including unserved and underserved areas, to be awarded from the
BTOP fund by September 30, 2010. Under the current NOFA, up
to US$1.6 billion has been allocated and a national reserve of up to
US$200 million is available. The BTOP fund is split into three
categories, which include the following programmes:
Broadband Infrastructure - to fund projects to deliver
broadband access to unserved and underserved areas;
Public Computer Centers - to expand public access to
broadband by improving broadband access at entities such as
community colleges and public libraries; and
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 Arnold & Porter LLP Recent Developments in U.S. Broadband Policy
Sustainable Broadband Adoption - to promote broadband
demand by providing broadband education, awareness and
training to population groups where broadband has been
underutilised.
The priority of the BTOP fund is to seek to serve the highest priority
needs for federal investment, particularly projects that offer the
potential for economic growth and job creation, and provide
benefits to education, health care and public safety. There will be a
two-step application process for BTOP funds.
Nondiscrimination and Interconnection Requirements. All
Broadband Infrastructure applicants for both the BIP and BTOP
must commit to the following nondiscrimination and
interconnection obligations:
adhere to the principles contained in the FCC’s 2005 Internet
Policy Statement;
not favour any lawful Internet applications and content over
others;
display any network management policies in a prominent
location on the service provider’s web page and provide
notice to customers of changes to these policies (awardees
must describe any business practices or technical
mechanisms they employ, other than standard best efforts
Internet delivery, to allocate capacity; differentiate among
applications, providers, or sources; limit usage; and manage
illegal or harmful content);
connect to the public Internet directly or indirectly, such that
the project is not an entirely private closed network; and
offer interconnection, where technically feasible without
exceeding current or reasonably anticipated capacity
limitations, on reasonable rates and terms to be negotiated
with requesting parties. This includes both the ability to
connect to the public Internet and physical interconnection
for the exchange of traffic. Applicants must disclose their
proposed interconnection, nondiscrimination, and network
management practices with the application.
These obligations are a first indication of how NTIA and RUS will
implement the nondiscrimination and network interconnection
requirements of the Recovery Act. It remains to be seen, however,
how these commitments will impact grant and loan applicants, how
they will be enforced, or whether the agencies will apply the same
requirements when the remaining funds are made available through
subsequent NOFAs.
FCC Creation of National Broadband Plan
In addition to providing funding for a variety of broadband-related
programmes, the Recovery Act charges the FCC with establishing
and delivering a national broadband plan to Congress by February
17, 2010. As a first step in this process, in April 2009, the FCC
issued a Notice of Inquiry (“Broadband Plan NOI”) seeking
comment from all interested parties and industry stakeholders to
inform the FCC’s development of the national broadband plan.
The Recovery Act requires the plan to include several key elements,
including:
analysis of the most effective and efficient ways to ensure
access to broadband capability for all people in the United
States and benchmarks for meeting that goal;
strategies for achieving affordability and maximum
utilisation of broadband infrastructure and services;
evaluation of the status of broadband deployment, including
the progress of related grant programmes; and
use of broadband to advance consumer welfare, civic
participation, public safety and homeland security,
community development, healthcare delivery, energy
independence and efficiency, education, worker training,
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private sector investment, entrepreneurial activity, job
creation, economic growth, and other national purposes.
To assist in meeting its task, the FCC sought comment on each key
element, with detailed questions in each broad category. It also
sought comment on establishing benchmarks and goals and
definitions for “broadband capability” and certain other terms. In
general, within these key elements, the FCC identified several
categories of programmes or policies that it will review in deciding
how to implement the plan, including open networks, affordability
and existing programmes, wireless service policies, market
mechanisms and competition, and privacy. Below is a brief
description of each key element and a sampling of questions and
issues raised in the Broadband Plan NOI that will be used to inform
the FCC’s national broadband plan.
Establishing Goals and Benchmarks. The Recovery Act requires
the plan to “establish benchmarks for meeting [the] goal” of
ensuring that all people of the United States “have access to
broadband capability”. As an initial matter, the FCC notes that
broadband can be defined in various ways and asks how the FCC
should define “broadband” and “broadband capability”. The FCC
asks whether the definitions for “highspeed”, “broadband”, and
“advanced telecommunications capability” should be the same and
whether, for example, the FCC should: (1) raise the speeds that
define broadband; (2) define broadband numerically or by some
other metric (such as bandwidth or performance metrics); or (3)
adopt a dynamic definition with speed tiers that adjust with changes
in technology. It also asks whether the definition should vary based
on the technology used and whether broadband services delivered
via unlicensed devices should be included in the plan. In addition,
the FCC raises a number of questions regarding what it means to
have access to broadband capability. The FCC notes that its 2005
Internet Policy Statement is committed to preserving the open
character of the Internet. The FCC asks whether the FCC should
elaborate further on these principles in light of the evolving
telecommunications environment; whether it should apply these
principles more broadly in developing the national broadband plan;
and whether it should undertake a formal rulemaking proceeding to
codify the principles into rules. (See Endnote 3.)
Effective and Efficient Mechanisms for Ensuring Access. The
Recovery Act tasks the FCC with analysing “the most effective and
efficient mechanism for ensuring broadband access by all people of
the United States”. In the Broadband Plan NOI, the FCC identifies
certain programmes and policies that it will review as part of this
analysis, including: market mechanisms, deployment costs, existing
universal service programmes, wireless service policies, open
networks, and competition. As an initial matter, the FCC asks how
effective existing mechanisms have been in ensuring consumer
access to broadband capabilities and whether such mechanisms
have been market-based or have been supplemented by activities of
governmental or non-governmental entities. The FCC asks how the
grants and other programmes under the Recovery Act should inform
the analysis.
The FCC also raises a series of questions about the impact of
broadband on existing universal service programmes and whether
existing programmes should be modified. Commenters are asked how
existing and new wireless service policies regarding, for example,
spectrum use and access, licensing rules, and construction
requirements, can help meet or constrain the goal of efficient and
effective access to broadband. In addition, the FCC seeks comment
on the value of open networks as a mechanism to ensure broadband
access and how “open” should be defined. It asks whether
development of the broadband plan should factor in broadband
infrastructure and competition, interconnection, nondiscrimination,
and openness. Commenters also are asked about the costs and benefits
Arnold & Porter LLP Recent Developments in U.S. Broadband Policy
of applying open network policies to wireless networks and whether
competition between broadband network providers is an effective
means of meeting the Recovery Act’s goals. (See Endnote 4.)
Affordability and Maximum Utilisation. The Recovery Act charges
the FCC with establishing “a detailed strategy for achieving
affordability of such service and maximum utilisation of broadband
infrastructure and service to the public”. To do so, the FCC seeks
comment generally on how to interpret this task, whether
affordability and maximum utilisation are interrelated, and how to
define affordability. In addition, the FCC asks what factors beyond
affordability, such as digital literacy skills or lack of a computer or
other broadband access, affect broadband use and choice; who is
not using broadband; and how consumers and businesses are using
broadband.
Status of Deployment. The Recovery Act requires the FCC to
evaluate “the status of deployment service, including progress of
projects supported by the grants made pursuant to this section”.
This section raises a series of questions relating to tracking and
mapping subscribership data and how the Recovery Act grant and
loan programmes fit into the national plan to be developed by the
FCC. For example, in the Broadband Plan NOI, the FCC seeks
comment on how the current FCC forms for collection of data
regarding broadband subscribership can be used in tracking and
which additional measures will help the FCC assess deployment
status, including a means for obtaining data for stimulus grant and
loan programmes.
Specific Policy Goals of the National Broadband Plan. The
Recovery Act requires that, in developing the broadband plan “for
use of broadband infrastructure and services”, the FCC advance a
series of public policy goals, including: (1) advancing consumer
welfare; (2) civic participation; (3) public safety and homeland
security; (4) community development; (5) health care delivery; (6)
energy independence and efficiency; (7) education; (8) worker
training; (9) private sector investment; (10) entrepreneurial activity;
(11) job creation and economic growth; and (12) other national
purposes. In seeking comment on these public policy goals, the
FCC raises numerous questions in each of these areas on how to
interpret and implement that directive.
Comments. In response, the FCC received comments from a large
number and variety of stakeholders, including telecommunications
carriers, wireless providers, broadband service providers,
multichannel video programming distributors, equipment
manufacturers, content and applications providers and consumers
and public interest groups. The FCC will use the comments to
inform its creation of the national broadband plan. In addition, the
FCC is conducting a series of public workshops to further address
key issues related to the national broadband plan.
Ongoing FCC Efforts Regarding Broadband
Deployment
Broadband Deployment Notice of Inquiry. Shortly before enacting
the Recovery Act, Congress enacted the Broadband Data
Improvement Act (“BDIA”) which provides for improved federal
data collection on the deployment and adoption of broadband
services. The BDIA requires the FCC to compile information on
unserved areas, include an international comparison of broadband
deployment, and publish reports required by Section 706 of the
Communications Act (“Section 706”) annually, rather than
“regularly”. (See Endnote 5.)
In response to the BDIA and separate from the Recovery Act’s
national broadband plan requirement, on August 7, 2009, the FCC
released a Notice of Inquiry (“Broadband Deployment NOI”) as
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required by Section 706 (see Endnote 6), as amended by BDIA,
seeking comment on whether broadband is being deployed to all
Americans in a reasonable and timely fashion. The purpose of the
Broadband Deployment NOI is to collect information for the FCC’s
sixth Section 706 report on broadband deployment in the U.S., due
to Congress on February 3, 2010. While the Section 706 report is a
statutory requirement separate from the national broadband plan,
the FCC notes that it will largely consider the proceedings together.
Since the last Section 706 report, Congress enacted the BDIA, as
described above, which, in part, amended Section 706. The FCC
solicits information in this Broadband Deployment NOI according
to the Section 706 framework, as amended by the BDIA. The
Broadband Deployment NOI notes that the framework and analysis
of the five prior Section 706 reports increasingly has been called
into question and that none was based on data providing an accurate
picture of broadband deployment in terms of geography, service
capabilities, or other characteristics. The Broadband Deployment
NOI explains that the current Section 706 inquiry will benefit from
the FCC’s new broadband data collection activities.
The FCC breaks down the NOI into five component parts, as
follows, with each component consisting of more detailed inquiries:
How should the FCC define “advanced telecommunications
capability” or “broadband”?
Is broadband available to all Americans?
Is the current level of broadband deployment reasonable and
timely?
What actions, if any, should the FCC take to accelerate
broadband deployment?
What actions should the FCC take to improve its regular
broadband data collection efforts?
Comments and reply comments from interested stakeholders are
due in September and October, 2009, respectively, which the FCC
will use to inform its report to Congress.
FCC Report on a Rural Broadband Strategy. In addition to the
BDIA, in October 2008, Congress enacted The Food, Conservation,
and Energy Act of 2008 (“2008 Farm Bill”), which was intended to
improve broadband deployment by requiring the Chairman of the
FCC to submit to Congress “a comprehensive rural broadband
strategy” by May 22, 2009, that included recommendations to
promote interagency coordination of rural broadband initiatives, an
assessment and solutions for rapid build-out of rural broadband,
identification of how federal programs and agencies can best
respond to rural broadband requirements, and recommendations to
overcome obstacles to deployment and describe goals and
timeframes.
To discharge the 2008 Farm Bill directive, the then-interim
Chairman of the FCC released the Report on Rural Broadband
Strategy on May 22, 2009. While the report was intended to
respond to the 2008 Farm Bill requirement, the Chairman viewed it
as a building block and prelude to the national broadband plan. As
required, the report makes a number of recommendations, including
in the topics of coordination of rural broadband efforts, assessing
broadband needs, and overcoming challenges to rural broadband
deployment.
Specifically, the FCC recommends that federal agencies, state,
tribal and local governments, and community groups increase
coordination between and among each other. In addition, the FCC
recommends that federal agencies streamline and improve existing
federal programmes to determine what internal barriers may be
making rural broadband deployment more difficult, promote
efficient use of government funds and resources to determine
whether non-broadband-related programmes that involve rural
issues can provide opportunities to promote rural broadband
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deployment, coordinate broadband programme criteria with regard
to key broadband definitions, and improve government websites
related to government resources available for promoting broadband.
The report also makes certain recommendations regarding
assessing both short- and long-term needs for rural broadband, such
as instructing decision makers to make decisions on a
technological-neutral basis; recommending that federal and local
governments focus on obtaining accurate information on broadband
availability; advising the FCC and administration to continue
efforts to develop a national broadband map; encouraging private
and public stimulation of demand for broadband by developing
consumer education and training initiatives and broadband
affordability programmes; and recommending that all levels of
government address network costs and ways to help overcome the
high costs of rural broadband deployment. In addition, the FCC
will consider all pending and proposed FCC proceedings affecting
rural broadband, such as universal service reform, network
openness, spectrum access, and others, to identify challenges to
rural broadband deployment.
Universal Service Programmes. The Communications Act includes
several provisions related to preserving and advancing specific,
predictable, and sufficient universal telecommunications service.
Among other things, it requires access to advanced
telecommunications and information services in all regions of the
nation. The FCC has established several programmes - the High-
Cost Program, the Low-Income Program, the E-rate Program and
the Rural Health Care Program - to implement the universal service
goals of the Communications Act. While the universal service
programmes have largely focused on the availability of
telecommunications services, the FCC has made efforts to use these
programs to expand broadband availability.
For example, the Rural Health Care Program supports broadband
deployment by providing funding for construction of state or
regional broadband networks and for the information services
provided over those networks for health care providers. The E-rate
Program supports broadband access to rural and other insular areas
by providing discounts to qualifying schools and libraries for
Internet access and services and other telecommunications services
as well as funding for broadband. The High-Cost and Low-Income
Programs indirectly support the provision of broadband by ensuring
access to telecommunications service, including by those carriers
that provide broadband services, to rural, insular, high-cost, and
certain low-income consumers.
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Conclusion
The Obama administration has spearheaded an effort to make
broadband deployment a top U.S. policy priority. U.S. lawmakers
and federal agencies expect that developing and expanding
broadband access will facilitate economic development and
improve education, healthcare, public safety, and America’s
economy as a whole. The federal agencies’ regulatory approach to
nondiscrimination and network interconnection obligations may
impact the attractiveness of the grant programme and its ultimate
success in stimulating additional build-out of broadband
infrastructure.
Acknowledgment
The authors would like to acknowledge the assistance of their
colleague, Stephanie Phillipps, in the preparation of this chapter.
Endnotes
1 This article does not address legislation that has been
introduced, but not yet enacted by the U.S. Congress.
2 For purposes of the NOFA, broadband means providing two-
way data transmission with advertised speeds of at least 768
kilobits per second (kbps) downstream and at least 200 kbps
upstream to end users, or providing sufficient capacity in a
middle mile project to support the provision of broadband
service to end users.
3 To date, the FCC has issued one decision enforcing its
Internet Policy Statement, which involved Comcast
Corporation’s network management practices. An appeal of
that decision currently is pending in federal court.
4 The FCC notes that the extent to which the Internet Policy
Statement applies to wireless service providers is currently
pending before the FCC in another proceeding.
5 The FCC has a statutory directive under Section 706 to report
regularly on “whether advanced telecommunications
capability is being deployed to all Americans in a reasonable
and timely fashion”, which includes broadband access. To
meet this directive, it has been tracking broadband
subscribership and deployment since 2000 through its From
477 local competition and broadband deployment reporting
programme.
6 Section 706 of the Telecommunications Act of 1996 directs
the FCC to “initiate a notice of inquiry concerning the
availability of advanced telecommunications capability to all
Americans”. The FCC has used the term “broadband”
synonymously with “advanced telecommunications
capability”.
Arnold & Porter LLP Recent Developments in U.S. Broadband Policy

Maureen R. Jeffreys Stefanie Alfonso-Frank

Arnold & Porter LLP Arnold & Porter LLP
555 Twelfth Street, NW 555 Twelfth Street, NW
Washington, DC 20004 Washington, DC 20004
USA USA

Tel: +1 202 942 6608 Tel: +1 202 942 6307

Fax: +1 202 942 5999 Fax: +1 202 942 5999
Email: Maureen.Jeffreys@aporter.com Email: Stefanie.Alfonso-Frank@aporter.com
URL: www.arnoldporter.com URL: www.arnoldporter.com

Maureen Jeffreys, a partner in the Washington, DC office, provides
regulatory, transactional, and litigation counseling to wireline,
wireless, cable television, media, and Internet clients. She
represents these clients before the Federal Communications
Commission (FCC), the National Telecommunications and
Information Administration (NTIA), and elsewhere. She assists
clients in all aspects of communications-related transactions. Ms.
Jeffreys advises clients regarding federal and state laws and federal
regulations applicable to Internet Protocol-based telephone and
video services. Her representation of media clients focuses on
federal regulatory compliance, including obtaining approval for
mergers, advising public broadcasters on the unique regulatory
issues they face, and counseling on such issues as indecency, equal
employment opportunity, political broadcasts, and cable carriage
requirements.
Stefanie Alfonso-Frank is an associate in Arnold and Porter LLP’s
telecommunications, internet, and media practice group. She
provides regulatory, transactional, and litigation counseling to
telecommunications clients. Ms. Alfonso-Frank assists clients in all
aspects of communications-related transactions. Ms. Alfonso-Frank
advocates clients’ positions before the Federal Communications
Commission (FCC), advises clients regarding compliance with
federal, state, and local rules and regulations, and assists with
rulemakings, license applications, and petitions to the FCC.
Prior to joining private practice, Ms. Alfonso-Frank was a judicial
clerk for the Hon. Daniel M. Friedman of the United States Court of
Appeals for the Federal Circuit.
Ms. Alfonso-Frank graduated first in her class from The George
Washington University Law School in 2002 and received the John
Bell Larner Award for attaining the highest cumulative average.
While in law school, Ms. Alfonso-Frank served as Notes Editor of
The George Washington University Law Review.

Arnold & Porter LLP, founded in 1946, is an international law firm with around 675 attorneys practicing worldwide.
With offices in Washington, DC, New York, London, Brussels, Los Angeles, San Francisco, Northern Virginia, and
Denver, we maintain more than 25 practice areas spanning a broad spectrum of the law, with primary focus on
litigation, transactional matters, and regulatory issues.
Arnold & Porter’s telecommunications, Internet, and media team stands at the forefront of developments in these
dynamic industries. We have guided companies through some of the largest mergers in history, represented cable
television operators in franchise disputes with municipalities, advised wireless carriers (terrestrial and satellite) in novel
spectrum transactions, counseled clients on how to obtain favourable regulatory treatment for their cutting edge
technologies, and advised media clients on First Amendment and related issues. Our team includes attorneys who have
held senior positions at U.S. government agencies such as the Federal Communications Commission, the Department
of Justice, the Central Intelligence Agency, the National Security Agency, the Federal Trade Commission and the
National Telecommunications and Information Administration as well as at Iridium, AT&T Canada and PBS.

23
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 Chapter 4
Albania
Boga & Associates
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The electronic communication industry in Albania revamped in 2008
due to the new Law no. 9918 “On Electronic Communications in
Republic of Albania” (the “Law”). This Law aims to be in line with
the regulatory package of the European Union on electronic
communications (2002), based on the commitments made by Albania
under the Stabilisation and Association Agreement, approximating it
legislation with that of the European Community member countries.
The Law introduces the principle of the ‘technology neutrality’
based in the efficiency of the electronic communications
infrastructure, promoting the competition among the market players
of the electronic communications in Albania. The content of the
electronic communications and the radio television broadcasting
transmission services are not subject of the Law.
The legal framework governing the telecommunications and the
radio frequencies in Albania is mainly the following:
The Law no. 9918 dated 19.05.2008 “On Electronic
Communications in Republic of Albania” (i.e. the Law).
The Council of Ministers Decision no. 379 dated 31. 5.2001
“On approval of the national plan of radiofrequency”.
The Council of Ministers Decision no. 582 dated
21.08.2003” On the approval of the methodology of the
tariffs settings of the operator having significant power
market offering public telephony services and leasing lines”.
The Council of Ministers Decision no. 288 dated 18.06.1999
“On the approval of the development policy of the
telecommunication sector in Republic of Albania” as
amended.
1.2 Is Albania a member of the World Trade Organisation? Has
Albania made commitments under the GATS/GATT
regarding telecommunications and has Albania adopted
the WTO Basic Telecommunications Agreement?
Albania became the 138th member of the World Trade Organisation
on 8th of September 2000. According to the ‘Protocol of Accession
of Albania’ to the Marrakesh Agreement establishing the World
Trade Organisation, Albania made commitments under the General
Agreement on Trade on Services “GATS” and General Agreement
on Tariffs and Trade 1994 “GATT 1994”. Anyhow, this Protocol
provides that Albania may maintain a measure inconsistent with
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Sokol Elmazaj
Iva Çuçllari
GATS/GATT (article I paragraph 4).
Further, the ‘Report of the Working Party on the accession of
Albania to the World Trade Organisation’, provides that the
commitments undertaken by Albania in telecommunication services
are based on the scheduling principles provided by the following
documents: (i) Notes for Scheduling Basic Telecom Services
Commitments (S/GBT/W/2/REV.1); and (ii) Market Access
Limitations on Spectrum Availability (S/GBT/W/3).
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Albania?
The Providers of electronic communication services are eligible to
offer networks and electronic communications services upon General
and/or Individual Authorisation (replacing the licensing procedure of
the former telecommunication law). General Authorisation comprises
all and any kind of electronic communications networks and services
that do not involve use by the provider of frequencies and numbers.
Whilst the Individual Authorisation is granted to those providers
whose activity involves use of frequencies and numbers. Individual
Authorisation would be subject to availability of the said as
frequencies and serial numbers and to those considerations and
restrictions explained in our response to question 2.1 herein below.
As mentioned in our comments under question 1.1 above the Law’s
main objective is to promote the competition creating an open
market of the electronic communications services based on the
principles of non-discrimination and transparency.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The government authorities supervising the electronic communication
market are: (i) the Electronic Communications and Mail Authority;
and (ii) the Albanian Competition Authority (according to Law 9121
dated 28.07.2003 “On protection of competition”).
The Electronic Communications and Mail Authority (hereinafter
the “Authority”), previously known as the Telecommunications
Regulatory Entity, is the regulatory body which supervises both the
electronic communications and mail services market (i.e. the mail
service shall be subject to a separate law). The Authority
encourages the competition ensuring to all categories of users
qualified electronic communications services, subject to tariffs non-
superior to the average tariffs applicable in the European Union
countries. According to the Law, the Authority should conduct its
Boga & Associates
activity and run its duties based on the principles of transparency,
non-discriminatory and proportional rights, conditions and
procedures regarding the providers of networks and electronic
communication services.
The Authority is obliged by the Law to cooperate with the Albanian
Competition Authority for the issues relating to applicability of
competition law affecting the market of electronic communications
and the mail services (article 12 of the Law).
These authorities are both independent governmental agencies.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Decisions of the Authority may be appealed before the Authority
Board of Directors within 10 days; the Board then has to make a
decision within 30 days from filing of the appellant. The decision
of the Authority Board of Directors may be appealed within 30 days
before the competent district court (i.e. a first instance court).
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
As mentioned in question 1.3 above, the Providers are free to offer
networks and electronic communications services upon (i) General
Authorisation and (ii) Individual Authorisation following each of
these processes:
(i) General Authorisation: Through written notification
addressed to the Authority along with certain required
documents, in case the offer of networks and electronic
communications services does not require use of end-
resources (numbers and frequencies). The Authority
registers in the electronic database the Provider within 15
days from the notification confirming in writing to the
Provider the registration in the electronic database. The
registration is considered done, in cases where the Authority
does not reply to the applicant within the period of 15 days
(i.e. tacit approval).
(ii) Individual Authorisation: After notification and granting the
right to use the end-resources in case the offer of networks and
electronic communications services requires such resources.
The Authority issues the Individual Authorisation for the use
of frequencies and numbers based on the Plan of the
Frequencies Utilisation and Plan of the Numbers Utilisation.
The Provider submits to the Authority the application for being
equipped with the individual authorisation for the use of
frequencies and numbers along with certain required data and
documents. The Authority is obliged to provide for such
authorisation within 30 days from the application date, unless it is
refused based on certain criteria provided by the Law, which mainly
relates to dangerous interferences on electronic and electric
equipments, harmful of the public order or national security.
No costs are provided in Law for these authorisations.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
The networks of electronic communications and related infrastructure
must be constructed according to the applicable laws on urban
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Albania
planning, constructions and environmental protection. The Providers
while constructing/using the networks of communication services
must keep safe public order/security and public health.
The Providers of the public electronic communication networks are
required to provide for joint utilisation of the facilities and assets for
the purpose of respecting the urban planning and environmental
Albania
protection when constructing/installing their networks. The
Providers of public electronic communication networks are obliged
by Law to enter into agreements for joint utilisation of the facilities
and assets based on an applicable fee. A Provider may refuses to
enter into an agreement for joint utilisation in case it is technically
impossible or if the party requiring such joint utilisation refuses to
pay the applicable fee.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
The Law is silent on the transfer of the General Authorisation while
it prohibits the transfer of the Individual Authorisation i.e. meaning
the right to use a frequency and/or number without prior approval
by the Authority. The holder of the Individual Authorisation should
address the written request to the Authority for the transfer. The
Authority pursues verification on the proposed transferee in order to
prevent any distortions of the electronic communications market
and ensure the efficiency of the electronic network and services and
to protect the public interest.
Anyhow, Providers under the General Authorisation are obliged to
provide the Authority with all the information amending the data
deposed with electronic database held by the Authority, within 30
days from the date of such amendment(s) (article 14.4 of the Law).
2.4 What is the usual or typical stated duration of licences or
other authorisations?
According to the Law, the Authority issues the Individual
Authorisation for a period of up to 15 years, which can be renewed
provided that all Law requirements have been fully compiled with
by the Provider. The Individual Authorisation used for air and sea
movable services are issued for perpetual duration depending on the
operability of such services (airplane, maritime services). Further
the Individual Authorisation for use of the frequencies on
researches and tests of the radio communication equipments is
issued by the Authority for a period of at least 90 days and for
specific events for a period of time not more than 60 days.
The Law is silent on the duration of the General Authorisation
issued for electronic communication services not involving the use
of numbers and frequencies.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The Law (article 93) recognises in principle to the Provider the right
to use and access both private and state owned properties for
passing through the network infrastructure and/or settlement of the
electronic communication equipments and/or their maintenance. In
the case of a private owned property, the Provider’s rights of use
and access would be agreed upon between the property owner and
the Provider, subject to an agreement.
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 Boga & Associates
Before starting the construction works on the public owned plot of
lands and premises, the Provider must inform the respective
authorities and respect the rules set on by the same Law, including
but not limited to environment protection. The Law does not
address clearly how the right of access and/or use of a state owned
property would be recognised practically to the Provider.
Albania
The Providers must use the private properties (lands, objects) in
agreement with their owners according to the applicable laws. In
case of damages to the private property from the instalment and/or
maintenance of the electronic communication equipments the
provider is obliged to remunerate such damages to the owner.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
The Law is silent on application of specific planning or zoning
regime, nevertheless the provider must construct networks of
electronic communications in accordance with the applicable laws
on urban planning, constructions and environmental protection.
This means that before starting to construct its network
infrastructure, the Provider needs to obtain the relevant information
from the local authorities (i.e. Municipality or Commune).
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
The Providers of the public electronic communication networks are
required, to provide for joint utilisation/share of the facilities and
assets for the purpose of respecting the urban planning and
environmental protection when constructing/installing their
networks. The Providers of public electronic communication
networks are obliged by Law to enter into agreements for joint
utilisation of the facilities and assets based on an applicable fee. The
Provider may refuses to enter into agreement for joint utilisation in
case the joint utilisation is technically impossible or the party
requiring such joint utilisation refuses to pay the applicable fee. In
both events the Authority resolves on settlement of the dispute.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
The Providers of the public electronic communications networks
must provide with an access and interconnection offer to other
Providers (which possess a valid General Authorisation issued by
the Authority), within 30 days of receiving the due payment in order
to ensure the communication between end users and offer service
interoperability to all community.
The Providers have the right to negotiate and enter into written
agreement for access and interconnection. The offer for access and
interconnection and the executed interconnection agreement must
be filed with the Authority (article 47).
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
In case the Providers fail to negotiate the terms of access and
interconnection agreement (see our comments in question 4.1
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above) within 45 days from the request for such access and
interconnection, any of the Providers may submit request for
dispute resolution at the Authority. The latest resolves and enforces
the access and interconnection between the parties. The Providers
might be subject of fines imposed by the Authority is case they
refuse to comply with the order issued by Authority on such regard.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
The Providers of the public electronic communications networks
qualified by the Authority as Providers with Significant Market
Power (“SMP”) are obliged to publish within 45 days from their
appointment as SMP a reference offer for interconnection (“ROI”)
and access services and/or facilities, including the respective tariffs.
The Authority supervises and imposes to the Providers with SMP to
change the ROI, in case it observes that the ROI does not comply
with principles of fairness, non-discrimination, transparency,
reasonableness, and timeliness.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Please refer to our comments in questions 4.3 above and 5.1, 5.2
below.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
The legal entities pursuing activities other than the offer of the
services and/or the networks of the electronic communication
services, but own networks or offer services of electronic
communications for private use, are obliged to notify the Authority
and be equipped with the General Authorisation in case they decide
to offer such networks and electronic communications services to
the public (according to the procedures mentioned in question 2.1
above). These legal entities are either obliged by the Law to keep
on separate accounts the revenues coming for these services or to
establish a new legal entity pursuing this specific activity.
Further the Providers with SMP are obliged to detail the cost
separately for each service related to access and interconnection
aiming to prevent the mutual unfair subsidy, therefore the SMP
Provider must make their wholesale tariffs and the tariffs of internal
transfers transparent (article 41 of the Law).
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The Law is silent on access regulatory conditions applicable to so-
called next generation networks or IP-based networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
The Authority may request to the SMP Providers to unbundled the
access to local loop, in such case the ROI must include: (a) network
elements to which access is offered; (b) information concerning the
locations of the physical access sites and the availability of local
Boga & Associates
loops in specific parts of the access network; (c) technical
conditions related to access and use of local loops, including the
technical characteristics of the lines in the local loop; and (d)
restrictions procedures (article 52.7 of the Law).
As mentioned in question 1.1 above the television broadcasting
transmission services are not governed by this Law.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
The Law is silent on provisions regarding next-generation access
(fibre to the home, or fibre to the cabinet) and/or incentives to build
fibre access networks and to the best of our knowledge there are no
regulations proposed on such regard by the competent authorities so
far.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
The Authority controls both the retail and wholesale prices. In case
findings from the analysis performed on the access and
interconnection market (i.e. the whole sale market) and on the end-
users/consummator market (i.e. the retail market) show that there is no
effective competition, which means the SPM Provider(s) has applied
unjustified expensive or cheap tariffs in disfavour to the end-users, the
Authority may resolve on the adjustment of such price/tariff.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Providers set up the tariffs of the electronic communications
services based in the principles of cost orientation, non-
discrimination of the end users and prevention of the non
competition behaviours in the electronic communications and
services market. Nevertheless, the Authority reserves the right to
adjust or impose the tariffs of electronic communications services
as mentioned in question 5.1 above.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The telephone numbers and the network identifying codes are
allocated by the Authority which is in charge of administering the
Plan of Numbering, and ensuring the efficient use of the
numbers/serial numbers by the Providers of the electronic
communication services.
6.2 Are there any special rules which govern the use of
telephone numbers?
The use of numbers and the serial numbers must have prior
approval of the Authority. The provider of the public electronic
communications networks and services must submit request at the
Authority for being provided with numbers/serial numbers. The
provider is obliged to deliver to Authority the numbers/serial
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Albania
numbers in case of non utilisation of such numbers. Further the
provider may not transfer, lease the numbers/serial numbers without
prior approval by the Authority and they are obliged to use such
numbers/ serial numbers only for the purpose for which are granted.
6.3 How are telephone numbers made available for network
Albania
use and how are such numbers activated for use by
customers?
The Law is silent on the procedures of numbers activation for the
use by the customers. Anyhow the customer (either prepaid or post-
paid) must be subscribed with any of the Providers in the electronic
communications market and register it owns identity, data in order
to have the number activated for use.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The Providers (mobile and fix) of the public electronic
communication services and networks offer to their subscribers the
possibility of numbers porting. The porting of number is not
applicable from the public networks of fix electronic communications
to public networks of mobile electronic communications.
The Providers may charge the subscriber or the other providers for
the transfer/porting of telephone number. Such charge must be cost
oriented and must not serve as an obstacle for the subscriber to use
the service of number porting.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Albania’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
The Law and the regulations of Authority are silent to the rules
governing the bringing into Albania territorial waters and the landing
of submarine cables. Anyhow reference is made to the provisions of
the Albanian Maritime Code upon which the installation of
permanent submarine cables or platforms should have prior approval
by the naval authorities and must not impede the circulation of the
naval vehicles. Such installation must be reflected in the naval maps.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The spectrum of frequency is considered in virtue of Law as a natural
end-resource and is administered by (i) the Electronic
Communications and Mail Authority (i.e. the Authority) for the
frequency spectrum determined for civil use, excluding the frequency
spectrum for radio and television broadcasting which is administered
by (ii) the National Council of Radio and Television and by (iii) the
Ministries of Defence, and of Internal Affairs and the State
Information Service (i.e. the intelligent service) for frequency
spectrum defined for the national security and the governmental
services. The administration of the frequency spectrum by the above
mentioned authorities is based on the National Plan of Frequencies
approved by Council of Ministers decision.
Based on the National Plan of Frequencies, the Authority compiles
the Plan of Frequencies Utilisation for the frequencies under it
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administration. The providers must use frequencies only after
granting the individual authorisation by Authority.
8.2 How is the use of radio frequency spectrum authorised in
Albania? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
Albania
‘beauty parades’, etc.?
The radio frequency spectrum is used by the individuals or legal
entities only upon the Individual Authorisation issued by the
Authority (see procedures mentioned in our comments of question
2.1 above). The right to use the frequencies is restricted only for
non-availability and under the obligation to make efficient use of
the said as frequencies. In this case the Authority grants the
frequencies’ right of use base on an open bid, following prior
approval of the Minister in charge (article 66.2 of the Law).
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Law does not make distinction between mobile, fixed and
satellite usage when granting the spectrum rights.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The Law is silent on regulation and installation of satellite earth
stations and their use for up-linking and down-linking.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
The Law makes exceptions for use of the frequencies for the
purpose of national defence and security. Such use of frequencies
does not require the individual authorisation of Authority.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
According to the Law (i.e. articles 78 and 119.2) the use of radio
frequency spectrum is subject of fees to be approved by the Council
of Ministers Decision. As of today the Council of Ministers has not
decided on such regard.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The Law prohibits the trade of licence wile the transfer must be
made upon prior approval by the Authority. Please also refer to our
comment under question 2.3 above.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The Providers of electronic communications networks and services
are obliged to retain and administer the data files of their
subscribers up to two years. Such files should contain (i) the data
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to enable the full identification of the subscriber, (ii) the
identification of the end point equipment, (iii) the time, date and
duration of the communication as well as (iv) the called number.
All this files upon request must be available to the authorities
determined in the Albanian Penal Procedure Code.
There is no specific law applicable for the data protections of the
telecommunications services. Providers are obliged to maintain the
provisions of the Law no. 8517 dated 22.07.1999 “On protection of
personal data” (as amended).
9.2 Are operators obliged to maintain call interception (wire-
tap)capabilities?
No. The Law does not foresees any Provider’s obligation to
maintain capabilities for call interception (wire-tap).
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The lawful interception of the electronic communications in
Albania must be done in accordance with the applicable laws (i.e.
the Albanian Procedures Penal Code, articles 221 to 226). The
Providers of the services and networks of electronic
communications should abide with such laws.
According to Law 9157 date 04.12.2003 “On telecommunication
interception”, the State Intelligent Services (SHISH) and the State
Police authority are legible to obtain access and intercepting calls
based on the request for access and interception addressed to the
Albanian General Prosecutor.
The General Prosecutor based on the request of the Head of State
Intelligent Services and/or Minister of Internal affairs, and/or
Minister of Justice decides to approve the interception of
telecommunication calls. The decision of the General Prosecutor
for the calls interception is valid for up to three months.
The Providers of electronic communications services are obliged by
the same law to provide, free of charge, the respective infrastructure
enabling to the above state authorised authorities to the calls
interception.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The Law does not regulate the Internet in a deferent way to other
electronic communication services. In virtue of Law the internet is
consider one of the components of the electronic communications
services.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The Law is silent on protection of the Providers (both
telecommunications and internet services provider) from the
liability for content carried over their networks.
Boga & Associates
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
There are no provisions in Law obligating the Providers to assist
content owners whose rights is/or may be infringed by means of
file-sharing or other activities.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There are no provisions in Law obliging the Providers to differently
charge and/or block different types of traffic over their networks,
nor any ‘net neutrality’ requirements.
10.5 How are ‘voice over IP’ services regulated?
There are no provisions in Law regulating voice over IP services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
According to the Law, email communications for
marketing/advertising purposes is allowed only following prior
approval of the end-users.
The Law prohibits emails for marketing purposes not bearing, or
hiding the identity of the sender, (or missing the address, or such
address is not valid) were the recipient may request discontinuance
of such email.
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Albania
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Albania
The Law ensures the universal service that is, the provision of a
defined minimum set of services to all end-users in Albania
territory, independently of geographical location, at an affordable
price. The Authority elects one ore more providers of the universal
services, based on the open bid procedure. The Provider/s of the
universal service are obliged to ensure that the end-users can make
and receive local, national and international telephone calls,
facsimile communications and data communications for a
bandwidth not less than 32kbit/s, at rates that are sufficient to
permit functional Internet access and the possibility of the detailed
billing of the services provided.
The Provider/s of the universal services is eligible of compensation
from founds administered by Authority in case the service offered
creates unfair addition costs.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
The Law does not provide restriction related to direct or indirect
foreign ownership interest in the electronic communications
companies.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
To the best of our knowledge there are no imminent and significant
changes to the legal and regulatory regime for electronic
communication in Albania.
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 Boga & Associates Albania

Sokol Elmazaj Iva Çuçllari

Boga & Associates Boga & Associates
Deshmoret e 4 Shkurtit Deshmoret e 4 Shkurtit
P.O Box 8264 P.O Box 8264
Albania Albania

Tel: +355 4 225 1050 Tel: +355 4 225 1050

Albania

Fax: +355 4 225 1055 Fax: +355 4 225 1055

Email: selmazi@bogalaw.com Email: icucllari@bogalaw.com
URL: www.bogalaw.com URL: www.bogalaw.com

Mr. Elmazaj is a senior manager at Boga & Associates, which he
joined in 1996. He has acquired excellent experience in
commercial/corporate, telecommunication, competition, energy,
litigation, IP issues, banking & finance, mergers and acquisitions,
real estate etc.
He managed a number of due diligences for international clients
considering to invest in Albania in the field of industry,
telecommunications, banking, real estate etc.
In the field of telecommunication he has build a vast experience in
managing telecommunications projects, including licensing and
regulatory issues, network build, diverse contractual matters etc.
Mr. Elmazaj has a strong litigation practice representing
international clients in all courts levels in Albania regarding a vast
variety of business law disputes.
He has also managed several investment projects in Kosovo
jurisdiction including international clients operating in
telecommunication, energy and real estate.
Mr. Elmazaj graduated from Faculty of Law at the University of
Tirana, Albania, (1996). He is an Albanian native and speaks
excellent English and Italian.
Mrs. Çuçllari has gathered sound experience in telecommunication,
energy, concessions, corporate/commercial, environment, real
estate, water administration issues etc.
She has been involved in several due diligence assignment at Boga
& Associates on behalf of national and international clients investing
in Albania mainly regarding projects in the fields of
telecommunication, energy, real estate etc.
Her expertise in telecommunication includes advising new entrant
operators, mobile, fixed operators, rural operators and internet
services providers.
Mrs. Çuçllari had a five year experience from 2000 to 2005 as in
house lawyer for Albtelecom sh.a, the former state owned fixed
telephony company in Albania. During this time she was involved
in the privatisation process of the company, while actively
participating in the due-diligence work team.
She graduated from Faculty of Law at the University of Tirana
(2000). She is member of Albanian Bar Association and is fluent in
English and Italian.

Boga & Associates, established in 1994 has emerged as one of the premiere law firms in Albania, earning a reputation
for providing the highest quality legal services to its clients.
The practice maintains its commitment to quality through the skills and determination of a team of attorneys and other
professionals with a wide range of skills and experience.
Boga & Associates represents a broad spectrum of high-profile clients, including financial institutions, local and
international, banking entities, commercial companies, international and governmental agencies, airlines, industrial
complexes, mining and petroleum concerns, non-profit organisations, embassies, public utilities.
Over the years the firm has advised in the areas of privatisation of national resources and enterprises, concessions, real
estate transactions, credit facilities, custom issues, tax and accounting issues etc.
During 2007, 2008 and 2009 Boga & Associates was rated as best legal firm in Albania from Chambers and Partners
and International Financial Law Review (IFLR) in the fields of Corporate, Finance, Dispute Resolution and Real Estate,
Intellectual Property and Projects.

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Chapter 5
Argentina
Sanchez Elia Abogados
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
At the beginning of the ‘90s, Argentina changed its
telecommunications model, closing an almost 45-year period in
which the dominant concept was a state telecommunications
monopoly with overlapping regulatory and provision functions.
The change was focused on a domestic version of the combined
concepts of deregulation and competition.
This change, however, occurred in the framework of a deep change in
the economic and social structure of the country with strong
correlations, in the same matters, in most of the developing countries.
Actually, policies are basically oriented to a competitive market.
To implement the privatisation process the Argentine Government
enacted rules both to regulate the bidding process and also to
regulate the telecommunications market after the privatisation (the
“Privatisation Rules”). In 1997, the Government decided to
partially extend the exclusivity granted by the Privatisation Rules
and altered some important aspects of such Rules providing for a
gradual deregulation of the market.
In September 2000, a new set of regulations was approved under
Decree No. 764/2000 (the “New Regulations”) providing for a
deregulated legal framework for Argentine telecommunications.
The New Regulations were enacted for the deregulation of basic
telephony services and international services after 8 November
2000, opening up the Argentine telecommunications market to free
competition, and consisted of four new sets of rules, namely:
(i) Licensing Rules for Telecommunications Services;
(ii) Universal Service General Rules;
(iii) National Interconnection Rules; and
(iv) Rules of Administrations, Management and Control of the
Radio Spectrum.
1.2 Is Argentina a member of the World Trade Organisation?
Has Argentina made commitments under the GATS/GATT
regarding telecommunications and has Argentina adopted
the WTO Basic Telecommunications Agreement?
Yes, Argentina has been a member of the World Trade Organisation
since January 1, 1995, the date on which the WTO was established.
Immediately after the launching of the Uruguay Round (UR) in
1986, the Argentine government allocated the functional
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Juan Sanchez Elia
Adriana Tucci
responsibility for the technical work on services trade to the
Economy Ministry, at that time still responsible for the conduct of
international trade negotiations
The commitments undertaken by Argentina in the General
Agreement on Trade in Services (GATS) appear generous when
compared to those of other Latin American countries.
Argentina’s GATS commitments had a relatively high sectoral
coverage and level of openness, higher even than Chile (generally
taken as the Latin American paradigm for an open and deregulated
economy). Argentina made binding market access commitments
for 232 items (out of a total of 620), 144 of them bound with no
restriction (‘none’). This means that Argentina undertook market
access commitments for 37.4% of total negotiable items, nearly a
third of which had no restrictions.
In the case of communications, Argentina undertook commitments for
approximately two-thirds of the total number of negotiable items.
Telecommunication services were bound in the context of the
negotiations of the basic telecommunications protocol agreed after the
conclusion of the Uruguay Round Local telephone services, domestic
and international long-distance, international data transmission and
international telex services were bound without restrictions after
August 11th, 2000, for Modes 1 and 3. Mobile telephone services and
PCS were bound without restrictions, but in the case of PCS the
authorities retained the capacity to determine the maximum number of
operators per area. Domestic data and telex transmission, electronic
mail, voice mail and electronic data interchange were bound with no
restrictions. The Argentine offer did not include the provision of
satellite facilities of geo-stationary satellites operating fixed satellite
services, which, in addition, was excluded under the GATS Article -
exception.
The exclusion was a result of the existing contract with a private
firm in charge of exploiting the two orbit positions allocated to
Argentina, which required strict reciprocity. Later, Argentina
negotiated bilateral reciprocal agreements with the United States,
Canada, Mexico, Brazil, Netherlands and Spain. Satellite service
was one of the toughest issues in negotiations with third parties,
particularly the United States.
Argentina also adopted a voluntary reference paper that established
additional commitments concerning interconnection charges and
the independence of regulatory agencies.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Argentina?
Decree 764/2000 (“New Regulations”) is the backbone of the legal
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 Sanchez Elia Abogados
communications framework. This regulation opened the market to
competition; thus, the market is opened to competition, providing for
a deregulated legal framework for Argentine telecommunications.
The New Regulations were enacted for the deregulation of basic
telephony services and international services after 8 November
2000, opening up the Argentine telecommunications market to free
Argentina
competition, and consisted of four new sets of rules, namely:
(i) Licensing Rules for Telecommunications Services;
(ii) Universal Service General Rules;
(iii) National Interconnection Rules; and
(iv) Rules of Administrations, Management and Control of the
Radio Spectrum.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The provision of telecommunications services is regulated by the
Secretary of Communications (hereinafter the “SECOM”) and
supervised by the Comision Nacional de Comunicaciones (the
National Communications Commission) (“CNC”). The CNC is
responsible for the general oversight and supervision of
telecommunications services.
The Department of Communications has the authority to develop,
suggest and implement policies; to ensure that these policies are
applied; to review the applicable legal regulatory framework, to act
as the enforcing major technical plans and to resolve administrative
appeals filed against CNC resolutions.
Comisión Nacional de Defensa de la Competencia (Antitrust
National Commission).
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Yes; it depends on the decision. See question 1.4 above.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
A national licence is required, together with the filing of the registry
(service to be provided).
Decree 764/2000 establishes a single licence called ‘Unique
Licence for Telecommunications Services’ (ULTS). All the
telecommunications operators must obtain a ULTS licence,
regardless of the services they want to provide or their business -
ISP, local or long distance telephony, cellular telephony etc. - but it
is the responsibility of each operator to carefully detail in its licence
application the list of services it wishes to provide to the public.
The ULTS is a flexible authorisation. At anytime after having
obtained a licence, operators are entitled to upgrade their licence.
The SECOM grants the ULTS licences. SECOM is the application
authority of Telecommunication regulation in Argentina. The CNC
is in charge of the reception and the review of the application for an
ULTS.
As a result of the liberalisation, Argentina has more than 200 ISPs
and companies with the ULTS. This competitive market offers
great possibilities for the users and the Internet in general because
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Argentina
more sites were created that are accessed for all Spanish speaking
in the world. However, there are many external factors that
influence this liberalised and convergent telecom market.
The process should not take longer than 3 months.
The information and or documentation to be filed consists generally
of the following, in addition to corporate and personal
documentation of the person or entity requesting the licence:
(a) description of the services to be rendered;
(b) technical plan and schedule including the description and
location of the network for the first three (3) years of service;
and
(c) investment plan consistent with the technical plan.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
It depends on the service to be provided.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Yes; subject to authorisation of the CNC, licences are able to be
transferred following similar procedure as to obtaining the
corresponding licence.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Indefinite, provided the service is being rendered. Otherwise the
licence can be cancelled.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes, Articles 39 - 45 of Law 19.798.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
This is not regulated at national level; it depends on the place it is
being done.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Yes. Interconnection Agreements. See question 4.1 below.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Yes. If needed, it shall be granted.
Sanchez Elia Abogados
All telecommunications service providers are required to grant
interconnection to other telecommunications service providers on a
non-discriminatory, transparent and proportional basis, based on
objective criteria. The parties may agree on the specific
interconnection terms and conditions. However, should the parties
fail to reach any agreement, or should a third party be affected, or if
the SECOM considers it appropriate for public policy reasons, it is
empowered to determine these terms and conditions. All
interconnection agreements must be filed with the SECOM.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
See question 4.1.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
The National Interconnection Rules provide that costs for essential
facilities by providers with dominant power are to be calculated on
the basis of the Long Run Incremental Costs. Until the mechanism
to determine such a cost is established, the SECOM may apply the
interconnection referential prices contained in the National
Interconnection Rules.
A provider will be deemed to have a dominant power in connection
with any given service where the revenues derived from its services
exceed 75% of the aggregate revenues generated by all providers of
the same service, in a given area or nation-wide, as the case may be.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Traditionally, only public switched network operators (fixed or
mobile) were subject to interconnection obligations. However,
there has been some ambiguity regarding other operators, such as
cable networks or ISPs. As convergence blurs the traditional
difference between networks, regulators are introducing a
symmetrical interconnection regime in which any operator,
regardless of the type of network it has, is obliged to interconnect
with any other operator. In Argentina, new legislation implemented
a symmetrical interconnection regime where all operators are
obliged to interconnect upon request.
However, some jurisdictions have maintained asymmetrical
interconnection
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
No. Legal Separation is based on non-competence.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
This is not regulated.
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Argentina
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
This is not regulated.
Argentina
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
This is not regulated.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Incumbents (fixed) are subject to price controls for local calls.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The Universal Service General Rules govern the provision of
telecommunications services to each inhabitant in Argentina taking
into account their different circumstances.
The Universal Service is a defined set of telecommunications
services that must be provided with a specific quality and must be
accessible at affordable prices for all users, regardless of their
geographic location. It is aimed for the provision to the entire
population to have access to essential telephony services,
notwithstanding regional, social and economic differences and
physical disabilities.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
In Argentina, changes were made to area codes in 1999, when the
telephone network was split up into three different areas, with a new
digit representing the new telephone company in accordance to the
Numbering National Plan of the CNC.
At present, the valid numbers are:
011+ 8 digits for numbers in Buenos Aires;
02+ 9 digits for numbers in southern provinces under
Telefónica; and
03+ 9 digits for numbers in northern provinces under
Telecom.
Similarly, the digit 4 was added to existing subscribers’
numbers.
Mobile phone calls within Argentina
Almost all cell phones in Argentina operate with a calling party
pays (CPP) system. That means that whoever initiates the call pays
for it. For this reason, Cell phones in Argentina usually start with
the number 15. Since calls to cell phones are more expensive than
land calls in Argentina, this prefix indicates to the calling party that
this call is going to cost more. For instance if a user wanted to call
a Buenos Aires CPP cell phone, from within Buenos Aires, he/she
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 Sanchez Elia Abogados
would have to dial:
15 xxxx-xxxx.
Should the user want to call a cell phone in another province, he/she
would have to add the local prefix, e.g.:
0351 15 xxx-xxxx if it is a Córdoba cell phone;
Argentina
0341 15 xxx-xxxx if it is a Rosario cell phone; and
03833 15 xx-xxxx if it is a Catamarca cell phone.
Non-CPP phones are available for purchase, and the calling and
numbering is the same as the land numbers (no 15) but few users
choose this number since that means that they would have incoming
and outgoing calls deducted from their monthly minute allocation
as opposed to just the outgoing.
6.2 Are there any special rules which govern the use of
telephone numbers?
There is a Numbering National Plan. The use of telephone numbers
is ruled by the region of the country and depends on the type (fixed
or mobile).
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The CNC makes provisions for these aspects of
telecommunications. Telephone numbers are granted upon private
request.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Not implemented.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Argentina’s territorial waters, and the landing, of
submarine cables? Are there any special authorisations
required or fees to be paid with respect to submarine
cables?
There is a legal loop for submarine cables. However, in our
experience for some telecom providers, the following procedure
was followed:
Filing of a petition before Foreign Affairs Office informing about
the nature of the project. Further, notices were sent to Provincial
and Municipal authorities informing the project. Filing a
memorandum before the province regarding environmental impact
of the project. Informing to the Hydrographic Naval office about
the position of the cable and everything related to depth of the
cable.
With the aforesaid in good standing, the company filed a
telecommunications licence for rendering the services.
Due to the loop, the project was supported in Domestic
Telecommunications Law (which establishes that right of way shall
be granted to the systems that will offer telecommunications
services in Argentina according to local rules enacted for the service
to be provided) and Maritime International Law.
Ar$ 5,000 is the cost of the licence. Authorisation is granted by the
SECOM.
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Argentina
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The radio frequency spectrum is specifically regulated and the
corresponding authority is the CNC.
The Rules of Administration, Management and Control of the radio
spectrum provide that the radio spectrum is an intangible, scarce
and limited resource which may be administrated exclusively by the
Argentine State.
The SECOM shall authorise the use of frequency bands to provide
telecommunication services through: (i) a public bidding processes
or auctions; or (ii) upon request.
Since authorisations and/or permits to use radio spectrum
frequencies will be granted on a revocable basis.
The SECOM may fully or partially replace, modify or cancel such
frequencies without the authorised party involved having any right
to an indemnity in respect of any such modification or cancellation.
Argentina liberalised its radio spectrum on 5 September 2004, as
planned in the Regulation for the Administration, Management and
Control of the Radio Electrical Spectrum. As of this date, service
providers are able to request spectrum without waiting for the
government to launch an action. The regulation, included in the
Decree 764/200, provided a four-year exclusivity period to all four
cellular operators in consideration of their licence payments.
According to Article 28 of the 5 September 2004 regulation, any
company interested in providing services using a frequency band
must request an authorisation from the Ministry of
Communications. The Ministry will then publish the request in the
Official Gazette, giving a fifteen-day period to other companies to
express their interest, and participate in a public auction for the
frequency band. In the absence of any competing interest, the
authorisation will be directly issued to the original applicant.
8.2 How is the use of radio frequency spectrum authorised in
Argentina? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
The radio frequency spectrum is allocated by public contest.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Yes. Each frequency-band is regulated differently.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
This depends on the band. C-Band or Ku-Band or L-Band and the
kind of earth station V-sat or Master station or gateway.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
See the answer to question 8.1 above. However licence-exempt
applies for the use of spread spectrum for private use.
Sanchez Elia Abogados
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Pursuant to Resolution 10/95 each user of radio electric stations,
systems and/or services must pay a monthly fee to the CNC, of a
varying amount depending on the service, system or station used.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Yes. Spectrum licences are able to be traded or sub-licensed upon
authorisation of the Ministry of Communications.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
In January 2004 the Congress approved a controversial Data
Retention Law that amended the National Telecommunications
Law of 2003. The new law compels all telecommunications
companies and Internet service providers to record, index and store
traffic data for a 10-year period, in order to give information to the
Judicial Power and the Attorney General’s Office (Ministerio
Público) when required.
On November 8, 2004, a new decree (No. 1563/2004) was enacted
to implement the Data Retention Law. It requires that companies
develop an infrastructure that allows authorities to obtain, store and
forward traffic data. In addition, it compels companies to acquire
the appropriate technology to be able to immediately intercept and
forward intercepted communications to the authorities when
required to do so by a court order, as provided for by the National
Intelligence Law No. 25520. The same Decree requires
telecommunications service providers and ISPs to decrypt their
customers’ encrypted communications if they have offered
encryption tools to their customers as part of their services. It
mandates them not to disclose the technical and administrative
methods used to comply with their disclosure obligations to law
enforcement.
There was a strong pressure from ISPs and the public opinion
against this decree. In April 2005, the mainstream media soon
reported on the controversial measure. On April 25, the President
suspended the decree to allow some time for its evaluation.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
See question 9.1.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
See question 9.1.
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Argentina
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
Argentina
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The same rules are applicable. A licence is required together with
the specific registry.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Not regulated.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Not regulated.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Not regulated.
10.5 How are ‘voice over IP’ services regulated?
VoIP is a deregulated Telecommunication Service in Argentina.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
No. There are no rules to prevent, restrict or otherwise govern
Internet or email communications.
The Argentine government’s policy toward the Internet is based on
two declarations of principles and is organised around three axes:
constant monitoring of the Internet; enactment of specific
regulations and the implementation of programmes designed to help
the growth of the Internet; and reflection over the future challenges.
The first declaration is that the Internet is a matter of national
interest.
Decree 554/97, dated June 19, 1997, declares of “national interest
the access to the Internet by the Argentine people, in equitable
social and geographic conditions, with reasonable costs, and with
quality standards in accordance with modern multimedia
applications”.
The decree also entrusts the SECOM with broad powers to:
develop a strategic plan for expansion of the Internet in
Argentina that achieves several public policy objectives,
such as creation of Websites for Argentine public libraries,
promotion of access to the Internet by the educational
system, and promotion of a national telemedicine network;
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 Sanchez Elia Abogados Argentina

analyse incorporation of the Internet within an analysis of the
definition of universal service;
analyse and propose alternative price policies in order to
stimulate and diversify use of the Internet; and
encourage use of the Internet to support activities related to
education, culture, information, entertainment, and health.
Argentina
After 1 January 2001 each telecommunications services provider
must contribute an amount equivalent to 1% of its total income
derived from the rendering of telecommunications services (minus
taxes and fees relating thereto) to a fiduciary fund created to finance
the Universal Service.
Finally, all telecommunications service providers are required to

The second declaration says regulation of Internet content should be
hands-off. The Argentine government took note of the 1997 U.S.
Supreme Court decision of Reno v. ACLU, 12, in which the Court
held that the federal statutory prohibition of so-called indecent
language on the Internet violates the freedom-of-speech protection
guaranteed by the U.S. Constitution. Thereupon the Argentine
government adopted a liberal position regarding the content of
information available on the Internet and access to that information
by users.
Presidential decree 1279/97, enacted November 25, 1997, states
that the Internet is a valuable modern medium allowing the mass
diffusion of ideas. Therefore, the government expressed its wishes
to assist and participate in the development of that medium -
especially by removing the barriers prejudicing its growth. It also
expressed its refusal to interfere with the production, creation, and
diffusion of the information circulating via the Internet.
grant interconnection to other telecommunications service
providers on a non-discriminatory, transparent and proportional
basis, based on objective criteria.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No. There are no restrictions upon foreign investments in the
telecommunications market, other than established by Law No.
25,750 (the “Media Ownership Law”) of 18 of June 2003 for
providers of Internet Access Services.

Decree 1279/97 also states that the Internet is a medium protected

by the provisions of the Constitution that have to do with the 13 Future Plans
freedom of expression - like the press, radio, and television - and,
as such, shall not be subject to prior censorship or restriction.
13.1 Are there any imminent and significant changes to the
In consideration of decree 1279/97, resolution 1235/98 dated May legal and regulatory regime for electronic communications?
22, 1998, requires ISPs to insert the following text into invoices
sent to users: “The National State does not control or regulate We are not aware of any other imminent and/or significant changes
information available on the Internet. Parents are recommended to to the legal and regulatory regime for electronic communications.
exercise reasonable control over the content accessed by their
children. It is advisable to consult your ISP to obtain suitable
advice on programmes designed to prohibit access to undesirable
sites.”

11 USO

11.1 Is there a concept of universal service obligation; if so how

is this defined, regulated and funded?

Yes. In accordance with Decree 764/2000 the Universal Service

General Rules govern the provision of telecommunications services
to each inhabitant in Argentina taking into account their different
circumstances. The Universal Service is a defined set of
telecommunications services that must be provided with a specific
quality and must be accessible at affordable prices for all users,
regardless of their geographic location. The aim is for the whole
population to have access to essential telephony services,
notwithstanding regional, social and economic differences and
physical disabilities.

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Sanchez Elia Abogados Argentina

Juan Sanchez Elia Adriana Tucci

Sanchez Elia Abogados Sanchez Elia Abogados
Av. Leandro N. Alem 619, 1st Floor Av. Leandro N. Alem 619, 1st Floor
Autonomous City of Buenos Aires Autonomous City of Buenos Aires
Argentina Argentina

Argentina
Tel: +5411 4893 3050 Tel: +5411 4893 3050
Fax: +5411 4893 3070 Fax: +5411 4893 3070
Email: jse@sanchezelia.com Email: at@sanchezelia.com
URL: www.sanchezelia.com URL: www.sanchezelia.com

Juan Sanchez Elia, born Buenos Aires, Argentina, June 29, 1975. Adriana Tucci, born Buenos Aires, Argentina, December 9, 1970.
Education: Austral University Law School (Bachelor of Law, Education: University of Buenos Aires (Bachelor of Law; Abogada,
Abogado; 1999); Northwestern University Law School (Master in 1994) specialised in corporate law. She started her practice of law
Laws, 2003). Juan Sanchez Elia started his practice of law as an at the Securities Department of the Buenos Aires Stock Exchange
associate at Arcagni & Asociados (1999-2000), a law firm (1994-1997). In 1997 she joined as a semi-senior associate at
specialised in conflicts of law. He continued his practice as an Pérez Alati, Grondona, Benites, Arntsen & Martinez de Hoz (h)
associate at Pérez Alati, Grondona, Benites, Arntsen & Martinez de attorneys at law (1997-2002) where she specialised in Corporate
Hoz (h) attorneys at law (“PAGBAM”) (2000-2002), where he Law, Banking Law and Capital Markets, participating in national and
specialised in corporate law, mergers and acquisitions, international transactions, including debt restructuring processes,
restructurings, telecommunications, project finance, arbitration and financial trusts, and offering and negotiation of debt securities of
air law; participated in the structuring of some of the largest some of the major national and international companies and banks.
economic operations that took place in Argentina during the last In 2006 she joined Sanchez Elia attorneys at law. Languages:
decade. In 2003 he joined Patterson, Belknap, Webb & Tyler LLP English and Spanish. Member: Bar Association of the City of
(“PBWT”) in New York, U.S.A., where he acted as a foreign intern. Buenos Aires.
Working at PBWT he participated in local and international mergers
and acquisitions operations, venture capital, acquisition financing,
and in the structuring of capital markets operations in U.S.A. and in
the rest of the world. In 2004 he returned to PAGBAM in order to
continue his practice in those areas in which he has specialised. At
the end of 2004, he joined José Sanchez Elia to found Sanchez Elia
attorneys at law. He specialises in Corporate and
Telecommunications Law. Languages: Spanish, English and
French. Member: Bar Association of the City of Buenos Aires and
of the International Association of Lawyers (UIA).

Sanchez Elia attorneys at law, originally founded as Sanchez Elia & Pinedo in 1994, is a continuance of José A. Sanchez
Elia’s remarkable practice of law.
The Firm is preceded and guided by an ancient family tradition of lawyers, whose origins date from the legacy of
excellence and commitment left by Dr. Angel Sanchez Elia, lawyer, member of the house of representatives and of the
drafting commission of the legislative bill that was finally approved under Act # 11.357 which equalled rights of men
and women in Argentina.
Sanchez Elia attorneys at law is a group of professionals that focuses in providing high quality advice, in accordance
with its client’s needs. We assist our clients in their different activities, including day-to-day as well as expert matters.
The Firm has strategic alliances with law and accountant firms all around the world, in order to offer its clients an
integral inter-jurisdictional advice in legal and accountant matters.
Our clients trust us accounting and corporate matters, contracts and transactions, and the out-of-court and judicial
defence of their rights. Facilitating the development of their business in a competitive and changing context, with the
values of integrity, loyalty and professional excellence, is our maximum ambition and challenge.
The Firm’s practice structures around four types of counsel: (i) corporate law; (ii) civil and commercial out-of-court and
litigation defence of rights; (iii) accounting and tax advice; and (iv) technical advice regarding telecommunications
matters.

37
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 Chapter 6
Australia
Mallesons Stephen Jaques
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The primary objects of Australia’s telecommunications regulatory
framework are to promote the long-term interests of end-users of
carriage services and the efficiency and international
competitiveness of the Australian telecommunications industry.
The key legislation governing the telecommunications industry
includes:
the Telecommunications Act 1997 (“Telecommunications
Act”), which deals with licensing and the rights and
obligations of carriers and service providers;
the Telecommunications (Consumer Protection and Service
Standards) Act 1999 (“Consumer Protection Act”), which
establishes the universal service obligation and consumer
protection regulation;
the Telecommunications (Interception and Access) Act 1979
(“Interception Act”), which regulates interception and law
enforcement;
the Radiocommunications Act 1992
(“Radiocommunications Act”), which regulates
radiofrequency spectrum management and licensing; and
the Trade Practices Act 1974 (“Trade Practices Act”),
which provides both general competition regulation and a
telecommunications-specific competition regulation regime.
There is also a degree of industry self-regulation. Various industry
codes, developed primarily by the industry body Communications
Alliance, address consumer issues (e.g. billing and privacy issues)
and technical issues (e.g. wiring requirements for end-user
equipment).
Broadcasting and content is regulated separately under the
Broadcasting Services Act 1992 (“Broadcasting Services Act”).
The Broadcasting Services Act is relevant to telecommunications
providers with respect to subscription television regulation, online
content regulation (for internet service providers) and datacasting.
1.2 Is Australia a member of the World Trade Organisation?
Has Australia made commitments under the GATS/GATT
regarding telecommunications and has Australia adopted
the WTO Basic Telecommunications Agreement?
Australia has been a member of the WTO since 1 January 1995.
Australia has adopted the WTO Basic Telecommunications
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Renae Lattey
Neil Carabine
Agreement and made commitments under the Fourth Protocol on
Basic Telecommunications.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Australia?
Electronic communications networks and services are regulated
under the legislation mentioned in question 1.1 above. The
Telecommunications Act and the Trade Practices Act are intended
to promote open competition for the provision of electronic
communications networks and services by carriers and carriage
service providers (“CSPs”).
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The primary regulators are:
the Australian Competition and Consumer Commission
(“ACCC”), which handles competition-related issues and
some consumer issues; and
the Australian Communications and Media Authority
(“ACMA”), which handles technical regulation and
technical consumer issues.
Those regulators generally act independently of the Federal
Government. However, the Communications Minister has residual
regulatory powers including the ability to:
impose carrier licence conditions, which may used to
regulate specific carriers and carriers generally; and
direct ACCC and ACMA in the performance of their
regulatory powers in certain respects.
Industry bodies (comprising members of the telecommunications
industry) also develop industry codes and standards that can be
registered with, and enforced by, ACMA under the
Telecommunications Act.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Decisions made by ACMA may be appealed to:
the Administrative Appeals Tribunal, on the merits of the
decision; and
the Federal Court of Australia, for judicial review on
administrative law grounds.
Mallesons Stephen Jaques
While some ACCC decisions may be appealed to the Australian
Competition Tribunal on the merits of the decision, there are certain
decisions (e.g. decisions made in telecommunications access
arbitrations) that may only be appealed to the Federal Court of
Australia, for judicial review on administrative law grounds.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The Telecommunications Act distinguishes between:
carriers, being entities that own telecommunications
infrastructure;
CSPs, being entities that supply carriage services using a
carrier’s infrastructure; and
content providers.
These categories are not mutually exclusive, so most carriers are
also regulated as CSPs.
Carriers must be licensed by ACMA. A licence applicant must be a
corporation, eligible partnership or public body, and must provide
information regarding its ownership, structure, history and the
proposed network. Applications are typically processed in less than
20 business days.
There are no individual licensing or registration requirements for
CSPs.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
As outlined in question 3.1 below, installation of network
infrastructure may require approval from landowners or government
authorities. In addition, wireless communications are subject to
radiocommunications licensing requirements (see section 8 below).
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Although there is no express prohibition against the transfer of
carrier licences in the Telecommunications Act, ACMA’s view is
that carrier licences are not transferable.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Carrier licences issued under the Telecommunications Act are
granted indefinitely.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes. The Telecommunications Act empowers carriers to enter
public and private land to install, inspect and maintain
telecommunications facilities, provided statutory notification and
objection procedures are observed.
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Australia
The power to install telecommunications infrastructure is limited to
the installation of “low impact facilities”. Examples of “low impact
facilities” include certain types of below-ground cabling, public
payphones and radiocommunications antennae. Carriers may also
install telecommunications facilities where a facility installation
permit has been granted, but this is uncommon in Australia.
Australia
The power to install telecommunications facilities implicitly
confers rights of land tenure upon carriers. Compensation may be
payable by the carrier in some cases to the owners or occupiers of
land on which the facilities are installed.
In circumstances where the above powers and immunities do not
apply, rights of land access and tenure must be negotiated with the
landowner and any relevant authorities.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Yes. When relying upon statutory rights to install
telecommunications facilities, carriers enjoy immunity from certain
State and Territory laws dealing with matters such as planning and
the use of land. In such cases, carriers will not need to comply with
the requirements of any planning controls applying to the land on
which the facilities are being installed.
Where carriers’ powers and immunities do not apply (such as where
carriers are installing facilities that are not categorised as “low
impact”), the installation of facilities will be subject to the planning
laws of the State or Territory in which the facility is being installed.
These laws may require a planning permit or development consent
to be obtained before the installation can proceed.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Yes. Under the Telecommunications Act, a carrier must provide
other carriers with access to facilities such as mobile phone towers,
pits, conduits, and telephone exchange buildings. There are
limitations on the obligation to give access including that the
request must be reasonable.
The terms upon which access will be granted must be agreed
between the access seeker and the facility owner, and are
determined by an arbitrator if agreement cannot be reached.
The Telecommunications Act also contains provisions relating to
access between facility owners and access seekers to
telecommunications transmission towers and underground
telecommunications facilities.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Yes. It is a standard carrier licence condition that carriers ensure
any-to-any connectivity with any other interconnected
telecommunications network.
ACCC may “declare” certain telecommunications services under
the Trade Practices Act if it considers that the declaration would
promote competition, any-to-any connectivity and the economically
efficient investment in telecommunications infrastructure. Once a
service is declared, the service provider is required to make the
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 Mallesons Stephen Jaques
service available on request by access seekers and to:
provide the service to access seekers and allow
interconnection of facilities;
take all reasonable steps to ensure the quality of the service
and fault handling is equivalent to what the service provider
provides to itself; and
Australia
provide billing information to the access seeker.
ACCC has declared services including PSTN originating and
terminating access, unconditioned local loop service, line sharing
service, mobile terminating access, domestic transmission capacity
and local carriage services.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The terms and conditions of access to declared (i.e. regulated)
access and interconnection services are determined through
commercial negotiation and, if negotiation fails, through binding
arbitration by ACCC.
In connection with its arbitral role, ACCC is obliged to publish:
model terms and conditions relating to “core services”; and
pricing principles relating to the price of access for declared
services.
ACCC must have regard to the model terms and conditions (if
applicable) and the pricing principles when exercising its arbitral
powers. ACCC may also publish indicative access prices for some
services.
Access providers may also submit an “access undertaking” to
ACCC. If accepted as reasonable, the undertaking will determine
the terms, prices and conditions on which the service will be
provided to access seekers.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
No. Operators are not required to publish their standard
interconnection contracts or prices.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Although carriers are generally free to determine prices for
interconnection and network access (provided such prices are not
anti-competitive):
the Communications Minister has power under the Trade
Practices Act to make a “Ministerial pricing declaration”
setting out principles dealing with price-related terms and
conditions of access; and
ACCC has power to arbitrate the terms and conditions of
access to declared services, including access pricing, failing
agreement between an access provider and an access seeker.
ACCC determines access pricing having regard to relevant pricing
principles (see question 4.2 above) and any applicable indicative
access pricing. Generally, ACCC sets access pricing based on
either the Total Service Long-Run Incremental Cost method or the
Retail Minus Retail Costs method.
ACCC is currently conducting an inquiry into a new cost model for
fixed-line services.
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Australia
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Yes. The incumbent, Telstra Corporation Ltd (“Telstra”), is subject
to accounting and operational separation.
The Federal Government is considering whether further separation
of Telstra is necessary - see section 13 below.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The existing interconnection and access regulatory conditions apply
to next generation networks. However, the Federal Government is
currently considering changes to the regulatory regime to facilitate
the rollout of a national broadband network (“NBN”) - see question
4.8 and section 13 below.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
ACCC has declared the unconditioned local loop service and the
line sharing service, requiring Telstra to provide access seekers with
access to its local loop infrastructure.
There are no general obligations on cable TV operators to provide
third-party access to their facilities. Cable TV operator Foxtel’s
digital set top box service is the subject of an access undertaking
that was accepted by ACCC in 2007.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Yes. In April 2009, following the termination of its competitive
tendering process for the rollout of a national broadband network,
the Federal Government announced that it would establish a public-
private partnership to construct the NBN. The Government
committed up to $22 billion in public funding, and to make any
necessary regulatory changes to facilitate rollout. It is intended that
the NBN will operate on a wholesale-only, open access basis,
providing:
90% of Australian homes and businesses with fibre-to-the-
premises connections with speeds of up to 100 Mbps; and
the remaining 10% with wireless and satellite connections
with speeds of up to 12 Mbps.
Details about the NBN rollout and operational arrangements will be
determined by the Government’s NBN implementation study,
which is expected to be completed in the first quarter of 2010. The
Government intends that the NBN provider will be subject to
regulation that:
prevents any one entity from obtaining a controlling interest
in the NBN provider greater than around 20%; and
establishes a new access regime for the NBN to be overseen
by ACCC.
In conjunction with the NBN process, the Government is
conducting a broader review of the Australian telecommunications
regulatory regime - see section 13 below.
Mallesons Stephen Jaques
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Yes. For retail prices of Telstra, the Communications Minister has
power under the Consumer Protection Act to issue price controls on
Telstra for any carriage or content services.
All service providers are required to provide consumers and
charities with an option for untimed local calls.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Yes. As indicated in question 1.1 above, Communications Alliance
has developed and registered with ACMA a number of industry
codes. The industry codes include requirements relating to,
amongst other things, advertising of services, provision of
information to customers, billing processes, credit assessment,
transfer of services between service providers, complaint handling,
privacy protection, and the provision and promotion of mobile
premium services.
ACMA also requires communications services to enable pre-
selection (to change carriers automatically for certain calls or by
dialling an override code) and phone number portability.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Under the Telecommunications Act, ACMA is required to establish
a Numbering Plan. Telephone numbers and network identifying
codes are allocated and managed by ACMA in accordance with the
Numbering Plan.
6.2 Are there any special rules which govern the use of
telephone numbers?
The Numbering Plan provides rules on:
the format of particular types of telephone numbers;
the requirement for CSPs to provide number portability; and
the requirement for certain calls to be charged at local call
rates.
Communications Alliance has also established industry codes
dealing with rights of use of numbers and number portability.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Carriers and CSPs may apply for blocks of telephone numbers from
ACMA for an application fee. Carriers and CSPs are responsible
for activating and allocating numbers for customer use.
Certain premium rate and freephone local rate numbers are
managed by Industry Number Management Services Ltd on behalf
of ACMA.
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Australia
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The Numbering Plan requires CSPs to enable number portability for
local, freecall, premium rate and mobile numbers. Carriers and CSPs
are required to assist customers to port their number and the incoming
Australia
provider must provide an “equivalent service” to porting and non-
porting customers. The Numbering Plan and Communications
Alliance codes set out procedures for porting numbers.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Australia’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
The Telecommunications Act requires that carriers obtain an
installation permit from ACMA prior to installing a submarine cable
within Australian Waters (other than in Coastal Waters which are
not part of a declared protection zone).
The type of installation permit required and applicable fees vary
depending on whether the cable is to be installed in a declared
protection zone.
If ACMA grants an installation permit, the carrier must comply with
any conditions attached to that permit.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes. The radio frequency spectrum is regulated by ACMA
primarily under the Radiocommunications Act. The
Communications Minister also has some powers relating to radio
frequency spectrum planning and allocation.
The use of spectrum for broadcasting services is subject to a
separate planning and licensing regime administered by ACMA
under the Broadcasting Services Act.
8.2 How is the use of radio frequency spectrum authorised in
Australia? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
The use of the spectrum is authorised by way of licences primarily
issued under the Radiocommunications Act.
ACMA issues licences subject to the spectrum and any relevant
frequency band plans. The spectrum and frequency band plans
specify how particular frequencies may be used, and are generally
consistent with the International Telecommunications Union’s
Radio Regulations and Table of Frequency Allocations.
There are three types of licences available under the
Radiocommunications Act:
spectrum licences, which authorise use of a particular
frequency range in an area. Spectrum licences can be issued
for a period of up to 15 years and are generally allocated by
auction;
apparatus licences, which authorise operation of particular
devices in an area. Apparatus licences may be issued for a
period of up to 5 years, and are generally allocated on
application to ACMA on an over-the-counter, first-in-first-
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 Mallesons Stephen Jaques
served basis; and
class licences, which authorise use of devices under a
common set of conditions as “shared spectrum”.
To date, “beauty parades” have not been a feature of the Australian
regime, but are permitted.
Australia
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
As indicated in question 8.2 above, the allocation of licences is
subject to restrictions in spectrum and frequency band plans. The
plans may, for example, restrict the use of a frequency for a
particular service.
Generally, spectrum licences authorise the use of spectrum on a
technology neutral basis (subject to the requirements of the
spectrum and frequency band plans). Apparatus licences authorise
the use of spectrum based on particular categories of devices.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite earth stations for telecommunications purposes may be
authorised by obtaining:
earth apparatus licences for each earth station; or
a space apparatus licence for the satellite (so that all linked
earth stations are automatically covered by a class licence).
Installation of satellite earth stations is also subject to the same
restrictions as other telecommunications infrastructure (see section
3 above).
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
The use of spectrum can only be made licence-exempt for specified
defence, intelligence, law enforcement and emergency purposes.
ACMA may also issue class licences that authorise the use of
spectrum by any person essentially as “shared spectrum” for
particular radiocommunications devices, subject to the conditions
of the class licence.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Licence fees are payable for apparatus and spectrum licences. The
fees vary depending on the type of licence and the method of
allocation. For example, fees for:
spectrum licences allocated by way of auction will be
determined based on the highest bid; and
apparatus licences allocated over-the-counter are intended to
encourage efficient use and recover ACMA’s administrative
costs.
ACMA is currently consulting on a proposal to introduce
opportunity cost pricing for administratively allocated licences.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Spectrum and apparatus licences may be traded or sub-licensed by
private treaty. However, such transactions only take effect upon
registration with ACMA.
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Australia
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Although there are provisions specifically dealing with the access to
call data retained by carriers, there are no express data retention
obligations on carriers.
The disclosure of call data is currently regulated by the Interception
Act, the Telecommunications Act, and the Privacy Act 1988.
The Federal Government is currently considering the introduction
of specific call data retention obligations.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Yes. Carriers are required to ensure their networks are capable of
interception for law enforcement purposes. Carriers must prepare
annual Interception Capability Plans detailing their compliance
with the obligation to provide interception capability.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The circumstances in which authorities may direct carriers to intercept
calls and may retain call data are set out in the Interception Act.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Both carriers and CSPs are subject to the legislation set out in
question 1.1.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Yes. Under the Copyright Act 1968 (“Copyright Act”) carriers and
CSPs will not have authorised any infringement of copyright merely
because another person uses their facilities to infringe that copyright.
Carriers and CSPs may also be exempt from penalties for
misleading and deceptive conduct if the entity is merely passing on
information in the course of their business.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The Copyright Act requires CSPs to:
implement policies that provide for termination, in
Mallesons Stephen Jaques
appropriate circumstances, of the accounts of repeat
copyright infringers;
expeditiously remove or disable access to cached copyright
material upon notification that the material is removed or
access has been disabled at the originating site; and
expeditiously remove or disable access to copyright material
residing on its system where the material infringes copyright.
However, these obligations do not require CSPs to actively monitor
their services.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Australia does not regulate the ability of service providers to
discriminate between different types of network traffic. There are
presently no “net neutrality” requirements.
10.5 How are ‘voice over IP’ services regulated?
VoIP services are generally subject to the same legislative
regulations as PSTN voice services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Electronic communications are regulated by the Spam Act 2003,
which prohibits unsolicited commercial messages via other means,
including emails, SMS, and instant messaging, and requires that
commercial electronic messages include sender information and an
unsubscribe facility.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Yes. The universal service obligation (“USO”) is funded by a levy
imposed on all carriers in proportion to their eligible revenue. The
default USO provider, Telstra, is required to:
take all reasonable steps to provide reasonable access to a
“standard telephone service” (generally being a fixed line
service) to all persons in Australia on an equitable basis; and
provide reasonable access to payphones throughout Australia.
Any carrier may apply to provide the USO services in certain areas,
and receive funding for doing so. To date, no carriers have applied
to provide USO services.
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Australia
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
Australia
wireless operations?
Although approval is required for foreign investments above a
certain threshold, the Federal Government’s policy is to encourage
foreign investment in Australia. The Federal Government may
reject a proposed investment which is not in the national interest.
Telstra is subject to specific foreign-ownership restrictions. No
more than 35% of its shares can be held by foreign entities, and no
single foreign entity may own more than 5% of its shares.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
As indicated in question 4.8 above, the Federal Government has
announced it will establish a public-private partnership to construct
the NBN. The NBN provider will be required to provide non-
discriminatory access on a wholesale basis, under a new access
regime.
In conjunction with the NBN process, the Government has also
foreshadowed a significant overhaul of the Australian
telecommunications regulatory regime. The Government released
a discussion paper in April 2009 — Regulatory reform for 21st
century broadband — seeking submissions on potential changes to
the regulatory regime.
In particular, the Government is considering whether changes are
necessary to promote competition for the NBN rollout.
The Government is currently considering submissions in response
to the discussion paper. Details of the changes to be implemented
have not yet been announced, and will be subject to passage through
the Federal Parliament.
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 Mallesons Stephen Jaques Australia

Renae Lattey Neil Carabine

Mallesons Stephen Jaques Mallesons Stephen Jaques
Level 50, 600 Bourke Street Level 50, 600 Bourke Street
Melbourne, Victoria 3000 Melbourne, Victoria 3000
Australia Australia
Australia

Tel: +61 3 9643 4065 Tel: +61 3 9643 4085

Fax: +61 3 9643 5999 Fax: +61 3 9643 5999
Email: renae.lattey@mallesons.com Email: neil.carabine@mallesons.com
URL: www.mallesons.com URL: www.mallesons.com

Renae Lattey specialises in regulatory and commercial
telecommunications law and competition law.
Renae advises Telstra and other telecommunications operators
(incumbents and new market entrants) on network access,
interconnection and roaming arrangements with access seekers,
spectrum issues, telecommunications commercial contracts (with
suppliers, governments and large corporate customers) and on
Australian and international regulatory and commercial issues
including operational separation.
Prior to joining Mallesons, Renae spent time working for a magic
circle firm in London, where she specialised in international and UK
telecommunications regulation and access matters, and has spent
time seconded to the UK regulator as a policy advisor. She has also
previously worked for a large commercial law firm in New Zealand,
advising on that country’s communications regulatory environment.
Neil Carabine specialises in mergers and acquisitions,
telecommunications and regulated access regimes. His major
transactions include overseas and domestic acquisitions and
disposals, joint venture agreements, network interconnection and
access agreements, negotiations and arbitrations; Australian and
regional regulatory compliance and judicial review of regulatory
decisions; marketing and competitive strategies, channel
arrangements; and general commercial, competition and contractual
advice.
Neil advises Telstra on many facets of mergers and acquisitions,
telecommunications and competition law. He co-led the $15.5
billion T3 - the final stage of Telstra’s privatisation. He has advised
Telstra extensively on the regulatory aspects of its transformation,
including the launch of the Next G™ network and fibre-to-the-node
negotiations with the Australian Government and on Telstra’s 3G
network and roaming arrangements with Hutchison.
Neil has been identified by Chambers Global Guide 2009 and the
Asia Pacific Legal 500 2008/09 as a first-rank leading individual in
the area of Telecommunications.

Mallesons Stephen Jaques is a leading Australian corporate law firm with a primary focus on assisting major
corporations and financial institutions in Australia and the Asia Pacific region. Mallesons is consistently ranked in the
top tier in industry surveys. Mallesons is a single, fully integrated partnership consisting of approximately 200 partners
and 1,000 other lawyers.
Mallesons’ telecommunications practice has over 160 lawyers with telecommunications experience. It has considerable
breadth and depth of expertise in telecommunications law and regulation across all aspects of the telecommunications
industry. Mallesons’ lawyers have commercial and legal experience across the key areas of general corporate and
commercial advisory, M&A transactions, regulatory and competition law, taxation law, property law and litigation.
Mallesons is the principal external legal advisor for Telstra, Australia’s incumbent telecommunications operator, and has
acted for Telstra through each of the various stages of telecommunications reform in Australia, including corporatisation,
deregulation and introduction of competition, licensing and radiocommunications reforms, universal service and social
policy issues, privatisation, interconnection arrangements, network sharing, price control and next generation issues.
Mallesons also acts for a range of other telecommunications operators outside of Australia, including in Singapore and
Malaysia. Lawyers at Mallesons have been involved in providing legal and regulatory telecommunications advice to
corporates and Governments in a number of jurisdictions including Europe, the UK, Australia, Malaysia, Singapore, New
Zealand, China, Hong Kong, Philippines, Sri Lanka, India and Vietnam, making Mallesons familiar with the
telecommunications regimes in these countries.

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Chapter 7
Austria
Dr. Norbert Wiesinger, Law Offices
1 Framework
1.1 When did Austria first liberalise telecommunications
networks and/or services?
Telecommunications liberalisation in Austria began in the first half
of the 1990s with mobile services and mobile networks. The
Telecommunications Act 1997 implemented the first EU regulatory
framework on telecommunications and entered into force on 1
August 1997. It provided for the full liberalisation of
telecommunications services and networks. Public voice telephone
services via fixed networks were liberalised on 1 January 1998.
1.2 Has Austria fully implemented the EU 2003 regulatory
framework? If Austria has not fully implemented the new
regulatory framework, have proceedings been brought
against Austria by the European Commission and if so, for
which contraventions?
The EU 2003 regulatory framework has been fully implemented
except for the data retention directive. The European Commission
has recently initiated proceedings against Austria for not
implementing the data retention directive 2006/24/EC.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The provision of electronic communications services (“ECS”) and
electronic communications networks (“ECN”) are, amongst others,
governed by the:
Telecommunications Act 2009 (Telekommunikationsgesetz
2009, “Telecoms Act”);
the Federal Act establishing the Austrian Regulatory
Authority (KommAustria Gesetz);
Ordinance of the RTR on communication parameters, fees,
and value added services (KEM-V);
Ordinance of the RTR on special communication parameters
(SPK-V);
Ordinance of the RTR on communication markets (TKMV);
Ordinance of the KommAustria on broadcasting markets
(RFMVO)
Ordinance of the Infrastructure Ministry on the use of
frequencies (Frequenznutzungsverordnung);
Ordinance of the Infrastructure Ministry on the allocation of
frequencies (Frequenzwidmungsverordnung); and
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Dr. Norbert Wiesinger
Mag. Alina Schindler
Ordinance of the Infrastructure Ministry on the universal
service obligation (Universaldienstverordnung); and
Ordinance on Frequency Range Assignment
(Frequenzbereichszuweisungsverordnung - FBZV 2005) and
further Ordinances on fees, rates and charges, monitoring,
interconnection and number portability.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The Austrian Regulatory Authority for telecommunication consists
of two regulatory bodies, the RTR GmbH (“RTR”) and the
Telekom-Control-Kommission (“TKK”). The most important
regulatory competences were transferred to these bodies while
some regulatory competences were left with the Federal
Infrastructure Ministry and its subordinate Telecommunications
Offices (Fernmeldebehörden).
The RTR is the permanent regulatory body responsible for the
supervision of the communication markets, for the notification
regime, addressing and numbering, user protection, and ADR
proceedings. Moreover, it is the supporting agency for the TKK.
The TKK consists of three members and three replacement
members and meets on a regular basis a few times a month. It
makes decisions on the basis of proposals and preparations by the
RTR. The TKK is responsible for market analysis proceedings and
the imposition of remedies, interconnection, contributions for
financing the USO and licensing of mobile frequencies.
The Infrastructure Ministry is administrating the national radio
frequency spectrum. The four regional Telecommunication Offices
are, amongst others, responsible for the allocation of frequencies to
the extent that such competences are not transferred to the TKK.
They may impose administrative fines for violations of the
Telecoms Act or the respective ordinances.
To the extent that telecoms regulation may affect broadcasting
markets, the competent regulatory authority of the first instance is
the Kommunikationsbehörde Austria (KommAustria). Its decisions
may be appealed to the Bundeskommunikationsenat (BKS).
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
Please see question 1.4 above.
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 Dr. Norbert Wiesinger, Law Offices
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
The intended provision of a public ECN or ECS must be notified in
Austria
writing to the RTR. The notification must include name and address
of the provider, its legal structure, a description of the ECN or ECS
and the starting date of the operation. The RTR must acknowledge
receipt of the complete notification within one week. The RTR does
not have the authority to attach conditions to a notification.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
The Austrian fixed line incumbent was held dominant on several
telecommunication markets by the Cartel Court and the Federal
Competition Authority. It is subject to the prohibitions and
obligations of dominant undertakings under competition law.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
The Regulatory Authority has notified the following SMP markets:
access to the public telephone network at a fixed location for
residential customers;
access to the public telephone network at a fixed location for
non-residential customers;
wholesale (physical) network infrastructure access;
call origination on the public telephone network provided at
a fixed location;
call termination on individual public telephone networks
provided at a fixed location;
wholesale broadband access;
retail leased lines up to 2,048 Mbit/s;
wholesale terminating segments of leased lines with small
bandwidths up to 2,048 Mbit/s;
wholesale terminating segments of leased lines with
bandwidths from 2,048 MBit/s through 155.52 Mbit/s;
voice call termination on individual mobile networks;
wholesale access to analogue radio broadcasting
infrastructure;
wholesale access to MUX A and MUX B for terrestrial
digital television; and
wholesale access to transmission infrastructure for terrestrial
digital television.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The operation of public ECN and the provision of public ECS fall
under the notification requirement and the timescales of sec 15 of
the Telecoms Act described in question 1.6 above. Licences are
required for the use of frequencies. Licences for so-called “scarce”
frequencies are granted by the TKK; licences for non-scarce
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Austria
frequencies are granted by Telecommunications Offices. The TKK
grants licences in auctions. The bid is won by the operator offering
the highest licence fee (see question 8.2). The Telecommunications
Offices grant frequency licences upon application, if the frequency
is available and the intended use of the frequency is compliant with
the applicable laws.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
The installation of ECN must comply with general building laws
and may require the agreement of the landowner on whose land the
infrastructure shall be installed.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Frequency licences granted by the TKK may be transferred with
prior approval by the TKK. The TKK may approve the transfer
only if it has no adverse technical effects and does not distort
competition. The TKK may impose obligations and conditions on
the transfer. There are no rules which provide for a licence transfer
of frequency licences granted by the Telecommunication Offices or
a notification pursuant to sec 15 Telecoms Act.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Notifications pursuant to sec 15 Telecoms Act do not have a limited
duration. Frequency licences are usually granted for 10 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Operators of a public ECN may use private and public land for the
installation and the operation of network infrastructure. Pursuant to
sec 5.3 Telecoms Act, public land may be used without specific
permissions and without compensation payments. Private land may
be used only if the original use of the land is not gravely impaired
and no such infrastructure already exists on the land. Pursuant to
sec 5.5 leg.cit., owners of private land are entitled to receive
adequate compensation. Guidelines for the compensation are set
forth in an ordinance of the RTR.
Sec 6 Telecoms Act provides for a shortened procedure on the
enforcement of rights of way between the operator and the land
owner. Objections to a building proposal must be made by the land
owner within two weeks. Under a recent amendment to the
Telecoms Act, the authority is obligated to make a decision on the
building proposal within 6 weeks.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Building activities must be in compliance with local and regional
building laws. Some local and regional authorities are aiming at
reducing, in particular, the building of antenna masts.
Dr. Norbert Wiesinger, Law Offices
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Pursuant to sec 8.1 Telecoms Act, operators that have exercised
rights of way for the installation of network infrastructure on public
or private land must permit other operators to share their
infrastructure to the extent that such shared use is economically
reasonable and technically feasible. A recent amendment to the
Telecoms Act clarified that these rights of use and duties to share
refer amongst others to any kind of ducts or cables within buildings.
Owners or other authorised users of an antenna mast or a high-
power electricity mast must permit operators of a public ECN to
share that mast if such shared use is technically feasible, in
particular with regard to the frequencies used (sec 8.2 leg.cit.). The
operator or owner of the infrastructure which is subject to the
shared use is entitled to adequate compensation. Disputes over
shared use that cannot be resolved within 4 weeks may be brought
before the TKK which in a shortened procedure may issue a binding
decision resolving the dispute.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Pursuant to sec 48 Telecoms Act, all operators of a public ECN are
obligated to make an offer for interconnection upon request by
another such operator. Upon such a request, both parties are
obliged to enter into negotiations. The obligation to offer and to
negotiate the terms of interconnection applies to SMP as well as
non-SMP operators. Operation of a public ECN is defined in sec 3
leg.cit. as the exercise of legal and actual control over the network
functions in their entirety. In addition to this general obligation, the
TKK has mandated some SMP operators to offer interconnection
with their networks on the basis of sec 37 leg.cit. demanding the
offer of specific conditions such as the non-discriminatory offer of
interconnection rates on a FL-LRAIC cost orientation basis.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
If no agreement on interconnection is reached within 6 weeks from
the request, both parties may refer the dispute to the Regulatory
Authority for a binding decision. Within the Regulatory Authority,
the case is first referred to the RTR for 6 weeks of obligatory
dispute settlement proceedings. If no compromise can be reached,
the RTR refers the case to the TKK which issues a legally binding
solution of the dispute within 4 months from the original
application. The decision of the TKK may be challenged only
before the Austrian Constitutional Court or Administrative Court.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
The incumbent fixed line operator is required to publish standard
interconnection agreements for call termination and origination.
Mobile network operators are required to publish a standard
interconnection offer for termination.
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Austria
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The incumbent fixed line operator must offer origination and
termination and transit services at cost oriented rates on the basis of
Austria
FL-LRAIC. The actual rates were regulated by the TKK in a
decision in 2003. The transit market is currently being reviewed. It
is expected that the obligations with regard to transit services will
be vacated. All other fixed line operators with access lines must
offer termination rates which are subject to a benchmarking with
termination rates of the incumbent.
The fixed line incumbent is obligated to offer terminating segments
of leased lines at fees which are cost oriented (depending on the
leased lines based on the cost of an efficient operator or on full
costs). Prices of its broadband access services wholesale must be
charged following a “retail minus” concept. Unbundled access
lines must be offered at prices which are FL-LRAIC cost oriented.
The minimum offer of leased lines must be cost oriented.
The mobile network operators’ rates were established on the basis
of the cost of an effective operator. The rates were regulated in a
recent decision of 2009 and follow a glide path to EUR/100
2.01/min for all operators in 2011.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
The fixed line incumbent is subject to a cost accounting separation
obligation with regard to origination and termination, the offer of
terminating segments of leased lines, and unbundling of the local
loop, the minimum offer of leased lines, access to the public
telephone network at a fixed location for non-residential customers,
international calls fixed line for non residential customers, national
calls fixed line for non residential customers, access to the public
telephone network at a fixed location for residential customers.
There are no legal obligations with regard to functional separation
or legal separation in the telecommunication markets.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
There are no published regulatory decisions on next generation
network interconnection/access but the wording of the Telecoms
Act is technologically neutral. We, therefore, assume that it may be
possible to base requests for such interconnection on the Telecoms
Act as it is currently in force (see question 4.1 above).
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Only the incumbent fixed line operator is obligated to offer access
to the unbundled local loop.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
A recent amendment of the Telecoms Act aims at facilitating the
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 Dr. Norbert Wiesinger, Law Offices
building of an optical fibre network by shortening procedures to
obtain rights of way for building purposes and by offering easy access
to already existing ducts and cables (in particular in-house ducts).
5 Price and Consumer Regulation
Austria
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
The national telephone tariffs and the international telephone tariffs
for non-residential customers of the fixed line incumbent must be
notified in advance to the TKK which objects to the tariffs if they
do not comply with consumer protection laws, the civil code or
antitrust law. Its minimum set of leased lines and its offer on
wholesale terminating segments of leased lines must be cost
oriented. For price regulation on interconnection and the local loop,
see section 4.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The provision of ECS to consumers is mainly subject to the general
rules of the Consumer Protection Act.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers and network identification codes are allocated
by the RTR in an open, fair and transparent procedure. Details on
the allocation of these parameters are regulated in two ordinances
of the RTR.
6.2 Are there any special rules which govern the use of
telephone numbers?
The rules governing the use of telephone numbers are set forth in an
ordinance of the RTR. The ordinance regulates in detail which
operators or service providers may hold numbers or number ranges,
which services may be offered behind specific numbers, how
providers may charge for services and whether holders of specific
numbers may allocate such numbers to other providers.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Telephone numbers are granted by the RTR to service providers for
network use. The providers allocate these numbers to their
customers. An ordinance by the RTR restricts this allocation in
some cases. According to court decisions, subscriber numbers of
consumers must be activated without undue delay.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Pursuant to sec 23 Telecoms Act, operators of public telephone
services must ensure that their subscribers or service providers can
change operator and/or location within a geographic area while
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Austria
retaining their subscriber/service numbers. Operators may charge
other operators cost oriented fees for the porting. Prices charged to
users must not be prohibitive. Details on mobile number portability
were laid out in an ordinance of the Infrastructure Ministry in 2003.
According to this ordinance and the TKK’s decision, calls to a
ported mobile number are first routed to a voice record informing
the calling party that the call will be directed to another mobile
network.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Austria’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
This is not applicable in Austria.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Radio frequency spectrum is administrated and regulated by the
Infrastructure Ministry by way of several ordinances. The ministry
has issued, amongst others, ordinances on frequency allocation,
frequency usage, and on fees for licensing and for the use of
frequencies.
8.2 How is the use of radio frequency spectrum authorised in
Austria? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Pursuant to sec 55 Telecoms Act, the use of radio frequency
spectrum requires a licence. Licences for scarce frequencies are
granted by the TKK in auctions. The candidate offering the highest
licensing fee wins the licence. Comparative selection of candidates
for radio spectrum is not foreseen. Scarcity of frequencies is
determined by the Infrastructure Ministry by way of an ordinance.
Licences for non-scarce frequencies are granted by the
Telecommunications Offices upon application (see also question
2.1).
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Telecoms Act does not distinguish between mobile, fixed and
satellite frequencies but differentiates between “scarce” frequencies
and other (“non-scarce”) frequencies. Licences for scarce
frequencies are granted by the TKK in an auction, licences for other
frequencies are granted by the Telecommunications Offices upon
application. “Scarcity” is determined by an infrastructure
ministry’s ordinance mainly for mobile frequencies. Mobile
frequencies are, therefore, usually granted in an auction by the TKK
while fixed frequencies are usually granted upon application by the
Telecommunications Offices. Spectrum rights for satellite
frequencies are subject to a treatment based on an administrative
practice which is based on the assumption that the grant of satellite
frequency rights does not fall within the competence of Austrian
authorities. Satellite frequencies are used in Austria without a
licence.
Dr. Norbert Wiesinger, Law Offices
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The installation of satellite earth stations requires an authorisation
from the Telecommunications Offices. Authorisations are not
required, if the satellite earth station falls under a general permit issued
by the Infrastructure Ministry by way of an ordinance. Austrian law
does not distinguish between up-linking and down-linking.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Austrian law does not provide for spectrum use to be licence-
exempt; for the use of satellite frequencies see question 8.2.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Fees are payable for the licences and the use of frequencies. The
fees are determined by an ordinance of the Infrastructure Ministry.
Licensing fees are paid upon granting of the licence, frequency
usage fees are usually charged per month. The amount to be paid is
calculated according to the type of frequency, type of use, coverage
and transmission power. Licensing fees for frequencies which are
granted in auctions are not regulated by the ordinance. The licence
is awarded to the applicant offering the highest licensing fee.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
For trading of licences, see question 2.3. Sub-licensing of spectrum
licences is not foreseen under Austrian law.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The use of customer call information by operators is governed by
detailed rules; the principle rules are: master data may be collected
and processed only for specific purposes such as the conclusion and
handling of subscriber contracts, subscriber billing, and the
provision of information to emergency services. It must be erased
upon termination of the subscriber contract. Traffic data must be
erased or made anonymous after termination of a connection.
Content data must not be stored unless it is essential for the
communication service and if short-term storage is required for
technical reasons. It must be erased as soon as the reasons for
storage cease to exist. Location data may be processed only if it is
made anonymous or the users have given their consent. A bill on
data retention has been prepared but has not yet passed.
9.2 Are operators obliged to maintain call interception (wire-
tap)capabilities?
The provisions on legal interception are laid out in an ordinance of
the infrastructure ministry which sets forth that providers of public
telephone services must, amongst others, operate equipment which
enables real-time and fulltime interception as well as the recording of
communications to and from a specific subscriber line. If technically
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Austria
feasible and reasonably possible, the equipment must also be capable
of providing call-identifying and call-associated data.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Austria
The procedure of lawful interception is regulated in the Austrian Act
on criminal procedure. Such measures are restricted to investigations
of serious crimes. Lawful interception must be ordered by the
prosecution and requires the consent of a judge. After the termination
of the interception, the persons affected by the measures must be
informed and are entitled to access the information. Data which are
obtained through measures that do not meet the requirements of the
law may not be used in court. Providers must operate standardised
handover interfaces from which the intercepted communications can
be transmitted to the law enforcement monitoring facility throughout
the duration of the interception. The interception must be designed to
preclude unauthorised use and must be implemented in a way that
neither the interception target nor any unauthorised third person
becomes aware of the interception.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet services are, like other communications services, subject to
the Austrian Telecommunications Act 2003. The regulatory
authority has issued decisions regulating access to internet services
on a wholesale level, in particular, broadband internet access. There
is currently no telecoms regulation for internet access on a retail
level in force in Austria.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Under sec 17 of the e-Commerce Act, service providers may not be
held responsible for linked third party content unless they have
knowledge of the illegality of the content and - if they become
aware of such illegal content - delete the link to the unlawful
content without undue delay. Service providers may be subject to a
liability for third party content under sec 1 of the Unfair Trade Act.
The Unfair Trade Act contains far reaching provisions if illegal acts
are committed in a business environment. Under this Act, service
providers may be subject to law suits and motions for preliminary
injunctions. An immunity defence as referred to in this question
10.2 does not exist.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The legal situation in Austria regarding the provision of information
in case of file sharing remains unclear. Sec 87b of the Copyright
Act contains a general obligation to provide data on a file sharer but
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only if the provision of such information is adequate in view of the 11 USO

offence committed. This leaves a considerable margin of discretion
to the provider who, on the other hand, risks violating data
protection laws if the provision of such data is considered 11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
inadequate. There is a general assumption that a service provider
who provides data on a file sharer to a content owner is under a
The Telecoms Act describes Universal Service as the provision of a
Austria

contractual obligation to inform the respective subscriber of this.

Except for very exceptional circumstances we would not see an
obligation for a service provider to disconnect file sharing
customers. Further clarification is expected from the Austrian
constitutional court in the wake of ECJ case C-557/07.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Terminating services into other networks may be charged at
differential rates. The complete blocking of different types of
otherwise legally provided services would violate the principle of
interoperability under sec 22 of the Telecommunications Act. “Opt
in” clauses which impose on a subscriber to specifically request
access to different types of traffic or services have a similar effect
and have not yet been regarded as unlawful by courts or the NRA.
Net neutrality is an explicit requirement of sec 1 of the Telecoms
Act. Net neutrality is mentioned as an explicit requirement of the
Telecoms Act 2003. We are, however, not aware of this
requirement playing a major role in regulatory or court decisions.
minimum set of public ECS available to all users at an affordable
price regardless of their place of residence or work. It covers access
to fixed line public telephone services, directory and directory
inquiry services and coverage with public payphones. Details are
set forth in an ordinance of the Infrastructure Ministry.
If the universal service provider is unable to provide the universal
service without losses, it may apply to the Regulatory Authority for
funding. If the Regulatory Authority finds that the universal service
provision is indeed loss making, it installs a fund to cover these
losses. The fund is financed by all telecoms providers with a yearly
turnover in excess of €5m. Providers contribute to the fund in
proportion to their respective market share.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No, there are not.

10.5 How are ‘voice over IP’ services regulated?

The regulation of VoIP services follows the same rules as other
communication services. They are subject to a general notification
procedure. When such services can be used from different
subscriber lines, the VoIP service must use a number from a specific
number range. In these cases, important obligations such as
providing geographic data to emergency services do not apply.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Amendments to the ministry’s frequency ordinances may be issued
in order to make use of the digital dividend. The bill on data
retention might pass parliament in fall 2009. The TKK is currently
reviewing all the telecoms markets. Many of the SMP obligations
currently imposed may be lifted in the next months.

The Telecoms Act contains rules governing email and internet

communications for marketing and advertising purposes. Pursuant
to sec. 107.2. leg.cit., the sending of electronic mails requires the
prior consent of the recipient, if the mail is (1) made for the purpose
of direct marketing or (2) if it is addressed to more than 50
recipients. Prior consent is not required if: (1) the sender received
the address in the context of the sale of a service or a product; (2)
the mail is made to market similar products or services; and (3) the
addressee did not object to such mails, either by a direct objection
to the sender or by inscribing to a list pursuant to sec 7.2 e-
Commerce Act. Any electronic mail for purposes of direct
marketing is prohibited, if the identity of the sender is concealed or
disguised or the mail does not contain a valid address which allows
the addressee to refuse the future receipt of such mails.

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Dr. Norbert Wiesinger, Law Offices Austria

Dr. Norbert Wiesinger Mag. Alina Schindler

Dr. Norbert Wiesinger, Law Offices Dr. Norbert Wiesinger, Law Offices
Rudolfsplatz 3 Rudolfsplatz 3
1010 Vienna 1010 Vienna
Austria Austria

Tel: +43 1 533 3249 Tel: +43 1 533 3249

Austria
Fax: +43 1 533 3249 10 Fax: +43 1 533 3249 10
Email: wiesinger@wal-law.at Email: schindler@wal-law.at
URL: www.wal-law.at URL: www.wal-law.at

Norbert Wiesinger is admitted to the bars in Vienna, Austria, and in Alina Schindler works as a paralegal. She is experienced in external
New York. He graduated from Vienna University Law School with a auditing and risk advisory services and is specialised on
PhD in 1994. In 1995, he received an LL.M. degree from Columbia telecommunication companies and other network based industry
University Law School in New York. He began his professional sectors. She holds a degree in international business consultancy
career in one of the most prestigious Austrian law firms and quickly from the University of Applied Sciences in Wiener Neustadt, Austria.
obtained a leading position in the telecommunications and IT law She speaks and works in German, English and Spanish.
department. In 2002, he became board member of the Telefonica
subsidiary in Austria, where he managed, amongst others, the legal
and regulatory affairs of the company. In 2005, he founded his own
law firm with two partners. Norbert Wiesinger is one of Austria’s
leading telecommunications lawyers. He represents and advises the
Austrian operations of some of the largest international
communications operators worldwide. Furthermore, he is counsel
to one of the largest energy producing corporations. He published
several articles in national and international law journals and speaks
and works in English, German, French and Italian.

We are specialised on sector specific deregulation with a strong focus on telecommunications and IT law. We have
been participating in almost all relevant regulatory developments in Austria since the beginning of the telecoms
liberalisation in 1997. Our experience covers, amongst others, large network installation projects, outsourcing projects,
unbundling, fixed and mobile interconnection, internet-based services, numbering and addressing, MVNOs, convergent
services, frequency licensing and national as well as international telecommunications deals. We successfully represent
our clients before the Austrian Regulatory Authority, the Austrian Administrative and Constitutional Court, the Austrian
courts of law and the European Commission. Our clients are amongst the largest and most demanding
telecommunication companies worldwide. Further important areas of our practise are energy law, competition and
antitrust law.

51
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 Chapter 8
Bahrain
Charles Russell LLP
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The Second National Telecommunications Plan was published by
the Prime Minister on 13 February 2008. It sets out the
Government’s objectives and policy until the next plan in 2011,
which are summarised in the Plan to:
involve customers and businesses in the development of the
regulatory framework and policies for the sector, in
particular with regard to consumer protection;
develop competition in telecommunications, including both
infrastructure and access services, and enable it by ensuring
barriers to entry for all forms of competitors are minimised
and by taking steps to maximise economic efficiency in
using scarce recourses, in particular electromagnetic
spectrum and access to land;
promote active investment by the private sector in
telecommunications infrastructure;
enhance the use of the Internet and broadband amongst all
users at internationally competitive prices; and
develop the legislative, policy and regulatory environment to
take account of convergence in technology and services.
1.2 Is Bahrain a member of the World Trade Organisation?
Has Bahrain made commitments under the GATS/GATT
regarding telecommunications and has Bahrain adopted
the WTO Basic Telecommunications Agreement?
Bahrain became a member of WTO on 1 January 1995.
Whilst Bahrain has not made any commitments under the
GATS/GATT in relation to telecommunications, its electronic
communications industry is such that it could do so. Similarly,
whilst it has not adopted the WTO Basic Telecommunications
Agreement, through the US-Bahrain Free Trade Agreement Bahrain
has adopted and continues to practice many of the principles
required by the Basic Telecommunications Agreement.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Bahrain?
Electronic communications networks or services are regulated
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Andrew Sharpe
Jason Logendra
under Legislative Decree No. 48 of 2002 (the Telecommunications
Law) by an independent regulator, the Telecommunications
Regulatory Authority (TRA).
The provision of networks and services is open to competition.
There are fifteen active operators in Bahrain with eight operators
offering national fixed services.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
There is no generally applicable competition law in Bahrain. The
Telecommunications Act contains competition law provisions that
are applied solely to the telecommunications sector. The TRA is the
sole regulatory authority, exercising concurrent competition
enforcement functions as set out in the Telecommunications Law.
The TRA is independent of government.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
The Telecommunications Law provides an arbitration process for
appeals against decisions of the TRA. The arbitration panel is an ad
hoc panel with members selected by the appealing party and the
TRA. There is a further right of appeal to the court in accordance
with the Bahrain Civil and Commercial Procedure Law, Legislative
Decree No. 12 of 1971.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
A number of licences are available. Application is to the TRA,
using forms (and guidance) available on its website
(www.tra.org.bh). Whilst the Telecommunications Law prescribes
a maximum of 150 days for the processing of an application for an
individual telecommunications licence, and does not prescribe a
maximum period for class telecommunications licences, the TRA
responds efficiently to licence applications. Application costs
(initial licence fees) range from BHD1,000 for class licences to
BHD35,000 for a national fixed services (individual) licence.
Charles Russell LLP
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Installation may require municipal permits and approvals, as well as
coordination of civil works on public or private land through the
TRA’s Telecom Technical Office.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Licences are assignable, on application to the TRA on the
prescribed form and on payment of a fee of BHD500.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
15 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Bahrain has a highly centralised planning and works system for
controlling and coordinating civil works on public land, including
highways, through the Central Planning Unit of the Ministry of
Works. Telecommunications operators wishing to deploy
infrastructure in public land must do so through the TRA Telecom
Technical Office, in order to coordinate works with the Central
Planning Unit’s processes and procedures. In addition, permits and
approvals may be required from the relevant municipalities in
connection with access to public land.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
See answer to question 3.1 above.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
There is currently no mandated infrastructure sharing, but the TRA
has consulted on regulations to promote mast sharing. The final
regulations are expected to be published in the Official Gazette by
September 2009.
Certain infrastructure sharing products or services are required to be
included in reference access offers of dominant network operators
(currently only applicable to Batelco). This includes a facilities
access service, which allows for access of masts, sites and ducts.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
All public telecommunications operators have a right to
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Bahrain
interconnection with other public telecommunications operators.
Dominant public telecommunications operators must offer
interconnection on fair, reasonable and non-discriminatory terms
set out in reference interconnection offers or reference access offers
that are subject to approval by the TRA.
Bahrain
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Any interconnection or access dispute not resolved by the parties
within one month of the commencement of negotiations can be
referred to the TRA for binding resolutions.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Dominant operators are required to publish reference
interconnection offers and/or reference access offers.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The TRA regulates wholesale prices in the reference
interconnection offer and reference access offer. Tariffs must be
based on forward-looking incremental costs or set by benchmarking
against tariffs in comparable telecommunications markets.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
All licensees are subject to the Accounting Separation Regulation
(No. 2 of 2004). No operator is subject to any additional functional
or legal separation requirements although the TRA has the power
under the Telecommunications Law to require structural separation.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
To date the TRA has approached interconnection and access on as
technologically neutral a basis as possible. Certain access products
included in Batelco’s reference access offer, for example, are
provided using Batelco’s NGN.
It is expected that the TRA will control IP-based interconnection
and access through the approval process for reference
interconnection offers and reference access offers under s.57 of the
Telecommunications Law and the Access Regulation (No. 1 of
2005).
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Batelco is currently required to provide carrier pre-selection,
bitstream access, wholesale line rental and wholesale access
services. However, the TRA is currently considering the
introduction of full-scale local loop unbundling. A consultation
process was concluded in May 2009.
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4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
The incumbent operator, Batelco, has announced the roll out of its
NGA network. The TRA has not published any consultations
Bahrain
concerning NGAs or associated matters.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
All licensees may only charge tariffs that are fair, reasonable and
non-discriminatory and based on forward-looking costs. Batelco,
under its licences, is also required to publish its tariffs and is subject
to a tariff approval process by the TRA. The TRA is consulting on
reform of the tariff approval process and tariff rebalancing for fixed
services.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Licensees are required to establish procedures for dealing with
consumer complaints. In addition, consumers can refer any dispute
with a licensed operator to the TRA if s/he has exhausted the
licensed operator’s complaints procedure.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Numbers are allocated in accordance with the National Number
Plan by the TRA. The Plan differentiates between fixed, mobile,
universal, special and premium rate services numbers, with three
types of short codes: A (designated 3-digit short codes such as 112,
999), B (individual operators’ short codes) and C (common short
codes, such as 100 (local operator assistance), 140 (English
speaking clock) or 141 (Arabic speaking clock)).
6.2 Are there any special rules which govern the use of
telephone numbers?
Conditions are placed upon the allocation of numbers, as set out in
the National Numbering Plan. In particular, the operators allocated
numbers remain responsible for them, even if sub-allocated, and
maintaining records of the numbers in use, including ported
numbers.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Licensed operators can apply for an allocation or reservation of
numbering capacity. Allocation by the TRA is in a fair and
equitable manner, which is normally on a “first come first served”
basis. Numbers are activated by the allocated operators holding the
relevant allocation certificate, which operators must maintain
records of all activated numbers.
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6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The TRA consulted on the introduction of number portability for
mobile to mobile porting of numbers only in 2008. A final mobile
number portability regulation is expected. Press reports quoting the
General Director of the TRA have stated that the TRA has directed
mobile operators to make mobile number portability available by
the end of 2009. It is reported that the standard charge for the
porting service will be BHD10, with the number porting process to
take two days.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Bahrain’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
To date there is only one submarine cable landed in Bahrain, whose
landing was negotiated individually with the Government (Ministry
of Transportation). Any new submarine cable landing would
similarly need to be negotiated directly with the Government.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The allocation of frequency spectrum for use for
telecommunications is regulated by the TRA.
8.2 How is the use of radio frequency spectrum authorised in
Bahrain? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Use of radio frequency spectrum for the provision of
telecommunications services is subject to a frequency licence. A
simple electronic application system is provided for the granting of
frequency licences for use in 2.4 GHz and 5 GHz spectrum, subject
to certain uses (principally WiFi). Otherwise application is similar
for individual telecommunications licences.
However, the TRA will allocate spectrum as set out in its joint
spectrum policy and planning document with the Ministry of
Transportation. In most cases, spectrum for telecommunications
use has been allocated under the plan by way of spectrum auctions
(e.g. for the fixed wireless access and third mobile frequency
licences).
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
There is no general distinction. However, when awarding two
spectrum licences in the 3.5 GHz range in 2007, the corresponding
operating licences restricted the provision of mobile services.
Therefore at present the WiMax spectrum can be used for fixed or
nomadic services but not mobile services.
Charles Russell LLP
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite operators require a VSAT telecommunications class
licence, as well as a frequency licence for any spectrum used for up-
linking.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
All spectrum use for telecommunications purposes is technically
subject to a frequency licence, with terminal devices being covered
by the licence held by the relevant licensed telecommunications
operator. However, the TRA has introduced a “light licensing”
system to provide a near-automatic licence grant for certain uses
that are commonly licence-exempt (in the 2.4 and 5 GHz spectrum
bands).
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Spectrum licence fees are set out in the spectrum policy and
planning document available on the TRA website.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
No - there is a standard term in all frequency licences that prohibits
spectrum trading or the assignment, transfer or sale of frequency
licences.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Currently there are no legal requirements for operators to retain call
data. However, the TRA has consulted on a regulation concerning
requirements for national security, which includes an obligation on
licensed operators to retain certain access related information for
between one and three years.
Data protection (confidentiality of subscriber information) is
protected by the inclusion of a relevant condition in
telecommunications licences. There is no other data protection law
in the Kingdom of Bahrain (in the Telecommunications Law or
otherwise). However, the TRA is consulting on the introduction of
restrictions on the use of SMS (and MMS) for unsolicited bulk
messaging.
9.2 Are operators obliged to maintain call interception (wire-
tap)capabilities?
Yes, at their own expense, in accordance with Article 78 of the
Telecommunications Law. The TRA has also consulted on new
regulations concerning national security, which included further
clarifying provisions concerning lawful access to
telecommunications systems by security agencies.
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Bahrain
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
At present Article 78 of the Telecommunications Law does not
make clear who can obtain access and retained call data, or the
Bahrain
processes involved. The proposed regulations described above
establish that the relevant authorities are the Bahrain Defence Force
(Directorate of Military Intelligence) and National Security Agency,
with it being implied that informal processes between these
authorities and the licensed operators will be used to give access
and disclosure of call data.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
No, except in connection with voice services. Internet service
providers are not permitted to provide basic voice services.
Essentially, ISPs are unable to provide Voice over Internet services
for calls terminating on telephone numbers identified in the
National Numbering Plan.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Whilst there is no explicit safeguard, Article 75(2) of the
Telecommunications Law, which has not been tested in the court,
may give an effective defence to any liability claims for content
carriage by telecommunications operators, as it prohibits any
person from tapping into or disclosing the secrecy of any
conversation or data relating to the contents of any message unless
authorised by court order or the Public Prosecutor’s Office. A
breach of Article 75 is punishable with a fine of up to BHD10,000.
Operators can claim that they cannot monitor or mediate messages
passing over their networks under this provision, so that it would be
unfair and unconstitutional to make them liable for content.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
No they are not.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
No. See answer to question 10.2 above - it is thought that the TRA
would consider any interference with messages or blocking, unless
permitted by the terms and conditions of the relevant service, would
be a breach of Article 75(2). In addition, the generic forms of
infrastructure licences granted to operators include a privacy and
confidentiality condition. A clause in this condition prohibits
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operators from using any apparatus comprised in their
telecommunications networks which is capable of recording,
monitoring or intruding into calls. It is believed that the TRA
interprets calls widely in this context to include messages and IP
packets, so that packet sniffing apparatus of software could not be
used.
Bahrain
10.5 How are ‘voice over IP’ services regulated?
The TRA has published a detailed position paper on voice over IP
to guide licensed operators. Essentially the TRA understands voice
services that are originated and/or terminated on IP addresses in the
Kingdom of Bahrain to be internet services. However, internet
service providers cannot themselves provide basic voice services.
Using the well-known voice over IP service Skype to illustrate,
Skype to Skype calls are considered by the TRA to be internet
services like any other. However, if a Skype-out service to a
number of the Bahrain National Numbering Plan is involved, this is
a service that must be provided by a national fixed services or
mobile licensee, as appropriate.
Fixed wireless access (FWA) operators are also required to provide
access to emergency services in the same way as PSTN operators.
FWA operators must also provide terminal devices that do not need
external power supplies in order to give viable emergency calling
facilities.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
There are no internet or email marketing regulations. However, the
TRA has consulted on regulations that will restrict how bulk
messaging services can operate.
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Bahrain
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
There is a provision in national fixed services licences and at Article
64 of the Telecommunications Law that can be invoked to impose
on a dominant licensee a universal service obligation, but to date no
operator has been declared to be subject to such an obligation. The
TRA can by regulations provide for the establishment of a fund to
promote universal services. It has yet to do so.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
There is a requirement that any licensed operator must be a Bahrain
incorporated undertaking or a branch of a foreign company registered
in Bahrain. The licensee must also have a substantial amount of its
infrastructure and personnel associated with the provision of networks
or services under the relevant licence located in Bahrain. There are no
other rules restricting foreign participation.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
There are no known plans for the Government to reform the
Telecommunications Law.
The TRA is consulting on a number of topics, including the
introduction of regulations. The TRA is an open and transparent
organisation, with all of its consultation published on its website.
Charles Russell LLP Bahrain

Andrew Sharpe Jason Logendra

Charles Russell LLP Charles Russell LLP
Floor 31, World Trade Centre, West Tower Floor 31, World Trade Centre, West Tower
Isa Al Kabeer Avenue, Manama 316 Isa Al Kabeer Avenue, Manama 316
Bahrain Bahrain

Tel: +973 1713 3200 Tel: +973 1713 3200

Bahrain
Fax: +963 1713 3201 Fax: +963 1713 3201
Email: andrew.sharpe@charlesrussell.co.uk Email: jason.logendra@charlesrussell.co.uk
URL: www.charlesrussell.co.uk URL: www.charlesrussell.co.uk

Andrew qualified in 1999 and joined Charles Russell in 2002.
Andrew practises information technology, intellectual property and
telecommunications law, including data protection and freedom of
information law. Prior to joining Charles Russell he was a
telecommunications regulatory lawyer at Clifford Chance. He has
telecommunications regulatory experience for the European Union,
the Middle East and North Africa and the Caribbean. He has acted
as the Legal Affairs Director of the TRA (Bahrain).
Prior to qualifying as a solicitor, Andrew was an engineer in the
Royal Air Force from 1984 to 1992, responsible for the
management of the maintenance and use of radio, radar and airfield
navigation systems, telecommunications and computer networks.
Andrew is the author of Chapter 2 (Communications Technologies,
Services and Markets) in Telecommunications Law and Regulation,
Oxford University Press, 2009 (3rd Edition) and Chapter 4
(Distribution Agreements) & Chapter 5 (Agency Agreements) in
Commercial Law Handbook, Law Society, 2009.
Jason qualified at Charles Russell in 2006 and specialises in
competition and regulatory work. His experience includes advising
on competition issues in the electronic communications sector,
cross-jurisdictional merger analysis and competition litigation.
Jason has been on secondments to both a regulator and to a major
operator, Cable & Wireless. In particular, Jason has been seconded
several times to the TRA (Bahrain), including during its auction of
two licences for the provision of national fixed wireless services in
2006. He has spent more than 10 months with the TRA. Jason
also has significant experience working in Brussels, advising on
merger notifications to the European Commission.

Charles Russell LLP is a UK top 50 full service law firm, with offices in several UK locations, Manama (Bahrain) and
Geneva (Switzerland). Its clients range from international, FTSE and AIM listed businesses, to private companies,
governments, not-for-profit organisations and private individuals.
Although its clients are diverse, its approach is always the same. It seeks to develop relationships with its clients,
understand their needs and deliver a quality service.
The Communications team at Charles Russell offers experts in communications law who have technical expertise and
a sound commercial understanding of the industry and its regulations. The team has significant experience of advising
on regulation and competition as well as dispute resolution using arbitration, mediation and litigation. The team
represents governments and regulators and advises financiers, as well as suppliers and users of telecoms services and
products.
The Communications Team has been active in Bahrain for over 5 years, being external counsel to the TRA since 2004.

57
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 Chapter 9
Belgium
Olswang LLP
1 Framework
1.1 When did Belgium first liberalise telecommunications
networks and/or services?
In line with EU requirements, Belgium fully liberalised the
provision of telecommunications networks and services from 1
January 1998 by implementing the EU “ONP” and “Competition”
directives into national law (i.e. by the law of 21 March 1991, its
amendments and its implementing measures).
1.2 Has Belgium fully implemented the EU 2003 regulatory
framework? If Belgium has not fully implemented the new
regulatory framework, have proceedings been brought
against Belgium by the European Commission and if so,
for which contraventions?
Belgium mainly achieved the implementation of the EU 2003
regulatory framework by adopting the law of 13 June 2005 on
electronic communications. However, the Commission sent
reasoned opinions for incorrect implementation of several
provisions of the EU framework (i.e. universal service and must
carry rules in the Brussels region).
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
In Belgium’s federal structure, the three language Communities
(Flemish, French and German) are responsible for broadcasting and
the Federal State is responsible for regulating telecommunications
services. With convergence, the delimitation between these areas of
competence has become blurred. The Constitutional Court has
acknowledged this convergence and the unavoidable links between
those matters. In several cases, it has imposed a requirement for
cooperation between the different levels of regulation and the
related regulatory bodies.
At Federal level, the main telecoms-specific regulation is set out in
the law of 13 June 2005 on electronic communications,
complemented by two laws of 17 January 2003: a law on the statute
of the Federal NRA (BIPT) and a law on legal remedies and dispute
resolution. These legal acts have been the subject of subsequent
amendments.
At the level of the language Communities, broadcasting is regulated
respectively by the Flemish decree on radio-broadcasting and
television of 27 March 2009, the French Community coordinated
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Dirk Van Liedekerke
Philippe Vernet
decree on audiovisual media services of 26 March 2009 and the
German Community broadcasting decree of 27 June 2005. Pluri-
cultural broadcasting activities in the bilingual Brussels region are
regulated through the Federal law of 30 March 1995, as most
recently amended by the law of 16 March 2007.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
At Federal level, BIPT (Belgian Institute for Postal Services and
Telecommunications) is the national regulatory authority. It is
distinct from the Federal Competition Council in that in addition to
its powers under competition law is responsible, as NRA, for
dealing with dispute resolution in the telecommunications sector.
Each language Community has created a separate regulatory
authority: the “VRM” in Flanders, the “CSA” in the French
Community and the “Medienrat” in the German Community.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
In addition to its power to monitor and ensure compliance with
telecoms regulation, BIPT has general regulatory powers, including
the power to carry out market analyses and to impose ex ante
obligations in line with the 2003 EU regulatory framework. It also
has certain advisory powers. It issues general authorisations to
operators and allocates frequency and numbering resources.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
The provision of electronic communications networks and services
in principle falls under a regime of general authorisations. A
notification to BIPT is however required and is in essence aimed at
identifying the provider to the NRA (name of provider, contact
details, type of service etc.). BIPT holds a list of all providers that
have filed a declaration.
Scarce resources (in essence frequency access and numbering)
require specific rights to be granted by BIPT on an individual basis
subject to certain specific conditions.
Olswang LLP
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
Certain activities remain subject to individual authorisation (in
particular, mobile 2G and 3G licences).
Every operator remains subject to general EU and national
competition law (imposing a prohibition on collusive practices and,
where relevant, on abuse of a dominant position). In several
individual merger control cases, specific commitments have been
imposed by the competition agency on operators active in the
telecoms and broadcasting sectors. Each operator remains subject
to any other general economic and other regulation (town planning,
trade practices, unfair contract clauses etc.).
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
Under the 2003 Recommendation of the European Commission on
relevant markets, BIPT carried out the market analyses and imposed
obligations on the SMP undertakings. No ex ante obligations have
been imposed on the retail markets for international calls (markets
4 and 6) or on the wholesale market for mobile access and call
origination (market 15) as these were found to be sufficiently
competitive. None of the regulators has finalised the assessment of
the international roaming market (market 17) and the broadcasting
transmission services market (market 18). A draft decision of the
CSA regarding the latter was withdrawn after the Commission
raised serious concerns.
BIPT’s decisions on markets 1/2 (access to telephone network), 11
(LLU), 12 (bitstream) and 16 (mobile termination) have been partly
quashed by the appeal body (Brussels Court of Appeal). Several
other appeals are still pending.
In parallel, BIPT conducted second round analyses, starting with
the fixed retail telephone service markets (not listed in the 2007
Recommendation), where it found dominance of the incumbent (for
both business and residential customers) and thereby maintained
regulation upon Belgacom. The second round analysis for the other
markets is still to be finalised.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
As a general principle, no individual licence is required except where
necessary for the management of scarce resources, e.g. spectrum. For
spectrum usage rights, BIPT must make a decision within six weeks,
a timescale which can be extended by a maximum of eight months,
where rights to use frequencies of exceptional economic value are to
be granted through competitive or comparative selection procedures.
The initial six-week period may also be extended when frequency
coordination is required at international level.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
In principle, no other requirements apply subject to respecting the
rules with which any economic activity must comply.
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Belgium
2.3 May licences or other authorisations be transferred and if
so under what conditions?
There is no restriction on the transfer of general authorisations
subject to notifying BIPT of the change in circumstances. The
rights of use for radio frequencies may also be transferred subject to
Belgium
certain conditions.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
General authorisations are not subject to a time limitation.
Individual rights of use of 2G spectrum have been granted for an
initial (renewable) licence term of 15 years, whereas 3G spectrum
rights have been granted for a 20-year period. The law of 13 June
2005 requires that where BIPT limits the duration of the usage right,
it shall do so in a way compatible with the nature of the service.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Specific provisions (both at Federal and at language Community
level) apply regarding access to public and private land. In addition
to the general rules on rights of way, operators have to comply with
town planning rules. In most areas, rules governing the
coordination of public works apply that limit the possibilities of
carrying out such works and make them subject to certain
conditions. Certain municipalities have also levied taxes on pylons,
masts and transmission antennas. The latter have given rise to a
preliminary ruling of 8 September 2005 of the ECJ. The question
as to whether the Economic Regions or the municipalities are
entitled to claim financial compensation for the use of their public
land is still subject to controversy and may give rise to further
legislative evolution.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
As indicated, specific town planning and coordination rules are to
be observed but these may differ according to region and
municipality.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
The law of 13 June 2005 contains specific rules for the sharing of
antenna sites. Equipment should as far as possible be installed on
existing antenna sites. When no viable technical alternative exists,
operators may construct a new site but have to ensure that it is
technically capable of supporting equipment from different
operators. A coordination procedure and a specific database exist in
this respect. Further rules on site sharing can be introduced by
Royal Decree.
BIPT imposed specific measures addressing what it considered to
be the problems raised by the planned replacement of the
incumbent’s ATM/DSL network by an NGN/NGA network.
Belgacom must share the ducts, lease dark fibre or provide a
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backhaul option from every co-location space in local loops or sub-
loops. Access tariffs must be cost-oriented. Belgacom must
provide access to the remote optical platform to permit collocation
at street cabinet level. For new sites or in the case of deployment
of fibre optics ducts on existing sites, Belgacom must follow a
coordination procedure allowing other operators to share the work
Belgium
for the placement of ducts on parts useful for access.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Any provider (whether SMP or otherwise) of electronic
communication networks or services that controls access to end-users
has to negotiate interconnection agreements upon request by any other
provider of such networks or services. BIPT may limit this obligation
if technically, commercially and financially viable alternatives exist or
if there are insufficient resources to provide it. Specific, more
stringent ex ante access and interconnection, obligations have been
imposed by BIPT on SMP operators (fixed and mobile).
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The Competition Council has specific jurisdiction to resolve
disputes related to access and interconnection. In parallel, BIPT
remains responsible for monitoring compliance with regulatory
obligations. It can give notice to operators requiring them to
remedy infringements and it can impose sanctions for failure to
comply with regulatory obligations.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
SMP undertakings (fixed and mobile) are usually required to
publish transparent information in the form of a reference offer
covering all relevant quality and price issues. Standard prices must
generally be transparent and in certain cases the standard contracts
are also subject to transparency obligations.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Under the 2003 framework, BIPT has imposed ex ante price control
obligations on each operator (mobile and fixed) that terminates calls
on its network. Not all operators are subject to identical obligations.
Mobile: a cost-orientation obligation applies to the three mobile
operators. Mobile termination rates had to decrease gradually over
the 2006-2008 period on the basis of a top-down LRIC cost model.
High asymmetrical tariffs between the charges of Belgacom Mobile,
Mobistar (+25%) and BASE (+55%) have been maintained, subject
to an ongoing review by the NRA. BIPT is currently examining
further decreases in mobile termination rates for 2010.
Fixed: Belgacom, the incumbent operator, is subject to cost-
orientation, and the other operators may apply for their call
termination services to be marked up by 15% on top of its charges.
Two operators, Telenet and Versatel, benefited from a glide-path
towards this 15% ceiling and could apply higher asymmetrical
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tariffs until 2008 (+370% in 2007 and 190% in 2008).
Charges for fixed call origination services, broadband access
services (including local loop and bitstream services), and
terminating segments of leased lines provided by the fixed
incumbent are subject to cost-orientation. No price control is
imposed on the provision of trunk segments of leased lines.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
SMP undertakings are usually also subject to accounting separation.
Functional or legal separation has not been imposed so far and there
is no pending proposal to do so.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
BIPT is understood to be investigating this in the context of the
ongoing review of the first round of market analyses. Specific
measures have already been imposed regarding transitional
schemes for existing interconnections (such as the advance
notification of closure of local buildings).
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
In accordance with the EU Unbundling Regulation, the incumbent
was required to provide access to its local access network under
regulated conditions (mainly cost-orientation, reference offer, non
discrimination and accounting separation). Bitstream access is also
regulated. In January 2008, BIPT finalised its market reviews on
unbundled and bitstream/broadband access (markets 11 and 12).
BIPT maintained the regulatory regime previously imposed upon
Belgacom’s local loop and bitstream products. It also imposed
bitstream access obligations regarding Belgacom’s VDSL network
(including a price control still to be defined). It however excluded
cable networks from the scope of the regulation put in place (no
unbundling or bitstream access obligations were thus imposed on
cable TV operators). It supplemented the unbundling/bitstream
regulation with an addendum imposing further remedies in respect
of Belgacom’s NGN.
The Brussels Court of appeal partly annulled the January 2008
decision, indicating a.o. that BIPT insufficiently examined the
competitive constraints exerted by cable TV operators on the
broadband markets. A new process to reinstate the old decision and a
new forward looking market analysis are being conducted by BIPT.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
BIPT intends to carry out a new market analysis of the broadband
access markets in the course of 2009 (Markets 4 and 5 of the 2007
Recommendation of the European Commission), including all
aspects relating to NGA. This may not be completed before 2010.
In late 2008, BIPT already adopted the aforementioned decision
supplementing the LLU and bitstream regulation to take account of
the migration towards an NGN environment based on fibre to the
cabinet.
Olswang LLP
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Retail prices for fixed access and for fixed national telephony of
Belgacom, as an SMP operator, are subject to transparency
obligation and price control in the form of preventing it from
charging excessive prices, price squeeze or predatory prices.
The retail provision of the minimum set of leased lines remains
subject to cost orientation.
In respect of fixed access, an obligation to provide wholesale line
rental under regulated terms applies. The precise scope of this
obligation and its terms and conditions have not yet been defined by
the NRA.
No specific price control applies to retail mobile services, except
for the regulatory measures adopted in respect of roaming at EU
level.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Specific rules apply regarding the transparency of the retail terms
and conditions for the provision of services to residential
customers. Similar rules apply to broadcasting transmission
services.
Specific dispute resolution is available with an ombudsman for both
residential and business customers. At least once a year every
operator has to provide to its residential and small business
customers (those with no more than five telephone numbers)
information regarding the most advantageous tariff plan that could
be selected on the basis of its actual call profile.
For the SMP operator, further obligations apply in respect of undue
discrimination and anti-competitive bundling of retail services.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
BIPT is entrusted with the management of the numbering plan.
The usage rights for numbering resources, including in particular
fixed and mobile numbers as well as network identification codes,
are allocated by BIPT. It also allocates carrier selection codes for
national and/or international telephone services (15XX or 16XX) as
well as for data transmission and virtual private networks (17XX
and 18XX-types).
6.2 Are there any special rules which govern the use of
telephone numbers?
Specific rules apply for the reservation and activation of telephone
numbers. The use of certain numbers is subject to certain
conditions such as the implementation of geographic numbers
within the geographic area to which they belong. Other numbers
can be used in a nomadic manner.
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Belgium
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Numbers are to be reserved with BIPT and are then activated,
subject to certain time constraints, by the operator. The operator
Belgium
has to inform the other providers of the activation of a number
series so that connectivity with these numbers can be ensured.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Number portability for both fixed and mobile numbers has been
introduced. The technical and financial conditions for number
portability are regulated. The technical conditions include in
particular the technical means used for the porting as well as the
down times that are to be kept to a minimum. The financial
conditions include the inter-operator payments as well as the
payments to be made by the customer that requests the porting
(maximum fees apply). The inter-operator payments for mobile
number portability, as set by BIPT, have been contested and that
litigation gave rise to a preliminary ruling by the ECJ on 13 July
2006 (C-438/04) on the interpretation of Article 30(2) of the
Universal Service Directive.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Belgium’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Landing of submarine cables requires a notification to BIPT and the
payment of an associated fee.
The installation and landing of submarine cables is regulated by
various sets of rules at regional, provincial and municipal level
regarding safety, environmental protection and town planning
aspects. The operator is required in particular to respect a number
of coordination rules.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
BIPT is entrusted with the management of the frequency plan. The
rules for the use of radio spectrum are set out in Royal Decrees.
Applications for usage rights are to be submitted to BIPT (except
for frequencies to be used exclusively for radio and television
broadcasting services). BIPT deals with issues of interference
between radio frequency uses and can take measures to eliminate
such interference.
8.2 How is the use of radio frequency spectrum authorised in
Belgium? What procedures are used to allocate spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
In principle, there is no a priori limitation on the number of usage
rights that can be granted but their number can be limited under the
conditions set out in the national and EU framework (avoidance of
interference, guarantee of efficient use etc.).
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The basic principle consists of an application to be filed with the
NRA for obtaining the usage rights.
When the number of rights is limited, they need to be granted on the
basis of objective, transparent, non-discriminatory and proportional
conditions. Spectrum auctions and comparative selection of
candidates can be organised.
Belgium
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Royal Decrees governing spectrum usage rights can indeed
differentiate according to usage, taking into account also the
requirements imposed at EU level.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
There is in principle no regulation of receiving stations unless the
receiver wants to have a protected status allowing the intervention
by BIPT. Emitting stations on the contrary are subject to licences,
unless they fall within specific technical categories for which
licence exemptions apply (such as low power emitters). The
relevant regulation follows the CEPT recommendations.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
A Royal Decree lists applications that are licence-exempt, for
instance Wi-Fi applications and remote controls, as long as
technical and usage conditions are met. Specific exemption
Decrees can be adopted.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Fees depend on the number of frequencies used, their scarcity, their
range and whether the frequencies benefit from a protected status.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
As regards frequencies for public telecommunications services, BIPT
shall be informed and will give its approval provided the transfer does
not distort competition and provided it is compatible with efficient
radio spectrum management. Where the utilisation of the frequency
is harmonised, the transfer must not change this utilisation.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there data
protection (privacy) rule applicable specifically to
telecommunications?
For law enforcement purposes, providers of e-communications
services are required to retain call data related to the origin or the
destination of e-communications for a period of at least 12 months.
The related technical costs are to be borne by the operators. They
receive some compensation for services provided at the request of
the law enforcement authorities.
The law contains specific conditions for the processing of location
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data and for the retention of customer information used for the
marketing of e-communications services by the operator or the
persons authorised by the latter.
General rules regarding the secrecy of e-communications exist.
In 2008, BIPT organised a consultation on a draft law transposing
the EU Data Retention Directive into national law. Operators were
in particular requested to give a cost evaluation for fulfilment of
their obligations with regard to data retention, in the hypothetical
cases of fixing the retention period at respectively 6, 12 or 24
months.
To date, Belgium has not yet transposed the directive.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Operators must comply with specific technical and administrative
measures in order to allow the interception of messages/calls at the
request of the competent public authorities.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
A Royal Decree is to fix the conditions under which providers shall
record and retain traffic data and end user identification data, for
(mainly criminal) law enforcement purposes. A Royal Decree sets
out the mandatory technical and administrative measures providers
must comply with in order to allow interception of messages (such
as the appointment by the provider of contact persons, the
transmission in real time of certain data and within 24 hours for
other data, the requirement to respect certain ETSI standards etc.)
for which indemnity fees are foreseen. The provision or use of
services or equipment that allow the avoidance of interception of
traffic are prohibited. Access to retained call data and intercepting
calls can in principle only be ordered by judicial authorities.
BIPT organised in 2008 a consultation on a draft law transposing
the EU Data Retention Directive into national law. This may lead
to the modification of the national rules on retention of call and
traffic data that have already been referred to above.
To date, Belgium has not yet transposed the directive.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
No specific regulation exists in respect to the Internet apart from all
those areas of the law that generally apply to this activity.
Accordingly, internet service providers are subject to general
telecommunications regulation.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
A ‘mere conduit’ defence, subject to conditions, is available in the
Federal Act on certain aspects of information society services.
Olswang LLP Belgium

10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The European Commission is currently still scrutinising certain
aspects of Belgium’s universal service regime in the context of
infringement proceedings (financial mechanism for social tariffs,
calculation of net costs and burden on operators). The Commission
sent a reasoned opinion on 31 January 2008.

Providers may be subject to judicial injunctions to disable identified

Belgium
infringements. Specific developments in case law may still occur. 12 Foreign Ownership Rules

10.4 Are telecommunications operators and/or internet service 12.1 Are there any rules restricting direct or indirect foreign
providers able to differentially charge and/or block different ownership interests in electronic communications
types of traffic over their networks? Are there any ‘net companies whether in fixed, mobile, satellite or other
neutrality’ requirements? wireless operations?

There are no specific ‘net neutrality’ requirements as such yet. The
question as to whether other types of non-discrimination obligations
(such as SMP requirements) may be relevant in this respect has not
yet been addressed.
10.5 How are ‘voice over IP’ services regulated?
VoB and unmanaged VoIP are regulated as voice telephony
services, but not peer to peer services.
Restrictions on foreign ownership and control of electronic
communications companies in Belgium have been included in the
former legislation on voice telephony as well as in the Royal
Decrees that set out the conditions for awarding 2G mobile
licences. According to the latter, the applicants should have a
registered office in a WTO Member State and the majority of their
capital should be held by nationals of WTO Member States.
13 Future Plans

10.6 Are there any rules to prevent, restrict or otherwise govern 13.1 Are there any imminent and significant changes to the
internet or email communications, in particular, marketing legal and regulatory regime for electronic communications?
and advertising communications?
No such changes are currently foreseen except for the updating of
These rules are laid down in the law of 11 March 2003 implementing the market analyses by BIPT and the related consultations that it
Directive 2000/31/EC on certain legal aspects of information society conducts on matters such as NGN/NGA.
services. As is the case in many other Member States the opt-in rule
applies, save in exceptional circumstances (i.e. own client mailings
and mailings to undertakings subject to certain conditions).

11 USO

11.1 Is there a concept of universal service obligation; if so how

is this defined, regulated and funded?

The law of 13 June 2005 introduced a detailed set of rules on the

provision of the different components of universal service (access at
a fixed location, directory enquiry services, directories and public pay
telephones), designation of the providers (the incumbent Belgacom)
and the costing and financing mechanisms (through a fund to which
all public telephony providers either have to contribute to or be
compensated from). In addition, there are specific rules on “social
tariffs” to be offered to certain categories of beneficiaries.

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 Olswang LLP Belgium

Dirk Van Liedekerke Philippe Vernet

Olswang LLP Olswang LLP
Avenue Louise, 326/26 Avenue Louise, 326/26
B-1050 Brussels B-1050 Brussels
Belgium Belgium
Belgium

Tel: +32 2 641 1271 Tel: +32 2 641 1274

Fax: +32 2 644 2165 Fax: +32 2 644 2165
Email: dirk.van.liedekerke@olswang.com Email: philippe.vernet@olswang.com
URL: www.olswang.com URL: www.olswang.com

Dirk Van Liedekerke joined Olswang in 1999 as partner responsible
for the then established Brussels office. He holds a law degree of
the University of Ghent (Belgium) and a diploma of advanced
European legal studies of the College of Europe (Bruges) where he
also worked as a teaching assistant.
A member of the Brussels Bar since 1994, Dirk specialises in EU
and Belgian competition law and e-communications law. His
experience ranges from advising major EU public operators on e-
communications regulation, to assisting with litigation on inter-
operator conflicts, regulatory complaints, and competition and
merger control filings. He also counsels undertakings active in all
industries in respect of the implication on their business activities of
the Belgian and EU competition rules.
Philippe joined Olswang in January 2006 and is a member of the
Brussels Bar. He has specialised and been active in European
competition and telecommunications law for the last 10 years.
He graduated in law from the Catholic University of Louvain
(Belgium) in 1995, obtained a diploma in advanced legal studies of
telecommunications in 1996 and a certificate in International and
European law of human rights in 2003.
Prior to joining Olswang, Philippe worked for five years as an official
at the European Commission (DG Information Society & Media),
monitoring compliance with EC competition law and sector-specific
legislation in EU member states. Prior to that, he held legal
positions in the telecommunications sector, contributing to several
studies for the European Commission and for regulators in various
European countries.

Olswang’s Brussels office offers a wealth of experience and insight into the ever-evolving area of EU law. The office
specialises in competition and regulatory work with a focus on the e-communications sector. In addition to its European
practice, the office also has a local practice in Belgium, including an IP/IT-practice and the representation of clients in
national court proceedings.
We assist companies in the e-communications sector with regulatory and competition compliance as well as with
litigation on inter-operator conflicts, regulatory complaints and competition and merger control filings. We also counsel
and assist undertakings active in all industries in respect of the implications to their business activities of the Belgian
and EU competition rules and more general aspects of EU law.

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Chapter 10
Brazil
Mundie e Advogados
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The two main principles governing the policies for the
telecommunications industry in Brazil are universal provision of
basic services (POTS provided in the public regime, but the
universal service goals for the PSTN were re-defined in 2008 to
include the rollout of backhaul infrastructure to enable broadband
Internet connection in all of the counties of Brazil) and competition,
under the stewardship of an independent regulatory agency, the
National Telecommunications Agency (Agência Nacional de
Telecomunicações, “Anatel”).
These drivers are consolidated in Federal Law No. 9,472/1997 - the
General Telecommunications Law (“GTL”) - the legislative landmark
for the sector in Brazil after Constitutional Amendment No. 8 of 15
August 1995 (which amended article 21 of the Federal Constitution)
that allowed private companies to render telecommunications services
formerly almost entirely in the hands of a federal holding company,
Telebrás, and its operating subsidiaries.
Anatel then conducted the privatisation of the former public
monopoly (Telebrás System) and gradually opened the sector to
competition, in addition to fostering universal access to basic
telecom services. The Government has announced plans to put
broadband into all of the primary and secondary schools in Brazil
over the coming years. To this end, Telebrás, which still exists as a
shell company, may be resuscitated to take over and operate certain
fibre networks of state-owned companies so as to carry Internet
broadband backhaul to schools in the hinterland of Brazil where it
would be uneconomical for private companies to do so.
1.2 Is Brazil a member of the World Trade Organisation? Has
Brazil made commitments under the GATS/GATT regarding
telecommunications and has Brazil adopted the WTO
Basic Telecommunications Agreement?
Brazil is an original member of the WTO (since 1 January 1995).
In 1997, Brazil made specific telecom-related commitments under
the Fourth Protocol to the GATS. These were not ratified by the
Brazilian National Congress because they included no limitations
on market access or national treatment for cross-border supply,
among other issues. In 2001, Brazil submitted a new schedule of
GATS telecommunication commitments, which, however, were
objected by some WTO members on the grounds that the Brazilian
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Kevin Louis Mundie
Eduardo H. Carvalhaes Neto
Government reserved the right under the GTL to limit foreign
participation in the sector. As a result of these objections, Brazil
withdrew its schedule of commitments for July 2001 and currently
has no GATS commitments in telecommunications in force.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Brazil?
The GTL establishes the main principles and guidelines for the
regulation of telecommunications services and networks in Brazil,
to be implemented by Anatel (radio and TV broadcasting are not
subject to Anatel, except with respect to radiofrequency regulation
and supervision).
The clear emphasis is on the regulation of services. To this end,
services are divided into those under a “public regime”, where a
concessionaire is charged with fulfilling consumers’ needs for basic
services, including universal access obligations and accountability
and tariff controls (currently, only POTS rendered by incumbents -
former Telebrás companies - are under the public regime); and those
under the “private regime”, where the holders of authorisations are
subject to less restrictive regulation. Most services today are under
the “private regime” precisely to encourage competition, and Anatel
is under a mandate to keep individual regulation for such services
as minimal as possible.
Services are further defined as being in the collective or in the
private interest. Renderers of services in the collective interest may
demand interconnection with other service networks in the collective
interest. Providers of services in the private interest (such as a truly
private-to-private network service) may connect to collective-
interest service networks, but this connection is not treated as
interconnection, i.e. it is not treated as a co-carrier arrangement.
The GTL further requires that all networks be organised as
integrated pathways, with integrated operation on a national and
international basis. The ownership of networks is subject to a social
function, discrimination in the providing of interconnection is
prohibited and pricing must be fair and non-discriminatory.
Sharing of infrastructure is also regulated by Anatel to assure non-
discrimination.
It is through requirements such as these that the law seeks to foster
competition and to avoid making ownership of separate networks a
bar to development of the sector. While Anatel continues to study
structural separation of networks and services to further assure
equal access to the former, a formal decision is yet to be issued.
Even so, such a separation would likely face considerable legal
challenge.
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1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The telecommunications regulatory authority is Anatel, created as a
federal special independent public authority (administratively and
financially independent, subject to minimal hierarchy of the
Brazil
Executive Branch, and with stable directors having fixed terms).
Directors are chosen by the Executive, but must be vetted by the
Senate. The Ministry of Communications regulates radio and TV
broadcasting under a separate law, subject to Congressional
oversight.
The competition authorities are the Administrative Council for
Economic Defence (“CADE”), which holds the power to hear and
decide the cases, assisted by the Secretariat of Economic Law
(“SDE”) of the Ministry of Justice, and the Secretariat of Economic
Oversight (“SEAE”) of the Ministry of Finance.
Anatel is charged with repressing anti-competitive behaviour in the
telecoms sector, in conjunction with SDE/CADE. Further, it
provides advisory opinions to CADE on mergers and acquisitions in
the telecoms sector, but final approval of such acts of concentration
is CADE’s.
Transfer of licenses and/or control of telecommunications
companies are subject to Anatel approval.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Anatel’s decisions are subject to appeal (request for
reconsideration) within the own Agency, but hierarchical appeals to
the Ministry of Communications or any other executive branch
entity are not allowed. The legality of Anatel’s acts and decisions
is always subject to challenge in the federal courts.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Licensing by Anatel is required to provide any telecommunication
service. POTS, the only service under the public regime, is licensed
via a concession contract, but may also be rendered under private
regime. All other services are rendered under the private regime,
pursuant to service-specific licences called “authorisations”. Value-
added services are not deemed telecommunication services, and do
not require a licence.
The procedures for obtaining a concession or an authorisation are
different, but in both cases the applicant must generally be a
Brazilian or an entity formed under Brazilian law and with
headquarters in Brazil. Collective-interest service providers must
be entities with a majority of their voting capital in the hands of
Brazilians or another Brazilian entity (even if this latter is wholly
owned by foreigners abroad). A public bid process is mandatory for
concessions, but not necessarily for authorisations, whose
procedure can vary from a simple application to Anatel to more
complex public bidding procedures, such as for PCS licences.
Generally, for licences granted other than through a public bid, the
procedure takes 4 to 6 months.
Anatel is considering the implementation of a single-licence
environment as a means to facilitate the increasing convergence of
telecommunication services, but has not done so yet. Anatel charges
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a licensing fee for all telecoms services. Costs for licences vary, and
may be determined through public bidding in cases where the number
of licences available is limited. Where public bidding is not required,
most licences cost R$ 9,000.00, or roughly US$ 4,500.00.
The amount of this fee varies, and may be determined by public
bidding where there are limitations on the number of licences
available.
In addition, a telecommunications operator is subject to a number of
fees, including contributions to the FISTEL, FUST and FUNTTEL
and to foster public broadcasting.
The Telecommunications Supervision Fund (“Fistel”), run by
Anatel, includes:
the prices paid for service licences;
the Inspection Installation Fee (“TFI”) - a one-time fee, due
at the moment of issuance of the installation licence for any
telecommunications station; and
the Inspection Functioning Fee (“TFF”) - an annual fee, due
every March 31 with respect to each station in operation on
December 31 of the preceding year.
The TFI value is calculated per service, and the TFF corresponds to
45% of the TFI.
The Fund for Universal Telecommunications Services (“FUST”),
also managed by Anatel, receives a monthly contribution from
operators equal to 1.0% of the total operating income, while the
Fund for the Technological Development of the
Telecommunications (“FUNTTEL”) gets 0.5%, both assessed on
the gross revenue resulting from the provision of
telecommunication services, excluding other applicable taxes
(currently, state value-added tax, called ICMS, and PIS and
COFINS, two federal levies on gross turnover).
The contribution to foster public broadcasting has to be paid once a
year every March 31 and the amounts to be paid are set by the
Annex to Federal Law No. 11,652/2008 per service and operators’
characteristics.
If an operator uses radio frequencies, it will also need to pay Anatel
the respective price, calculated pursuant to the “Regulation for
Charging the Public Price for the Right to Use Radio frequency”
(Anatel Resolution 387/2004).
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Other than obtaining an authorisation or concession for rendering
the service, the operator must obtain specific radio frequency
permits from Anatel, if applicable (in some cases, Anatel can
auction these permits along with the right to provide the service),
and operating permits for the respective network stations, and may
use only certified equipment. There are also non-regulatory
licences that may be needed (e.g. construction and environmental
permits).
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Although telecommunication licences (concession or
authorisations) are intuito personae, direct or indirect transfer is
allowed provided that certain conditions are met and that Anatel’s
formal approval is obtained. Although the regulations for each
service may contain their own specific conditions, they would
typically require that:
the service must have been operational for a certain period;
Mundie e Advogados
the provider must be compliant with its obligations;
the assignee must fulfil the same requirements established in
the original licence grant; and
the transfer must not jeopardise competition.
Indirect transfers, e.g., by means of transfer of control, are also
subject to Anatel’s approval.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The concession term is 20 years, and may be extended once for the
same period. Authorisations do not have a time limit, but permits
for the use of radiofrequency by authorisation-holders is limited to
a maximum term of 20 years, renewable only once.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Pursuant to the GTL, Anatel is entitled to request the President of
the Republic, through the Ministry of Communications, to declare
public interest in the use of private property when necessary for the
implementation or maintenance of services under the public regime.
This means that the government can establish administrative
easements on rights of way or even expropriate private land, upon
fair compensation. Operators rendering services in the private
regime are not eligible for such provisions.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Anatel does not regulate such a zoning regime, but telecom
operators are subject to compliance with local construction, zoning
and environmental rules etc., which may vary from municipality to
municipality.
3.3 Are there any rules requiring established operators to share
their infrastructure, e.g. masts, sites, ducts or cables (i.e.
dark fibre)? Are there any proposals to mandate ‘passive
access’ to such basic infrastructure?
There are specific rules applying only to operators of collective-
interest services, who are required to share infrastructure (GTL and
Anatel Resolutions 73/1998 and 426/2005). There are also rules
applying to shared use of infrastructure among providers of public
utilities in the electric energy and petroleum sectors (Joint
Resolution 001/99).
In any event, the sharing of infrastructure must be offered under a
reasonable and non-discriminatory basis, which must be disclosed
to the market.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Interconnection is mandatory for providers of services in the
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Brazil
collective interest, under non-discriminatory conditions and at
reasonable rates.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Brazil
Anatel may arbitrate disputes (including pricing) arising from
interconnection agreements and their negotiation, and it is empowered
to order interconnection as a provisional remedy, but the legality of
such decisions can be challenged before federal courts.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
All interconnection agreements, including price terms, must be filed
with Anatel and are made public.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The rules on interconnection charges vary depending on the service
but Anatel sets the relevant interconnection tariffs for services under
the public regime. Interconnection prices for services under the
private regime, however, are freely negotiated, but subject to control
by Anatel to the extent they affect the ability of concessionaires to
render services in the public regime. The cost of wholesale leased
lines up to the level of an E1 is regulated by Anatel.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
If the same carrier holds licences for more than one service, it must
maintain a separate set of accounts for each service. The same
applies if the legal representative of a foreign satellite is also a
telecoms operator. Legal separation is only required for incumbent
PST concessionaires, who must hold and operate other services
(except certain date services) through separate entities.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Anatel’s regulation is aimed at being technologically neutral. In
principle, should current or new services use new technologies, they
will be subject to the existing rules for interconnection if they are
employed in the network of a service of collective interest.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Anatel has suggested unbundling guidelines via a public
consultation on the matter, but definitive regulations have yet to be
issued. A decision of Anatel’s Public Services Superintendent has
set maximum values for unbundling, however, the prices set therein
are high and, therefore, not effective to mandate unbundling. There
were also challenges in the sense that an administrative decision
could not be interpreted as a general rule on the subject. CATV
operators are not required to unbundle their network elements.
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4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
So far, Brazil has not proposed any regulations with respect to next-
generation access, but has required the incumbent POTS
Brazil
concessionaires to rollout backhaul for broadband Internet access to all
county seats of Brazil. This imposition was exchanged for exempting
such concessionaires from maintaining certain numbers of telephone
posts and storefronts in urban areas, and limiting those on rural areas.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Anatel controls and reviews the retail tariffs of services rendered in
the public regime, and the agency establishes maximum rates for the
basic service plan (concessionaires can still offer alternative plans).
Retail pricing in the private regime is not subject to such control, but
Anatel may repress abusive pricing. Anatel regulates a few wholesale
(carrier-to-carrier) arrangements (e.g. provision of dedicated circuits
up to certain capacities by operators deemed to have a “significant
market power”), and certain interconnection charges.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Although each service has its own set of rules established by Anatel,
governing issues such as protection against unilateral changes,
continuity, quality standards etc., consumers of telecommunication
services are typically entitled to:
have access to high-quality services anywhere in Brazil;
freely choose their operator;
receive non-discriminatory treatment in terms of access,
pricing and use of the service;
have adequate information on prices and service conditions;
and
enjoy continuity of the service rendered in the public regime.
Moreover, the relationship between operators and consumers is
subject to the Brazilian Consumer Protection Code (“Consumer
Code”).
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Because telephone numbers and network identifying codes are
limited resources, Anatel regulates their use and granting conditions,
which are subject to prior authorisation (it may be given
simultaneously with a service licence). The national numbering plans
identify the resources that are used by each carrier. The operators pay
the costs of administration of network identifying codes according to
specific regulations. So far, only fixed and mobile services have been
granted an effective numbering plan. Multimedia communication
server (“SCM”) operators have been pressuring Anatel to also grant
them the numbering plan, but Anatel has yet to implement it.
Long distance carriers receive long distance or carrier-access codes
that consumers must dial before each long distance call, in order to
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choose the carrier that will be responsible for the call.
Although numbering resources are administrated by Anatel, the
central reference databank for number portability is administrated
by an association (Associação Brasileira de Recursos em
Telecomunicações - “ABR Telecom”) hired to do so through a
public bid procedure.
6.2 Are there any special rules which govern the use of
telephone numbers?
Anatel Resolution 86/1998 (and its subsequent punctual
modifications) governs the use of landline numbers and Resolution
301/2002 governs the use of mobile numbers. Typically, a
telephone number has eight digits, long distance carriers’ selection
codes two digits and area codes two digits.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
As the numbering resources are limited and controlled by Anatel, it is
Anatel that assigns the numbering resources to each service, according
to need. The operators then activate the assign numbers to the
customers pursuant to rules of specific service plans/contracts.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Porting is the operators’ responsibility, and is only required within
the same service and area code (Resolution 460/2007). It need not
be provided free to consumers, except in certain cases.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Brazil’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Brazil signed the International Convention for the Protection of
Submarine Cables in 1884 and the United Nations Convention on
the Law of the Sea (promulgated through Federal Decree No.
1,530/1995), providing for, among other things, the responsibility
for submarine cables and the right to use them.
Anatel does not specifically regulate the laying of submarine
cables, but the operation of such a cable (once laid) and the
furnishing of its capacity to the Brazilian market does require a
service licence from Anatel on the basis that, in Anatel’s view, the
activation of cable is a telecommunications service. General
construction licences and environmental compliance still apply
within Brazilian waters and onshore.
There are no specific fees associated with submarine cables, but
some form of counterbalancing environmental compensation may
be required with respect to their laying.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Radio frequency spectrum is a limited resource whose use is
controlled and regulated by Anatel (even for radio and TV
Mundie e Advogados
broadcasting) and requires prior permitting granting the right to use
them, for which a fee must be charged (public price for the right to
use radio frequency - “PPDUR”).
8.2 How is the use of radio frequency spectrum authorised in
Brazil? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
The use of radio frequency is subject to prior Anatel’s authorisation,
and may be automatically granted along with the concession or
authorisation in question. Interested parties must bid for radio
frequencies where technical limitations restrict the amount of
frequency available or where demand outstrips supply. The usual
form of bidding is an outright spectrum auction, including open-
outcry sessions where the top bidders’ offers are deemed technically
tied.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The frequency assignment plan assigns each frequency to a certain
service and sets the conditions for its usage by each service. The
furnishing of space segment in Brazil, even by foreign satellites and
although not deemed a telecommunications service, requires a
landing-rights permit for which a fee is paid (public price for the
right to exploit satellite - “PPDES”). This fee also covers the use of
associated RF for which the satellite operator has applied.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite capacity may only be supplied to licensed
telecommunications operators in Brazil by satellite operators
authorised by Anatel for this purpose (in cases of Brazilian
satellites) or by local legal representatives duly authorised by
Anatel (in cases of foreign satellites). It is these operators’
obligation to obtain permits for the satellite earth stations employed
in the rendering of the telecommunications service in question.
Receive-only service is not regulated. However, the commercial
use of spectrum and the related furnishing of space segment require
Anatel’s permission, whether for up-linking or down-linking.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Yes: for the armed services (for military purposes only); for
equipment of restricted range; for receive-only stations; and for
temporary use in cases covered by international treaties (e.g., use by
foreign aircraft or ship visiting the country).
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The spectrum licence price is calculated taking into consideration
the bandwidth, the term, area, and segment in which it will be used,
scope of the service (collective or private interest), the number of
benefited inhabitants and whether the radio frequency will be used
exclusively or not.
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8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Spectrum permits are granted on a non-transferable basis, and may
only be transferred together with the telecommunication service
licence to which the spectrum permit is related, which requires
Anatel’s approval.
Brazil
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The operator can only use customer call information in performing
its activity. The operators are responsible for the secrecy of the
communications within their networks, and must use their best
efforts and technology to assure secrecy of the communications,
data and information of customers. The Consumer Code also sets
rules in this regard. Police and other investigative authorities can
obtain call records and tap both landline and mobile calls by court
order. There are no specific rules on retention of call information,
but it must be sufficient to protect the carrier in cases of consumer
actions and inspection by Anatel.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Both mobile and fixed telephony operators are required to maintain
call-interception facilities associated with their networks.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The specific rules applicable to interception of messages, traffic,
data and other call records are different for each service. In all
cases, Brazilian law protects one’s right to privacy. Article 5, X and
XII, of the Constitution, Articles 3, IX, and 72 of the GTL assure
the inviolability of communications and privacy. Federal Law No.
9,296/1996 provides that interception of calls and supply of call
records are only possible by court order, to gather evidence in
criminal investigations and criminal prosecutions. These essential
Constitutional rights are considered “carved in stone”, which means
that they cannot be modified even by constitutional amendment.
There is debate in Brazil as to whether the Constitutional
protections mentioned above extend to call data, as opposed to the
actual content of communications, and also require a judicial
warrant to be obtained by the authorities.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet access services are considered value-added services (not
telecom services), and as such are not subject to licensing by
Anatel. Anatel merely regulates the requirement for PSTN
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 Mundie e Advogados
operators to provide access to ISPs. Conveyancing services over
the Internet are not regulated in any specific manner, nor are there
currently any specific rules for peering or transit access, this being
a matter of negotiation and contract.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
Brazil
operators and/or internet service providers from liability for
content carried over their networks?
While there is no such immunity provided by law, it is a common
defence that telecoms operators should not be held liable for content
carried over their networks. This defence has generally been upheld
in the courts, but may not extend to ISPs or those who operate
social-networking sites.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
It is generally understood that the constitutional protections
mentioned in question 9.3 above, do not include a right of anonymity,
and the Government is engaged in negotiations with Internet access
providers, credit-card companies, ISPs and telecoms operators in
order to establish procedures to obtain access to records, including
identities, associated with sites engaged in criminal activity, such as
the sale of child pornography. Some social-networking sites have
been forced under subpoena by the courts and/or Parliamentary
Commissions of Inquiry to turn over information on users and
customers. Currently, no rules exist with respect to the need to assist
content owners alleging infringement of rights.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Telecommunications operators are not allowed to discriminate in
the rendering of telecommunications services, but there are no net
neutrality rules that apply. Operators may be required to block
traffic of a criminal nature, such as access to child pornography, and
a recent change in the law has made the possession, storage
exchange, transmission and downloading of child pornography a
crime. Those who furnish the means for, or access to, such may be
criminally charged if, after due notification, they do not block
access to the illegal content.
10.5 How are ‘voice over IP’ services regulated?
VoIP services are not regulated if merely peer-to-peer. Providers of
VoIP services do, however, require a licence if they access the PSTN.
If only incoming to the PSTN, an SCM or private network licence is
required. If incoming and outgoing with respect to the PSTN, then a
standard switched fixed telephony (“POTS) licence is required.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Although Anatel does not regulate the Internet, Internet access
providers and other entities offering service and content via the
Internet still need to comply with applicable general laws, including
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Brazil
the Consumer Code and criminal law, especially those against child
abuse, child pornography and “hate crimes” (e.g., racially offensive
websites). Other than general laws, there is no specific regulation
governing Internet marketing and advertising, even though bills to
regulate the Internet are pending in Congress. Debates exist as to
whether potentially abusive activities, such as spamming, are
covered by current legislation, including the general rule on
indemnity for torts.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Universal service obligations are only applicable to the incumbents
of local fixed line services provided under the public regime, which
must meet universal goals set from time to time in accordance with
specific regulations drafted by Anatel and approved by the
executive branch. The FUST fee (see section 7 above) paid by all
telecommunication operators is concentrated in a fund aimed at
fostering universal access to telecommunication services. The
Government has plans to alter applicable legislation to make the
FUST available for extending Internet access to all schools and
municipalities.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
As a general rule, foreign ownership of telecom operators is not
prohibited, although significant restrictions do apply to radio and
TV broadcasting, and to cable TV operators (but not DTH).
Federal Decree No. 2,617/1998 establishes that the telecom licence
holder in the collective interest must be a company formed and
headquartered in Brazil, whose majority of its voting capital must
be controlled by another company based in Brazil (which, in turn,
can be controlled by foreign investors) or by Brazilians.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
There are several issues currently under study within Anatel that
may bring significant changes, such as the implementation of
unbundling, the effects of convergence and the corresponding need
for network neutrality, attempts to create a single-licence
environment, and to regulate resale of services and space capacity
(responding to a long standing market demand, yet currently not
allowed).
Any new regulation or significant change in regulation must be
previously submitted to Public Consultation by Anatel.
The Brazilian regulatory body is also currently reviewing the fixed
telephony concession agreements, quality standards and universal
service goals, submitting proposals to Public Consultations. Such
documents will be enacted in the period between January 1st, 2011
and December 31st, 2015.
Mundie e Advogados Brazil

Kevin Louis Mundie Eduardo H. Carvalhaes Neto

Mundie e Advogados Mundie e Advogados
Avenida Juscelino Kubitschek, 50, 18th floor Avenida Juscelino Kubitschek, 50, 18th floor
São Paulo São Paulo
SP- Brazil, 04543-000 SP- Brazil, 04543-000

Tel: +55 11 3040 2920 Tel: +55 21 3040 2959

Brazil
Fax: +55 11 3040 2940 Fax: +55 11 3040 2940
Email: klm@mundie.com.br Email: ehc@mundie.com.br
URL: www.mundie.com.br URL: www.mundie.com.br

Kevin Louis Mundie is a founding partner of Mundie e Advogados.
Mr. Mundie was formerly a partner of Baker & Mackenzie. Mr.
Mundie has a B.A. summa cum laude from Loyola University in
Lousiana and a J.D. from Harvard University (revalidated in Brazil
by Universidade do Estado do Rio de Janeiro). Mr Mundie is a
member of the Brazilian Bar (Sections: São Paulo, Rio de Janeiro
and Distrito Federal), the American Bar Association (International
Law, Corporation, Banking and Business Law Sections), the New
York State Bar and the New York Bar Association.
Eduardo Hayden Carvalhaes Neto is an associate of Mundie e
Advogados and graduated from São Paulo Catholic University (PUC-
SP). Mr. Carvalhaes obtained a Master’s Degree in Public Law from
the University of São Paulo (SP), where he is currently attending for
a Doctor’s Degree and as a member of the Program for the
Development of the Teaching Procedure (PAE). He is also
Coordinator of the Telecommunications’ Studies Commission of the
Brazilian Association of IT and Telecommunications Law (ABDI),
Vice-President of the Telecommunications and Energy Commission
(TEC) of the Association Internationale des Jeunes Avocats (AIJA),
Honorable Member of the Center for International Legal Studies
(CILS) and member of the Brazilian Bar (Section São Paulo). Mr.
Carvalhaes is the author of various scientific articles about the
Brazilian telecommunications market.

Mundie e Advogados was established in 1996 with the goal of providing quality legal services to international and
domestic clients, especially in the area of privatisations, public bidding and public utilities. The firm is now a full service
law firm, with a young and dynamic profile, and has expanded far beyond its original focus on issues related to
administrative law.
Mundie e Advogados is widely recognised as leading Brazilian firm in the telecommunications area. It has participated
in virtually all major telecommunications projects in Brazil, rendering not only regulatory advice but also assistance in
connection with mergers and acquisitions and joint-ventures, operational arrangements, taxation, land use and
administrative and judicial litigation.
The firm has made significant contributions to the sector’s regulation and has significant experience in dealing with the
relevant regulatory bodies, including the Ministry of Communications and Anatel, in addition to advising on the
preparation and negotiation of all types of telecom-related contracts and ancillary documents.

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 Chapter 11
Bulgaria
Djingov, Gouginski, Kyutchukov & Velichkov
1 Framework
1.1 When did Bulgaria first liberalise telecommunications
networks and/or services?
The Bulgarian telecommunications market was liberalised on 1
January 2003.
1.2 Has Bulgaria fully implemented the EU 2003 regulatory
framework? If Bulgaria has not fully implemented the new
regulatory framework, have proceedings been brought
against Bulgaria by the European Commission and if so,
for which contraventions?
The EU 2003 regulatory framework has been, in general,
transposed in the currently effective Bulgarian legislation.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
In addition to the directly applicable EU law, the relevant Bulgarian
legislation consists of primary legislative acts including the
Constitution of the Republic of Bulgaria, the Law on Electronic
Communications (published in State Gazette issue 41 of 22 May
2007, as subsequently amended and supplemented, the “LEC”), the
Law on Personal Data Protection, the Law on Protection of
Competition, the Law on Technical Requirements to Products, as
well as of a number of pieces of secondary legislation, adopted by
the national regulatory authority - the Communications Regulatory
Commission (the “CRC”), or by other competent bodies.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
Governmental policy in the telecoms sector shall be implemented by
the Government, the National Radio Frequencies Spectrum Council
(“Radio Frequencies Council”) and the State Agency for Information
Technologies and Communications. The CRC, an independent
authority, is vested with the specific powers to regulate and control the
compliance of provision of electronic communications with the
applicable law. The primary responsibility for enforcement of the
competition rules in Bulgaria falls within the competence of the
Bulgarian Commission on Protection of Competition (“CPC”). The
CRC and the CPC shall act in coordination and cooperation.
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Violetta P. Kunze
Lilia H. Kisseva
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
The CRC is vested with the powers, among others, to (i) determine
the relevant markets of electronic communications networks and/or
services subject to regulation under the LEC, (ii) investigate,
analyse and evaluate the level of competition on the relevant
markets, and (iii) determine the SMP undertakings and impose,
amend or revoke specific obligations on those undertakings. The
CRC is the authority competent to issue, amend, supplement,
transfer, suspend, terminate or revoke permits for use of a scarce
resource. The CRC has the power to (i) resolve disputes between
undertakings, providing electronic communications, and (ii) review
claims submitted by end-users in a limited number of cases
envisaged in the LEC. The CRC maintains mutual cooperation with
the national regulatory authorities of the other EU member states
and with the European Commission in order to procure the
development of consistent regulation practices and implementation
of the EU law.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
The LEC implements the principles of the Authorisation Directive
(2002/20/EC) and sets out that electronic communications shall be
provided freely following a submission of a notification to the
CRC, unless individually allocated scarce resource is required. In
the latter case, electronic communications networks and services
may only be provided upon the issuance of a permit by the CRC
allowing the use of the respective scarce resource (e.g. radio
frequencies, positions of the geostationary orbit, and numbers from
the National Numbering Plan).
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
Notwithstanding the sector specific supervision exercised by the
CRC, all undertakings conducting electronic communications shall
comply with the rules prohibiting anti-competitive agreements and
practices and abuse of dominant prostitution (e.g. Art. 81 and Art.
82 ECT, and the respective mirror provisions of Bulgarian Law on
Protection of Competition).
Djingov, Gouginski, Kyutchukov & Velichkov
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
The retail markets 1 to 6 inclusive as defined in Recommendation
2003/311/EC, as well as markets 2, 3 and 7 as defined in
Recommendation 2007/879/EC (8, 9 and 16 under 2003
Recommendation) have been notified to the European Commission.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
A permit issued by the CRC shall be only required if an individually
allocated scarce resource is needed for the operation of the
electronic communications networks and provision of services
thereon. (See also questions 1.6, 6.3. 8.3 and 8.6.)
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
The undertakings providing electronic communications network
and/or services shall also comply with the requisite construction
permits. (See also question 3.2.)
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Pursuant to the LEC an undertaking that has been issued a permit
for use of a scarce resource may transfer such permit or part of the
rights and the obligations set forth therein only upon receipt of a
prior CRC approval. The CRC shall issue such an approval if the
contemplated transfer shall not negatively affect the competition or
lead to changes in the conditions for use of the scarce resource. The
specific requirements related to the transfer of a permit are set forth
in Rules issued by CRC (promulgated in State Gazette, issue # 29
of 18 March 2008).
2.4 What is the usual or typical stated duration of licences or
other authorisations?
A permit for use of a scarce resource is granted for an initial period
of up to 20 years with a possibility for extension for up to 10 more
years. The general authorisation is not limited in time and an
undertaking operating under such authorisation may terminate the
provision of public electronic communications networks and/or
services upon submission of a notification to the CRC.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The LEC in conjunction with the Law on the Structure of the
Territory provide for specific rules dealing with the construction of
electronic communication networks and related infrastructure.
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Bulgaria
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
The installation of network infrastructure must be accomplished in
compliance with the specific rules governing undertaking and
completion of construction works. The construction process in this
Bulgaria
country goes through certain stages, the most important of which
are: (i) approval of investment designs; (ii) issuance of construction
permit; and (iii) issuance of an operational permit or certificate of
operation. Construction or installations developed without the
relevant construction papers are considered “illegal constructions”
and are subject to removal.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
As a general rule, the undertakings providing public electronic
communications networks shall provide access to their networks to
other such undertakings on a contractual basis. CRC may impose
an obligation on SMP undertakings to provide access to their
network infrastructure (and particular components therefrom),
including but not limited to the cases when the refusal from the
latter may impede the stable competition on the retail market or is
detrimental to the interests of the end-users. For the purposes of
protecting the environment, health and public security, the CRC
may impose an obligation to any operator to provide shared use of
ducts, towers, premises and other telecoms facilities. The Bulgarian
regulator may impose such a measure only after holding a public
consultation. Currently there are no proposals for passive access to
basic infrastructure.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
The LEC implements the Access Directive (2002/19/EC) in the
regulation of access to and interconnection of public electronic
communications networks and associated facilities. Operators
providing public electronic communications networks are entitled
to freely negotiate interconnection with each other. Further, at the
request of another qualifying undertaking, such an operator is
obliged to negotiate interconnection. Operators providing public
electronic communications networks and/or services authorised to
operate in another EU Member State may request access and/or
interconnection pursuant to the terms of the LEC.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The LEC follows the principle of priority of commercial
negotiations over regulatory intervention. Still, the CRC may
intervene on access and/or interconnection matters at its own
initiative (when necessary) or, upon failure of commercial
negotiations between undertakings, at the request of either of the
parties involved in such negotiations. In this case the CRC is
entitled to give mandatory instructions to the undertakings
concerned. The decision of the CRC may be challenged before the
Supreme Administrative Court.
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 Djingov, Gouginski, Kyutchukov & Velichkov
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Generally, operators are not required to publish their standard
interconnection contracts, but a copy of any signed interconnection
contract should be provided for reference to the CRC. Operators
Bulgaria
are required to publish the prices of provided electronic
communications networks and/or services at their web-page or at
another place readily available to consumers.
Where an obligation for transparency in relation to interconnection
and/or access is imposed on an SMP undertaking, the operator
would be required to make public specified information, including,
but not limited to, terms and conditions for giving access and/or
interconnection, and prices. Where the SMP operator has an
obligation for non-discrimination, in addition to the obligation for
transparency, the CRC may require that the operator publishes a
reference offer which may include, among others, terms and
conditions for interconnection or access, and co-location services.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
In general, charges for interconnection and/or network access are
not subject to price or cost regulation. CRC may however impose
on SMP undertakings price control, including obligations for cost
orientation of prices for specific types of interconnection and/or
access, when the CRC establishes that there is no efficient
competition in the relevant market. The CRC is also entitled to
impose on SMP undertakings obligations for accounting separation
and, in certain circumstances, to oblige vertically integrated
companies to make transparent their wholesale prices and their
internal transfer prices, as well as to specify the format and the
accounting methodology to be used for price determination.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
An obligation for accounting separation in relation to
interconnection and/or access may be imposed on SPM operators.
Concerning functional separation and/or legal separation, currently
the Bulgarian telecoms law does not explicitly envisage the use of
any of these as a remedy where SMP is identified. However, the
measures of functional and legal separation are applied with respect
to separation of digital communications networks, on the one hand,
and radio and TV activity, on the other hand. In particular, a
telecoms operator holding a permit for use of individually allocated
scarce resource - radio frequency spectrum for carrying out
electronic communications through networks for terrestrial digital
radio broadcasting, as well as any related party thereto, may not
simultaneously be a radio and/or television operator.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
New network technologies are not subject to any specific
interconnection and access regulatory conditions different from the
general ones described above.
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Bulgaria
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
The CRC may impose upon SMP undertakings the obligation to
give third parties access to certain network elements and/or
facilities, including unbundled access to the local loop, as well as
other obligations related to the access to and use by third parties of
necessary network elements and/or facilities. Upon imposing an
obligation for providing unbundled access to the local loop, the
CRC also obliges the undertaking to make public a reference offer.
The minimum content of the reference offer is statutory determined.
The reference offer is subject to approval by the CRC following a
public consultation procedure. Executed individual contracts may
not contradict the reference offer.
Concerning cable TV operators, the law does not explicitly provide
any unbundling obligations applicable to such operators.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Currently there are no specific regulations or proposals for
regulations (including incentives) relating to next-generation
access, and in particular fibre access networks.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Operators of public electronic communications networks and/or
services shall determine prices according to market supply and
demand. Retail prices are subject to notification before the CRC
within 3 days prior to their entering into effect. The CRC has
imposed an obligation for cost orientation of the retail prices on the
Bulgarian Telecommunications Company AD (“BTC”), which was
determined to be an SMP operator on the retail markets 3 - 6
inclusive as defined in Recommendation 2003/311/EC.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
When the execution of individual contracts only is not feasible in
practice, operators of public telephone services may use general
terms and conditions (GTC) to govern their relationships with end-
users. The LEC establishes minimum content requirements for
GTC, as well as for individual contracts with end-users, including
those to which GTC apply. GTC prepared by operators providing
universal service are subject to approval by the CRC, while
operators providing public telephone services shall submit GTC
before the CRC for reference only. In addition, operators providing
public electronic communications services should ensure free
access of consumers at least to (i) GTC (if any) applicable to the
end-user contract, (ii) up-to-date information about prices and price
packages, and (iii) up-to-date information about the quality of the
services offered.
Djingov, Gouginski, Kyutchukov & Velichkov
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Modelling the regulatory policy on the use of numbers falls within
the competence of the CRC. The CRC develops a regulatory policy
for use of numbers, addresses and names for carrying out electronic
communications. Further, the CRC prepares and adopts the
National Numbering Plan, which sets out the allocation of numbers
used in the electronic communications networks for identification,
routing and charging.
6.2 Are there any special rules which govern the use of
telephone numbers?
Rights of use for numbers are granted on an individual basis.
Rights of use for individually allocated numbers may be granted
only to enterprises that carry out electronic communications
through (i) electronic communications networks for publicly
available telephone services, or (ii) electronic communications
networks for providing public electronic communications services,
which are accessed through numbers from the National Numbering
Plan.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
As numbers are considered to be scarce resource, rights of use for
numbers are granted by a permit issued by the CRC. A permit for
use of numbers is awarded without an auction or tender. Operators
that have been allocated numbers (see our response to question 6.2
above for eligibility criteria) may sub-allocate numbers for (i) use
by end customers, (ii) provision of electronic communications
services by operators that are not eligible to obtain a permit for use
of numbers, and (iii) sole proprietors and legal entities (only in
respect of certain type of numbers, such as numbers for access to
toll free services and value added services).
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Subscribers of publicly available telephone services are entitled to
retain their numbers independently of the undertaking providing the
service, as follows: (i) in case of geographic numbers, the numbers
can be retained at a specific location, independently of the change
of the provider of the fixed telephone service, and/or independently
of the change of address within one and the same geographic
national code for destination; (ii) in case of non-geographic
numbers, they can be retained at any location, irrespective of the
change of the provider of the respective service; and (iii) in case of
numbers of national importance, they can be retained at any
location, irrespective of the change of the provider of the mobile
telephone service.
Number portability with respect to mobile operators became
effective at the beginning of 2008. With respect to portability of
fixed telephone numbers, the needed regulation has only recently
been adopted in full, and the implementation of such portability in
practice is forthcoming.
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Bulgaria
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Bulgaria’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Bulgaria
The main rules governing the landing of submarine cables are set forth
in (i) a number of international treaties which Bulgaria is a party to,
including inter alia the UN Convention on the Continental Shelf of
1958 and the UN Convention on the Law of the Sea of 1958, and (ii)
the Law on Sea Space, Internal Waterways and Harbours of the
Republic of Bulgaria. Bulgaria has exclusive rights and jurisdiction
on the landing of submarine cables in the exclusive economic zone
and in the internal waterways. In the zone of the continental shelf,
submarine cables can be landed by other states, provided that the
interests of Bulgaria related to research, development and use of the
shelf’s natural resources and the protection of the marine environment
are not affected. The routes of the cables shall be determined by an
agreement between Bulgaria and the state wishing to land the cables.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio frequency spectrum is regulated by the Council of
Ministers (i.e. the Government), the Radio Frequency Council, the
State Agency on Information Technologies and Communications
and the CRC. The Council of Ministers adopts (i) state policy on
planning and allocation of the radio frequency spectrum upon
proposal of the Radio Frequency Council and following a public
consultation procedure, and (ii) a national plan on allocation of the
radio frequency spectrum, upon proposal of the said Council and
following a public consultation procedure. The CRC grants for use
the radio frequencies for civil needs and has powers relating to
management of the radio frequency spectrum.
8.2 How is the use of radio frequency spectrum authorised in
Bulgaria? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
A permit for use of individually allocated radio frequency spectrum
is awarded on a competitive basis (after holding an auction or
tender) where the number of applicants exceeds the number of
persons that may be granted a permit for the available radio
frequencies. A permit is awarded without a competitive procedure
in a number of cases explicitly specified by law, including (i) where
the number of applicants is lower or equal to the number of persons
that may be granted a permit for the available radio frequency
spectrum, and (ii) for carrying out electronic communications
through use of available and/or new analogue electronic
communications networks for terrestrial analogue radio
broadcasting, after a decision taken by the CEM.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Distinction in spectrum allocation for mobile, fixed and satellite
usage is made in the State Policy on Planning and Allocation of the
Radio Frequency Spectrum adopted by the Council of Ministers.
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The National Plan on Allocation of the Radio Frequency Spectrum
adopted by the Council of Ministers further allocates radio frequency
bands distinguishing between mobile, fixed and satellite usage.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Bulgaria
The installation and operation of satellite earth stations is subject to
the general authorisation rules set forth in the LEC. Where an
individually allocated radio frequency band is needed, the electronic
communications shall be carried out after obtaining a permit granted
by the CRC. In addition, electronic communications through
networks using radio frequencies from the fixed and mobile satellite
radio service, namely a satellite network for data transmission, a
satellite network for transmission and/or broadcasting of radio and
TV programmes or other satellite networks, may be carried out after
submission of a notification to the CRC.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
The use of spectrum which does not need to be individually
allocated is permit-exempt when carrying out electronic
communications for one’s own needs.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The following fees are payable for the use of individually allocated
radio frequency spectrum: (i) a one-time fee for awarding a permit
for spectrum use; and (ii) an annual fee for spectrum use, determined
on the basis of a number of criteria provided for the law, including
territorial coverage of the permit, term of spectrum use, etc.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Bulgarian regulatory framework does not allow for spectrum
trading. However, Bulgarian law provides for a permit for
spectrum, or some of the rights and obligations thereunder, may be
transferred subject to a prior approval of the CRC (see also question
2.3 above).
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
An operator may collect, process and use customer data as long as
such data is to be used for the purposes of supplying
communications services. Customer data includes (i) traffic data,
(ii) location data, and (iii) data necessary for the purposes of
subscriber billing. Traffic data processed for the purposes of
transmitting communications must be erased or made anonymous
after the end of the call, unless such data is needed for making a
new call or connection or in cases provided for by law. For national
security and crime detection purposes, an operator may store certain
categories of data, other than data revealing the contents of the
communication, for a period of up to 12 months.
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Bulgaria
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
The LEC prohibits surveillance or interception or storage of
communications designated for third parties without the explicit
consent of the sender and the receiver, subject to a few exceptions
provided by the law. Thus, for reasons of national security and
public order, the LEC obliges operators of public electronic
communications networks and/or services to ensure a possibility for
interception of communications in real time, continuous
surveillance of communications and access in real time to data
relating to a particular call. Those operators are required to ensure,
at their expense, appropriate interception interfaces that satisfy
certain statutory set standards and specifications.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The possibilities for interception, continuous supervision and
access to data relating to a particular call in real time shall be
realised in practice only following the procedure of the Law on
Special Intelligence Means, i.e. only with a written court
permission. A request for issuance of such permission could be
filed only by certain authorities explicitly set forth in the law,
including among others (i) the National Security Service, the
National Police Service and the latter’s main and district
directorates, (ii) the National Investigation Office, (iii) the Chief
Prosecutor General, and the supreme, appellate and district
prosecutors’ offices. Upon obtaining of the said court permission,
the Minister of Interior shall issue a written order for use of special
intelligence means.
The communications subject to interception may be received only
by a specialised directorate to the Ministry of Interior and the
National Security State Agency.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Bulgarian law does not provide for specific regulation on services
over the Internet, therefore the general authorisation regime shall
apply unless scarce resource (radio frequency or numbers) is
needed. In the latter case the issuance of a permit shall be required.
The same rule applies to voice over internet services.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Bulgarian law fully implements the Electronic Commerce Directive
(2000/31/EC) in this respect. Provided that the requirements set
forth in Directive 2000/31/EC are met, the providers of information
society services are exempted from such liability for providing
access or transmitting data, when performing cashing, linking or
hosting services.
Djingov, Gouginski, Kyutchukov & Velichkov
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
No, there is no such obligations. To the contrary - the service
providers are prohibited from monitoring the data stored,
transmitted or made accessible while rendering the information
society services, and from searching for facts or circumstances
indicating the performance of unlawful activities. Such actions
may be only undertaken upon order from the court or the
prosecutor’s office.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There is no explicit regulation of the issue. The general obligation
is that electronic communication services shall be offered to end-
users respecting the principles of transparency, proportionality and
non-discrimination conforming to the type of technology used, the
categories of subscribers, the traffic volume and the mode of
payment, and the service provider shall not allow advantages to
specific end-users or group of end-users for the same services.
10.5 How are ‘voice over IP’ services regulated?
See our response to question 10.1 above.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Any communication aimed at direct marketing shall be allowed
only following the prior consent of the consumer, provided that
such consent may be withdrawn at any time. The law prohibits
distribution of communications for marketing purposes (even if all
the above requirements are met) if the sender may not be identified
or the sender’s address is invalid and thus the end-user may not
deliver his refusal to receive such communications.
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Bulgaria
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Bulgaria
Universal service obligation (USO) is defined as a set of services
with a pre-determined quality that shall be offered to all end-users
at accessible price irrespective of their location in Bulgaria. The
scope of the USO includes among others: (i) connection to the
public telephone network and access to the publicly available
telephone services; (ii) access to public pay phones; (iii) provision
of directory services; (iv) placing of emergency free of charge calls
to the respective national numbers and to “112”; and (v) access to
public telephone services by disabled persons, etc.
The CRC shall determine one or more undertakings to provide all or
part of the services pertaining to the scope of the USO. Currently
only BTC is imposed with the obligation to provide universal service.
Prices of universal service are to be determined pursuant to a
methodology adopted by the Council of Ministers, and are subject
to approval by the CRC. The undertakings, to which an USO has
been imposed, shall be compensated for their net costs associated
with that service through the Fund for Compensation of the USO.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
There are no legal restrictions regarding direct or indirect
ownership in undertakings providing electronic communications in
Bulgaria.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Bulgarian legislation shall be amended by the end of 2009 in order
to implement Directive 2007/65/EC.
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 Djingov, Gouginski, Kyutchukov & Velichkov Bulgaria

Violetta Petkova Kunze Lilia Hristoforova Kiseva

Djingov, Gouginski, Kyutchukov & Velichkov Djingov, Gouginski, Kyutchukov & Velichkov
10 Tsar Osvoboditel Blvd., 3rd floor 10 Tsar Osvoboditel Blvd., 3rd floor
Sofia 1000 Sofia 1000
Bulgaria Bulgaria
Bulgaria

Tel: +359 2 9321 161 Tel: +359 2 9321 161

Fax: +359 2 9803 586 Fax: +359 2 9803 586
Email: violetta.kunze@dgkv.com Email: lilia.kisseva@dgkv.com
URL: www.dgkv.com URL: www.dgkv.com

Violetta Kunze has been a partner with Djingov, Gouginski,
Kyutchukov & Velichkov since 2003. Since 2004 she is responsible
for the firm’s Representative Office based in Frankfurt am Main,
Germany.
Ms Kunze heads the firm’s Telecommunications Group while also
specialising in the areas of corporate law and M&A. Ms Kunze has
acted as the principal lawyer advising: leading international service
providers as bidders for telecommunications licenses, as well as for
the acquisition of share participation in local operators or setting up
of local subsidiaries; telecoms companies on compliance of
telecoms agreements with local law; a world’s leading mobile phone
supplier on contractual and regulatory matters in relation to its sales
operations in Bulgaria; a number of local subsidiaries of foreign
companies operating in various industries in relation to development
of private telecoms networks and provision of specific telecoms
services through these.
Lilia Kisseva joined Djingov, Gouginski, Kyutchukov & Velichkov in
2001. Currently holding the position of a senior associate with the
firm, she specialises in the areas of media and telecoms law, as well
as corporate law and M&A, among other areas.
In the field of telecoms law, Ms Kisseva has been involved in a
number of projects advising major international and local
telecommunications operators, service providers and equipment
suppliers on various telecommunications law related matters.
Recently she has been heavily involved in the representation of a
major Swiss telecommunications operator in relation to setting up a
local subsidiary and its operations in Bulgaria, and the subsequent
exit from such local subsidiary.

Djingov, Gouginski, Kyutchukov & Velichkov is one of the largest and most prominent business law firms in Bulgaria
providing first-class legal services. Founded in 1994 by the four name partners, the firm currently employs 48 lawyers,
including 13 partners, and maintains offices in Sofia and Frankfurt am Main.
The law firm was established to meet the unique needs of the new free market environment in Bulgaria. It provides a full
range of business related legal services to international and domestic corporate clients. The firm maintains a worldwide
network of working relationships with a large number of international law firms based in Europe and North America.
Djingov, Gouginski, Kyutchukov & Velichkov represents clients in a broad spectrum of transactions including corporate,
mergers and acquisitions, privatisation, banking and finance, competition, energy and utilities, telecommunications, real
estate and construction, environment, taxation, litigation, employment and intellectual property.
The firm and its lawyers are regularly highly evaluated by Legal 500 as well as Chambers & Partners in their yearbooks.

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Chapter 12
Canada
Burnet, Duckworth & Palmer LLP
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The Government of Canada has directed the Canadian Radio-
television and Communication Commission (“CRTC”) to rely on
market forces to the maximum extent feasible as the means of
achieving the policy objectives in the Telecommunications Act.
Canadian Telecommunications Policy objectives include affordable
and accessible telecommunication services, Canadian ownership
and control and safeguarding privacy. Industry Canada applies
similar policy objectives for licensing wireless services.
1.2 Is Canada a member of the World Trade Organisation? Has
Canada made commitments under the GATS/GATT
regarding telecommunications and has Canada adopted
the WTO Basic Telecommunications Agreement?
Yes it is. Canada has been a member of the WTO since January 1,
1995.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Canada?
Fixed networks and services are subject to regulation by the CRTC
pursuant to the Telecommunications Act. The CRTC has deregulated,
or forborne from the regulation of, many retail services on the grounds
that competition is sufficient to protect the interests of users.
Streamlined price regulation continues for local wireline services not
subject to actual competition. Virtually all telecommunication
services, both wireline and wireless, are open to competition.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The primary telecommunication regulator is the CRTC, which
regulates the wholesale and retail services provided under tariff by
the incumbent local exchange carriers (“ILECs”). Industry Canada
regulates wireless carriers through a licensing regime. The
Competition Bureau has jurisdiction over mergers of telecom firms
and may respond to complaints of anti-competitive conduct in
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John E. Lowe
Alicia K. Quesnel
respect of services which have been deregulated but historically has
not taken an active regulatory role.
Where the CRTC forbears from regulation, as it is required to do under
the Telecommunications Act when it considers that a service is subject
to sufficient competition to protect the interests of users, competitive
issues may be dealt with by the Competition Bureau to the extent of
the forbearance order. The CRTC, Industry Canada and the
Competition Bureau exercise concurrent jurisdiction over mergers and
have divided up authority in relation to different types of market
practices. The CRTC has exclusive authority over issues related to
interconnection and access and the Competition Bureau has exclusive
authority over conspiracies to fix prices or otherwise prevent or lessen
competition unduly, bid rigging and price maintenance.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Appeals from decisions of the CRTC which raise question of law or
jurisdiction may be appealed to the Federal Court of Appeal with
leave of the Court. CRTC decisions may also be reviewed on policy
grounds by Federal Cabinet on its own motion or upon petition.
Industry Canada's licensing determinations are subject to judicial
review proceedings before the Federal Court.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Telecommunication service providers (“TSPs”), which include all
Canadian carriers and resellers, must register with the CRTC and
are subject to a revenue tax, discussed in question 12.1.
Licences are required from the CRTC for international
telecommunication services and for international submarine cable
licences.
The CRTC does not operate under strict statutory time limits.
However, licences for international telecommunication services and
submarine cables are generally issued expeditiously through a paper
process without public hearing.
Radiocommunications licences, including spectrum licences, must
be obtained from Industry Canada in order to operate a wireless
communications network. Major spectrum offerings are allocated
through a competitive bidding process which takes about a year to
complete.
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In cases where demand for spectrum does not exceed supply,
licence applications are reviewed for suitability of the proposed use,
feasibility of the applicant executing its plan and meeting the
Department's policy objectives.
2.2 What other requirements, permits or approvals must be
Canada
met or obtained before networks may be installed or
operated and services provided?
Telecommunications falls under exclusive federal jurisdiction,
which leaves little scope for provincial or local permits or
approvals. Canadian carriers may require rights-of-way approval
from municipalities (failing which approval may be sought from the
CRTC), and access to support structures operated by power utilities
and private rights-of-way from landowners or other owners, such as
pipeline and railway operators. All Canadian carriers and wireless
licensees must comply with Canadian ownership and control
requirements.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
International telecommunication services licences and international
submarine cable licences are transferrable with the consent of the
CRTC and Minister, respectively. Most spectrum licences stipulate
that licence transfers require ministerial consent. Depending on the
particular conditions of licence, a change of control of the licensee
may require notification and/or approval by the Minister. It is
usually a condition of licence that notification must be given of any
change of control of a radiocommunications licensee that could
affect Canadian ownership and control requirements.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
International telecommunication services licences and cable
submarine licences may not exceed a term of 10 years. Spectrum
licences are generally issued for a term of 10 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Public rights-of-way may be used by Canadian carriers. Carriers
must negotiate with municipalities for access to public rights-of-
way, failing which access may be granted by the CRTC upon
application. Access to support structures owned by power utilities,
which are regulated by provincial public utilities boards, are subject
to negotiation and the rates and terms may be approved by
provincial regulators. Private land may be accessed through
commercial agreements, the enforceability of which is subject to
provincial law.
Spectrum licence holders are entitled to negotiate antenna site
sharing agreements with other spectrum licensees at commercial
rates. If an agreement cannot be reached, the terms of access and
rates may be determined by arbitration.
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3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Carriers must cooperate with municipal authorities in the
installation of cables in public rights of way. However, if a carrier
cannot obtain consent to install cables on public rights-of-way, the
CRTC may grant permission on conditions.
Wireless carriers are required to cooperate with municipal
authorities on antenna site locations. Industry Canada may
determine site locations.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
'passive access' to such basic infrastructure?
The CRTC recently established a comprehensive framework for the
provisioning of wholesale services by ILECs. Wholesale facilities
that are essential for competitors to compete, required for the public
good, interconnection arrangements and conditionally mandated
services/facilities must be provided at long run incremental cost
plus a mark-up. Non-essential facilities are subject to a phase out
period that ends on 2011 to 2013, depending on the service. The
non-essential facilities subject to phase out include certain transport
and access facilities, use of towers and buildings for mounting
antennas and operator services.
Spectrum licensees are required to share antenna towers and
prohibited from signing exclusive site arrangements. Disputes over
access for access to antenna towers can be resolved by arbitration.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
The CRTC has mandated access to services required to permit the
interchange of traffic with PSTN customers and traffic between
carriers within the same exchange. Local, toll and CCS7 transiting
services, administrative services related to long distance selection,
access tandem and direct connect interconnection services and
billing and collection services are also considered interconnection
services.
Industry Canada has mandated roaming to foster the development
of a competitive wireless communications services market.
Mandated roaming is limited to certain carriers who meet build-out
obligations and must be based on commercial rates, subject to
arbitration.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Disputes may be resolved by the CRTC or, in the case of wireless
carriers, Industry Canada or private arbitration.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Only interconnection contracts and prices that are subject to tariffs
must be published.
Burnet, Duckworth & Palmer LLP
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The CRTC requires prices for interconnection and/or network access
to be based on company-specific long run incremental cost plus a
mark-up. Prices for mandated roaming are based on commercial rates.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
No there are not.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The CRTC and Industry Canada have not mandated access to next
generation services and fibre access has been classified as non-
essential.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Unbundled local loops must be provided by ILECs even where the
CRTC has granted local forbearance. Prices are based on company-
specific long run incremental costs plus a mark-up of 15%.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any 'regulatory holidays' or other
incentives to build fibre access networks proposed?
Next-generation access is not included in the scope of essential
network services, which must be provided at tariffed rates.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
The CRTC has lifted retail price controls on most local and long
distance services. ILECs continue to have their prices for local
services controlled in rural areas of Canada. Wholesale price
controls are imposed on ILECs with respect to essential and other
mandated wholesale services, including non-essential services
during the phase out period.
Prices for retail wireless services are not regulated by Industry
Canada. Wholesale prices for mandated roaming are based on
commercial rates.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The CRTC has established a Commissioner for Complaints for
telecommunication services, charged with resolving complaints
about fixed, mobile and internet access services. The CRTC also
deals with complaints relating to payphones, 900 and accessibility
services. Consumer rights and obligations with respect to ILECs
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Canada
are set out in Terms of Services, which include an obligation to
serve, confidentiality of customer records, limitation of liabilities
and procedures for termination of services. On September 30,
2008, the CRTC initiated a National Do Not Call list that allows
customers to reduce the number of telemarketing calls they receive.
Canada
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers are allocated in accordance with the North
America Numbering Plan, which is overseen by the CRTC through a
contractor. Local exchange numbers are allocated by the ILEC within
their serving territories. Members of the North America Numbering
Plan are Canada, the United States, Mexico and Caribbean countries.
6.2 Are there any special rules which govern the use of
telephone numbers?
Rules established by the North American Numbering Plan
determine the use of telephone numbers. For public good, and to
contribute to accessibility, issuance of TTY numbers for the hearing
impaired are required. ILECs allocate number blocks within their
serving territories.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The contractor retained by the CRTC distributes telephone numbers
directly or to the ILEC.
6.4 What are the basic rules applicable to the 'porting' (i.e.
transfer) of telephone numbers (fixed and mobile).
Local number portability (“LNP”) is required for fixed and mobile
service providers. LNP is available in metropolitan areas to transfer
numbers between mobile providers as well as between fixed and
wireline providers.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Canada's territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
A licence is required for the construction or operation of any
international submarine cable, which excludes a cable situated
entirely under fresh water. Conditions may be imposed by the
Minister consistent with the Canadian Telecommunication Policy
Objectives. Licence fees are nominal.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio spectrum frequency is regulated by Industry
Canada pursuant to the Radiocommunication Act. The operation of
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microwave transportation facilities, mobile wireless systems,
satellites and satellite earth stations all require licences.
8.2 How is the use of radio frequency spectrum authorised in
Canada? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
Canada
'beauty parades', etc.?
Where demand for spectrum exceeds supply, Industry Canada
generally follows a competitive bidding process (auction) to
determine the allocation of spectrum. Industry Canada establishes
licensing policies and auction rules for major competitive auctions,
which take about a year to complete. Comparative selection
processes or “beauty” contests have also been used to allocate
scarce spectrum.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Yes, usage can be the subject of conditions of licence.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
All fixed-satellite service earth stations must use a satellite that has
been approved for use in Canada. Canadian ownership and control
requirements do not apply to the operation of earth stations.
Industry Canada facilitates domestic and international coordination
to avoid interference from earth stations.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Industry Canada permits certain licence-exempt devices (e.g. WiFi
and Bluetooth) to operate in special frequency bands provided
devices meet low-power emission limits and other specific
requirements.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Spectrum won by competitive auction generally does not require
the payment of additional fees. Otherwise, fees are set by Industry
Canada.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Spectrum licences may be transferred with approval of the Minister.
Most current spectrum licences may be sublicensed, depending on
the particular conditions of licence.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Data retention is subject to the Personal Information Protection and
Electronic Documents Act, which provides detailed guidelines
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concerning the collection, use and disclosure of personal
information.
In February 2009, the CRTC announced a review of the regulatory
measures associated with confidential customer information and
privacy but no final review has been completed.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
The Lawful Access Bill was introduced to the House of Commons
in October 2005. Operators are required to maintain call
interception or wiretap capabilities. Further, all telecommunications
companies would be required to install high tech equipment capable
of intercepting exchanges although this requirement to provide this
wiretapping capacity only arises upon an upgrade of equipment.
Under section 184.4 of the Criminal Code of Canada, a peace officer
can intercept a private communication without permission from a
judge if the peace officer has reasonable grounds to believe that the
urgency of the situation means that authorisation cannot be obtained;
believes on reasonable grounds that the interception is immediately
necessary to prevent and unlawful act that would cause serious harm
to any person or to property; and either the originator of the private
communication or the person intended by the originator to receive
it is the person who would perform the act that is likely to cause the
harm or is the victim, or intended victim, of the harm. Section 184.4
was recently held to be unconstitutional by the British Columbia
Supreme Court although its decision was stayed for 18 months to
provide time for Parliament to amend the laws.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Article 11.1 of the Terms of Services requires a customer to give
express consent or disclosure pursuant to a “legal power” for
information regarding a customer, other than a customer's name,
address and listed telephone number, to be released. In 2003, the
CRTC modified the terms of service to allow for disclosure, without
express consent to a public authority, if in the reasonable judgment
of a provider it appears there is imminent danger to life or property
which could be avoided or minimised by disclosure of information.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The CRTC does not regulate retail internet services or computer-to-
computer VoIP services that reside solely on the internet.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
According to Section 31 of the Telecommunications Act, “there can
be no limitation of a Canadian carrier’s liability in respect of the
telecommunications service unless it has been authorised or
prescribed by the Commission”. The limitation for bringing a civil
Burnet, Duckworth & Palmer LLP Canada

action for an act or omission contrary to the Telecommunications 11 USO

Act is two years.

11.1 Is there a concept of universal service obligation; if so how

10.3 Are telecommunications operators and/or internet service is this defined, regulated and funded?
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content

owners whose rights may be infringed by means of file-
sharing or other activities?
Subject to any contractual obligations with their customers, ISPs in
Canada in civil matters are generally not under any obligation to
provide information to third parties to assist content owners and to
do so risks breach Canadian privacy laws, except in cases where
there is a court order or similar legal mechanism requiring the ISP
to do so. There appears to be no obligation to disconnect customers
or to inform customers, although it is likely in most cases that
nothing prevents an ISP from informing a customer of concerns or
possible claims, and disconnection may be possible if there is a
breach of contract by a customer. However, the law in this area is
changing rapidly and ISPs should obtain current legal advice in the
event of any demand to provide information or disconnect
customers, or take other action related to file sharing or similar
activities.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any 'net
neutrality' requirements?
A recent application which was filed by the Canadian Association
of Internet Providers (CAIP) requested that the CRTC order Bell
Canada to cease and desist from “throttling” its services and,
particularly, its Gateway Access Service.
The CRTC held hearings from July 6th to 14th, 2009 and the
decision in respect to internet traffic management and whether there
should be guidelines has not yet been released.
10.5 How are ‘voice over IP’ services regulated?
VoIP services are a part of the same market as local exchange
services and should be regulated without an examination of the
entire relevant market for local exchange services. The same
regulatory scheme was imposed on both local access-dependant and
access-independent VoIP services. However, the CRTC’s decision
was varied by the Governor in Council as it found that the CRTC
should refrain from regulating retail local access-independent
services as forbearance from economic regulation would stimulate
competition and innovation.
Canada
All TSPs with Canadian telecommunication service revenues equal
to or greater than $10 million are required to contribute to the
subsidisation of residential telephone service in high-cost serving
areas. Contribution is collected based on a percentage of TSPs
Canadian telecom revenues. In 2007, the CRTC’s approved
revenue-percent charge was set at 0.94% and funded a $219 million
subsidy.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
Canadian ownership and control requirements apply to all Canadian
carriers, including fixed and mobile operators. Resellers need not
be Canadian owned and controlled.
The Canadian ownership and control requirements are set out in the
Telecommunications Act and the Radiocommunication
Regulations, on essentially identical terms. In the case of a
corporation, non-Canadians may own up to 1/3 of the voting shares
of the holding company and 20% of the voting shares of the carrier
itself provided that 80% of the members of the Board of Directors
of the carrier are individual Canadians and the carrier is not
otherwise controlled by persons that are non-Canadian. Somewhat
different requirements are required for broadcast undertakings
under the Broadcasting Act.
There is not an explicit requirement under the Telecommunications
Act for Canadian ownership and control to be established before a
transaction is completed. However, all Canadian carriers must be
Canadian owned and controlled to be eligible to operate. Most
radiocommunication licences issued by Industry Canada stipulate
that notification must be given of any transfer which might affect
Canadian ownership and control, in which case the Department will
review the transaction. The timing of an ownership and review
process varies depending on the complexity of the transaction.
However, Canadian regulators seek to ensure a timely review to
allow commercial transactions to proceed without delay.
13 Future Plans

10.6 Are there any rules to prevent, restrict or otherwise govern 13.1 Are there any imminent and significant changes to the
internet or email communications, in particular, marketing legal and regulatory regime for electronic communications?
and advertising communications?
No major legislative changes are forecast that would have an
All service providers offering local VoIP service must notify imminent and significant change to the regulatory and legal regime
customers of any service limitations with respect to their 9-1-1 for electronic communications in Canada.
service and implement interim solutions pending the development
of a long-term fix/non-native and nomadic VoIP enhanced 9-1-1
solution. False or misleading advertising is subject to provincial
and federal laws of general application, including the Competition
Act.

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 Burnet, Duckworth & Palmer LLP Canada

John E. Lowe Alicia K. Quesnel

Burnet, Duckworth & Palmer LLP Burnet, Duckworth & Palmer LLP
1400, 350 - 7th Avenue SW 1400, 350 - 7th Avenue SW
Calgary, AB T2P 3N9 Calgary, AB T2P 3N9
Canada Canada

Tel: +1 403 260 0257 Tel: +1 403 260 0257

Canada

Fax: +1 403 260 0332 Fax: +1 403 260 0332

Email: jel@bdplaw.com Email: akq@bdplaw.com
URL: www.bdplaw.com URL: www.bdplaw.com

John is a partner at Burnet, Duckworth & Palmer LLP (“BD&P”) and
has worked in the area of telecommunications and other network
industries since 1987. He has represented fixed and mobile carriers
on commercial transactions, Canadian ownership and control
reviews, spectrum auctions and many regulatory proceedings before
the CRTC and Industry Canada. John is co-author of the Canadian
chapter on Canadian Communications Law in International
Telecommunications Law, Center for International Legal Studies.
His experience has been recognised internationally as evidenced by
John’s listing in Chambers Global Client’s Guide to the World's
Leading Lawyers and description as “an excellent lawyer” with a
“superb knowledge of telecoms”. John can be reached at 403-260-
0257 or by e-mail at jel@bdplaw.com. For a more detailed
curriculum vitae, visit the BD&P website at www.bdplaw.com.
Alicia is a partner at Burnet, Duckworth & Palmer LLP (“BD&P”).
Her practice encompasses joint ventures, acquisitions and
divestitures and issues of competition law and foreign investment for
a variety of business sectors, including the telecommunication,
energy and infrastructure sectors. Her international law experience
extends to Canada, U.S. and UN trade sanctions and analysis of
international commercial issues. She has been recognised
internationally as evidenced by her inclusion in Chambers Global
Guide to the World’s Leading Lawyers since 2006. Alicia can be
reached at 403-260-0233 or by e-mail at akq@bdplaw.com. For
a more detailed curriculum vitae, visit the BD&P website at
www.bdplaw.com.

Burnet, Duckworth & Palmer LLP (“BD&P”) is a leading full service Canadian law firm of over 135 lawyers in the city
of Calgary, Alberta. BD&P provides premier legal service in all areas of business law, most notably in banking & finance,
commercial transactions, commercial real estate, construction, employment & labour, energy, insolvency &
restructuring, intellectual property & technology, regulatory, securities and tax. In addition, BD&P is widely recognised
for its experience in most areas of litigation at all levels of Canadian courts. BD&P is committed to understanding and
meeting the needs of its clients and prides itself in providing high quality, innovative and timely service.

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Chapter 13
China
Lovells LLP
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The overall objectives governing telecommunications policy are set
forth in the 11th Five-year Plan (covering 2006-2011) and the 2006
to 2020 National Informatization Development Strategy and include
developing more extensive telecommunications infrastructure
coverage, significantly enhancing the capacity for technological
innovation, adopting next-generation technologies, optimising the
structure of the information technology industry, and improving
information security.
1.2 Is China a member of the World Trade Organisation? Has
China made commitments under the GATS/GATT regarding
telecommunications and has China adopted the WTO
Basic Telecommunications Agreement?
Yes, China’s commitments under GATS/GATT allow for foreign
investment in the telecommunications industry; however, these
concessions still limit the amount of foreign equity participation in
most areas (i.e. joint ventures with Chinese partners are required),
and foreign investors as well as their Chinese partners must meet
specific qualifications to apply. (See question 12.1.)
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in China?
The Telecommunications Law (effective 20 September 2000)
divides the industry into two sectors: basic telecommunications and
value-added telecommunications services (“VATS”). The basic
telecommunications sector includes fixed-network domestic long
distance and local telephony, mobile network voice and data
services, satellite communications, internet and other data
transmission, sale and leasing of bandwidth and other network
elements, international communications infrastructure, and
reselling of basic telecommunications services.
Value-added telecommunications services include email, online
database storage and retrieval, online data processing, internet
access services, and internet information services. It is important to
note that, unlike other jurisdictions, China regulates services such
as the provision of internet content as a form of telecoms service,
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Michael Aldrich
Gaston P. Fernandez
thus triggering discretionary regulatory approvals for operating
licences under the Telecommunications Licensing Management
Measures (as revised effective 10 April 2009).
Companies providing basic telecommunications services must be at
least 51% state-owned. Currently the basic telecommunications
sector is dominated by three state-owned enterprises: China
Telecom; China Unicom; and China Mobile.
On the face of national regulations, the VATS sector is relatively
more open to competition - foreign investors are allowed to hold up
to 50% of the equity interest of a company in this sector - although
due to policy restrictions foreign investors often choose to
participate in the market through indirect investment. (See question
12.1.)
Chinese telecoms companies with foreign shareholders are
commonly called FITEs, an acronym for “foreign invested
telecommunications enterprises”. As indicated above, FITEs can
only be established as joint venture enterprises between qualified
Chinese and foreign parties.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
There is a polyarchy of regulatory authorities in China which have
jurisdiction over various aspects of the telecommunications
industry, including: (1) the Ministry of Industry and Information
Technology (“MIIT”), which is the primary authority with
jurisdiction over the telecoms sector, including the approval of
licenses to operate in the telecommunications industry; (2) the State
Administration of Radio, Film and Television (“SARFT”), which
has jurisdiction over the content of video and audio broadcast over
the internet and the coaxial cable infrastructure, and claims
authority over any telecommunications uses of that infrastructure;
(3) the State Administration for Industry and Commerce (“SAIC”),
which is the national commercial registration authority for issuing
business licences; (4) the Ministry of Commerce (“MOFCOM”),
which has authority to approve foreign investment projects and
mergers and acquisitions, including those in the
telecommunications industry; and (5) the National Development
and Reform Commission (“NDRC”), which has authority over
project approval and other preliminary approvals. The Ministry of
Construction (“MOCON”) has regulatory authority over licensing
construction enterprises (necessary for companies building
telecommunications infrastructure), with additional industry-
specific construction licences required from MIIT.
The Anti-monopoly Law (effective 1 August 2008) created three
regulatory bodies for enforcing competition law: (1) an Anti-
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 Lovells LLP
monopoly Commission (under MOFCOM) with authority to issue
guidelines and policies and evaluate proposed mergers and
acquisitions; (2) an Anti-monopoly Law Enforcement Agency
(under the SAIC) with authority to investigate monopolistic
practices and execute enforcement actions; and (3) a Price
Supervision and Inspection Division (under the NDRC) charged
with investigating and enforcing anti-competitive pricing practices.
China
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Under the Administrative Licensing Law (effective 1 July 2004)
decisions relating to administrative licensing can be appealed to an
administrative hearing board within the agency, affording the
parties an opportunity to present evidence and conduct cross-
examinations.
In addition, decisions of regulatory authorities are generally subject
to appeal before the administrative division of the trial-level
People’s Court at the place where the disputed administrative act (or
omission) took place, subject to the Administrative Procedure Law
(effective 1 October 1990). Higher-level People’s Courts may
assert jurisdiction over matters which are deemed important.
However, certain administrative acts are not subject to appeal
before the People’s Courts, including those involving issues of
national security (which could in some instances be a consideration
in the telecommunications industry).
To date, few, if any, Chinese companies or foreign investors have
sought judicial review for a decision by national regulatory
authorities denying an operating permit for a FITE.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Companies seeking to install or operate an electronic
communications network must first obtain appropriate licences
from the agencies listed above. Foreign companies directly
investing in the telecommunications industry must procure
approval for establishing a FITE, and obtain the corresponding
business license and operating permits. Companies with wholly
Chinese equity ownership need only complete registration
procedures, procure an appropriate business scope in their business
licence and obtain the requisite operating licences.
The process for approving a FITE is time consuming and the
numerous requirements have deterred direct foreign investment.
There are slightly varying application processes for FITEs
depending on (1) whether the FITE will conduct basic or value
added telecommunications services, and (2) whether it operates on
an inter-provincial scale, or solely within a province, autonomous
region or directly administered city. In general, the Chinese party
to the joint venture must first apply to MIIT for approval of the
venture which will be approved or denied within 30-180 days
depending on the proposed FITE’s business scope and its investors.
(See question 12.1.)
The MIIT has interpreted its regulations and China’s WTO
accession documents in a manner enabling the Ministry to withhold
approvals for FITEs in certain VATS sectors. A slightly more
relaxed alternative is available for foreign VATS investors
qualifying for special treatment under the Closer Economic
Participation Agreement between Hong Kong and the PRC.
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2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Besides obtaining a FITE business licence and a
telecommunications operating licence covering the company’s
intended business activities, a number of additional licences must
be acquired for certain activities. For example: importing
telecommunications network equipment requires a
Telecommunications Network Equipment Licence (requiring the
applicant to demonstrate adequate quality control and after-sales
service prior to connection with the PSTN); telecommunications
equipment deployed in areas prone to severe earthquakes must
receive an additional certification from MIIT under the
Administrative Measures for Seismic Performance Testing of
Telecommunications Equipment (effective 10 April 2009), and
companies building telecommunications networks must apply for a
Telecommunications Construction Supervision Company
Certificate from MIIT and additional certifications from MOCON.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Generally, telecommunications operating licences and other
authorisations cannot be transferred. If the equity structure of a
company holding certain telecommunications licences changes,
MIIT must be notified of the change and the licence’s validity will
be reviewed.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
A basic telecommunications operating licence will be valid for
either 5 or 10 years, depending on the company’s business scope. A
VATS operating licence will be valid for 5 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Article 46 of the Telecommunications Law provides that basic
telecommunications providers can install power and
telecommunications lines, and wireless stations for public use on
private land in exchange for a fee. The fee amount will be
determined prior to construction by reference to the provincial-level
MIIT standards at the place of installation.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
There are no specific planning or zoning regulations addressing
installation of network infrastructure. Rather, basic
telecommunications providers draft plans in consultation with MIIT
for approval on an individual project basis.
The Circular on Strengthening Management of Telecommunications
Infrastructure and Network Construction (effective 6 July 2005)
states generally that no entity may interfere with the network
construction activities of basic telecommunications providers.
Lovells LLP
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Basic telecommunications operating companies are required to
lease, sell, or swap excess capacity with other licensed providers to
ensure efficient use of resources subject to the Circular on
Strengthening Management of Telecommunications Infrastructure
and Network Construction.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Interconnection of public telecommunications networks is
mandated for basic telecommunications services operators under
the Public Telecommunications Network Connectivity Rules
(“Connectivity Rules”, effective 10 May 2001). No measures may
be taken which limit or delay access to third party
telecommunications providers. To qualify for interconnection, an
enterprise must have a basic telecommunications operating license.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The Telecommunications Network Connectivity Dispute Resolution
Measures (effective 1 January 2002) grant MIIT jurisdiction to
mediate interconnectivity and access disputes, and the authority to
impose binding administrative decisions.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
MIIT sets pricing standards for interconnectivity of
telecommunications networks depending on the originating and
receiving party according to the Public Telecommunications
Network Interconnectivity Pricing Measures (as amended from time
to time).
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Interconnection charges for optical fibres and other
telecommunications lines are regulated through a government
guidance price (setting forth a base price and permissible
fluctuation range) under the Circular on Charging for
Telecommunications Services to be Co-managed by Local
Telecommunications and Price Authorities (effective 6 August
2002).
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Accounting is separated for different operators and rules on cost
sharing are provided in the Connectivity Rules and the Allocation
Measures for Settlement and Relay Costs between Connected
Public Telecommunications Networks (effective 1 November 2003).
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Article 36 of the Connectivity Rules provides that operators shall
clearly divide operation and maintenance obligations between
connected networks. The Connectivity Rules further presume the
independent legal status of separate operators.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
China
networks?
On 6 January 2009, the MIIT issued 3G licences to China Mobile,
China Unicom and China Telecom, the three major state-owned
basic telecommunications services providers. No regulations have
yet been published specifically on interconnection for next-
generation networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Currently there are no published legal requirements for owners of
copper local loop access or cable TV infrastructure to unbundle
their facilities.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Though no formal proposals for regulations on next-generation
access have yet been published, a June 2009 report in China
Communications Weekly, an official paper of the MIIT, indicated
that the three major basic telecoms operators in China are
implementing pilot projects for next-generation access and
probably will use EPON technology.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Yes, the MIIT may order price controls under the
Telecommunications Law. Specific price controls are found in a
number of regulations including the Circular Reforming Certain
Telecommunications Fees (effective 1 January 2005), and the
Circular Limiting Roaming Fees for Mobile Telephone Customers
(effective 13 February 2008).
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Yes, rules applicable to providers of telecommunications services
are found in a MIIT Circular on Telecommunications Service
Coverage (effective 20 April 2005), regulating quality and setting
standards for fixed line and wireless telephone, internet, satellite
and other services. Requirements for obtaining administrative
licences in these areas are listed in the Administrative Licensing
Item List (effective 10 April 2009). National and regional consumer
protection laws also provide avenues for consumers opposing
unilateral actions by operators.
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6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Applications for telephone numbers should be made to MIIT in
China
accordance the Telecommunications Network Number Resource
Management Measures (“Network Resource Measures”, effective 1
March 2003). Special “short” telephone numbers and network
identifying codes are also allocated by MIIT.
6.2 Are there any special rules which govern the use of
telephone numbers?
The Network Resource Measures restrict use of certain telephone
numbers. For example, numbers starting with “1” are reserved for
cellular phone use, and five-digit telephone numbers starting with
“95” are reserved for use by services companies such as travel
agencies.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Basic telecommunications providers will assist users in activating
their telephone numbers within ten working days of signing a
service agreement. Following activation, the basic
telecommunications service provider will register the number and
its use with MIIT.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
“Number portability” has not yet been adopted as a business custom
and there are no specific regulations allowing single users to port
telephone numbers from one service provider to another. However,
the Network Resource Measures prohibit telephone number users
from selling or transferring or changing the use of their telephone
numbers without MIIT approval.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
China’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
There are no published laws regarding the fees for bringing
submarine cables into PRC territorial waters or for landing them;
however, only basic telecommunications operating companies (i.e.
majority state-owned enterprises) may operate international
telecommunications networks under the Telecommunications
Licensing Management Measures.
Foreign companies signing cooperative agreements with PRC
companies to engage in installation or maintenance of submarine
cables must receive approvals from MIIT, the State Planning
Committee and MOFCOM, as required by the International
Communications Facilities Construction Management Measures
(effective 1 August 2002).
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8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio frequency spectrum is jointly regulated by the
Radio Management Department of the Military Affairs Committee
and the MIIT. Detailed regulations on the radio frequency spectrum
are found in the Radio Management Measures (issued by the
Military Affairs Committee, effective 11 September 1993) and the
Radio Frequency Distribution Rules (issued by MIIT, effective 5
September 2006).
Individual amateur radio hobbyists may also apply to the MIIT for
permits following certification under the Amateur Radio Call Sign
Management Measures (effective 27 April 2007) and the
Provisional Measures for Foreigners Operating Amateur Radio
Stations (effective 1 February 2001).
8.2 How is the use of radio frequency spectrum authorised in
China? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Radio frequencies are allocated on a centralised basis under the
Radio Management Measures by the state radio regulatory entity
and its local counterparts.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Radio Frequency Distribution Rules distinguish mobile, fixed
and satellite usage in granting spectrum rights, designating primary
and secondary usage categories for each frequency.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite earth stations and their use for up-linking and down-
linking are regulated pursuant to the Rules on Establishing Satellite
Communication Networks and Installing Earth Stations (effective
10 April 2009). Earth stations sending or receiving signals from
foreign countries, Hong Kong, Taiwan and Macau must be
approved by MIIT.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
No, it cannot.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Nominal registration fees for radio frequency spectrum use are
payable as set forth in the Radio Fee Management Rules (effective
1 April 1998) and supplemented by the NDRC and Ministry of
Finance effective 1 January 2004.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Transfer or lease of radio frequency spectrum (or accomplishing an
Lovells LLP
effective transfer or lease by other means) is prohibited under the
Rules on Strengthening Radio Frequency and Station Management
(effective 7 February 1994).
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there data
protection (privacy rules) applicable specifically to
telecommunications?
Telecoms operators must preserve original data on long-distance
call charges, mobile phone call charges, mobile phone message fees
and IP telephone call charges for at least for 5 months under the
Norms for Telecommunications Services (effective 13 March 2005).
Email service providers must record the IP addresses, email
addresses and sending or receiving times of all emails and preserve
the information for 60 days under the Email Services Management
Measures (effective 30 March 2006).
There are currently no comprehensive privacy laws applicable to
telecommunications, but telecoms operators are generally obliged
to preserve the confidentiality of information collected by various
regulations governing particular sectors of the industry. A draft
Personal Information Privacy Law which would affect electronic
communications and record-keeping has been in circulation since
2003; however, there is no announced date for a vote before the
National People’s Congress.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Yes, telecommunications operators are required to build and operate
their networks to comply with national security requirements,
including allowing the authorities to examine the contents of
communications in the course of a lawful investigation.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
National security authorities may initiate electronic surveillance
following an internal approval process under the National Security
Law (effective 22 February 1993). The people’s courts, procurates,
and the Public Security Bureaux have the right to collect evidence
and conduct surveillance in the course of an investigation under the
Criminal Procedure Law (effective 1 January 1997).
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Provision of information services over the internet is subject to
specific regulation by MIIT and websites are divided by the Internet
Information Services Measures (effective 20 September 2000) into
two types: Operating Internet Information Services (“OIIS”); and
Non-operating Internet Information Services (“NIIS”). OIIS websites
include any provision of online information in exchange for payment,
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and require a VATS operating licence. NIIS registration is available
for websites providing free information online upon filing a form
containing information about the person responsible for the online
content, as listed in the NIIS Registration Measures (effective 20
March 2005). For all websites, an Internet Content Provider (“ICP”)
number will be issued to the site’s operator following registration with
MIIT. Websites must list their ICP number and a link to the MIIT
China
website at the bottom centre of the front page.
Internet access providers must operate in accordance with the
Internet Website Management Work Details (effective 1 December
2005), requiring that access providers collect accurate information
on content providers and not allow customers to upload content
without an ICP number.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
There is no immunity defence for internet service providers. Under
the Internet Information Services Measures, internet information
service providers may not produce, reproduce, disseminate or
broadcast information with content prohibited by law. The
Telecommunications Licensing Management Measures further
provide telecommunications operators are responsible for
monitoring content which they host and notifying the authorities of
any illegal content.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The Administrative Measures for Protecting Copyrights on the
Internet (effective 30 May 2005) require internet service providers
to immediately remove infringing content upon receiving notice
from the copyright holder. The ISP must further record the content
of the information provided, the time of publication and the internet
address or domain name used for publishing such information,
along with information on the account of the user posting the
infringing content.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Telecommunications operators may charge different rates for
certain types of traffic over their networks. According to the
Telecommunications Regulations, charges for telecommunications
services for which there is sufficient competition can be charged at
a market price. However, charges for certain basic
telecommunications services shall be fixed by the government.
Telecommunications operators cannot refuse, delay or terminate the
provision of telecommunications services to a telecommunications
subscriber without a legitimate reason. However,
telecommunications operators are obligated to block content
contravening China’s laws and regulations.
10.5 How are ‘voice over IP’ services regulated?
VOIP services are categorised as basic telecommunications services
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 Lovells LLP
under the Catalogue of Telecommunication Services (as revised
effective 21 February 2003); providers therefore require a Basic
Telecommunications Services Operating Licence from the MIIT.
According to the Circular on Adjusting Management of Charges for
Some Telecommunications Services (effective 1 October 2005),
there are no government mandated price controls for VOIP services.
Additional compulsory technical standards are found in the Norms
China
for Telecommunications Services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
There are a number of restrictions on internet communications
under the current regulatory regime. Unsolicited email
advertisements are illegal and all email advertisements must contain
the word “AD” or its Chinese equivalent in the subject line:
violators are subject to fines of up to RMB 30,000 if the sender
receives “illegal proceeds” from his actions, subject to the Email
Services Management Measures. Other marketing and advertising
communications on the internet are subject to the same general
regulations as offline advertising, under the jurisdiction of SAIC.
Websites with bulletin board services must apply to MIIT as
described in the Internet Bulletin Board Service Measures (effective
8 October 2000). Article 15 of the Internet Information Services
Measures prohibits publication or distribution of certain types of
information, including that which harms national security, causes
loss to the nation’s reputation or interests, promotes ethnic
discrimination or hatred, or has pornographic content. Content
relating to news, publishing, education, medicines or medical
devices and other regulated information must be approved by the
relevant PRC government authority.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Article 44 of the Telecommunications Law creates a duty to provide
universal service and authorises MIIT to consult with the Ministry
of Finance to enact Measures for Managing the
Telecommunications Universal Service Fund (which have not yet
been published). Some service obligations of telecommunications
providers are listed in detail in the MIIT Circular on
Telecommunications Service Coverage mentioned above.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
The Rules on Foreign Investment in Telecommunications
Companies (as amended effective 10 September 2008) and the
Telecommunications Licensing Management Measures (as revised
effective 10 April 2009) set out application procedures for foreign
invested companies seeking to invest in basic or value-added
telecommunications services. Companies providing basic
telecommunications services must be at least 51% state-owned.
Companies providing value-added telecommunications services
may be up to 50% foreign-owned.
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China
FITEs may only be established as joint venture companies with
PRC companies and there are a number of restrictions which have
made establishing FITEs impractical, including: (1) the minimum
registered capital of a FITE engaging in inter-province basic
telecommunications must be at least RMB 1 billion; (2) the primary
foreign investing party must be registered to provide similar
telecommunications services in its home country (a restriction
precluding investment by venture capitalists); and (3) the primary
Chinese investing party must also be registered to provide
telecommunications services similar to those provided by the FITE,
limiting the number of potential partners for foreign investors.
Onerous restrictions on direct foreign investment in the
telecommunications industry have led many foreign investors to
enter the market through a “CCF” structure involving three parties:
(1) a wholly domestic-owned Chinese party with the necessary
licenses and approvals; (2) a foreign-owned Chinese entity
effectively controlling the first enterprise through a series of
contracts; and (3) the foreign party which owns and controls the
second enterprise.
Though the CCF structure is of questionable legality under PRC
law (with a number of previous CCF structures in the basic
telecommunications sector unwound under government order in the
late 1990s), it is now widely used in the VATS sector. Currently the
CCF structure is an “open secret”, having been disclosed in the
prospectuses of publicly listed telecommunications companies in
Hong Kong and New York, and its continued existence is
undoubtedly known to PRC authorities.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Publicly available information from MIIT indicates that a new
Telecommunications Law is scheduled for approval before the end
of the current five-year plan in 2011; however, no drafts have yet
been published.
Draft Measures on Internet Safety and Supervision were published
on 18 August 2009 and propose requiring telecoms operators and
domain name service providers to implement network “supervision
systems” connecting to central systems operated by MIIT. The
draft measures are intended to improve “internet safety”, including
ensuring stable services and preventing unlawful tampering or
access to online information.
Lovells LLP China

Michael Aldrich Gaston P. Fernandez

Lovells LLP Lovells LLP
31st Floor, Tower 3, China Central Place 31st Floor, Tower 3, China Central Place
77 Jianguomen Rd., Chaoyang District 77 Jianguomen Rd., Chaoyang District
Beijing 100025 Beijing 100025
China China

Tel: +86 10 6582 9488 Tel: +86 10 6582 9488

China
Fax: +86 10 6582 9499 Fax: +86 10 6582 9499
Email: Michael.Aldrich@lovells.com Email: Gaston.Fernandez@lovells.com
URL: www.lovells.com URL: www.lovells.com

Michael Aldrich is a communications lawyer with nearly two
decades of professional experience in Greater China. He has guided
foreign telecoms investors on the evolving nature of the Chinese
telecoms regime since 1989, covering matters ranging from foreign
investment, cooperation agreements, CCF structures and their
limitations, technology licensing and all forms of internet business
activities. Mr. Aldrich has won numerous awards over the past
decade as one of the most recognised experts in the field of Chinese
telecoms/IT.
Gaston P. Fernandez is a corporate lawyer and has been working in
China since 2005. Prior to joining Lovells, he worked for a Chinese
law firm in Shenyang, assisting foreign clients on a wide array of
projects such as establishing foreign owned enterprises, customs
compliance, and a successful civil litigation defence. He currently
assists clients on a variety of general corporate matters including
due diligence, offshore structuring advice, and general regulatory
compliance. Mr. Fernandez speaks, reads and writes fluent Spanish
and Mandarin in addition to his native English.

Lovells is a London-based international law firm with offices in 26 countries and regions. The Beijing office of Lovells
was one of the first foreign law firms registered with the Ministry of Justice in 1993. Lovells Beijing advises clients
from North America, Europe and Asia on all aspects of doing business in the Peoples’ Republic of China. Its partners
have been involved in interpreting and advising on the Chinese telecoms regulatory regime for more than 15 years.
Lovells prides itself on explaining the “black letter” aspects of Chinese law in an international setting and assisting its
clients in reaching commercially sound decisions taking into consideration local legal and policy restrictions, business
objectives and local culture. The Beijing office has over thirty lawyers in addition to translators and paralegals.

91
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 Chapter 14
Cyprus
Harris Kyriakides LLC
1 Framework
1.1 When did Cyprus first liberalise telecommunications
networks and/or services?
Following public consultations and public hearings, Cyprus had
undertaken all necessary initiatives in order to complete the
liberalisation process in the telecommunications sector and the
harmonisation with the acquis communautaire within the period of
2002 and 2003. Primarily, the procedure was instituted by the
establishment of the Office of the Commissioner of
Telecommunications and Postal Regulation (OCTPR) in 2002 under
Act 19(I)/2002. This was followed by the issuance of legislative
regulations and orders leading to full harmonisation with the
applicable regulatory framework regarding telecommunications. The
target of the legislative work was the carrying out of the obligations
of Cyprus in connection with its accession to the European Union in
May 2004 and at the same time the creation of conditions for the
development and maintenance of healthy competition. The
publication of six Regulations regarding the matters of licensing and
administrative fees, interconnection, quality of services and public
hearings, on 31 December 2002 which theoretically abolished the
monopoly regime in the telecommunications sector was instrumental
in providing OCTPR with the legal basis to proceed and take concrete
practical regulatory measures for the attainment of the target of the
liberalisation of the telecommunications market. The period January-
December 2003 had been particularly significant to the development
of a competitive environment in the telecommunications sector, given
that decisive steps were taken towards the liberalisation of the market
and the entry of new companies providing telecommunications
networks and services.
1.2 Has Cyprus fully implemented the EU 2003 regulatory
framework? If Cyprus has not fully implemented the new
regulatory framework, have proceedings been brought
against Cyprus by the European Commission and if so, for
which contraventions?
The Regulations and the Orders which were enacted during 2003
were based on the European legislative framework in the
Telecommunications sector, which was in force during that period.
The EU regulatory framework was fully implemented in Cyprus by
the enactment of the Act on Regulation of the Electronic
Communications and Postal Services, Act 112(I)/2004. After
enactment by Parliament on 30 April 2004, Act 19(I)/2004 was
abolished, and the Office of the Commissioner of
Telecommunications and Postal Regulation (OCTPR) was renamed
to Office of the Commissioner of Electronic Communications and
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Michalis Kyriakides
Postal Regulation (OCECPR). Cyprus has not been summoned in
any proceedings by the European Commission for any
contravention of the acquis communautaire in the electronic
communication sector.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Act on Regulation of the Electronic Communications and
Postal Services is the main legislative instrument governing the
operation of electronic communications networks and the provision
of electronic communication services. This general legislation
incorporates provisions which call for the drafting of secondary
legislation which will ensure the complete transposition of the
acquis communautaire as well as deal in more detail with the
implementation of the Act.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The Office of the Commissioner of Electronic Communications and
Postal Regulation (OCECPR) is the national regulatory authority,
entrusted by law to apply the provisions of the Act on Regulation of
the Electronic Communications and Postal Services, Act 112(I)/2004.
The Commissioner is appointed by the Council of Ministers for a
period not exceeding 6 years and heads the Office. A Deputy
Commissioner and an Advisory Committee are also appointed to
assist and advise the Commissioner in the exercise of his/her duties
and deal with matters referred to them for this purpose.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
The principal aspects falling under the supervision of the
Commissioner of OCECPR are highlighted in article 20 of the Act
on Regulation of the Electronic Communications and Postal
Services, Act 112(I)/2004, and include the following general
competences:
to apply to electronic communications; the general policy
which is be followed from time to time and which may be
communicated to him by the Government;
to ensure that terminal equipment fulfils the national and
international standards and supervise such equipment;
Harris Kyriakides LLC
to prescribe and publish by Order or Decision quality
standards for any public provider of electronic
communications and/or postal services and/or electronic
communications networks, as the case may be, and supervise
and ensure that such a provider complies with the aforesaid
standards, and to order the taking of corrective measures;
to grant authorisation for the creation and/or the
establishment and/or provision of electronic communications
and perform all necessary acts in the efficient administration
of such an authorisation scheme;
to establish the Cyprus Numbering Plan and determine the
procedure for assignment and use of numbers according to
the Cyprus Numbering Plan, on the basis of objective,
transparent and non-discriminatory criteria, as well as any
other issue concerning the assignment of numbers and the
publicity of relevant procedures;
to regulate by Order or Decision issues related to internet
domain names ending in “.cy”;
to designate undertakings with Significant Market Power in
an electronic communications market and impose remedies
for the enhancement of competition, in the event that it is
found that competition in that electronic communications
market is not effective;
to regulate by Order or Decision access and interconnection,
consistent with the principle of proportionality, by ensuring
that appropriate levels of access and interconnection are
available, as well as interoperability of services being
achieved, in a manner that also pursues the aims of economic
efficiency, viable competition and provides maximum
benefit to end users;
to regulate by Order or Decision all consumer protection issues
that refer to the electronic communications sector, to provide
his services for the resolution of disputes that arise, inter alia,
between electronic communications network and/or service
providers and between postal services providers;
to require technical, financial and legal information; and
to impose administrative fines or other penalties in relation to
non-compliance with the provisions of this Law and/or
Orders and/or Decisions, and to prescribe by Order the level
of such fines and penalties and the procedures by which they
are determined.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
Other than those situations requiring an individual right of use or
general authorisation relating to the use of radiofrequencies, no
administrative act is required on the part of the Commissioner as a
precondition for the provision of electronic communications
networks and services in Cyprus. Subject to the provisions of this
Section, any person who intends to provide an electronic
communications network or an electronic communications service
shall notify the Commissioner of their intention to provide same in
advance of doing so. The provision of electronic communications
networks and services is not restricted, subject to the terms set by the
provisions of this Law. Any undertaking may provide electronic
communications networks and/or services in Cyprus subject to a
general authorisation or, in exceptional circumstances, to an
individual right of use relating to the use of radio frequencies or
numbers, irrespective of whether they are of a commercial or non-
commercial nature and irrespective of whether or not they are
provided for profit. The Commissioner is responsible for the
provision of any general authorisation, other than any general
authorisation relating to the use of radio frequencies, and the
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Cyprus
granting of any individual right of use relating to the use of numbers.
An undertaking seeking to provide electronic communications
networks and/or services pursuant to a general authorisation can
commence their provision immediately following the filing of a
formal notification with the Commissioner. The provision of a
network and/or service pursuant to a general authorisation does not
relieve the provider of obtaining the necessary local permits and
Cyprus
other rights to install facilities from government bodies or authorities
with competence to grant such rights. The grant of individual rights
of use will be necessary where an applicant needs to use scarce
resources such as radio frequencies or numbers, including short
codes, from the Cyprus Numbering Plan. Where those individual
rights of use must be restricted in number because of unavoidable
scarcity of such scarce resources, such restrictions will be managed
so as to ensure that the assignment of such resources occurs in an
objective, transparent, non-discriminatory and proportionate
manner. The grant of such individual rights of use for radio
frequencies falls within the exclusive competence of the Director,
acting under the powers provided in the Radiocommunications Laws
of 2002 to 2004. The assignment of numbering resources falls
within the exclusive competence of the Commissioner. Exclusively
for reasons of public order, safety and health, the Commissioner may
at any time from the submission of the applicant’s registration
statement, subject to the adoption of a fully and objectively justified
decision, prohibit or limit the ability of a specific undertaking from
providing electronic communications networks or services.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
SMP obligations have been conferred by the Order Stipulating
Organisations with SMP in the Telecommunications Sector of 2003
(A.E.1/2003, 24/04/2003). The Cyprus Telecommunications
Authority (CYTA) has been declared as a SMP organisation on the
following markets: voice telephony market; land public networks
market; mobile telephony market; mobile telephony networks
market; leased lines market; and interconnection market.
1.8 How and to what extent is content delivered over
electronic communications networks regulated and by
whom?
The definition of electronic communications services excludes
services providing, or exercising editorial control over, content
transmitted using electronic communications networks and services.
1.9 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
On 31 August 2006 the European Commission registered
notifications from the OCECPR concerning the retail markets for
fixed narrowband access and retail fixed call markets. On the basis
of its market analysis, OCECPR designated the incumbent CYTA
(also referred to as ATHK) as an undertaking having SMP on the
retail access and calls markets. OCECPR proposed to impose on
CYTA the following obligations in the retail access and retail calls
markets: (i) provision of Carrier Selection (“CS”)/Carrier Pre
selection (“CPS”) and a Wholesale Line Rental (“WLR”) obligation
with necessary access to, and the use of, specific network facilities;
and (ii) non-discrimination. The Commission examined the
notification and pursuant to Article 7(5) of the Framework
Directive, authorised OCECPR to adopt the resulting draft measure.
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2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process and
timescales.
Cyprus
Not applicable.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Not applicable.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Not applicable.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Not applicable.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access to public and private land in order to install
telecommunications infrastructure?
An undertaking operating pursuant to a general authorisation
notified in accordance with the Act may apply for the necessary
rights to be granted by the competent authorities including the
Commissioner to install facilities on, over or under public or private
property for the purposes of providing public communications
networks or electronic communications networks other than those
supplied to the public. The policy regulating access to public and
private land for the purpose of installing telecommunications
infrastructure has been codified since July 2006 and approved by
the Council of Minister in August 2006 (Decision No. 64.278).
3.2 Do any specific rules exist which assist in securing or
enforcing rights of way over public or private land, for the
installation of network infrastructure?
The codified document regulating access to public and private land
for the purpose of installing telecommunications infrastructure
stipulates the procedures on submitting applications, collection and
assessment of needs of electronic communication providers, the
conduct of the required studies and the co-operation of public
authorities. In addition, it regulates the time framework which must
be respected by the interested persons in the relevant process.
3.3 Is there a specific planning or zoning regime that applies
to the installation of network infrastructure?
There is no specific planning or zoning regime that applies to the
installation of network infrastructure.
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3.4 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or
cables?
The codified document regulating access to public and private land
for the purpose of installing telecommunications infrastructure
stipulates detailed procedures applicable in cases where access is
demanded in respect of existing infrastructure and areas under
private development.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Where an authorised undertaking is providing an electronic
communications service or network to the public, the general
authorisation also gives them the right to negotiate interconnection
with and where applicable obtain access to or interconnection from
another undertaking authorised in Cyprus or in another Member
State to provide a publicly available electronic communication
network or service. In addition, the Commissioner may confer
rights and impose obligations on undertakings in relation to access
to, and/or interconnection of, electronic communications networks
and services and associated facilities, in order to achieve the
interoperability of electronic communications services and produce
sustainable competition on the merits between undertakings.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The Commissioner undertakes dispute resolution/case management
either on his own initiative or following the submission of a
complaint. Customarily, the Commissioner communicates a copy
of the complaint to the provider concerned and such a complaint
may constitute the object of an enquiry and/or investigation by the
Commissioner if he is not satisfied with the response of the provider
or if the complainant gives notice in writing that the complaint has
not been dealt with satisfactorily. The Commissioner may issue a
decision which is binding on the said provider.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
According to s. 56(1), (2) of the Act 112(i)/2004, the Commissioner
may impose to enterprises obligations of transparency regarding
interconnection and/or access, which may require such enterprises
to publish particular information, such as information of accounting
nature, technical specifications, network characteristics, terms and
conditions of provision of service or use as well as pricing. The
transparency obligations are met through the submission of a Model
Interconnection Offer, which is forwarded to the Commissioner.
The Commissioner reserves the right, inter alia, to impose
amendments on such Model Interconnection Offer, in order to
safeguard compliance with possible obligations imposed by the law.
The Commissioner has exercised such right of imposing obligations
of transparency and imposing amendments on the Model
Interconnection Offer of the Cyprus Telecommunications Authority.
Harris Kyriakides LLC
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The Commissioner has issued two orders, which stem from the
implementation of Directive 2002/19/EK of the European
Parliament and Council of 7.3.2002 in regard to access in electronic
communications networks and related facilities as well as their
interconnection. The Order on Calculation of Interconnection
Charges of 2005 (KAN 16/2005) makes reference to the
methodology of calculating Interconnection Charges, which must
be cost oriented and also entrenches accounting separation per
sector of enterprise of the interested organisation. It also specifies
the general principles of imposing the costs in interconnection
services and the process of public deliberation which must be
followed in regard to separate accounts. The Order on the Process
of Imposing Amendments on Model Interconnection Offers of 2007
(K.A.N.112/2007), aims at the analysis of the process of imposing
amendments on Model Interconnection Offers, which must be
published by the interested organisations following the issuance of
a relevant order y the Commissioner.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
See question 4.4.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Not applicable.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Not applicable.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or other
incentives to build fibre access networks proposed?
Not applicable.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
In order to promote and extend available options in the electronic
communications services and enhance the consumer’s interests, the
Commissioner on the basis of the principles of transparency and
provision of timely information regulates issues pertaining to
consumer protection. The relevant legislative orders were issued in
2005.
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Cyprus
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Not applicable.
6 Numbering
Cyprus
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Where it is deemed by the Commissioner to be necessary to grant
individual rights to use numbers from the Numbering Plan of the
Republic of Cyprus, these rights are provided by Decision of the
Commissioner following a written request according to the
procedures described in a relevant Order issued by the
Commissioner. The Commissioner will issue rights of use for
numbers and/or a series of numbers to providers of electronic
communications networks and/or services for their own use and for
further allocation to their subscribers. When adopting a Decision,
the Commissioner shall take into consideration international
Numbering Regulations and shall ensure adequate flexibility in the
Numbering Plan of the Republic of Cyprus in order to establish a
Numbering Plan that may facilitate the introduction of new
electronic services, the permanency of numbering arrangements
and the provision to rights use of numbers in a non-discriminatory
and transparent manner. The Commissioner shall ensure the
publication of open, transparent and non-discriminatory procedures
for the provision of rights of use.
6.2 Are there any special rules which govern the use of
telephone numbers?
The Commissioner may impose one or more of the following
obligations on any undertaking operating under an individual right
of use for numbers: (a) designation of service for which the number
shall be used, including any requirements linked to the provision of
that service; (b) effective and efficient use of numbers; (c) number
portability requirements; (d) obligation to provide public directory
subscriber information; (e) maximum duration; (f) transfer of rights
at the initiative of the right holder and conditions for such transfer;
(g) usage fees; (h) any commitments which the undertaking
obtaining the usage rights has made in the course of a competitive
or comparative selection procedure; and (i) obligations under
relevant international agreements relating to the use of numbers.
The undertaking to which a series of numbers is assigned must not
discriminate against other undertakings which provide electronic
communications services regarding the sequence of numbers used
for access to their services. Numbers which are not used within one
(1) year of the date provided for by the relevant right of use may be
reassigned by the Commissioner.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The Commission is the authorised administrator of the Numbering
Plan of the Republic of Cyprus (NPRC) and maintains the
competence to provide rights of use to network or service providers
for their own use of further distribution to their subscribers, on the
basis of local general regulations as well as international guidelines
on number allocation. The principles underlying the relevant
framework are the adequacy and flexibility of the NPRC, the
facilitation of introducing new electronic services, the permanency
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of numbering arrangements, the absence of discrimination and the
presence of transparency in number allocation. The NPRC in force
has been published on the 24th of April 2003 as an Annex to the
Numbering (Telecommunications) Regulation of 2003.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
Cyprus
transfer) of telephone numbers (fixed and mobile).
The Commissioner issues Orders and/or Decisions in order to
impose or define retail prices (such as special or common retail
prices) between providers for the porting of a number in a manner
that ensures the prevention of any distortion of competition.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Cyprus’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Not applicable.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio frequency spectrum is separately regulated by the
Radiocommunications Laws of 2002 to 2004. The competent
authority is the Director of the Department of Electronic
Communications of the Ministry of Communications and Works.
8.2 How is the use of radio frequency spectrum authorised in
Cyprus? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
The use of radio frequencies in Cyprus is subject to the grant of an
individual right of use or a general authorisation. The procedures
available include spectrum auctions and comparative selection of
candidates.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The basic distinctions in radiocommunications activities entrenched
in the applicable legal framework concern private mobile radio
(PMR) systems, public access mobile radio (PAMR) systems,
public and private paging systems, satellite earth stations, amateur
radio services, fixed radio services and other terrestrial or
aeronautical or maritime stations.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Not applicable.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
The broad categories of licence-exempt use include radio and
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television stations who have been authorised in accordance with the
Radio and Television Stations Laws as well as use by public
servants which is made for purposes related to national or public
safety, defence or state activities.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The calculation of fees related to authorisation and other related
issues is governed by detailed provisions which can be found within
the Regulations on Radio Communications (Fees) of 2004
(K.A.N.464/2004).
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Spectrum licences can be traded or sub-licensed. The relevant
procedure and conditions is regulated by the Regulations on Radio
Communications (Competition and Negotiation) of 2002
(K.A.N.382/2002), as amended.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The matter is regulated by the recent Act on Preservation of
Telecommunications Data for the Purpose of Investigating Serious
Criminal Offences (Act 183(I)/2007). The relevant section came
into effect on the 15th of March 2009 and imposes an obligation on
service providers to maintain data in regard to fixed network
telephony, mobile telephony, internet, web call and email services
for a period of six months. This period has been criticised by the
Police Authorities as too short and a suggestion has already been
included in a Parliamentary forum for maintenance to extend for a
period of 12 months.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Not applicable.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The Director of the Department of Electronic Communications of
the Ministry of Communications and Works may authorise any
person to monitor, use or disclose records only for the limited
purpose of verifying any contravention of the relevant
Radiocommunications Laws or in order to ensure security and
integrity in communications and communications systems. In
respect of the content of such communication, the matter is
regulated by a separate legislative framework, comprising by the
Act on the Protection of Privilege of Private Communications (Act
92(I)/1996) and the recent Act on Preservation of
Telecommunications Data for the Purpose of Investigating Serious
Criminal Offences (Act 183(I)/2007).
Harris Kyriakides LLC
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Services over the Internet are regulated similarly to other electronic
communications services. The competent authority is the OCECPR
but also other authorities may be involved, such as the Office of the
Commissioner for Personal Data Protection.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
According to the Act on Regulation of the Electronic
Communications and Postal Services, Act 112(I)/2004, service
providers are not liable for personal harm or damage to property as
a result of suspension of any service of electronic communications
that may be related to an unavoidable accident, natural tear or the
reasonable needs of the system or defective installations which was
not installed by the provider. Further than this immunity, the law
does not recognise any other immunity for the benefit of service
providers.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The Commissioner has an obligation to ensure transparent
processes which regulate the ability of telecommunications
operators and/or service providers can negate the possibility of
undisclosed numbers, upon request of a subscriber that involves
tracing of vexatious calls. Such information that disclose the
caller’s identity are stored and are available to such persons as may
be nominated by the Commissioner. The same applies for calls
related to emergency services, such as police, fire squads and first
aid desks.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Not applicable.
10.5 How are ‘voice over IP’ services regulated?
Not applicable.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The use of automated calling systems without human intervention,
(automatic calling machines), or facsimile machines (fax), or
electronic mail, or SMS messages, for the purposes of direct
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Cyprus
marketing, may only be allowed in respect to subscribers who have
given their prior consent. Unsolicited communications for purposes
of direct marketing, are not allowed without the consent of the
subscribers concerned. The Commissioner may, after consultation
with the Personal Data Protection Commissioner, issue an order in
order to safeguard that legitimate interests of legal persons,
Cyprus
regarding unsolicited communications, are adequately protected. In
cases where a natural or legal person obtains from its customers
contact details for electronic mail, in the context of the sale of a
product or a service, the same natural or legal person may use these
electronic details for direct marketing of its own similar products or
services, provided that customers are clearly and distinctly given
the opportunity to object, free of charge and in an easy manner, to
such use of their electronic contact details when they are collected
and on the occasion of each message in case the customer has not
initially refused such use. In any event, the practice of sending
electronic mail for purposes of direct marketing disguising or
concealing the identity of the sender or the person on whose behalf
the communication is made, or without a valid address to which the
recipient may send a request that such communication cease, shall
be prohibited.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The OCECPR ensures the provision of a universal services to all
end users in the territory of Cyprus, which constitutes the minimum
package of services under article 108 of the Act on Regulation of
the Electronic Communications and Postal Services, Act
112(I)/2004, as amended from time to time. These services include
connection at a fixed location to the public telephone network and
access to publicly available telephone services at a fixed location,
provided that the relevant request is considered to be reasonable.
They also include directory enquiry services, and directories in a
printed or/and an electronic form, public pay telephones, special
measures for disabled or socially disabled end users, operator
assistance services, free access to emergency services, using the call
number “112” or other emergency numbers. The provision of these
services is an obligation of CYTA, which has been appointed as the
universal service provider on the basis of a respective Decision
made by the Commissioner.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
Not applicable.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
The OCECPR, during its five years of operation, has presented a
creative and multifaceted work. This work has been based on three
main axes, these being the harmonisation of the Cyprus Legislation
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 Harris Kyriakides LLC Cyprus

with the European laws, the development of a healthy and balanced

competitive environment without distortions and the protection of Michalis Kyriakides
the Cypriot residential or business consumer, secured mainly Harris Kyriakides LLC
through the universal service and the users rights. Future changes 115 Faneromenis Avenue
Antouanettas Building
are expected to cover issues related to the gradual shift towards 6031 Larnaca
services that incorporate voice, data and video. Cyprus
Cyprus

Tel: +357 2482 8244

Fax: +357 2481 8877
Email: m.kyriakides@kyrlaw.com.cy
URL: www.kyrlaw.com.cy
Michalis Kyriakides was born in Larnaca, Cyprus. He attended Athens
University Law School and was granted the merit prize from the
National Scholarships Foundation, Greece. He subsequently obtained
an LL.M. from University College London and was awarded the
Bentham Prize for excellence. In 2002, he obtained the M.Stud. at
the University of Oxford. In 2003, he worked on behalf of the EU
Commission at the legal research project “Documentary disclosure in
cross border litigation”, conducted in association with Universities of
Oxford, Vienna and Ludwig Maximilians, Munich. He was called to
the Cyprus Bar in 2004. He is the author of the book “Summary
adjudication under the Civil Procedure Rules” and regularly signs
articles in legal journals and periodicals. His main area of expertise is
corporate law, with specialisation in mergers/acquisitions, competition
and company law. He is currently a partner at Harris Kyriakides LLC
and can be contacted at m.kyriakides@kyrlaw.com.cy

Harris Kyriakides LLC, Advocates & Legal Consultants, is a leading law firm in Cyprus, established since 1976.
Currently located at the Antouanettas Building in Faneromenis Avenue, Larnaca, the firm is widely accredited and
nationally recognised as being in the top tier of law firms in Cyprus.
Operating on a departmental basis and covering nearly all aspects of law, the firm maintains specialised lawyers in their
own expertise and provides comprehensive advice on legal, financial and taxation issues. The firm’s international
capability is enhanced by its alliance with acknowledged law firms and lawyer networks across Europe.
Harris Kyriakides LLC has consistently advised national and multinational corporations, financial institutions and
governmental organisations and maintains leading clients from several industries and business sectors, including
banking, insurance, real estate, telecommunications, shipping, oil, construction, vehicle distribution, tourism and
leisure, advertising and other. The firm has also been profoundly involved in litigation practice and dispute resolution.

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Chapter 15
Czech Republic
Kinstellar, s.r.o., advokátní kancelár
v
1 Framework
1.1 When did the Czech Republic first liberalise
telecommunications networks and/or services?
The market has been fully liberalised since 1 January 2001.
1.2 Has the Czech Republic fully implemented the EU 2003
regulatory framework? If the Czech Republic has not fully
implemented the new regulatory framework, have
proceedings been brought against the Czech Republic by
the European Commission and if so, for which
contraventions?
The Czech Republic implemented the EU 2003 regulatory
framework by the Act on Electronic Communication (the “AEC”),
effective as of 1 May 2005.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The main body of legislation is the AEC, which stipulates the
conditions governing the operation of the electronic
communications networks (“ECN”) and the provision of electronic
communication services (“ECS”). There are also a few
governmental and ministerial decrees setting out the regulations for
specific issues in detail.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The Czech Telecommunication Office (the “CTO”) is the national
regulator for electronic communications (“EC”) responsible mainly
for ex ante regulation. The CTO, among other functions, determines
and performs analyses of relevant markets, imposes SMP conditions,
determines the universal service providers, issues pricing decisions
and exercises price control, and resolves disputes amongst operators.
The CTO only regulates transmission, whereas the Council for Radio
and Television Broadcasting (the “CRTB”) regulates content,
provided that it qualifies as radio or television broadcasting.
The Office for the Protection of Competition (NCA) is endowed
with general competition law competencies and performs ex post
regulation for EC. The Ministry of Industry and Trade also has
some responsibilities (mostly high-level).
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Michaela Lodlová
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
The CTO is responsible for the administration of the general
authorisation regime as regards the provision of ECN and the
provision of ECS, defining the relevant markets and imposing SMP
conditions upon the analysis of these markets, determining the
Universal Service (the “US”) providers, administering the funding
of the Universal Service Obligations (the “USO”), enforcing the
SMP conditions, and resolving specific disputes vis-à-vis operators.
The CTO is also responsible for promoting competition within the
field of EC, consumer protection, and the management of the
frequency spectrum and numbers and network codes.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
In order to (i) operate public electronic communications networks
(“PECN”) or (ii) provide ECS, the interested individual/legal entity
must submit prior written notification and fulfil the conditions
stipulated by the AEC. Upon this notification, the CTO issues a
certificate of notification. The CTO is not entitled to impose any
additional conditions when issuing the certificate of notification.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
The AEC provides for specific conditions that only apply to a
specific group of operators — e.g. operators of public telephony
networks (in respect of number portability) and providers of public
electronic communication services (“PECS”) and public telephony
services. These conditions relate mainly to consumer protection
and involve specific rules governing the contractual relationship
between these providers and their customers.
In addition to the rules stipulated under the AEC, operators must
comply with various other laws, such as the Act on the Protection
of Economic Competition, the Act on Consumer Protection, the
Data Protection Act, the Civil Code, and the Act on the Protection
of Classified Information.
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1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
The CTO originally notified all 18 markets under the 2003
Czech Republic
Commission Recommendation on relevant product and service
markets. Under the Commission Recommendation from 2007, the
CTO has withdrawn several SMP obligations based on the
conclusion that the former SMP markets no longer satisfy the three
criteria test. The remaining SMP markets susceptible to ex ante
regulation comprise all seven markets listed under the 2007
Commission Recommendation, out of which the CTO has so far
notified the wholesale broadband access market.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Any individual/legal entity intending to (i) operate PECN or (ii)
provide ECS must submit prior written notification and fulfil
certain requirements. The CTO issues a certificate of notification
within a week of delivery of the notification, provided that the
application contains all the required data and the applicant has
fulfilled all requirements stipulated by the AEC.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Specific authorisations are required to use radio frequencies and
numbers/network codes.
Also, providers of PECS are required to publish or otherwise make
publicly available the contract and the general terms and conditions
that will govern the provision of these services. Providers of public
telephony services are required to publish specific information
stipulated by the AEC, which predominantly focuses on consumer
protection.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Only rights resulting from the allocation of radio frequencies can be
transferred with the prior consent of the CTO, provided that such
transfer does not (i) distort economic competition and (ii) lead to
any change in the conditions of use of the radio frequencies in
internationally harmonised areas. Similar conditions apply in the
event of a transfer of the authorisation to use numbers. Other
authorisations are not transferable.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
There is no limitation on the duration of the right to carry out
communications activities based on notification. The duration of
authorisations to use radio frequencies/numbers and allocations of
radio frequencies is not defined by law, which only requires that the
duration should reflect the type of ECS provided. However, the
authorisation to use numbers is usually issued for ten years, the
authorisation to use radio frequencies is usually issued for five
years, and the allocation of radio frequencies is usually issued for
twenty years.
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3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Any operator of PCN is entitled, if it meets the conditions specified
by the law, to establish and operate on or in another owner’s land
communications infrastructure and enter another owner’s land to
the extent necessary for carrying out its activities. Further details
are provided under the AEC.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Generally speaking, the rules stipulated by the Building Act apply.
However, underground/over ground cables, masts and towers are
specifically exempted from the requirement to obtain building
permission (which any other kind of building work would require),
and so only planning permission is generally required.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
The CTO is entitled to impose on PCN operators that enjoy an SMP
the obligation to meet reasonable requirements for access to specific
network elements and associated facilities. Outside the SMP
conditions, the CTO may mandate collocation or facility sharing (e.g.
cable ducts, buildings, or masts) if this is required for environmental,
public health or planning reasons. The AEC stipulates which factors
the CTO must take into account when mandating collocation or
facility sharing. As regards “passive” remedies, the CTO is awaiting
the adoption of Commission Recommendation on regulated access to
Next Generation Access Networks.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Operators of PCN do not have any general obligation to
interconnect their networks. However, they are obliged, if so
requested by another PCN operator or provider of ECS, to negotiate
mutual interconnection for the purpose of providing PECS. Access
is also not a general obligation applicable to all operators, with the
exception of those SMP operators upon whom the access conditions
were imposed. Access shall be provided on the basis of a written
contract concluded between an operator and a provider of PECS.
Interconnection is provided on the basis of a written contract
concluded between the operators of PCN.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The CTO is entitled to intervene in negotiations about
access/interconnection in justified cases and to issue its opinion
with respect to any disputed part of the draft contract. This opinion
Kinstellar, s.r.o., advokátní kancelár
v
is, however, not legally binding upon the parties. In the event that
a written access/interconnection contract is not concluded within
two months of the beginning of negotiations, the CTO is entitled to
resolve such dispute upon the petition of one of the parties. It is,
however, not entitled to change the wording of the contracts or
replace the contracts by its decision. In general, the Chairman of
the Council of the CTO resolves disputes between operators arising
from interconnection/access upon the petition of one of parties. The
decision of the CTO, although appealable, is legally binding and
enforceable upon the parties.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Yes, but only if they are subject to the SMP conditions that the CTO
has imposed on SMP operators. There are currently three operators
that are obliged to publish Reference Interconnection Offers:
Telefonica O2 (fixed and mobile) and two mobile operators (T
Mobile and Vodafone).
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes, but only if they are subject to the SMP conditions that the CTO
has imposed on SMP operators. The price regulation currently
applies to termination on fixed and mobile networks and origination
on the fixed incumbent’s network and is exercised as the
determination of maximum prices. The price regulation of
wholesale leased lines was withdrawn in May 2009.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Accounting separation was imposed on SMP operators in respect of
interconnection markets (Telefónica O2, T Mobile and Vodafone)
and other wholesale markets (Telefónica O2). No operators are
subject to functional or legal separation.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The AEC currently does not stipulate any specific rules for NGN or
IP-based networks. The CTO is awaiting the adoption of the
Commission Recommendation on regulated access to Next
Generation Access Networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Yes, but only if they are determined as being SMP operators. The
CTO is entitled to impose on the SMP operator of a PECN an
obligation to meet the reasonable requirements for access to
specific network elements and associated facilities, including local
loop unbundling. The LLU includes full/shared access as well as
sub loop unbundling. The SMP operator with LLU obligations (i.e.
Telefónica O2) is required to publish a RUO and may refuse access
only if it does not meet the technical parameters or if it would affect
the integrity of the network. In such case, the SMP operator must
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Czech Republic
request the consent of the CTO for the refusal of the contract. The
price for LLU is regulated by the CTO. Cable TV operators are not
required to unbundle their networks.
Czech Republic
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Not at the national level. The CTO is awaiting the outcome of the
consultation on the draft Commission Recommendation on
regulated access to Next Generation Access Network. Once
adopted, the CTO will be obliged to make a review of its analysis
of the respective wholesale markets as required by the Commission.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
No, the only price regulation of retail tariffs of the fixed incumbent
was withdrawn in April 2008.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
In general, the AEC requires the CTO to ensure a high level of
consumer protection and also provides for various rights of
consumers corresponding to various obligations on the side of
providers. Specific rules govern, inter alia, the mandatory
requirements for contracts, billing, raising complaints and resolving
disputes, and also responsibility for damages.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers and network identifying codes are allocated by
the CTO upon the application of the operators of PCN or the
providers of PECS. The CTO may deny the allocation of the
numbers only for limited reasons stipulated by law.
6.2 Are there any special rules which govern the use of
telephone numbers?
The CTO allocates the numbers in accordance with the National
Numbering Plan (the “NNP”) currently stipulated in the applicable
ministerial decree. The providers (i.e. not the end users) are
required to use the numbers allocated to them in accordance with
the rules stipulated in the NNP. Any use contrary to the NNP can
lead to enforcement proceedings by the CTO, which may ultimately
result in the withdrawal of the authorisation to use numbers.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Within the rank allotted to them by the CTO, the network operators
allocate and activate the numbers for use by end-users.
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6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The AEC requires that operators of public telephony networks
Czech Republic
facilitate the portability of both fixed and mobile telephone
numbers. This requirement does not apply to the transfer of
numbers between fixed telephone networks and mobile networks,
and vice versa. A geographical number can be transferred only
within the respective geographic area.
The technical solution of portability of both fixed and mobile
numbers is based on a single centralised national database of
transferred numbers operated by the CNPAC (the Czech Number
Portability Administrative Centre). The gaining provider pays the
costs connected with portability to the losing provider. A
reasonable fee may also be charged to the customer.
7 Submarine Cables
7.1 What are the main rules governing the bringing into the
Czech Republic’s territorial waters, and the landing, of
submarine cables? Are there any special authorisations
required or fees to be paid with respect to submarine
cables?
Not applicable in respect of the Czech Republic.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The radio frequency spectrum is regulated by the CTO, which is
responsible for its management. The CRTB has also certain limited
competencies with respect to frequency bands assigned for radio
and television broadcasting.
8.2 How is the use of radio frequency spectrum authorised in
the Czech Republic? What procedures are used to
allocated spectrum between candidates - i.e. spectrum
auctions, comparative ‘beauty parades’, etc.?
In general, individual authorisation is required in order to use radio
frequencies. If it is not necessary to grant such authorisation, the
CTO defines the conditions for the use of radio frequencies in the
general authorisation. In the event of there being more applicants
than available radio frequencies, the decision in made based on a
first-come-first-serve basis.
The CTO may limit the number of rights to use radio frequencies,
compared to the scheduled number, only in order to ensure the
effective use of the radio frequencies. In the event that the CTO
limits the number of rights to use radio frequencies or the number
of those rights is limited by the Plan for the use of radio spectrum,
the CTO must organise a tender for the granting of a limited number
of rights. The CTO grants individual allocation(s) of radio
frequencies to the most suitable applicant(s) in accordance with the
selection criteria stipulated by the AEC.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
In principal, the AEC does not make a fundamental distinction
between mobile, fixed and satellite usage of the radio frequency
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spectrum. However, the Czech Republic must comply with the
European Frequency Table and other applicable international
agreements and regulations that determine what parts of the radio
spectrum can be used by certain types of services. This is then
translated into the National Frequency Plan and the specific plans
for the use of certain frequency bands, which are issued by the
CTO. When granting the rights to use radio frequencies for mobile,
fixed or satellite services, the CTO must comply with these rules.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The AEC does not contain any specific rules for the allocation of
radio frequencies for satellite earth stations. The general rules on
the use of radio frequencies apply.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Yes, the CTO may decide that it is not necessary to grant the
individual authorisation to use radio frequencies in certain
frequency bands, and these may be used on the basis of general
authorisation. In this case, the CTO defines the conditions for the
use of these radio frequencies in the general authorisation.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Applicants have to pay fees for individual authorisations to use
radio frequencies of between CZK 500 and CZK 7,000 based on the
type of service. Holders of such authorisation pay annual fees for
the use of radio frequencies. The AEC determines the fees, which
vary from CZK 300 to CZK 18,000,000 per one frequency channel
based on the type of service.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The rights resulting from the allocation of radio frequencies can be
transferred in their entirety (i.e. they cannot be apportioned) with
the prior consent of the CTO. However, the AEC does not provide
for any sublicensing. The conditions and procedures for such
transfer are specified in the relevant measure of the CTO. Any
payments for the transfer are subject to an agreement between the
parties and are not regulated.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
In accordance with the AEC and recent EU legislation (i.e.
Directive 2006/24), providers of ECS and operators of PCN are
required to store operating and location data. The minimum period
of storage is six months, and the maximum period is twelve months.
The processing of personal data and the protection of privacy in the
electronic communications are governed by special rules stipulated
under the AEC.
Kinstellar, s.r.o., advokátní kancelár
v
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Under the AEC, providers of ECS and operators of a PECN shall
provide and secure interfaces at specified points of the network to
connect terminal equipment for interception, message tapping, and
recording for the Police, the Security and Military Intelligence Offices.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The authorities entitled to intercept calls (i.e. the Police, the
Security and Military Intelligence Offices) are obliged to submit a
written request to the operators. Their right to intercept a call is
subject to a court order. The retained data shall be made available
upon the request of state authorities (e.g. the Police) entitled to
request them on the basis of various legal regulations.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The AEC does not stipulate any special rules for Internet services
other than those applicable in general to ECS. The provision of ECS
(including internet services) is subject to the general authorisation
issued by the CTO. If the provision of Voice over Internet Protocol
services (VoIP) qualifies as a provision of publicly available telephone
services, specific rules governing this type of service apply.
Access to the Internet at a retail level is regarded as the provision of
ECS to end users and is governed by the general rules on the
provision of ECS, while access to the Internet at a wholesale level
can be treated as access to network, interconnection, or another type
of wholesale access under the specific remedies imposed on the
relevant markets.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Principally yes, under Act No. 484/2004 on Certain Information
Society Services (the “ACISS”), which implemented the E-
Commerce Directive into the Czech law.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The obligations of the telecommunications operators and/or
Internet service providers relating to content are governed mainly
by the ACISS, which provides substantial limits to their
responsibility in line with the E-Commerce Directive. The content
owners are principally entitled to ask the court to mandate the
providers to provide the identity of the subject infringing its rights.
The copyright act also provides for the possibility to ask the court
to mandate the termination of service that is used for the copyright
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Czech Republic
infringement. However, the practical use of these provisions
remains fairly limited.
10.4 Are telecommunications operators and/or internet service
Czech Republic
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There are no specific legal regulations governing or mandating ‘net
neutrality’ or discrimination of or blocking of certain types of
traffic. The general rules under the ACISS apply.
10.5 How are ‘voice over IP’ services regulated?
There is currently no specific regulation of VoIP. Unmanaged VoIP
is not regarded by the CTO as ECS. Managed VoIP is, on the other
hand, regarded as ECS. The regulatory status of these services in
practice depends on the type of number ranges used by the
respective operators. If the operators use the normal geographic
numbers for offering voice telephony services over IP, they must
comply with all requirements applicable to this type of service,
including access to emergency numbers and caller location. Should
they use the 910 numbering range, the service is not regarded as
voice telephony, which means less stringent regulation.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Under the ACISS, the dissemination of unsolicited commercial
communication through electronic means is prohibited, unless the
addressee has given prior consent (i.e. the addressee has “opted
in”). However, it is allowed to disseminate commercial
communication regarding similar products and services to current
customers, provided that the addressee is given the opportunity to
express in an easy manner its wish not to receive any such
communication in future (i.e. given the opportunity to “opt out”).
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Universal Service is defined as a package of services set out by the
AEC available at the defined quality level to all end users
throughout the country at an affordable price. The CTO may
impose on operators the obligation to provide defined services
(USO). The USO provider is entitled to receive compensation for
the net costs of such provision upon applying for compensation and
a decision from the CTO to the effect that this obligation constitutes
an unfair burden on the provider. The costs of USO are funded
from the USO account, into which contributions are made mainly
by the specified operators.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
The current legislation does not stipulate any such restrictions.
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 Kinstellar, s.r.o., advokátní kancelár Czech Republic
v

13 Future Plans Michaela Lodlová

Kinstellar, s.r.o., advokátní kancelár
v

13.1 Are there any imminent and significant changes to the Palác Myslbek, Na Príkope 19
v v

117 19 Prague 1
Czech Republic

legal and regulatory regime for electronic communications?

Czech Republic

Changes relating to the distribution of audiovisual content over Tel: +420 221 622 111
ECN will be introduced - once adopted - by the act on on-demand Fax: +420 221 622 199
audiovisual media services and on amendment of certain other acts Email: michaela.lodlova@kinstellar.com
URL: www.kinstellar.com
incorporating Directive 2007/65/EC on audiovisual media services.
Michaela Lodlová is an associate with extensive experience in
regulatory & competition law in telecoms, intellectual property,
media and IT law and related disputes, including the judicial review
of the decisions of regulators. She has strong academic background
in administrative law. She usually advises clients on a variety of
TMT issues, such as telecoms regulation and application of
competition law in telecoms, intellectual property law (litigation and
arbitration in the area of unfair competition and trade mark
infringement, including cyber squatting and copyright law),
information technology (software development, web design, e-
commerce, on-line gambling, software licences and related
copyright issues), and data protection. She has recently returned
from an 18-month secondment at Openreach (British
Telecommunications) in London where she was involved in
regulatory and competition issues relating to the UK’s functional
separation model and attended a course on EC competition law lead
by Professor Whish at King’s College London.

Kinstellar, formed initially from the Bratislava, Bucharest, Budapest and Prague offices of Linklaters, is Emerging
Europe’s new premium law firm. Kinstellar currently has over 100 lawyers and a wealth of professional support
lawyers. Many of Kinstellar lawyers are trained in the laws of two or more jurisdictions and enjoy secondments with
international clients and law firms all over the world.
Kinstellar’s Technology Media and Telecommunications Practice has advised on many of the most significant
transactions in the region. The TMT team is one of the region’s market leading practices. Made up of specialists in
TMT, M&A, and finance, as well as commercial and regulatory work, the Kinstellar’s TMT team works closely with
industry regulators, government bodies and opinion-formers.

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Chapter 16
Estonia
Sorainen
1 Framework
1.1 When did Estonia first liberalise telecommunications
networks and/or services?
The privatisation of the Telecommunications sector started in 1991
when Estonia re-declared its independence. The 2000
Telecommunications Act was a step towards the liberalisation of the
Estonian telecom sector and compliance with EU requirements.
Upon the accession of Estonia to the EU on 1 May 2004 and the new
Electronic Communications Act on 1 January 2005, Estonia had to
incorporate the 2002 directives, to achieve full harmonisation.
1.2 Has Estonia fully implemented the EU 2003 regulatory
framework? If Estonia has not fully implemented the new
regulatory framework, have proceedings been brought
against Estonia by the European Commission and if so, for
which contraventions?
The Electronic Communications Act entered into force on 1 January
2005. The Act implemented all of the 2003 regulatory framework
directives.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Electronic Communications Act (ECA) regulates the operation
of electronic communications networks. The ECA provides for the
public availability of electronic communications networks and
communications services, radio communication, management of
radio frequencies and numbering, apparatus, and state supervision
over compliance with requirements and liability for violation of
said requirements.
The Minister of Economic Affairs and Communications may, under
ECA regulations, specify the provisions of the ECA. There are over
30 regulations in this area alone.
Other legislative acts regulating these areas are the Competition
Act, Consumer Protection Act, Broadcasting Act, Digital Signatures
Act, State Fees Act and Information Society Services Act.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
At the beginning of 2008 a new Estonian Competition Board (ECB)
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Ivar Kurvits
Kaupo Lepasepp
was restructured, which as a result encompasses in itself the
activities of the former ECB and Estonian National
Communications Board. Therefore according to the ECA, the
reorganised ECB and the Estonian Technical Surveillance Authority
(ETSA) are the main regulatory agencies acting under the Minister
of Economic Affairs and Communications.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
Technological matters [e.g. general services (connections to
telephone networks, pay phones, and the availability of electronic
telephone number catalogues), numeration administration, radio
communication, line structures, communication services,
appurtenances] of electronic communication regulation and
supervision are conducted by ETSA. ECB conducts sector-specific
technologically neutral regulation of markets of communications
services (e.g. designation of SMP’s, market analysis, concentration
related issues).
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
An electronic communication service provider wishing to provide
communication services must be registered either as a company or
a branch in the Estonian Commercial Register. For general
authorisation, the service provider must submit a notice of
commencement of activities to the ETSA. For notification
requirements, please see section 2.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
In the market for wholesale voice call termination on individual
mobile networks, the service providers and operators in Estonia
subject to significant market power (SMP) obligations for the
purposes of the ECA include Elisa Mobiilsideteenused AS, AS
EMT and Tele 2 Eesti AS. The ECB has imposed an obligation of
transparency, non-discrimination, access, interconnection, price
control and cost accounting to these operators. Imposing of SMP
obligations is regulated by ECA.
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 Sorainen
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
All of the 18 markets defined in the European Commission
recommendation (C(2003) 497) of 11 February 2003 issued, in
accordance with Directive 2002/21/EC, have been notified to the
European Commission.
Estonia
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The ECA requires a general notification for the commencement of
provision of activities and a special permit for the use of radio
frequencies and numeration.
With regards to the general commencement notification, the person
wishing to provide services must submit a signed notice to the ETSA.
The person shall not pay the state fee. The notice contains information
for anyone wishing to start activities (name of the company and
business identify codes; names, addresses and contact numbers) and
about the service (classification of the service and geographical area
of the service) and estimated commencement date of activity.
The ETSA shall register the notice and send a confirmation to the
person within seven working days of the receipt of said notice, as
well as a description of rights and obligations of undertaking the
provision of a communication service. The notice and description
of rights and obligations shall be available on the ETSA website
within seven working days of the receipt of the notice at the latest.
In order to obtain a radio frequency permit, the service provider
must submit an application to the ETSA. A broadcasting licence or
agreement must be submitted to the ETSA to obtain usage of radio
frequencies for broadcasting. The ETSA must notify the applicant
of any deficiencies in the application within one week of the receipt
of said application, and grant a term for elimination of the
deficiencies. Before the frequency authorisation is granted, the
ETSA must notify the applicant. The applicant shall pay the state
fee within five working days of the receipt of the notification of the
payable amount of the state fee.
With regards to the numeration authorisation, a person must fill in
and submit to the ETSA a notice. The ETSA issues a numbering
authorisation corresponding to the desired number. The decision of
the ETSA is available on its website within ten working days after
granting the licence at the latest, so long as the applicant has paid
the relevant state fee.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Pursuant to the Building Act, to build line structures, a building
permit must be obtained from the local government. Line facilities
are planned, designed, constructed and maintained under the
conditions, and pursuant to the procedure provided by the Planning
Act and the Building Act.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Notification of activities may not be transferred. With regards to
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Estonia
numbering licences, the Minister of Economic Affairs and
Communications has established the conditions for the transfer of
the right to use a number.
For the transfer of frequency authorisations please see question 9.7.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
There is no duration for the general notification. A communications
service provider is required, if information specified in the
notification is modified, or the activities for which notification has
been given are terminated, to submit a written notice to the ETSA
no later than five working days of the changes of information or
termination of the activities. Radio frequency and numeration
permits are issued for a one-year period and are renewable annually
for a one year term. For each renewal, the service provider must
pay a state fee.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The Law of Property Act, Law of Property Act Implementation Act
and Immovables Expropriation Act regulate questions regarding the
landlord’s obligation to tolerate utility networks erected on their
land. The Building Act and Planning Act regulate issues relating to
the planning and erection of the respective networks.
Pursuant to the Property Act, if the building of network
infrastructures is not possible without using an immovable, or
would cause excessive expense, the owner of an immovable must
tolerate infrastructure networks and construction works necessary
for servicing networks to be built on the owner’s immovable above
and below ground, and in any airspace for a reasonable fee. In such
cases, the owner of the immovable may request that the owner of
another immovable encumbers its immovable with real servitude.
The specific content of the real servitude shall be subject to
agreement.
With regards to utility works for public interest, the owner of an
immovable must tolerate networks and works and authorise their
building on its immovable if there exists no other technically or
economically convenient possibility to connect the end user to the
network infrastructure, or to improve the network infrastructures. A
network infrastructure is built in the public interest if public service
is provided thereby and it belongs to a person who has universal
service obligation.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
The Planning Act stipulates the principles regarding the planning of
telecommunications infrastructures. Pursuant to the general rule
the landowner shall be involved in the national, county,
comprehensive, or detail plan preparing process. The planning of
the respective infrastructure or line facility must restrict the
landowner’s interests to the minimum extent. The owners of such
telecommunications or line facilities must be involved in the
planning process.
Sorainen
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Infrastructure sharing falls under the general provisions of ECA
dealing with interconnection and access. Please see question 4.1.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
There is no general obligation of access and interconnection.
Persons enjoy the freedom to enter into access or interconnection
agreements. The ECA requires a service provider to negotiate the
interconnection in good faith if this is necessary for the provision of
communication services.
However, the ECB may impose obligations necessary for the assurance
of end-to-end connectivity, including obligations for the
interconnection of networks, on a communications undertaking
providing network services and controlling access by end-users. The
ECB may impose on a service provider the obligation to ensure access
to the application program interfaces and electronic programme guides.
Regarding SMPs, the ECB may impose obligations related to the
charges and costs of access and interconnection.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The ECB settles disputes and complaints related to access or
interconnection. Settlement of interconnection disputes falls under
the general powers of the ECB dispute resolution.
The ECB may impose obligations on a service provider or release a
service provider from the specified obligations, either on its own
initiative or at the request of an interested person. The decision is
made after an appropriate period of consultation (e.g. ten days for
interconnection and access disputes) during which all interested
parties must be given an opportunity to express their views.
If the petitioner so desires, the ECB may participate in the dispute
as the conciliator. The petition sets out that the petitioner requests
that the ECB shall participate in the dispute as the conciliator. The
ECB may not make a binding resolution.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
The ECB may impose obligations on SMPs to publish information
in relation to access and interconnection which concerns, among
other things, also the prices. SMPs have the obligation to publish a
reference offer regarding a specific access or interconnection
service which shall contain the conditions for provision of the
corresponding service, including prices.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes, regarding SMPs the ECB may impose obligations for cost
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Estonia
orientation of prices and obligations concerning cost accounting
systems. The Ministry of Economic Affairs and Communications
regulation of 24 November 2005 sets forth the LRAIC method.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Estonia
A service provider which has special or exclusive rights within the
meaning of the ECA for the provision of services in other sectors in
Estonia or in another Member State of the European Union shall
keep separate accounts of the expenditure and revenue relating to
the provision of communications services and of the expenditure
and revenue relating to the activities in other sectors to the extent
that would be required if these activities were carried out by legally
independent service providers. The service provider which has the
specified special or exclusive rights shall, within the undertaking,
separate structural units which engage in the provision of
communications services. Hence operators may be subject to
accounting separation and functional separation.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
As, for instance, IP protocol was widely used by the time of drafting
the current Electronic Communications Act and the other relevant
regulations, use of the IP networks is addressed already.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
ECB may impose obligations in connection with access and
interconnection necessary for the assurance of end to end
connectivity. In terms of the digital radio and television broadcasting
programmes, the ECB may impose on service provider the obligation
to ensure access to the application program interfaces (APIs) and
electronic programme guides (EPGs) on fair, reasonable and non-
discriminatory terms if that is necessary to ensure accessibility for
end-users to specified digital radio and television broadcasting
programmes. If the ECB has imposed an access obligation on a
service provider, the corresponding service provider is required to
enter into an access agreement and ensure access to networks,
equipment or services. A service provider in respect of which an
access obligation has been imposed is required to ensure use of the
network equipment, buildings and line facilities under equal
conditions and with equal quality; to enable an undertaking which has
submitted an application for access to obtain information necessary
for the access; to use the information obtained in connection with
access only for the provision of the corresponding service and not to
disclose it to third persons; not to restrict the access of subscribers to
the services provided by another communications undertaking. TV
operators are obliged to comply with the terms imposed by ECB
which are similar to above mentioned.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or other
incentives to build fibre access networks proposed?
There are no specific regulations or proposals for regulations relating
to the next generation access. It has been stated by the largest
telecommunications and IT provider in Estonia that the fibre access
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 Sorainen
will reach 100,000 homes by the end of 2009, all the apartment
buildings in 3 years and every home in Estonia in 10-15 years.
5 Price and Consumer Regulation
Estonia
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
There are no general retail price controls. However, the controls
such as determining and declaring the undertakings as undertaking
with SMP are prescribed by the ECA. The ECB, based on market
analyses, has used its right to declare operators as SMPs. For
further details, please see question 1.7.
The universal service contract shall set out an affordable price
charged for the provision of universal service from the end-user.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The provision of electronic communications falls under the general
requirements of the ECA. In principle, general consumer protection
regulations apply.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Numbering resources are managed by both the Ministry of
Economic Affairs and Communications, and the ETSA. The
Estonian numbering plan is established by the Minister of
Economic Affairs and Communications and managed by the ETSA.
Telephone numbers and network identifying codes are allocated by
the ETSA. The Ministry of Economic Affairs and Communications
can also impose additional terms and conditions regarding
numeration.
6.2 Are there any special rules which govern the use of
telephone numbers?
The use of telephone numbers is governed by the ECA and the order
of reserving numeration is stated in the regulation issued by the
Minister of Economic Affairs and Communications.
Minister of Economic Affairs and Communications may establish
additional obligations regarding publishing information on
subscribers in public directories, the conditions for the use of
numbering, publishing, transfer of the right to use numbers and
reserving numbers to ensure public order and national security and
the conditions arising from international agreements which concern
the use of numbering.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The Estonian numbering plan shall determine the location in the
Telephone Numbering Space of numbers, short numbers,
identification codes and prefixes necessary for the provision of
communications services, the requirements for their length, use and
dialling procedure, and prefixes for services inside user groups
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which cannot be used by persons not included in the corresponding
groups, and for several services connected with the numbers of end-
users. Activation is stipulated in the subscription contract between
the end-user and the service provider.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Pursuant to the number portability requirements of the ECA, a
subscriber has the right to retain a telephone number belonging to
the Estonian Numbering Plan upon the change of the geographical
co-ordinates of the location of the subscriber’s connection point. A
service provider is required to provide a consumer with free
information concerning the portability of numbers through
telephone enquiries and on their website. The charge is cost-
oriented and shall be paid by the service provider with whom the
subscriber has entered into a subscription contract that provides the
subscriber with an opportunity to keep the current telephone number.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Estonian territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
A building permit for building at sea, in the territorial sea or inland
sea must be issued in accordance with the Building Act.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Radio frequencies are managed by the Ministry of Economic
Affairs and Communications, and the ETSA. Chapter 3 of the ECA
includes special provisions for radio frequency management.
8.2 How is the use of radio frequency spectrum authorised in
Estonia? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
In applying for the frequency authorisation the person shall submit
to the ETSA a standard format application. The ETSA shall notify
the applicant for frequency authorisation. If several persons apply
for use of the same radio frequency simultaneously, the ETSA shall
organise an auction for granting the frequency authorisation.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Estonian Radio Allocation plan distinguishes between the
manner, regime and purpose of using radio frequencies.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The regulation of the installation and use of satellite earth stations
falls under the ECA. Pursuant to section 20 of the ECA, the
Minister of Economic Affairs and Communications may establish
the conditions for the use of radio frequencies with regard to
Sorainen
specified radio frequencies and technical requirements. Satellite
earth stations must meet specific standards set by Chapter 3 of the
regulation issued 13 April 2006.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
The Minister of Economic Affairs and Communications has the
right, in determining the possibility of the use of radio frequencies
without a frequency authorisation. In order to operate without the
frequency authorisation, the apparatuses must meet harmonisation
and safety requirements. Meeting these requirements must be
assessed, certified and controlled according to the harmonised
standards methods. For technical quality, the standards must meet
either the International Telecommunication Union recommendations
or by default European Telecommunications Standards Institute
standards or other publicly approved specifications.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
A state fee must be paid in order to obtain or extend a frequency
authorisation. Different state fees apply to different types of
licences, depending on radio frequency band and other
specifications.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The holder of a frequency authorisation has the right to partially or
fully transfer the right to use radio frequencies defined in the
frequency authorisation to another person if the right to transfer the
corresponding radio frequencies is provided for in the Estonian
radio frequency allocation plan. In order to transfer the right to use
radio frequencies and to obtain the right to use radio frequencies, a
corresponding application shall be submitted to the ETSA. The
ETSA has the right to refuse transfer of the use of radio frequencies
if it distorts competition.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Telephone and mobile telephone service providers and telephone
network and mobile telephone network service providers have the
obligation to retain data, e.g. caller’s and recipient’s numbers and
clients’ names and addresses; the date and time of the call’s
origination and termination; the telephone or mobile telephone
service used; International Mobile Subscriber Identity (IMSI);
International Mobile Equipment Identity (IMEI). The provider of
Internet access, electronic mail and Internet telephone service is
also obligated to retain data (please see question 10.5). The data
mentioned will be retained for one year starting from the time of the
communication if the data is created or processed during the time of
the provision of communications services. Data requested by the
surveillance agency or security authority will be retained for two
years. A service provider is required to maintain the confidentiality
of all information which becomes known thereto in the process of
provision of communications services and which concerns
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Estonia
subscribers as well as other persons who have not entered into a
contract for the provision of communications services but who use
communications services with the consent of a subscriber.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Estonia
Service providers shall grant the authorities access to the
communications network for the conduct of surveillance activities
or for the restriction of the right to confidentiality of messages. In
order to grant an access to a communications network, a service
provider has an obligation to maintain call interception capabilities.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
A service provider is required to provide information to surveillance
agencies and security authorities, within twenty four hours after
receiving an urgent enquiry submitted by a surveillance agency or
security authority, or within ten working days if the enquiry is not
urgent. The enquiry shall be submitted in writing or by electronic
media. Some enquiries may also be made in oral form verifying the
request with a password. Access to the data may also be granted in
some cases online on the basis of a written contract. In order to
establish the truth, a service provider shall provide the court, on the
basis of a single written inquiry thereof, with information at its
disposal.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet regulation falls under the general electronic
communications regime. The only specific regulations about
internet service providers concern universal service obligations.
For further details, please see section 12.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
According to Information Society Services Act (ISSA) the service
provider’s liability is restricted upon mere transmission of
information and provision of access to public data communications
network; upon temporary storage of information in cache memory
and upon provision of information storage service.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
If a service provider wishes to process, with the subscriber’s
consent, information on data for marketing purposes, the provider is
required to inform the subscriber, prior to obtaining the consent, of
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the type of information needed for such purposes and the duration
of the intended use of such information. A communications
undertaking has the right to use information, which the undertaking
is permitted to use for marketing purposes, only until it is necessary
for achieving the relevant goal. In case the subscriber so desires,
the communications undertaking shall provide the subscriber with
Estonia
details concerning the use of the information.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
A service provider which has entered into an access or
interconnection agreement may restrict the access of another party
to the communications network if certain criteria are reached, e.g.
the other party has failed to pay for the provided services in a timely
manner, the other party has connected terminal equipment which is
not in working order or is not in compliance with the requirements
or to the communications network and it interferes with the
operation of the communications network or other subscribers of
the communications undertaking, the integral operation of the
communications network is endangered, restriction of access is
necessary to ensure the protection of personal data and other data to
the extent prescribed by law etc. Restriction of access on the bases
prescribed is permitted on the condition that a service provider
informs of the restriction of access thirty days in advance. The
restrictions are to be minimal and based on an objective assessment.
A communications undertaking is required to notify, directly or
through media, persons affected by the application of a particular
restriction.
The implementation of and compliance with ECA shall be guided
by the principle of technological neutrality.
10.5 How are ‘voice over IP’ services regulated?
The provider of Internet access, electronic mail and Internet
telephone service is obligated to retain data, e.g. the user identifiers
allocated by the service provider; client’s name and address to whom
the IP-address, user identification or number belonged to in time of
the communication; user identification or number of the recipient of
the call; Digital Subscriber Line (DSL) or some other requirement
about the communications originator. The data will be preserved for
one or two years (please see question 9.1 for more information).
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The Information Society Services Act deals with commercial
communications which is defined as any form of communication
designed to promote, directly or indirectly, the goods, services or
image of a service provider. The commercial communication, and
the person on whose behalf it is made, must be identifiable as such.
Promotional offers, such as discounts, premiums and gifts,
promotional competitions and games, must be clearly identifiable
as such and conditions relating to the promotion must be presented
clearly.
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The Advertising Act provides: the definition of advertising,
establishes general requirements for advertising, restrictions on
advertising and their extent, special conditions for advertising,
supervision regulations over advertising, and establishes liability
for violation of the Act.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Universal service is defined as a set of services which conforms to
the technical and quality requirements established by EU law. This
is of specified quality and available to all end-users requesting it to
the extent provided in the ECA, regardless of their geographical
location, uniformly and at an affordable price. Under the ECA,
universal services include connection to the public telephone
network, public pay-phone service, and access to a universal
electronic Public Number Directory and directory enquiry services.
The basis for the universal service obligation (USO) and its
conditions are set out in a universal service contract entered into
between a communications service provider and the state
represented by the Minister of Economic Affairs and
Communications, or on his authorisation the ETSA.
The universal service is funded by the price charged by the end-
user. The service charge is stipulated in the universal service
contract and the service provider may submit an application to the
ENCB for compensation for the unfairly burdensome costs relating
to the performance of the USO.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
Electronic communication service providers who wish to provide a
communications service in Estonia must be listed or registered as a
branch in the Estonian commercial register. There are no further
requirements with regards to direct or indirect foreign ownership of
interests in electronic communications service companies in
Estonia.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Currently there are no significant changes in the legislative process.
Only available draft law relates to specific broadcasting issues,
namely specifying obligations to broadcast nationally important TV
programmes.
Sorainen Estonia

Ivar Kurvits Kaupo Lepasepp

Sorainen Sorainen
Pärnu mnt 15 Pärnu mnt 15
Tallinn Tallinn
Estonia Estonia

Tel: +372 640 0900 Tel: +372 640 0900

Estonia
Fax: +372 640 0901 Fax: +372 640 0901
Email: ivar.kurvits@sorainen.ee Email: kaupo.lepasepp@sorainen.ee
URL: www.sorainen.com URL: www.sorainen.com

Ivar Kurvits, an associate, is a competition law expert at the Tallinn
office. Mr. Kurvits has completed LL.M degree at the University of
Edinburgh, UK. He has been with Sorainen since September 2005,
strengthening the firm’s corporate and competition law practices.
Before joining Sorainen he worked with the Law Firm Teder, Glikman
& Partners. His expertise includes advising clients in corporate law
and competition law issues (including state aid, merger
notifications, abuse of dominant position, and prohibited
agreements). Ivar Kurvits is president of LIDC’s (International
League of Competition Lawyers) Baltic suborganisation BLCL (Baltic
League of Competition Lawyers). He played an active role in the
foundation of BLCL in the beginning of 2008. Today, the
organisation involves majority of the competition law specialists
from law offices, the public sector, and universities in Estonia.
Kaupo Lepasepp, a partner, head of Commercial Contracts and
Competition and Regulatory teams.
During his career at Sorainen Mr. Lepasepp has participated in or
managed most of the Commercial Contracts team’s highlight
assignments in Tallinn office.
In Competition & Regulatory team Mr. Lepasepp personally focuses
on competition law questions closely related to Trade (EU and
national rules on block exemptions). In fields not related to Trade,
Mr. Lepasepp is active in infrastructures and regulatory practise,
especially in natural gas, railway and postal sectors. During 2007-
2008 focus of Mr. Lepasepp has shifted to energy sector, especially
natural gas distribution and sales markets.
Mr. Lepasepp is recognised for defending complicated issues in
commonly understandable way and combining sector specific EU
law with traditional national law, both supported by detailed finance
logics. Recently Mr. Lepasepp has contributed to several
international legal studies (telecoms and EC study on e-Health) and
was appointed as member of evaluation and examination committee
of court bailiffs by the Minister of Justice of Estonia.

Sorainen specialises in advising large and medium-sized international and local businesses conducting, or planning to
conduct, business in the Baltic States and Belarus. With fully-integrated offices in Tallinn, Riga, Vilnius and Minsk, we
are especially proud of the regional nature of our firm, which enables us to assist international companies fast and
seamlessly. Our corporate values are: quality-and client-focused, development, teamwork and know-how sharing,
ethics and respect, business-minded. Sorainen is a full-service firm with a key focus on mergers and acquisitions
(M&A), real estate, finance, and other commercial matters, as well as dispute resolution. To date, we have advised on
over 500 M&A transactions alone. Combining 24 practice areas, the firm is structured around nine local and Baltic-
Belarusian legal teams: Mergers & Acquisitions, Real Estate & Construction, Banking & Finance, Corporate Advisory,
Competition & Regulatory, Commercial Contracts, Dispute Resolution, Insurance, Tax. Working in these teams allows
us to ensure strong specialisations, know-how sharing, and seamless service throughout the four offices. Teams also
enable us to provide prompt and reliable service to our clients in local and cross-border cases through utilising the
combined know-how of all the offices.

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 Chapter 17
Finland
Roschier, Attorneys Ltd.
1 Framework
1.1 When did Finland first liberalise telecommunications
networks and/or services?
The Finnish telecommunications legislation was substantially
renewed in the 1980s and 1990s. The 1987 Telecommunications
Act triggered liberalisation as it enabled the promotion of
competition by granting competing telecommunications licences
gradually for different branches of telecommunications.
1.2 Has Finland fully implemented the EU 2003 regulatory
framework? If Finland has not fully implemented the new
regulatory framework, have proceedings been brought
against Finland by the European Commission and if so, for
which contraventions?
The EU 2003 regulatory framework has been implemented through
the Communications Market Act (393/2003) and through other
regulations issued by the Finnish Communications Regulatory
Authority (FICORA).
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Communications Market Act governs the markets of network
services and communications services. The Act on Television and
Radio Operations (744/1998) regulates TV and radio programming
activities. The Radio Act (1015/2001) lays down provisions on
radio equipment and planning and usage of radio frequencies. The
Act on Protection of Privacy in Electronic Communications
(516/2004) together with the Data Protection Act (523/1999) and
Penal Code (39/1889) seek to ensure confidentiality and
information security in electronic communications. The Act on
Provision of Information Society Services (458/2002) includes the
provisions on exempting service providers, acting as
intermediaries, from liability.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The Ministry of Transport and Communications (MINTC) is
responsible for issues relating to communications networks and
monitoring the working of communications markets. FICORA
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Sakari Aalto
Outi Hyyrynen
maintains the functionality of communications networks by
regulating communications markets. MINTC and FICORA work in
cooperation with the Finnish competition authority. Certain policy
decisions, granting of licences and decisions on the frequency plan
are reserved for the Council of State.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
FICORA ensures that the competition in markets is effective. It
also monitors that telecom companies comply with the statutory
obligations regarding e.g. pricing and operations and administers
the use of radio frequencies, communications network numbers and
network addresses.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
A licence must be obtained from the Council of State or a written
notification of the intention to operate public telecommunications
must be submitted to FICORA (please see section 2 below).
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
The Act on Competition Restrictions (480/1992) applies and has
been used also in the telecoms sector. This Act is in line with the
EU competition law.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
FICORA has defined relevant markets and rendered SMP decisions
for all the service and product markets defined by the Commission
which, due to the structure of the Finnish telecom market, results in
hundreds of SMP decisions.
Roschier, Attorneys Ltd.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
A licence is required to provide a network service that uses radio
frequencies in a digital terrestrial mass communications network or
in a mobile network providing public telecommunications. The
licence is granted by the Council of State. A decision on the licence
shall be made within six weeks of the close of the application
period. In special cases the six-week deadline may be extended by
eight months if it is necessary to ensure that the application
procedure is fair, reasonable and clear and transparent or to
supplement the information in the applications.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
A written notification of the intention to operate public
telecommunications shall be submitted to FICORA before the
operations begin. The telecommunications notification shall include
all information that is necessary for FICORA’s supervision purposes.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
The licence is non-transferable. The Council of State may cancel the
licence if the effective control in respect of the licence-holder changes.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The licence is granted for a fixed period up to 20 years.
Communications notifications are valid for indefinite period.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Provisions on the right of a telecommunications operator to install
a telecommunications cable serving a community or property in an
area owned or controlled by another are given in the Land Use and
Building Act (132/1999) and may also be based on the decision of
the municipal building supervision authority referred to in the said
Act. If no agreement is reached between a telecommunications
operator and a property owner on the installation of network
structure, the municipal building supervision authority may, by
decision following an application by the telecommunications
operator, grant the right to the telecommunications operator to
install the network infrastructure on certain conditions.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
If the parties do not reach an agreement on the installation of a
telecommunications cable in an area owned or controlled by
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another, the telecommunications operator shall draw up a plan for
installing the telecommunications cable. The cable route plan shall
be put on public view and a notice thereof shall be published in
widely circulated newspapers. The plan shall also be sent by post
to all property owners. The municipal authority and the regional
environmental centre shall give an opinion on the cable route plan.
Finland
A property owner whose right is affected by the cable route plan has
the right to file an objection.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
FICORA may obligate an SMP operator to lease out a radio mast
antenna site or part of a cable duct to other communications
operators. This obligation may also be imposed on parties other
than the SMP operator in the situation where the construction of a
parallel radio mast or cable duct is not appropriate for reasons of
environmental operation, nature conservation, land-use planning or
other comparable reason.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
If needed in order to eliminate barriers to competition or to promote
competition, the SMP operator may be obligated to join a
communications network to another communications network or
relinquish access rights to its mobile network to service operators.
All operators have an obligation to negotiate an interconnection
agreement for international interconnection.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
FICORA is empowered to resolve disputes regarding
interconnection. An obligation to connect a communication network
to another communication network or relinquish access rights to its
mobile network to service operators imposed by FICORA on the
SMP operator is binding. Disputes concerning damages or other
forms of compensation are resolved by general courts.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Currently Finnish law does not include an obligation to publish
standard interconnection offers or contracts.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The charge that is collected for the use of a telephone network from
the telecommunications operator requesting the interconnection
shall not be unreasonable. Furthermore, the security payment
required from an operator requesting interconnection shall be
reasonable.
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4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
FICORA may obligate a SMP operator to separate, in its accounts,
the functions that concern leasing out of access rights and
interconnection from the other service provision activities if it is
necessary to monitor pricing.
Finland
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The obligations to relinquish access rights to a mobile network or to
connect a communications network or communications service to
another communications network or communications service are
technology neutral and apply accordingly also to new network
technologies.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
FICORA may impose an obligation on a telecommunications
operator with significant market power to lease out to other
telecommunications operators a local loop or part of it, part of the
local loop capacity or transmission capacity for shared use and
equipment facility if it is necessary for the purposes of installing
minor equipment items for using a local loop.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
There are no concrete regulations in force or concrete plans or
proposals for such regulation.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
FICORA may impose an obligation on a SMP operator to use cost-
accounting procedures if it is necessary in order to supervise pricing
in a wholesale or retail market. An approved independent auditor
shall inspect the cost-accounting procedures of a
telecommunications operator in conjunction with the operator’s
auditing process. FICORA shall publish an annual report on how
the cost-accounting procedures are complied with by the
telecommunications operator. FICORA may also obligate a SMP
operator to separate in its accounts the functions that concern
leasing out of access rights and interconnection from the other
service provision activities if it is necessary to monitor pricing.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The provisions of Chapter 7 of the Communications Market Act
concern the rights of users and covers e.g. the users right to select a
telephone service provider and a content service provider, public
standard agreement terms and tariff information, right to connect
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terminal equipment or a communications network to a public
communications network, regulation on tie-in sales, closure of
subscriber connection or restrictions on its use. The relationship
between the consumer and the telecommunications operator is also
covered by the Consumer Protection Act and the Consumer
Protection Ombudsman supervises the legality of standard
agreements from the consumer protection view point.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
FICORA decides the numbers and identifiers to be issued for the
use of telecommunications operators and other persons.
6.2 Are there any special rules which govern the use of
telephone numbers?
Numbers and identifiers shall be distributed in a manner that treats
telecommunication operators and other persons as fairly as possible
taking into account the nature and extent of operations. The holders
of the right to use a number or identifier may be required to start
using the number within a reasonable time.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
FICORA grants numbers to operators on application in accordance
with the Communications Market Act and the regulation including
the numbering plan. This arrangement ensures sufficient number
capacity, equitability among the operators as well as uniformity of
numbers. The telecommunications operator ultimately provides the
number to a customer.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
A telecommunications operator in a telephone network shall ensure
without delay that a user who has entered into a subscriber
connection agreement with it may, if he or she wishes, retain their
telephone number when changing their fixed connection
telecommunications operator in the same telecommunications area
or their mobile-connection telecommunications operator. A
telecommunications operator shall not charge a user for the transfer
of a telephone number to another telecommunications operator. In
practice porting is administered by Numpac, a joint venture of the
major Finnish operators.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Finland’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Submarine cables are subject to the general rules regarding network
construction and maintenance in Finland. Unless a submarine cable
is built for one’s own use (i.e. it will not be offered for the provision
of public communications service), it is likely that the construction
and offering of the cable would be a notifiable communications
Roschier, Attorneys Ltd.
activity. The location and installation of a submarine cable in
Finnish waters, including on beaches is subject to environmental
permits and public hearing processes. Construction work
performed on beaches is, as a rule, subject to local building
ordinances and construction permits. Maps of cable routes must be
maintained by the operator and submitted to the relative maritime
authorities. Finland does have specific liability rules for cable
damage caused by, for instance, shipping anchors. As pointed out
above, environmental permits are required with respect to cables
that affect the seabed and appropriation rules apply with respect to
private property.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The Radio Act covers the availability of radio frequencies.
FICORA prescribes the frequencies to be used for different
purposes of use.
8.2 How is the use of radio frequency spectrum authorised in
Finland? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
FICORA is responsible for planning the use of radio frequencies.
The plan for use of radio frequency spectrum needs to be
subsequently approved by the Council of State, which also, as a
rule, grants the licences for use of the frequencies. FICORA may
also grant limited licences based upon the plan for the use of radio
frequency spectrum.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Due to technology neutrality and harmonisation of spectrum
management, there are no distinctions between mobile, fixed and
satellite usage in respect of licence authorisation.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Every transmitting earth station shall have a licence issued by
FICORA under the Radio Act, unless separately exempted from
licensing. No licence is required for receive-only earth stations. An
annual frequency fee is collected for the transmitting earth station
licence. Due to air traffic safety, there are restrictions in the use of
transmitting earth stations near the airports.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
No radio licence is required for the possession and use of a radio
transmitter if the radio transmitter only functions on the collective
frequency assigned to it by FICORA. FICORA may issue
provisions on the approval as a licence of a marking that shows the
right to use a radio transmitter or of a licence of other authorisation
issued by the competent authority of another country.
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Finland
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
A frequency fee is collected on radio licences granted by the
FICORA. The fee is calculated according to the frequency amount
stated in the licence. The frequency fee is defined according to the
Finland
usability of the frequencies in the radio licence. The aim of this fee
is to try to make the use of frequencies more efficient. By valuing
the frequency bands differently the use of radio transmitters is
directed to frequencies which are less congested. Further, in
addition to the frequency fee, radio broadcasters are obligated to
pay also an annual fixed supervision fee in order for covering the
expenses incurred by FICORA due to the administration of
broadcasting activities.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
In a consolidated corporation, a radio licence may be transferred
from one company to another. FICORA shall be informed of the
transfer immediately. Transfers other than within a consolidated
corporation may take place only if the licence conditions contain
such provisions, which they typically do not do.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The privacy of communication is one of the rights of every citizen
protected by the Finnish Constitution (731/1999). The
Constitutional protection has been implemented through provisions
in the Penal Code and the Act on Protection of Privacy in Electronic
Communications. In international comparison, narrow exceptions
to this protection are set forth in the Act on Coercive Measures
(450/1987) for the purposes of police investigations and in the Act
on Protection of Privacy in Electronic Communications for other
purposes. Finnish law provides the police with the possibility of
intercepting messages or accessing traffic data and other call
records when investigating serious crimes. No other groups or
individuals are granted such rights. The Finnish Act on the
Protection of Privacy in Electronic Communications implements
the Data Retention Directive (2006/24/EC). The Act provides the
authorities access up to 12-months-old identification data as the Act
requires that service operators retain identification data for 12
months for the purposes of investigating serious crimes.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Yes, operators are obliged to maintain call interception capabilities.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Access to retained data and intercepting of calls are subject to strict
regulation of Act on Coercive Measures. Generally, access to retained
data and intercepting of calls will require a decision by a court or a
police authority of a certain rank. See also question 9.1 above.
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10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
Finland
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The Communications Market Act also covers Internet service
providers who offer the user - either a private person or an
enterprise - a connection enabling access to the Internet. Public ISP
services and public internet telephony services are subject to the
Acts’ notifications obligations. The agreement on receiving any
communications service such as internet service shall be made in
writing. Also the minimum content of the agreement has been
regulated. Furthermore, under the provisions imposing certain
obligations on a SMP operator, a general service operator is obliged
to offer a subscriber connection also enabling the appropriate
internet connection to a user at a reasonable price.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Directive on Electronic Commerce has been implemented in
Finland and therefore, the immunity defence available corresponds
to the one in the Electronic Commerce Directive.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Directive on Electronic Commerce has been implemented in
Finland and therefore, the obligations of telecommunications
operators and internet service providers correspond to the ones in
the Electronic Commerce Directive. The Finnish regulation does
not contain any other general obligations.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There is no specific statutory law on the possibilities of the
operators to differentially charge or block different types of traffic
in their networks. Further, we are not aware any relevant case law.
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Finland
10.5 How are ‘voice over IP’ services regulated?
The voice over IP services are subject to the same regulation as
other telecommunication services as soon as the providers of the
services provide call, routing or switching related services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The marketing regulations of the Consumer Protection Act
(38/1978) also apply to marketing and advertising by Internet or
email communications.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
FICORA ensures that communications services are available in the
whole country. If necessary, it appoints a telecommunications
operator as a general service operator that is obligated to provide
subscriber connections at a reasonable price. Unreasonable
economic hindrance incurred from provision of general services
shall be reimbursed to the general service operator by the state. No
such decisions have been made to date.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No communications-specific regulation exists in Finland restricting
foreign ownership in electronic communications companies. Digita
Oy, the owner of terrestrial broadcasting network, is owned by a
French company and the Swedish state is the biggest owner of
TeliaSonera, for example.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
There are currently no published plans to amend the legal systems
relating to electronic communications.
Roschier, Attorneys Ltd. Finland

Sakari Aalto Outi Hyyrynen

Roschier, Attorneys Ltd. Roschier, Attorneys Ltd.
Keskuskatu 7A Keskuskatu 7 A
00100 Helsinki 00100 Helsinki
Finland Finland

Tel: +358 20 506 6000 Tel: +358 20 506 6000

Finland
Fax: +358 20 506 6100 Fax: +358 20 506 6100
Email: sakari.aalto@roschier.com Email: outi.hyyrynen@roschier.com
URL: www.roschier.com URL: www.roschier.com

Sakari Aalto is a Partner at Roschier, Attorneys Ltd. He heads the
firm’s Information and Communications Technology practice and
maintains a specialization in matters relating to IPR licensing, IT,
and telecommunications. He is the author of a number of expert
articles concerning ICT and IP transactions.
Outi Hyyrynen is an associate lawyer at Roschier, Attorneys Ltd. She
advises in the areas of intellectual property rights, information and
communication technology, marketing and consumer law and the
media and entertainment field.

Roschier, as a leading law firm in Northern Europe, operates in the international marketplace. The firm’s clients include
leading domestic and international corporations, financial service and insurance institutions, investors, growth and other
private companies with international operations, as well as governmental authorities.
As a member of RoschierRaidla, a cross-border operation of approximately 270 lawyers in five jurisdictions, including
Roschier in Finland and in Sweden and Raidla Lejins & Norcous in Estonia, Latvia and Lithuania, the firm offers cross-
border solutions based on uniform quality and best practices of international standard by premier law firms in each
jurisdiction.
Please visit www.roschier.com and www.roschierraidla.com for more information.

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 Chapter 18
Germany
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1 Framework
1.1 When did Germany first liberalise telecommunications
networks and/or services?
In 1989 the markets for telecommunications end-user devices, data
and value added services, satellite and mobile communications
were liberalised. The first mobile communications licence was
awarded to a private entity in 1989 (Mannesmann Mobilfunk, now
Vodafone D2).
However, only the Telecoms Act of 1996 fully liberalised the
market for telecommunications networks and services with effect as
of 1 January 1997.
1.2 Has Germany fully implemented the EU 2003 regulatory
framework? If Germany has not fully implemented the
new regulatory framework, have proceedings been brought
against Germany by the European Commission and if so,
for which contraventions?
In general, Germany has implemented the EU 2003 regulatory
framework. Certain delays in conducting the required market analysis
have lead to infringement procedures by the EU Commission.
However, a provision which is interpreted as granting Deutsche
Telekom a regulatory holiday for next generation networks has been
challenged by the European Commission and is currently under
review by the European Court of Justice (see question 4.8).
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The main law governing the operation of electronic
communications networks and the provision of electronic
communications services is the Telecoms Act
(Telekommunicationsgesetz, TKG).
On the basis of the Telecoms Act, several ordinances have been
enacted, including ordinances regarding:
numbering (structuring, configuration, administration and
allocation of numbering space and respective fees;
technical intercepts; and
emergency calls.
The allocation of frequency spectrum is governed by the:
Frequency Range Allocation Plan Ordinance
(Frequenzbereichszuweisungsplanverordnung); and
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Dr. Dirk Stolz
Frequency Utilisation Plan (Frequenznutzungsplan).
Further technical regulations deal with the safety and security of
telecommunications devices and the avoidance of interferences
(electromagnetic compatibility).
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The competent regulatory authority for electronic communications
is the Federal Network Agency, BNetzA (Bundesnetzagentur für
Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen),
which has its seat in Bonn.
The Federal Cartel Office (FCO) is responsible for the enforcement of
the Competition Act (Gesetz gegen Wettbewerbsbeschränkungen,
GWB) and as such is responsible for merger control procedures and
general control of anti-competitive practices.
As regards the market definition and market analysis to be
conducted by BNetzA pursuant to the Telecoms Act, BNetzA shall
take decisions in agreement with the FCO. As regards proposed
remedies, BNetzA shall hear the FCO but is not required to adhere
to FCO’s view.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
Pursuant to the Telecoms Act, BNetzA, inter alia, is responsible for:
defining relevant markets and conducting market analysis;
imposing remedies on SMP operators and certain non-SMP-
operators;
exercising ex-ante and ex-post rate regulation (as
applicable);
exercising special control of anti-competitive practices by
SMP undertakings;
allocation of frequency spectrum;
structuring, configuration, administration of the numbering
space and allocation of numbers;
granting the right of use of public ways;
securing the provision of universal services;
regulation of fees for telecoms services;
monitoring and enforcing the privacy provisions of the
Telecoms Act;
control of abusive practices by SMP operators;
monitoring and enforcing the required technical
implementation of requirements regarding technical
Heuking Kühn Lüer Wojtek
safeguards to protect privacy of telecommunications and
personal data, telecommunications and data processing
systems against unauthorised access and to permit intercepts
by authorities; and
mediation.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
Any person operating a public telecommunications network or
providing a publicly available telecommunications service on a profit-
oriented basis shall notify BNetzA without undue delay, the
beginning, any changes or the ceasing of service provision to BNetzA.
Currently, BNetzA’s office in Chemnitz is responsible to receive
and administer the notifications.
For the initial application, a form sheet should be filled in.
No conditions will be attached to a notification.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
The Telecoms Act prohibits the abuse of a telecommunications
service or network operator.
In addition, the Competition Act, in general, is applicable to
telecommunications network operators or service providers as regards
merger control and general control of anti-competitive practices.
Any mergers that exceed the relevant revenue thresholds of the
Competition Act therefore will have to be notified to the Federal
Cartel Office. This will, in particular, be relevant to any mergers
which involve Deutsche Telekom and their affiliates, any of the
cable network operators and any of the mobile network operators.
In addition, all network operators and service providers,
irrespective of their market power have to comply with the
prohibition of anti-competitive practices pursuant to the
Competition Act.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
Germany, in general, has completed the required market analysis in
accordance with the market recommendations issued by the EU
Commission in 2003. Recently, BNetzA has started to conduct an
(updated) market analysis in accordance with the EU Commission’s
revised market recommendations as of 17 December 2007
(2007/879/EC) according to which only 7 instead of the previous 18
markets shall be subject to regulatory control.
In line with the Commission Staff Working Document SEC (2007)
1483 final, BNetzA has confirmed that any remedies imposed on
markets in line with the 2003 recommendation shall be explicitly
revised in order to determine whether any remedies imposed in the
past shall be upheld or revoked.
According to BNetzA all 7 markets pursuant to the 2007 market
recommendation lack competition. Deutsche Telekom and its
affiliates have SMP on markets 1 - 6. However, in a recent decision
BNetzA determined that in regard to markets 2 and 3 do not possess
SMP anymore in regard to transit services. In addition all
alternative operators of customer access networks have been
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Germany
designated SMP operators. In respect to market 7 all 4 mobile
network operators as well as the MVNO Vista have been designated
SMP operators.
Markets pursuant to the 2003 recommendation which are not
anymore included in the 2007 market recommendation have been
and will further be subject to a market analysis. In consequence
Germany
BNetzA has already withdrawn previous SMP designations for the
markets 3 - 6 of the 2007 market recommendation and respective
remedies have been withdrawn.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Authorisation (general or individual) is only required to use
frequency spectrum (see section 8 below) and regarding the use of
public ways. In general, BNetzA must decide within a 6-week
period after having received an application.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Besides a spectrum allocation, a site approval for operating radio
equipment (if not low radiation) and an authorisation by the
planning authorisations may be required.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Spectrum may be transferred as set out below in question 8.7.
Numbers may only be transferred to affiliates and/or legal
successors (requiring BNetzA’s consent). Rights of way may not be
transferred.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Only individual spectrum allocations are limited in time. The
duration is determined by BNetzA prior to the allocation and
usually ranges between 10 and 20 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
BNetzA shall transfer upon written application to public
telecommunications network operators a right of use of public
trafficways (public ways, squares, bridges, public waters) free of
charge for telecommunications lines serving public services.
Where such use is not possible or only at disproportionately high
expenses, the operator shall have a right of shared use of other
installations already existing where this shared use is economically
reasonable and no major additional construction work is needed.
In regard to private property, the owner has to accept the
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installation, operation or renewal of telecommunications lines on
his property insofar as (1) on his property, a line or instalment that
is secured by a right is used also for a telecommunications line and
the usability of the property is not thereby additionally restricted on
a lasting basis or (2) the property is not, or is not significantly,
affected by such use. A property owner having to acquiesce in such
Germany
use may claim appropriate pecuniary compensation of the operator
of the telecommunications line or the owner of the network if the
use of his property or the income from it is affected beyond what is
reasonable. In addition, one-time compensation may be claimed,
provided there were no lines hitherto that could be used for
telecommunications purposes.
Rights over access to public and private land can be enforced at the
courts, according to the general procedural rules. Thus the civil or
the administrative courts may have jurisdiction.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
There is no specific planning or zoning regime in regard to the
installation of network infrastructure issued by BNetzA.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
BNetzA shall impose an obligation on SMP operators to share
infrastructure, including building, duct and mast sharing.
Remedy orders by BNetzA specify such obligation. The current
remedy regarding (the previous) market 11 imposes an obligation
on Deutsche Telekom to make ducts and black fibre available for
use by alternative operators. Sharing of other parts of the
infrastructure is not mandatory.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Every public telecommunications network operator shall, upon
request, undertake to make an interconnection offer to other public
telecommunications network operators.
BNetzA shall, in general, impose access obligations on SMP
operators which include the granting fully unbundled access to the
local loop, interconnection, open access to technical interfaces, key
technologies and the provision of co-location and other forms of
facility sharing.
In exceptional cases, BNetzA may impose such obligation on non-
SMP operators which control access to end-users in order to secure
user communication and end to end connectivity.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
If the conclusion of an access agreement (incl. an interconnection
agreement) fails and provided that one of the parties is required to
grant access, both parties are entitled to apply to BNetzA, which
will order access, in principle within 10 weeks.
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4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
BNetzA requires the SMP operators to publish a reference offer which
sets out the specifics of the access granted. Accordingly, Deutsche
Telekom has published a reference interconnection offer and prices.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
BNetzA has imposed ex-ante price control obligations on Deutsche
Telekom in regard to the markets 2 - 6 and the mobile network
operators in regard to their voice terminations charges (market 7).
In addition those alternative operators of customer access networks
who have not agreed on reciprocal interconnection charges with
Deutsche Telekom (to the extent they are SMP operators) are
subject to an ex-ante rate regulation.
All other SMP operators are only subject to an ex-post rate
regulation. BNetzA may investigate these rates ex-offico and - if
they do not match the actual costs of provision of the service (plus
a reasonable margin), BNetzA may declare them void, request a
modification or determine the reasonable rates.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Operators currently are not subject to accounting, functional or
legal separation.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Currently, the provisions regarding interconnection between and
access to PSTN apply to IP-based networks as well. Accordingly,
IP-based network operators receive termination charges identical
with those of the PSTN. In fact, the originating network currently
does not obtain any information on whether the traffic is terminated
in a PSTN, in a managed NGN or the Internet.
BNetzA is aware that the regulatory framework needs to deal
specifically with All-IP-networks and has set up a respective
working group. In February 2008 BNetzA has published
“Cornerstones” of an interconnection regime for All-IP networks
which takes into consideration the quantity and geographic
locations of PoIs, quality of services aspects, pricing and billing.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
BNetzA has imposed on Deutsche Telekom the obligation to offer
fully unbundled access to the local loop, shared access and access
to necessary co-location facilities. The rates are subject to ex-ante
price control. In addition, Deutsche Telekom has been ordered to
grant access to certain ducts where no free ducts are available and
its black fibre (copper and optical) between the mainframe and the
street cabinet.
Deutsche Telekom is required to publish respective reference offers
setting out the specifics.
Cable TV operators are not subject to grant unbundled access.
Heuking Kühn Lüer Wojtek
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
There are no regulations or specific proposals in place relating to
next generation access networks. A respective consultation process
is still ongoing.
Pursuant to Sec. 9a Telecoms Act, so-called “New Markets” shall
not be subject to regulation unless regulation - as an exception is
required to avoid a disturbance of competition. This provision is
interpreted as granting a regulatory holiday to Deutsche Telekom’s
next generation access network (which predominantly is fibre to the
cabinet or fibre to the node). The European Commission has
brought this to the European Court of Justice. A judgment is still
pending but the Advocate General has confirmed the European
Commission’s few that this provision violates the EU telecoms
directives.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
BNetzA does not impose any ex-ante price control on any operator
or service provider anymore.
BNetzA, however, has the authority to declare retail rates that it
deems abusive void and to request an adjustment or determine
appropriate rates itself.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Besides the rules regarding unsolicited electronic communication,
the general rules authorising a consumer to withdraw from a
contract concluded by electronic means, specific provisions in the
Telecoms Act deal with the provision of premium-rate telephone
services, operator services and alike. They provide, inter alia, for
details regarding the price communication in advertisements,
proper information of the terms and conditions in particular in case
of recurring charges, announcement of rates prior to the
commencement of a telephone service, maximum charges and the
interruption of premium rate services after a maximum of 1 hour.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers of all number ranges are allocated by BNetzA
upon application to network operators or service providers.
Network identifying codes, i.e. carrier codes, are made available by
BNetzA to network operators upon application, provided they
demonstrate that they operate a telecommunications network.
VoIP service providers are entitled to obtain ranges of geographical
numbers for allocation to their customers, provided, that the
customers demonstrate that they have their business location or
residence within the area code for which they request a
geographical number.
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Germany
6.2 Are there any special rules which govern the use of
telephone numbers?
The allocation of numbers is subject to the general provisions of the
Telecoms Act and the Telecommunications Numbering Ordinance.
Further details regarding the permitted use and allocation
Germany
procedures are set out in specific deeds issued by BNetzA in regard
to the various numbering ranges.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Geographical numbers will be allocated to a network operator and
activated and made available by such network operator for use by
end-users. Other number ranges, such as numbers for premium
rate, mass traffic, and inquiry services can by applied for and
allocated to the user directly by BNetzA. In this case, the user will
enter into an agreement with a network operator to ensure the
activation of the number and that it can be reached from third party
networks on the basis of existing interconnection agreements.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The Telecoms Act mandates number portability for all undertakings
providing publicly available telecommunications services and
assigning telephone numbers to end users, which includes all fixed
and mobile network operators as well as VoIP service providers that
do not only provide services for closed user groups.
This obligation has been effectively implemented by all obliged
undertakings.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Germany’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
No specific rules and regulations apply to submarine cables within
Germany’s territory. The general provisions of costal protection,
environmental and waterway laws apply and may require
authorisations by the competent (local) authorities.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio frequency spectrum is regulated by the Telecoms
Act and regulated under the authority of BNetzA, which allocates
frequency spectrum.
8.2 How is the use of radio frequency spectrum authorised in
Germany? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
Frequencies are typically assigned ex officio by BNetzA as general
assignments for the use of particular frequencies by the general
public or a group of persons.
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Where general assignment is not possible, spectrum is assigned
individually upon application.
In case there is not sufficient spectrum available for assignment,
BNetzA may order that an assignment be preceded by an award
procedure. As a rule, the award procedure shall be an auction and
only where an auction is likely not to secure the regulatory aims
Germany
may BNetzA invite tenders (beauty parade).
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Regulation does not differentiate between different types or
purposes of spectrum use. However, the different spectrum ranges
have been reserved for use for specific types of use.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
No specific rules and regulations apply. The service provider has to
apply for the allocation of respective spectrum with BNetzA, which
will be assigned individually within the internationally coordinated
spectrum range.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Technically, the use of spectrum is never licence-exempt. However,
in case that spectrum has been generally allocated for specific
purposes, no individual license is required. Besides the general or
individual frequency assignment, no further licence is required.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
For the individual assignment of spectrum a one-time fee is payable
as set forth in the Frequency Fee Ordinance
(Frequenzgebührenverordnung) as well as an annual fee calculated
in accordance with the Frequency Usage Contribution Ordinance
(Frequenznutzungsbeitragsverordnung).
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
BNetzA is authorised to release frequency bands for trading and
stipulate the framework conditions of and the procedure for trading.
However, until today, BNetzA has not taken any initiative in this
respect.
The Telecoms Act, however, permits - upon BNetzA’s consent - the
transfer of frequency usage rights by singular or universal
succession, e.g. as part of corporate restructurings.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Implementing the EU Data Retention Directive, the Telecoms Act
requires providers of telecommunications services (voice
telephony, e-mail, internet access) to retain traffic data specified in
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the Telecoms Act for a period of 6 months.
It is currently in dispute whether operators are required to provide
the technical systems required for the retention of data at their own
costs. A number of recent decisions by the administrative courts in
Berlin and Cologne support the view that operators shall not have
to bear these costs but only the costs for the transmission of such
data if requested by the competent authorities. The existing court
decisions, however, only apply inter partes and therefore have no
general relevance for those operators who have not obtained a court
order in their favour. Operators who do not pursue legal action will
be required to bear the costs for the required technical systems.
The secrecy of communications is protected under the Telecoms
Act and the Criminal Code. Accordingly, telecommunications
service providers are prohibited from disclosing any details relating
to communications (including, the numbers, time and content of
communications).
A service provider may use a subscriber’s telephone number or
postal address, (including e-mail), which he has lawfully obtained,
for the transmission of text or picture messages to a telephone, mail
or e-mail address for subscriber advisory purposes, for promoting
his own offerings and for market research, provided that the
customer, when the telephone number, address or e-mail is first
collected or stored and on each occasion a message is sent to the
customer, is given information that he may object at any time, in
writing or electronically to the dispatch of further messages and
further provided, that the customer has not objected to such
messages.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Telecommunications operators providing telecommunications
services are obliged to provide for the technical systems to allow
call interception. Details are regulated in the Telecommunications
Interception Ordinance (Telekommunikationsüberwachungs-
verordnung; TKÜV) and a technical directive. Exceptions apply to
operators with only a small number of end-customers. Currently,
operators are required to maintain the necessary technical
equipment for interception at their own costs. However, the legality
of the cost bearing obligation is subject constitutional concerns. A
decision on this is expected by the Federal Constitutional Court.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The traffic data which are subject to the data retention obligation
(see question 9.1) may only be obtained by criminal prosecutors
upon prior approval by a competent court. The German
Constitutional Court in a preliminary order, however, has
determined, that such data - different from the current laws - may
only be obtained in case of exceptionally severe criminal offences.
Likewise, criminal prosecutors may only request access to the wire-
tapping facilities upon prior approval by the competent court.
Heuking Kühn Lüer Wojtek
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
There are no specific regulations dealing with the internet. No
specific rules exist regarding access to the internet at a wholesale or
retail level. Internet access providers and services providers are
subject to the regulation under the Telecoms Act as set out above.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Even though case law is not entirely consistent, in general,
telecommunications providers and internet access providers in
general are not liable for illegal content carried over their networks.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Telecommunications operators and internet services providers are
under no obligation to disconnect customers who infringe third
party right. They are required to provide customer details upon
request by public prosecutors. In addition, copyright owners can
obtain a court order requiring the operator/service provider to
disclose customer details (e.g. IP addresses) if they demonstrate to
the court that the infringing customer was acting for commercial
purposes. Without such court order operators and service providers
must not disclose personal details of customers to copyright
owners.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There are no specific net-neutrality requirements in place.
Currently, net-neutrality and different charging or blocking of
different types of content is not practiced in Germany. The general
rules of the Telecoms Act and the Competition Act which prohibit
an abuse of power would apply to SMP operators.
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Germany
10.5 How are ‘voice over IP’ services regulated?
There is no specific regulation of voice over IP services. As regards
the numbering, please see questions 6.1 and 6.4 above.
Germany
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The same provisions as set out above under question 9.1 apply.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The Telecoms Act defines a minimum set of publicly available
services of specified quality to which every end-user shall have
access at an affordable price. Where BNetzA finds that universal
services are not adequately or appropriately provided, it may oblige
one or more undertakings to provide such services. This concept
includes a compensation of the obliged undertakings paid out of the
universal service contribution to be paid by other market
participants.
Until today, BNetzA has not imposed any universal service
obligations on any undertaking.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No rules restrict direct or indirect foreign ownership interest in
electronic communications companies in Germany.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
It remains to be seen whether the current dispute between Germany
and the EU Commission regarding the regulation of NGNs will
result in changes to the Telecoms Act.
The adoption of the new EU telecoms package will require a further
modification of the Telecoms Act.
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 Heuking Kühn Lüer Wojtek Germany

Dr. Dirk Stolz

Heuking Kühn Lüer Wojtek
Magnusstrasse 13
50672, Cologne
Germany
Germany

Tel: +49 0221 20524 26

Fax: +49 0221 20521
Email: d.stolz@heuking.de
URL: www.heuking.de

Dr. Dirk Stolz is partner of Heuking Kühn Lüer Wojtek, one of the
largest German commercial law firms, where he is in charge of the
firm’s telecommunications practice. A qualified German lawyer with
work experience in Hong Kong and Tokyo, Dirk Stolz holds a Phd
(Dr.) in international comparative public procurement law.
Dirk Stolz advises clients on all regulatory and commercial aspects
of communications law, including data protection and copyright
related matters. In addition, he is regularly involved in
telecommunications and technology related transactions, both,
within Germany and cross-border.
He regularly represents leading satellite, wireless and mobile service
providers, including wireless content providers as well as fixed
network operators, RPS providers and private equity investors in the
sector.

Heuking Kühn Lüer Wojtek is one of the largest independent German law firms.
The firm offers full service legal and tax advice out of the firm’s seven offices in Germany (Berlin, Chemnitz, Cologne,
Düsseldorf, Frankfurt, Hamburg and Munich) and an office sin Brussels (Belgium) and Zurich (Switzerland).
More than 200 specialised lawyers and tax advisors represent the interests of domestic and international clients with
a strong focus on the telecommunications and technology sector.
The firm advises on all regulatory and commercial matters pertaining to telecommunications (fixed, wireless, mobile,
satellite and cable TV), including advice on mergers and acquisitions, corporate restructuring, financing, IPOs and
public tenders.

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Chapter 19
Hong Kong
Lovells
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The overall vision of the Office of the Telecommunications
Authority’s (“OFTA”) is to ensure that Hong Kong has “the best
telecommunications services to meet the challenges of the
information age”.
The 2008 Digital 21 Strategy, the policy blueprint for Hong Kong’s
ICT development for 2008 to 2010 contains the following goals:
facilitate a digital economy;
promote advanced technology and innovation;
develop Hong Kong as a hub for technological cooperation
and trade;
enable the next generation of public services; and
build an inclusive knowledge-based society.
The key piece of legislation relevant to telecommunications and
radio frequencies is the Telecommunications Ordinance (Cap. 106)
(the “TO”) and subsidiary legislation.
1.2 Is Hong Kong a member of the World Trade Organisation?
Has Hong Kong made commitments under the GATS/GATT
regarding telecommunications and has Hong Kong adopted
the WTO Basic Telecommunications Agreement?
Hong Kong has been a member of the WTO since 1 January 1995.
It adopted the WTO Basic Telecommunications Agreement in
February 1997 and has made specific commitments under the
GATS/GATT in relation to telecommunications.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Hong Kong?
The primary source of regulation for telecommunications services
in Hong Kong is the TO
The Television Ordinance, Broadcasting Ordinance (“BO”),
Broadcasting Authority Ordinance and Outer Space Ordinance are
also relevant together with subsidiary legislation, guidelines,
directions and policy statements issued by the Telecommunications
Authority (“TA”) from time to time.
Since the market liberalisation and deregulation initiatives were
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Gabriela Kennedy
introduced by the Government in the mid-1990s, the Hong Kong
telecommunications market has become fully liberalised and is now
one of the most competitive in the world.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
There is no general competition law or authority in Hong Kong as
such, although proposals to enact a cross-sector competition law are
ongoing. At the moment the only (sectoral) competition provisions
in Hong Kong can be found in the TO and the BO.
OFTA, an independent government body headed by the TA, is the
main statutory body responsible for setting telecommunication
policy, ensuring compliance with the TO and regulating and
administering the industry. OFTA has a competition affairs branch
which deals primarily with the enforcement of provisions dealing
with anti-competitive practices and misleading conduct, and
advises on the implementation of competition provisions in the TO.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Judicial review may be sought in respect of TA directions and
decisions. Appeals against decisions concerning anti-competitive
behaviour and practices, abuse of dominant position, misleading or
deceptive conduct or discriminatory behaviour are made to the
Telecommunications (Competition Provisions) Appeal Board:
ss.32L to 32U TO.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Pursuant to s.8(1) TO, a licence granted by the Governor in Council
or by the TA is required for the establishment and operation of
telecommunication or ancillary services in Hong Kong.
Applications for licences may be made to the TA in paper form or
online via the OFTA website where guidelines for the application
for various licences are available. Depending on the type of licence
applied for, the timescale for obtaining a licence can vary from four
working days to a year.
Costs vary depending on the type of licence sought. Most licences
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have a fixed annual fee while for some licences fees are calculated
based on the size of the customer base, the type of service or the
number of base stations. For example, a unified carrier licensee must
pay, amongst others, a fixed fee of up to HK$1,000,000 annually, an
annual fee of HK$800 for each 100 customer connections, HK$3
Hong Kong
annually for each subscriber number (allocated or ported in) and up
to HK$1000 per base station installed for service.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
This will vary depending on the services to be provided. Such
prerequisites are contained in the relevant guidelines available on
the OFTA website.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
This will depend on the conditions of each licence. Generally, if a
transfer is permitted, the prior written consent of the TA is required.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The typical duration of licences and whether or not they may be
renewed depends on each type of licence. Many are, by virtue of
s.2(2) Telecommunications Regulations (Cap. 106A), valid for
approximately 1 year. Exceptions include public radio-
communications licences which are valid for 10 years, broadcast relay
station licences valid for 15 years and unified carrier licences (for
fixed and/or mobile networks) valid for 15 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The TA may, under s.14 TO, authorise relevant licensees to access
both public and private land in Hong Kong for the purpose of
placing and maintaining telecommunications infrastructure on such
land. Reasonable notice must be given to land owners and in some
cases consent of the relevant public authorities must be obtained.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
There is no specific framework for the installation of network
infrastructure, though various legislative rules will apply e.g.
pursuant to reg.28A Building (Planning) Regulations, every
commercial building, industrial building, residential building (other
than a building for the residence of a single family) and hotel
building shall be provided with access facilities for
telecommunications and broadcasting services in accordance with
the design requirements as may be specified by the Building
Authority from time to time.
OFTA, after consultation with the building industry and fixed
network service operators has released a code of practice targeted at
developers which sets out the requirements of facilities in a building
necessary for the provision of telecommunications and
broadcasting services to occupants e.g. lead-in facilities for cables.
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3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
The TA encourages commercial agreements between operators in
relation to sharing the use of facilities; however, it retains the power
under s.36AA TO to direct a licensee to cooperate or share facilities
owned by it with another licensee where to do so is in the public
interest. The TA may consider matters set out in s.36AA(3), which
includes whether the facility is a “bottleneck” and whether there are
any technical alternatives available.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Operators of public telecommunications networks (“PTNs”) are
required under the terms of their licence to interconnect their
networks and services with other public telecommunications
networks and services. PTNs include operators of fixed
telecommunication network services, public mobile radiotelephone
services or personal communications service and holders of fixed
carrier and mobile carrier licences.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The TA has the power under s.36A of the TO to make
determinations in respect of interconnection matters. The TA’s
determination will be deemed to be the essence of any agreement
for the disputed interconnection, and will override any different
intention arising from the provisions of such agreement: s.36A(3C)
TO. Any party dissatisfied with such a decision may seek judicial
review.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
In October 2002, OFTA mandated the publication of certain
interconnection agreements entered into with PCCW-HKT
Telephone Limited, then Hong Kong’s dominant operator. OFTA’s
view was that the publication of such agreements was in the
interests of the public (as required under s.36A TO), the reasons
being that, amongst others, it would provide useful benchmarks for
the industry, increase the transparency of pricing and terms of such
agreements and facilitate quicker commercial negotiation of such
agreements. Only agreements for Type I interconnection, Type II
interconnection and interconnection to in-building blockwiring
systems were deemed necessary for publication.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
On 29 April 2009, previous regulation on the interconnection
charges for fixed-mobile interconnection ceased to be effective.
Such interconnection charges are now determined by commercial
negotiation between operators, although the TA retains its power
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under s.36A to intervene as to the terms of interconnection.
Other tariffs such as local access charges, which are set by the TA,
and those which are not subject to pre-approval by the TA, such as
the unified interconnection and local access services tariff levied by
incumbent dominant operator PCCW, will remain in place until
further review.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Yes, some operators providing fixed telecommunication network
services (“FTNS”) including unified carrier licensees are subject to
stringent accounting separation rules which require the
maintenance of accounts for different services or business activities
or types thereof to allow the TA to monitor the operator’s power in
the market, in particular any cross-subsidisation and unfair pricing
practices.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Although the commercial negotiation of interconnection terms is
now encouraged, the TA retains the power to intervene in certain
circumstances. Interconnection policies such as the “any-to-any
connectivity” principle (enabling users to communicate with any
other user) have remained in place.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
The withdrawal of the Mandatory Type II Interconnection Policy
applicable to telephone exchanges for individual buildings which
began in July 2004 was completed on 30 June 2008. The incumbent
fixed network operator, PCCW, is no longer mandated to provide
such interconnection upon request. Mandatory Type II
interconnection at street level and at the in-building level has been
maintained.
Whilst interconnection terms (and charges) for telephone exchanges
are now to be commercially negotiated, the TA retains the power
under s.36A TO to make determinations as to the terms of such
arrangements and also to order unbundling for essential facilities.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
A key change in the Hong Kong telecommunications industry over
the past decade is the transformation of operators’ network
infrastructures from traditional circuit-switched networks to IP-
based next generation networks (NGN). While the TA has been
constantly reviewing the regulatory framework to ensure its
suitability for new technologies (e.g. deregulation to pave the way
for fixed-mobile convergence (“FMC”) and the introduction in
2006 of a new regulatory regime to facilitate voice over internet
protocol (“VoIP”) services), the Regulatory Affairs Advisory
Committee met in April 2009 to discuss the need to assess
regulatory challenges brought on by NGN and whether it was
necessary to make adjustments to the current regulatory framework
in order to address the changes brought on by NGN. The
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Hong Kong
determinations of the Committee are yet to be published, but a
Working Group dedicated to further investigation of this issue is
likely to be set up.
5 Price and Consumer Regulation
Hong Kong
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Generally no prior approval is required for tariffs and discounts of
unified carrier licensees (i.e. operators of fixed and/or mobile
networks), though such licensees must notify the TA of discounts to
published tariffs, subject to exemptions for particular services as
prescribed by the TA. The TA monitors tariffs and has the power to
address competition concerns where necessary.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
There are a variety of rules specific to providers of electronic
communications services to consumers, for example competition
provisions in the TO, anti-spam legislation in the form of the
Unsolicited Electronic Messages Ordinance (“UEMO”), and
depending on the type of service provided, licence conditions may
require operators to provide emergency call services, directory
information services, and a customer charter setting out the
minimum standards of service to the licensee’s customers. Codes
of practice governing consumer-related matters issued by the TA,
the Consumer Council and/or other authorities may also apply to
telecommunications providers. Non-compliance with such codes of
practice does not attract legal liability, but may constitute a
presumption of non-compliance with certain legislative
requirements.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
S.32F TO gives the TA all powers and privileges relating to or
connected to the numbering plan, including its ownership and
control. Since 1 January 1995 Hong Kong has used an 8-digit
numbering plan and numbers are allocated to service providers on a
block-by-block basis. The TA releases monthly updates to the
numbering plan outlining all changes, allocations and assignments.
6.2 Are there any special rules which govern the use of
telephone numbers?
Under s.32F(3)(b) TO, the TA has issued a code of practice relating
to the use of numbers and codes in the Hong Kong numbering plan
with which the TA and network operators and service providers to
whom the TA has delegated the administration of part of the
numbering plan must comply as well as with any directions and
statements issued by the TA in respect of numbering. This code
addresses, amongst other things, maintenance of records of
numbers and codes, recovery of unused numbers, facilitating “any-
to-any communication” and a prohibition on sale or transfer of
Hong Kong telephone numbers to overseas operators for
assignment to their customers.
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6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The TA allocates telephone numbers on a block-by-block basis to
network operators, paging services operators, mobile virtual
Hong Kong
network operators (“MVNOs”) and service-based operator
licensees etc. The TA will generally designate individual numbers
and codes to these operators who then assign them to customers.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Fixed (operator) number portability (“ONP”) was introduced in
Hong Kong in March 1995, and mobile number portability
(“MNP”) was introduced in March 1999. All fixed network
operators (“FNOs”) are required to facilitate both ONP and MNP,
and FNOs licensed after 2000 are to do so at their own expense.
Mobile carrier licensees are required to facilitate MNP only and
have to bear the associated costs.
With the arrival of FMC, the TA is looking into whether fixed mobile
number portability (“FMNP”) is to be implemented. Following on
from a number of surveys and public consultations, the TA found that
there was some but not significant demand for FMNP. On 10 July
2009 the TA announced its decision to allow telecommunications
operators to provide FMNP on a voluntary basis, such service to be
provided as and when operators considered it necessary. FMNP
operators are required to bear all costs associated with their respective
voluntary implementation of the FMNP.
7 Submarine Cables
7.1 What are the main rules governing the bringing into Hong
Kong’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Owners of indefeasible rights of use (IRU) of submarine cables may
use all available capacity in such cables through specified wireline-
based fixed telecommunication network services (“FTNS”)
licensees and new cable-based external FTNS licensees. Cable-
based external FTNS licences are issued to those who invest
directly in bringing physical cable(s) to Hong Kong for the
provision of external telecommunications services between one or
more points in Hong Kong and one or more points outside Hong
Kong, and between two or more points outside Hong Kong but
routed in transit via Hong Kong. Such licences become effective
upon the commission of respective cables i.e. when the respective
submarine (or land) cable is brought into Hong Kong.
No licence is required for ownership of submarine cables brought
into Hong Kong.
As of 10 August 2009, 28 cable-based FTNS licences had been
granted.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The Commerce and Economic Development Bureau sets the
policies concerning radio frequency spectrum and by virtue of Part
VB of the TO, the TA is responsible for spectrum management.
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8.2 How is the use of radio frequency spectrum authorised in
Hong Kong? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
Spectrum rights are assigned at the time of the grant of the relevant
service or carrier licence, and may be authorised by operation of
class licences. The TA may also issue spectrum as and when
demand arises and the method of allocation of spectrum is subject
to the discretion of the Secretary for Commerce Industry and
Technology who may decide to assign spectrum by such methods as
he thinks fit. Spectrum is generally allocated by way of spectrum
auctions rather than by “beauty parades”, particularly where the
bandwidth is considered to be in “high demand” amongst operators.
Spectrum auctions were first introduced in 2001 when four
spectrum licences for the provision of 3G services were auctioned.
Since then a number of auctions have taken place with 2 auctions
being conducted entirely online in 2009 alone and for a combined
total of almost 100 MHz worth of spectrum. The auction for radio
spectrum for broadband wireless access services completed in
January 2009 resulted in 3 bidders paying the government a
staggering HK$1535.7 billion in SUF in return for 90 MHz worth
of spectrum in the 2.5 GHz band.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Yes. Although spectrum liberalisation is not envisaged in the short-
term, there are increasingly more multi-purpose spectrum bands
being offered. The spectrum release plan for 2009/10 to 2011/12
includes frequency bands for fixed and mobile services including
the new broadcast-type mobile TV and digital audio broadcasting
(DAB) services.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
A space station carrier licence is required (s.8 TO) and the terms of
use are contained with reference to the Constitution and Convention
of the International Telecommunication Union and other
international conventions, agreements, protocols, understandings
etc. applicable to Hong Kong.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
There are currently a number of express statutory exemptions, e.g.
no licence is required for radio receivers which are capable of
operating in frequency bands below 30MHz.
The Governor in Council has the general power to exempt any
person or class, though it is expected that the class licence system
will eventually do away with (or at least drastically lessen) the need
for specific exemption orders.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Prior to the 2007 changes to the radio spectrum policy framework,
spectrum utilisation fees (“SUF”) were only applicable to the
spectrum for 3G mobile services auctioned in 2001 and spectrum for
second-generation mobile services when those licences were
renewed in 2005 and 2006. Now SUF is applicable to all non-
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government use of spectrum. Where spectrum is not released by
auction or other market means, the SUF is set to reflect the
opportunity costs of the spectrum. If spectrum is assigned to support
public interest purposes, the SUF will be adjusted accordingly.
Fees may also be imposed in respect of specific licences e.g. an
annual fee for the management of radio frequency is imposed on
unified carrier licensees, such fee varying according to the range of
frequency assigned.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The Government has announced its intention to introduce spectrum
trading in the long-term, although it is unclear when this will be.
Sublicensing of spectrum may be effected through licence
requirements and otherwise through commercial arrangements.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
There are no express rules requiring telecoms operators to retain
call data. There are, however, rules governing the use and retention
of such data through the terms of the relevant licence and through
legislation.
Telecoms operators are required under the terms of their licence not
to use customer call information for purposes other than those
related to the provision of the telecoms services and are also
prohibited from making unauthorised disclosure of customer
information. A voluntary Code of Practice on the protection of
Customer Information for Fixed and Mobile Service Operators has
been issued by the TA and operators are encouraged to adopt it.
This code of practice addresses the security of customer data and
includes good practice guidelines on customer data retention.
As customer call information (e.g. details of call history) may be
classed as personal data under the Personal Data (Privacy)
Ordinance (“PDPO”), it is protected under the PDPO subject to
certain competing public or social interests such as the prevention
or detection of crime. Although there are no specific data protection
and privacy rules relating to telecommunications, the express
principles governing use and retention of personal data in the PDPO
nonetheless apply to operators. These include the requirement that
operators should take “all practicable steps” to ensure that personal
data is protected against unauthorised or accidental access,
processing or other use.
Unauthorised disclosure of customer call information in return for
advantage may also give rise to a breach of the Prevention of
Bribery Ordinance.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Under s.33 TO, the Chief Executive may order that messages be
intercepted in order to provide or make available facilities required
for detecting telecommunications services provided in
contravention of the TO or the execution of prescribed
authorisations issued pursuant to the Interception of
Communications and Surveillance Ordinance (Cap. 589) (“ICSO”).
Such prescribed authorisations may be obtained for the purpose of
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preventing or detecting serious crime or for protecting public
security (s.3 ICSO) and may be made in respect of, amongst others,
any communication transmitted by a telecommunications system.
9.3 What is the process for authorities obtaining access to
Hong Kong
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Under s.35A TO, where necessary in discharge of its functions and
exercise of its powers, the TA may at all reasonable times enter the
premises of a licensee to inspect the records, documents and
accounts relating to a telecommunications network, system,
installation or service.
In order to intercept calls by covert means, an officer from the
Customs and Excise Department, Hong Kong Police Force or
Independent Commission Against Corruption will need to apply to
a panel judge (appointed by the Chief Executive) for the requisite
authorisation. The threshold for obtaining such authorisation is
high. Under s.3 ICSO, the applicant must be able to demonstrate
that the purpose of the interception is to prevent or detect a serious
crime or protect public security; there is a reasonable suspicion that
a person has been, is, or is likely to be, involved in such serious
crime or activity constituting a threat to public security; and the
interception is necessary for, and proportionate to, what is sought to
be achieved.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Generally, different rules and regulations apply to services provided
over the Internet, though there is some overlap in respect of
licences. Internet services providers are required to obtain a licence
for public non-exclusive telecommunications service (“PNETS”) in
order to provide internet services.
A services-based operator (“SBO”) licence is required for the
provision of IP telephony services. Like fixed and mobile network
services licensees, SBO licensees are also required to comply with
any mandatory codes of practices, statements, directions etc issued
by the TA.
In the case of the increasingly popular internet protocol television
(“IPTV”), the type of licence will depend on how such service is
provided e.g. a PNETS (or Modified SBO) licence is required if
internet access is through a fixed network, or if internet access is
through Wi-Fi, a class licence will apply.
Internet access at the wholesale and retail level is negotiated
commercially, but may be affected by the terms of the relevant
licence e.g. FTNS licensees may be prohibited from providing retail
internet access services to customers as such services are to be
provided by ISPs who must in turn procure wholesale broadband
conveyance services from the FTNS licensee.
Television programme services and video telephony services
provided on the internet do not require a broadcasting licence.
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10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
S.26(4) Copyright Ordinance (Cap. 528) appears to offer the “mere
Hong Kong
conduit” defence to telecoms operators and ISPs in respect of
copyright infringing activities of their clients. This provision has yet
to be “tested” in the Courts. In the meantime, the Hong Kong
Government in consultation with copyright owners and ISPs is
working on a proposal to introduce more explicit safe harbour
provisions to the Copyright Ordinance protecting ISPs that comply
with a Code of Practice from being liable for the infringing acts of
their clients online. The Code of Practice will set out the framework
for cooperation between ISPs and copyright owners in combating
online piracy. The exact framework has yet to be finalised, though
it is likely that ISPs will at least be required to send notices to
infringers requesting the removal of infringing material.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
At present, there are no proscribed obligations requiring ISPs to
voluntarily assist content owners. Content owners can, however,
compel disclosure of information from ISPs by making a Norwich
Pharmacal application to the Court. It is arguably open to content
owners to bring copyright infringement proceedings against ISPs
for authorising their clients’ copyright infringing activities, though
this issue remains to be tested in the courts.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
The concept of “network neutrality” is addressed in legislative
provisions concerned with anti-competitive and discriminatory
conduct, for example ss.7K, 7L and 7N TO which prohibit telecoms
licensees from engaging in anti-competitive practices, abuse of
dominant position and discrimination between persons acquiring
telecoms services (including discrimination of charges). It is also an
offence to wilfully abstain from transmitting any message or wilfully
intercepting, detaining or delaying any message under s.24(1)(c) TO.
The network neutrality principle is also embedded in licences, for
example any-to-any connectivity is mandated for fixed carrier and
unified carrier licensees.
For the most part, however, access blocking, degradation of service
or content and prioritisation of certain traffic remains mostly
unregulated. OFTA’s view is that the highly competitive market
and existing regulations in Hong Kong should be sufficient to solve
any problems concerning network neutrality. So long as consumers
continue to have plenty of internet network choices and a fair and
transparent method of controlling the flow of internet traffic is
maintained, network operators and ISPs should be allowed to
continue providing multi-tiered internet services. In April 2009 the
Regulatory Affairs Advisory Committee met to consider whether
OFTA’s approach should be upheld. The outcome of the discussion
is yet to be published.
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Hong Kong
10.5 How are ‘voice over IP’ services regulated?
The provision of VoIP services is subject to the SBO licence regime.
All VoIP service providers using telecommunications equipment
located within Hong Kong are required to obtain an SBO licence.
VoIP service providers offering services vastly different from
conventional voice telephone services (e.g. instant messaging
services) are generally subject to a relatively lighter level of
regulation. Conversely, VoIP services providers offering services
similar to conventional voice telephone services are subject to
relatively heavier regulation.
The scope of services of the SBO Licence is essentially similar to
the scope of service of fixed telecommunications network services
(“FTNS”) or fixed carrier (“FC”) licences; the only difference is
that an SBO licensee does not have any facilities-based rights.
Consequently, a SBO licensee may provide local IP telephony
services as well as external telecommunication services (“ETS”)
and international value-added network services (“IVANS”).
VoIP service providers providing Class 1 service (which has the
attributes of a conventional telephone service) must offer number
portability, a free directory service and establish a service quality
charter. Class 2 service providers (offering a limited telephone
service) may, but are not obliged to, provide these services, though
like Class 1 service providers they will be required to provide
access to free emergency call services and backup power supply
services where applicable. As calls may be made to fixed line and
mobile numbers, interconnection charges apply.
In view of the latest developments in particular fixed-mobile
convergence, in March 2009 the TA proposed to remove the current
restriction on SBOs in providing VoIP services to mobile customers
upon introduction of the new modified SBO licence for Class 1 or
Class 2 services. This proposal was well-received by the telecoms
industry, and further developments are awaited on the timing for the
introduction of the modified SBO licensing framework. For further
information on the modified SBO licence regime, see question 10.1
above.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
There are a number of rules which concern internet and email
communications e.g. anti-spam legislation in the form of the
UEMO (fully effective on 1 December 2007) prohibits concealment
of sender identification, misleading subjects on email messages and
sending electronic messages to those on the do-not-call register.
Other relevant rules include data protection legislation which
restricts the use of personal data in direct marketing initiatives.
Service providers will also need to be mindful of relevant
legislation concerning content that may be published online e.g.
restrictions on tobacco advertising and the publication of obscene
articles in contravention of the Control of Obscene and Indecent
Articles Ordinance.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Yes. The rationale for universal service obligation (“USO”) (s.35B
of TO) is to ensure that a good, efficient and continuous basic
service is reasonably available to all persons in Hong Kong. Basic
service includes the public switched telephone service, payphones
Lovells Hong Kong

and access to numbers for emergency services, and by recent 13 Future Plans
amendment, no longer includes weather warning services.
The TA has also stated that the objective of universal service is to
13.1 Are there any imminent and significant changes to the
ensure the costs of providing “basic service” are fairly borne by the legal and regulatory regime for electronic communications?
users of network services. Under s.35B TO, the TA may impose the

USO on fixed carrier licensees and also establish a system of
contribution to the costs of providing the USO including
establishing and managing a fund for such purpose. PCCW, the
universal service provider (“USP”), has been selected to fulfil the
USO. The costs of meeting such obligations in respect of
unprofitable distribution points are shared amongst fixed carriers
(e.g. UCLs authorised to provide local fixed or mobile services,
MVNOs and SBOs). Previously, the USP was compensated for
providing universal services to “uneconomic customers”, but from
July 2007 the universal service contribution has been changed to be
referenced on a distribution point basis. The funding arrangement
for reimbursing the USP in respect of the costs of fulfilling the USO
is based on IDD traffic volume, however due to the deregulation
initiatives in anticipation of FMIC, from May 2009 the allocation of
costs for the USO has been based purely on the number of
telephone numbers allocated.
Hong Kong
The highly competitive telecommunications market remains closely
monitored by the TA and the legal and regulatory regime is being
reviewed on an ongoing basis to facilitate new trends and
technologies. For example, the government’s announcement in late
December 2008 that broadcast-type mobile TV services would be
launched in Hong Kong in 2009 will be closely followed by the
assignment of new spectrum for such new digital broadcasting and
telecommunications services before the end of 2009.
In terms of upcoming changes, the merger of the PNETS licensing
regime with the SBO licensing regime under a modified SBO
licensing framework has received a favourable response during the
consultation process and is expected to take place in the near future.
Further modifications to the existing framework including removal
of restrictions on the provision of VoIP services to mobile
customers are also expected to be implemented soon.

12 Foreign Ownership Rules Gabriela Kennedy

Lovells
11/F, 1 Pacific Place
12.1 Are there any rules restricting direct or indirect foreign 88 Queensway
ownership interests in electronic communications Hong Kong
companies whether in fixed, mobile, satellite or other
wireless operations? Tel: +852 2840 5084
Fax: +852 2537 1907
Email: gabriela.kennedy@lovells.com
Foreign ownership restrictions apply only in relation to television URL: www.lovells.com
and radio broadcasting licences granted by the Broadcasting
Authority under the BO and TO. Gabriela Kennedy is a partner in the IPMT group of Lovells in Hong
Kong. She has extensive experience in regulatory and transactional
telecommunications, IT, Internet and data protection matters in
Asia. Gabriela has written over 150 articles on topics ranging from
telecommunications matters to information technology, data
protection and intellectual property issues. She is a frequent
speaker on such subjects at international conferences and has
lectured on telecoms regulation at the University of Hong Kong.
Gabriela is widely recognised as an outstanding practitioner and is
named in many legal directories including Chamber’s Global as a
‘leading individual’ in the fields of Communications, TMT and
Intellectual Property. Gabriela speaks English and all the Romance
languages.

Lovells is a leading international legal practice with over 360 partners and 1,800 lawyers worldwide. The firm serves
commercial, corporate, financial, industrial and government clients from its 27 offices in Asia, Europe, the Middle East
and the United States.
We have over 60 IPMT practitioners (including 6 partners and 4 “Of Counsel”) in Asia and 50 in Hong Kong and China
alone. The practice has received top tier directory ranking (including Chambers Global, Chambers Asia, Asia Pacific
Legal 500 and PLC Which Lawyer?) for many years and continues to receive awards locally and internationally. In
Asia, we won the “Hong Kong TMT Firm of the Year 2008” and more recently “Hong Kong IP Firm of the Year 2009”
in the Asian-Counsel In-House Counsel Survey. Additionally, we were recognised as Asia’s Leading IP Firm in Hong
Kong, PRC, Japan and Vietnam in a recent edition of Asian Legal Business magazine. Most recently, we were
shortlisted for Asia Pacific Law Firm of the Year at the WORLDLeaders International IP Awards 2009.
Our IPMT team in Asia has TMT expertise relating to a wide range of industries including IT, telecoms, media,
entertainment and the video-game sectors. We have been involved in cutting edge cross-border patent litigation relating
to mobile phone technology as well as in some of the most high-profile broadcasting litigation in Hong Kong.

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 Chapter 20
India
FoxMandal Little
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The National Telecom Policy of 1994 (“1994 Policy”) laid down
the foundation for the growth of the electronic communications
industry in India. The key objective of the 1994 Policy was to
provide basic telecom services to all at affordable prices. The 1994
Policy also aimed at bringing the quality of telecom services in
India at par with high global standards and also making India a
significant exporter of telecom equipment.
In order to revamp the Policy of 1994, the government replaced it
with the New Telecom Policy in 1999 (“1999 Policy”). In addition
to laying down the framework to achieve the targets as set in the
1994 Policy in a more effective manner, the 1999 Policy also aims
to usher the development of a modern telecommunications
infrastructure based on the convergence of synergies of the IT,
media, telecom and consumer electronics industries.
The Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy
Act, 1933 are the statutes most relevant to telecommunications and
radio frequencies in India.
1.2 Is India a member of the World Trade Organisation? Has
India made commitments under the GATS/GATT regarding
telecommunications and has India adopted the WTO Basic
Telecommunications Agreement?
India has been a member of the World Trade Organisation since
January 1, 1995. Though India is a signatory to the WTO Basic
Telecommunications Agreement, it has restricted its commitments
to the minimum by binding itself to observe only regulatory
principles of its own creation.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in India?
The provision of electronic communications or services is regulated
by two primary legislations, viz, The Indian Telegraph Act, 1885
and The Indian Wireless Telegraphy Act, 1933. Besides, the
Information Technology Act, 2000 governs the electronic
commerce industry in India.
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Salman Waris
Mukul Baveja
With the aim to increase the quality of electronic communications
services and also to provide the same at the cheapest possible rates,
the government has encouraged competition in this sector. Multiple
licences have been issued to basic telephone, cellular, ISP, satellite
and cable TV operators to create a competitive electronics
communications infrastructure.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The Telecom Regulatory Authority of India (TRAI) is an
autonomous body regulating the telecommunications framework in
India. TRAI was constituted under the Telecom Regulatory
Authority Of India Act of 1997 with a view to provide an effective
regulatory framework and adequate safeguards to ensure fair
competition and protection of consumer interests.
In order to bring in functional clarity, strengthening the regulatory
framework and the disputes settlement mechanism in the
telecommunication sector, the TRAI Act of 1997 was amended in
the year 2000.
The amendment of 2000 gave birth to Telecom Disputes Settlement
& Appellate Tribunal (TDSAT) to adjudicate disputes arising in the
telecommunications sector. The formation of TDSAT was one of
the most important developments in the history of
telecommunications sector in India as disputes with government
could now be decided without prejudice owing to the independent
stature of TDSAT.
The Monopolies and Restrictive Trade Practices Commission
(MRTPC) is the authority having jurisdiction on matters relating to
competition law. Until very recently, MRPTC was the only
authority to regulate issues relating monopolistic and restrictive
trade practices. In May 2009 the government issued notifications to
bring the Competition Commission of India (CCI) into force, which
was originally proposed under the Competition Act of 2002 to
replace the ageing MRPTC. However, since the Monopolies and
Restrictive Trade Practices Act, 1969 has still not been repealed,
MRTPC and CCI co-exist in the current scenario. CCI will have the
power to initiate cases against enterprises involved in anti-
competitive agreements and where these enterprises indulge in
abusing their dominance in the relevant market.
The Ministry of Communications and Information Technology,
Department of Telecommunication (“DOT”) is the regulatory
authority of the Government of India that makes policies, issues
licences and generally oversees telecom related matters in India.
FoxMandal Little
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
TDSAT has jurisdiction to hear and dispose any appeal against any
decision, direction or order of TRAI. A further appeal lies to the
Supreme Court from any order of TDSAT, not being an interlocutory
order, but only if the appeal involves a substantial question of law.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The Department of Telecommunications (DOT) under the Ministry of
Telecommunications regulates the licensing regime in the telecom
sector. In furtherance with the New Telecom Policy of 1999, DOT has
been issuing separate licences for cellular mobile service providers,
fixed service providers, cable service providers, radio paging service
providers, national long distance operators, international long distance
operators, V-Sat based service providers and also for several other
telecommunication services. Due to the convergence of new
technologies in the last few years and also for the proper conduct of
telecommunication services, DOT has introduced two new licenses,
namely the Unified Licence for Telecommunication Services (ULTS)
permitting the licensee to provide all telecommunication services
covering various geographical areas using any technology and the
Licence for Unified Access (Basic and Cellular) Services permitting
Licensee to provide Basic and/or Cellular Services using any
technology in a defined service area.
The process, timescales and costs involved in obtaining each of the
above mentioned licences vary as per separate guidelines issued by
DOT for each of these services.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Several approvals from civic bodies and local government in a city
must be obtained by an operator for setting up of infrastructure for
a specific telecommunication service. Generally, in the license
agreement with DOT, the onus is on the licensee to obtain these
ancillary approvals.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
DOT does allow transfer of license rights but only with its prior written
consent and in accordance with the terms and conditions as laid down
in a specific license agreement. For Example, one of the conditions for
transfer of an International Long Distance Service License (ILD) is
that all the dues should be fully paid by the transferor and the transferee
should undertake to pay all future dues to the Licensee.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The duration of a telecom licence depends on the nature of service.
For example, the International Long Distance Service License and
the National Long Distance Service License are valid for 20 years,
whereas the duration for an Internet Service Provider License is 15
years from the effective date.
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India
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
India
The provisions dealing with access and/or securing or enforcing
rights to public and private land in order to install
telecommunications structure are laid down in the Indian Telegraph
Act, 1885 (ITA). Part III of the ITA confers powers upon the
regulatory authority to place and maintain telegraph lines and posts
upon any immovable property. Part III of the ITA also contains
provisions to harmonise the powers granted to the regulatory
authority to set up telecom infrastructure with that of the powers of
the local authorities under whose jurisdiction the management of
the immovable property lies.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Installation of telecommunications infrastructure is controlled by
TRAI and the local civic bodies in each state. Several approvals at
different stages have to be sought from the local civic bodies under
the local state laws where the infrastructure is intended to be set up.
3.3 Are there any rules requiring established operators to share
their infrastructure, e.g. masts, sites, ducts or cables (i.e.
dark fibre)? Are there any proposals to mandate ‘passive
access’ to such basic infrastructure?
Currently, Indian telecom companies are permitted to share only
passive infrastructure such as towers, repeaters, shelters and
generators. Both TRAI as well as operators feel that, where radio
access networks of operators are shared, better intra-circle roaming
can be achieved. There are companies that have started setting-up
passive infrastructure as a source of revenue. Companies such as
Quipo are aiming to build at least 5,000 towers to lease out to
mobile operators in India. TRAI, in its recent recommendations on
growth of telecom services in rural India, prescribes infrastructure
sharing as the solution for improving rural tele-density. The DOT
has issued guidelines on infrastructure sharing among the Service
Providers and Infrastructure Providers thereby facilitating further
reduction in tariff.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
TRAI regulates network-to-network interconnection service
between different service providers. The Unified Access Service
license granted by the DOT mandates the licensee to provide
interconnection to all eligible telecom service providers.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
TDSAT has jurisdiction on all telecom disputes including those
relating to interconnection or access.
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4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Yes, TRAI makes it mandatory for all operators to publish their
standard interconnection contracts and/or prices.
4.4 Looking at fixed, mobile and other services, are charges
India
Besides, Centre for Development of Telematics (C-DOT) is the
Telecom Research and Development Centre of the Government of
India. C-DOT’s current focus is on the development and
deployment of next generation networks and cost effective rural
wireless solutions. Currently, C-DOT’s scheme focuses on design
and development of Gigabit Passive Optical Network (G-PON).
Two types of ONTs, namely, ONT-1 related to SFU (Small family

for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The Telecommunication Interconnection (Charges and Revenue
Sharing) Regulation 1999 regulates arrangements among service
providers for interconnection charges and revenue sharing, for all
Telecommunication Services throughout the territory of India, as
well as those originating in India and terminating outside India.
The legislation lays down that Interconnection charges shall be cost
based, for which the main basis of consideration shall be
“incremental or additional” costs directly attributable to the
provision of interconnection by the interconnection provider. It
also prohibits service providers from discriminating between
service providers in the matter of levying of charges for
interconnection.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Service providers are subject to accounting separation vide
notification no. 16-31/2004-FA, ‘The Reporting System on
Accounting Separation (fourth amendment) Regulation, 2006(4 of
2006)’.
Similarly, as per the Revised “Terms and Conditions - Other Service
Provider (OSP) Category”, issued by the Department of
Telecommunications, (Carrier Services Cell), OSP is required to
ensure that there will be a logical separation between the Telecom
Resources for OSP and the Telecom Resources for their other
activities. There shall be no voice / non-voice traffic flow between
them. Also, Interconnectivity of the International OSP with
Domestic OSP is not permitted.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Guidelines for issue of permission to offer internet telephony services
through IP based protocol were issued by DOT on 1st April, 2002,
allowing the use and provision of ‘internet telephony’ in India.
Unit) for residence application and ONT-2 related to SOHO (Small
Office/Home Office) for business application to deliver triple play
services have been completed with the prototypes ready and
integration testing in the lab is in progress.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Price fixation is regulated by TRAI in the telecom sector in India.
Telecom operators are required to follow guidelines issued by TRAI
from time to time in relation to tariff for fixed telephony, cellular
services, DTH services, cable services, etc. All telecom operators
have to keep TRAI updated with their tariff schemes as
implemented by them in accordance with the guidelines mandated
by TRAI.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
One of the key objectives leading to the formation of TRAI was
protection of consumer interest. With rapidly changing technology
and the nature of consumer demands, TRAI regularly issues
guidelines for telecom operators in relation to standards for quality
of service. Provisions of Value Added Services for enhanced
transparency with regard to taking explicit consent of consumers
and preventing accidental subscription to value added services is an
example of such guidelines issued by TRAI from time to time. A
very recent step taken by TRAI in the interest of consumers has
been the introduction of Mobile Number Portability for mobile
phone subscribers to switch from one operator to another while
retaining their original mobile phone number.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?

4.7 Are owners of existing copper local loop access The National Numbering Plan of 2003 (NNP) governs the
infrastructure required to unbundle their facilities and if allocation of telephone numbers and network identifying codes.
so, on what terms and subject to what regulatory controls? The NNP was issued by DOT and is amended at regular intervals to
Are cable TV operators also so required? meet the challenges of multi-operator, multi-service environment.

Recommendations for mandatory unbundling of copper local loop

access were made by TRAI to the Government of India; however 6.2 Are there any special rules which govern the use of
telephone numbers?
the same has not yet been implemented.

As mentioned in the answer to question 6.1, the NNP formulated by

4.8 Are there any regulations or proposals for regulations DOT govern the use of telephone numbers in India.
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?

TRAI had made recommendations with respect to introduction and

licensing of the next generation network services.
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FoxMandal Little
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Telephone numbers are made available for network use according
to the National Numbering Scheme (NNS) under the NNP which
provides for national and international codes and formats.
Customers get access to these numbers through the services
operators they subscribe to.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
DOT has formulated guidelines for Mobile Number Portability (MNP)
allowing mobile phone subscribers to switch from one telecom service
provider to another while retaining their existing mobile numbers. To
facilitate a smooth MNP process, DOT has granted licences to neutral
third parties to build, own and operate MNP systems. As of now only
two neutral third parties have been granted MNP licences to operate in
separate zones in India. MNP will be first implemented in the states
of Delhi, Maharashtra, Gujarat, Tamil Nadu, Kolkata, Andhra Pradesh
and Karnataka by September 20, 2009. MNP is the first initiative of
DOT for porting of telephone numbers and the DOT is yet to
formulate guidelines for transfer of fixed line numbers.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
India’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
DOT has issued guidelines for setting up of submarine cable landing
stations for international gateways for internet. Amongst other rules
prescribed, the primary directives for setting up a landing station are
that the international gateway for Internet shall be used only for
carrying internet traffic and shall not be used for any activity which
is against public interest. For setting up a submarine cable landing
station for international gateway for internet, a prescribed form issued
by DOT has to completed and submitted in order to obtain an
approval from the Ministry of Communications.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The Wireless Planning & Coordination Wing (WPC) of DOT,
created in 1952, is the National Radio Regulatory Authority
responsible for Frequency Spectrum Management in India. WPC
specifically regulates radio frequency spectrum in India.
8.2 How is the use of radio frequency spectrum authorised in
India? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
For the grant of appropriate radio frequency spectrum, an
application to WPC is required to be made as per the prescribed
procedure and the same is granted subject to the spectrum
availability. Recently, DOT has issued detailed guidelines for
auction and allotment of spectrum for broadband wireless access
services and 3G services.
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8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The grant of frequency spectrum varies as per the usage of a system
for mobile, fixed or satellite based services.
8.4 How is the installation of satellite earth stations and their
India
use for up-linking and down-linking regulated?
DOT Satellite Cell issues licences for operation of
telecom/broadcast service using satellite media in India, and any
entity interested in installation of satellite earth stations and their
use for up-linking and down-linking needs to apply to DOT
Satellite Cell and seek permission for the same. Besides, clearances
would also be required from WPC and Network Operations Control
Centre. Thereafter such an entity would be required to get space
segment allotted or reserved from Department of space or another
authorised satellite operator.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
WPC through its notifications G.S.R 45 and 46 (E) dated 28th
January 2005 called the “Use of low power Equipment in the
frequency band 2.4 GHz to 2.4835 GHz (Exemption from
Licensing Requirement) Rules, 2005” and the “Indoor Use of low
power wireless equipment in the frequency band 5 GHz (Exemption
from Licensing Requirement) Rules, 2005” has exempted certain
specified frequency bands (such as, 2.4GHz to 2.4835 GHz, 5 GHz
and 5.825 GHz to 5.875 GHz) from the licensing requirement for
the purpose of their usage for low power wireless equipments.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
According to the Financial Conditions laid down under the License
Agreement for Captive VSAT Services Closed User Group
Domestic Data Network Using INSAT Satellite System the
applicant company will be required to pay a one-time entry fee of
Rs. 30 lakhs before signing the License Agreement. Entry fee will
not be applicable for the migration to new regime by existing
licensees.
License Fees:
In addition to the Entry Fee, the licensee shall also pay a licence fee
annually at @ Rs. 10,000 per annum per VSAT installed. The total
number of VSATs shall include all types of VSATs (receive
only/transmit only/receive & transmit both etc.).
Radio Spectrum Charges
In addition, the LICENSEE shall also pay fees and Royalty for the
use of Radio frequencies as per the details prescribed by WPC.
The Licensee shall also pay the space segment charges as applicable
from time to time and secure them through a Financial Bank
Guarantee.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
In India trading or sub-licensing of spectrum licences is not
permitted as of date.
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9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
India
The “Security Conditions” laid down under the ILD and NLD
license Agreements oblige operators to maintain all records
including called and calling numbers, date, duration and time, etc.
with regard to the communications exchanged on the network for a
period of one year or as directed for scrutiny by DOT or the security
agencies.
The “Security Conditions” under the NLD and ILD license
Agreements as well as the “Guidelines for Issue of Licence for
National Long Distance Service” issued by the DOT No.10-
21/2005-BS-I/ 47, dated, 14th December 2005, order that the NLD
service licensee shall ensure protection of privacy of
communication and ensure that unauthorised interception of
messages does not take place.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
As per the “Security Conditions” laid down under the ILD and NLD
license Agreements, operators are required to make available on
demand to the agencies authorised by the Government of India, full
access to the gateways, switching centres, transmission centres,
servers and routers for technical scrutiny and for inspection which
can be visual inspection or an operational inspection. Besides they
are also obliged to provide, without any delay, tracing facility to
trace nuisance, obnoxious, offensive or malicious calls, messages or
communications transported through his equipment and network.
In addition, a designated person of the Central/State Government as
conveyed to the operator from time to time shall have the right to
monitor all telecommunication traffic in every Gateway Switch,
MSC, BSC and any other point in the network set up by the
operator. The operator is required to make arrangements for
monitoring simultaneous communication traffic (at least 210
channels) by Government security agencies at a location
individually desired by the Central Government and the State
Government/Union Territory. The requisite infrastructure in terms
of hardware/software required for monitoring of all
telecommunication traffic shall be engineered, provided, installed
and maintained by the operator at its own cost.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The direction for interception is conveyed to designated officers
(who must be Indian residents) of the telecom operator, in writing.
Such directions may remain in force, unless revoked earlier, for a
period not exceeding sixty days from the date of issue. Such
instructions may be renewed but same shall not remain in force
beyond a total period of one hundred and eighty days. Copies of the
intercepted message or class of messages are required to be
destroyed when no longer required. The telecom operator is also
required to destroy records pertaining to directions for the
interception of messages within two months of discontinuance of
the interception of such messages.
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India
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The Information Technology Act 2000, as amended by the
Information Technology (Amendment) Act 2008, regulates all
forms of electronic communication in India. While DOT issues two
types of licences which govern the provision of internet/broadband
services i.e. Internet Service Provider License (“ISPL”) and a
Universal Access Service License (“UASL”).
Besides the ISPL and the UASL, the provision of such services is
also governed by the guidelines issued by DOT.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The Information Technology Act 2000, as amended by the
Information Technology (Amendment) Act 2008, under section 79,
provides for exemption from liability of intermediary in certain
cases for any third party information, data, or communication link
hosted by him if:
(a) its function is limited to providing access to a
communication system over which the information is
transmitted or temporarily stored;
(b) the intermediary does not:
(i) initiate the transmission;
(ii) select the receiver of the transmission; and
(iii) select or modify the information contained in the
transmission; or
(c) in cases where the intermediary observes due diligence and
follows such other guidelines prescribed by the Central
Government.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The Internet Service Provider licence and the Universal Access
Service Licence lay down an obligation on the ISP to prevent the
flow of unauthorised messages or any other content infringing
copyrights, intellectual property right and international & domestic
cyber laws in any form over its network.
As provided under the ‘security provisions’ of these license
agreements, once specific instances of such infringement are
reported to the licensee by the authorised agencies, the licensee
shall ensure that the carriage of such material on his network is
prevented immediately.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
TRAI issued a direction on “Quality of Service (Code of Practice
FoxMandal Little India

for Metering and Billing Accuracy) Regulation 2006” dated 29th 11 USO
June 2005, whereby all operators are obliged to inform customers
in writing within a week of activation of service, complete details
of the tariff plan. Before a customer is enrolled as a subscriber of 11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
any telecommunication service, he shall be provided in advance
with detailed information relating to the tariff for using that service,
in accordance with TRAI’s Direction No.301-26/2003-TRAI (Eco) In the year 2002, DOT issued guidelines for the universal service

India
dated 2nd May, 2005 and No.301-49/2005-Eco dated 16th support policy. Subsequently, the Indian Telegraph (Amendment)
September 2005. Act of 2003 gave statutory status to the Universal Service
Obligation Fund (USOF). The USOF is utilised exclusively for
Besides, according to the 31st amendment of Telecom Tariff Order meeting the Universal Service Obligation by providing access to
(TTO) dated 7th July 2004 issued by TRAI, a tariff plan once telegraph services to people in the rural and remote areas at
offered by a service provider shall be available to a subscriber for a affordable and reasonable prices. Revenue for the USOF is
minimum period of 6 months from the date of his enrolment into generated through a Universal Service Levy fixed (USL) at 5% of
that tariff plan. During this 6-month period, the service provider is the adjusted gross revenue of all telecom service providers. Pure
free to reduce the tariff; an increase in any item of tariff in the plan value added service providers like internet, voice mail, e-mail
is not permitted. However, the subscriber is free to choose any service providers etc. are exempted from such USL. Revenue for
other tariff plan even during the 6-month period and the Customer the USOF is also generated through grants and loans given by the
has the right to move from one tariff to another plan offered by his central government.
service provider any time without having to pay any fee for the
migration. A subscriber’s request for a change of tariff plan shall be
accepted and implemented immediately or from the start of the next 12 Foreign Ownership Rules
billing cycle according to the 4th amendment to TTO dated 28th
July 1999 and Directive dated 15th March 2001.
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
10.5 How are ‘voice over IP’ services regulated? companies whether in fixed, mobile, satellite or other
wireless operations?
VOIP Services are regulated through regulations made by the
Telecom Regulatory Authority of India. Besides DOT, through its The cap for Foreign Direct Investment (FDI) in the telecom sector
notification No.820-1/2006-LR, dated 24th Aug, 2007, has issued was raised from 49% to 74% in the year 2007 which bolstered
certain “Guidelines and General Information for Grant of Licence investment in the Indian telecommunications industry. No approval
for Operating Internet Services”, and also issued “Guidelines for for investment up to a limit of 49% is required as such investment
Issue of Permission to Offer Internet Telephony Services”, which falls under the automatic route of FDI. However, for any FDI
regulate the provision of VoIP services in India. Besides, on the exceeding the limit of 49%, a prior approval of the Foreign
15th November 2002, TRAI issued a notification No.402-30/2001- Investment Promotion Board (FIBP) is mandatory.
FN titled “Regulation on Quality of Service for VOIP based
International Long Distance Service, 2002” which is applicable to
all the International Long Distance Service Providers using VOIP
13 Future Plans
based networks. This regulation lays down detailed Quality of
Service (QoS) Benchmarks and End-to-End QoS Parameters 13.1 Are there any imminent and significant changes to the
besides providing for Test & Measurement Setup and VoIP ILD legal and regulatory regime for electronic communications?
Equipment Performance measurement. The QOS parameters can
also be reviewed by the Authority from time to time. The future policies of government are as follows:
a. Government’s broad policy of taxes and regulation for the
telecom sector has been promotional in nature with optimum
10.6 Are there any rules to prevent, restrict or otherwise govern
growth.
internet or email communications, in particular, marketing
and advertising communications? b. The policy governing spectrum allocation and licensing has
been designed in such a way that a scarce resource should be
used optimally and does not become a constraint for growth
The Information Technology Act 2000, as amended by the
Information Technology under Section 66A, provides for c. Adequacy of funds has been ensured for effective
“Punishment for sending offensive messages through implementation of the USO.
communication service, etc.” making it a punishable offence (with
imprisonment up to three years and fine) for sending via electronic
message “information that is grossly offensive or has menacing
character” or any false information, or for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the
addressee or recipient.
Besides, both the Internet Service Provider License and the
Universal Access Service License lay down an obligation on the
ISP to prevent the flow of offensive and unauthorised messages or
any other content infringing copyrights, intellectual property right
and international & domestic cyber laws in any form over its
network.

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 FoxMandal Little India

Salman Waris Mukul Baveja

FoxMandal Little (FML) FoxMandal Little (FML)
FM House, A9 Sector 9 FM House, A9 Sector 9
Noida, UP Noida, UP
India India

Tel: +91 120 430 5555 Tel: +91 120 430 5555
Fax: +91 120 254 2222 Fax: +91 120 254 2222
India

Email: salman.waris@foxmandallittle.com Email: mukul.baveja@foxmandallittle.com

URL: www.foxmandallittle.com URL: www.foxmandallittle.com

Salman Waris LL.M., currently Heads the Technology, Media and
Telecommunications Practice at FoxMandal Little. Mr. Waris has
been recommended for his work as a technology lawyer by Asia
Legal500, AsiaLaw Leading Lawyers 2009 Guide. He has worked
on a broad range of transactional, advisory and contentious matters
in the IT, telecom and outsourcing sector.
He regularly advises on data protection/ privacy, M&A and joint
venture, outsourcing (IT or Business Processes), technology
transfers and legal/regulatory issues concerning telecommunication,
new media and the Internet. Mr. Waris is also a fellow member at
the Centre for Socio Legal Studies, University of Oxford and the
International Media Lawyers Association. He is a regular speaker at
IT industry conferences on IP, technology and data protection law
and has trained officers of the Indian Army and the Delhi Police on
Cyber crime and Cyber law related issues.
Mukul leads the intellectual property litigation practice at Fox
Mandal Little’s offices in the National Capital Region of India. He
also handles domain name disputes before the World Intellectual
Property Organization (WIPO) Arbitration & Mediation Centre and
the National Internet Exchange of India (NIXI). Mukul was recently
instrumental in obtaining a landmark decision for one of the largest
telecom companies in the world in a domain name dispute before
NIXI. This was the first ever domain name dispute decision in India
awarding damages to the complainant. Additionally, Mukul
regularly advises clients on legal issues pertaining to cyber law and
data protection. He has also worked extensively on agreements
relating to transfer of technology and intellectual property rights.

FoxMandal Little (FML), established in 1856, is India’s oldest law firm. FML is a full service law firm with a specialised
Telecom Media and Technology Practice having advised industry leaders including Alcatel- Lucent, Global Crossing
Inc., Verizon Data Services India Pvt Ltd, Spice Telecom, Huawei, AirCell Cellular Ltd, BPL Communications Ltd.,
and Association of Competitive Telecom Operators.
With thirteen offices in India, UK and Bangladesh, the firm comprises of over 400 lawyers, 50 partners and 250 para-
legal staff, making it India’s largest law firm.
FoxMandal Little has been repeatedly ranked as the best firm in India and received awards including “The Best National
Law Firm, 2008” award by International Legal Alliance Summit & Awards, 2008, “The Best Law Firm of the Year” for
India in 2006 by International Financial Law Review, “Employer of Choice, 2008”, by Asian Legal Business, and
“Client Choice Award, 2007” in India by International Law Office.

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Chapter 21
Ireland
William Fry
1 Framework
1.1 When did Ireland first liberalise telecommunications
networks and/or services?
Licensing of telecommunications services was first provided for
under the Postal and Telecommunications Act 1983. The market
was fully liberalised in 1998.
1.2 Has Ireland fully implemented the EU 2003 regulatory
framework? If Ireland has not fully implemented the new
regulatory framework, have proceedings been brought
against Ireland by the European Commission and if so, for
which contraventions?
Ireland fully transposed the core Directives making up the EU
regulatory framework in 2003.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Communications Regulation Act 2002 (the “2002 Act”), as
amended by the Communications Regulation (Amendment) Act
2007 (the “2007 Act”), governs the operation of the national
regulator, the Commission for Communications Regulation
(“ComReg”). ComReg also exercises functions under the
Telecommunications (Miscellaneous Provisions) Act 1996.
The 2003 regulatory framework was transposed by the following
statutory instruments:
the Framework Directive was transposed by the European
Communities (Electronic Communications Networks and
Services) (Framework) Regulations 2003 (the “Framework
Regulations”);
the Authorisation Directive was transposed by the European
Communities (Electronic Communications Networks and
Services) (Authorisation) Regulations 2003 (the
“Authorisation Regulations”);
the Universal Service Directive was transposed by the
European Communities (Electronic Communications
Networks and Services) (Universal Service and Users’
Rights) Regulations 2003 (the “Universal Service
Regulations”);
the Access Directive was transposed by the European
Communities (Electronic Communications Networks and
Services) (Access) Regulations 2003, (the “Access
Regulations”); and
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John Handoll
Claire Waterson
the E-Privacy Directive was transposed by the European
Communities (Electronic Communications Networks and
Services) (Data Protection and Privacy) Regulations 2003
(the “Data Protection and Privacy Regulations”).
The Framework Regulations were amended in 2006. The
Framework, Access, Authorisation and Universal Service
Regulations were amended in 2007 to increase penalties for breach,
as were the Data Protection and Privacy Regulations in 2008.
The 2007 EC Roaming Regulation has been implemented by the
Communications (Mobile Telephone Roaming) Regulations 2007.
The Wireless Telegraphy Acts 1926-1988 regulate the use of
spectrum and are supplemented by several statutory instruments.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
ComReg is an independent body, currently composed of three
Commissioners appointed by the Minister for Communications,
Energy and Natural Resources. In exercising its duties, ComReg
must follow directions given by the Minister.
The Competition Authority (the “Authority”) is responsible for
enforcing the Competition Act 2002 with any sanctions for breach
imposed by the Courts. ComReg also has competition enforcement
powers and the bodies have concluded a co-operation agreement.
The National Consumer Agency (“NCA”) is responsible for
enforcing specific regulations regarding the interoperability of
consumer television equipment under the Universal Service
Regulations. ComReg and the NCA co-operate on matters of
common interest under the Framework Regulations.
The Data Protection Commissioner (“DPC”) is responsible for
enforcing the Data Protection Acts 1988-2003 and certain
provisions of the Data Protection and Privacy Regulations.
The content and promotion of premium rate telecommunications
services is regulated by RegTel, a not-for-profit limited company
financed by an industry levy.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
ComReg is responsible for the following aspects of electronic
communications regulation:
regulating electronic communications networks and services,
transmission over such networks, support and associated
services;
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 William Fry Ireland

managing the radio frequency spectrum and the national
numbering resource;
ensuring compliance regarding the placing on the market of
radio and communications equipment;
investigating complaints from undertakings and consumers
regarding supply and access to electronic communications
services and networks;
Ireland
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
eircom (the incumbent fixed line telecommunications provider)
made commitments on financial reporting standards to the

investigating and prosecuting instances of overcharging;
overseeing the Emergency Call Answering Service;
resolving disputes between operators under the Framework
Regulations;
monitoring compliance with the Data Protection and Privacy
Regulations; and
regulating the “.ie” domain name.
Together with the Authority, ComReg has powers to investigate and
take action against competition law breaches by electronic
communications operators.
Authority in the context of its acquisition of Meteor Mobile
Communications in 2005.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
Markets defined and notified by ComReg SMP designation
1. Wholesale broadband access, including the provision of
bitstream services through self-supply and supply to third
eircom
parties and the self-supply by cable operators and fixed
wireless access operators

1.6 In order to be properly authorised to provide electronic 2. Wholesale unbundled access (including shared access)
communications networks and services, is a registration, to metallic loops and sub-loops for the purpose of provid- eircom
declaration or notification required and if so to whom and ing broadband and voice services

for which purposes? What rules or conditions, if any, may

be attached to a registration, declaration or notification? 3. National market of international retail leased lines out of
No
Ireland, undifferentiated by bandwidth

Any person may provide electronic communications networks or

4. Market for leased lines up to and including 2 Mb/s No
services provided they comply with the conditions set out in the
General Authorisation. Operators must notify ComReg in advance
5. Market for retail leased lines above 2 Mb/s No
of their intention to provide networks/services, unless they are
designed wholly for an operator’s own use (or by connected
6. Market for wholesale terminating segments of leased lines eircom
entities).
Conditions for General Authorisation have been specified by 7. Market for wholesale trunk segments of leased lines No
ComReg in accordance with the Authorisation Regulations. These
include: 8. Wholesale broadcasting transmission services for the
purpose of delivering broadcasting content to end users,
provision of information to ComReg; divided into four markets:
(a) Radio broadcasting transmission services on
compliance with decisions on emergency services; national analogue terrestrial networks RTÉ Transmission
(b) Radio broadcasting transmission services on Network Ltd for markets
compliance with radiation emission standards; local/regional analogue terrestrial networks (a) and (c)
(c) Television broadcasting transmission services
ensuring no harmful interference with other networks; on national analogue terrestrial networks
compliance with decisions on maintenance of the integrity of (d) Broadcasting transmission services on cable
and satellite networks
public electronic communications networks;
obligations concerning disruption to and cessation of service; 9. Wholesale voice call termination on individual mobile
Vodafone, O2, 3 and
Meteor on individual net-
use of wireless telegraphy apparatus in accordance with networks
works
conditions; and
having regard to notices/guidelines on the use of standards or 10. Wholesale access and call origination on public mobile
Vodafone and O2
telephone networks
specifications.
Operators providing networks/services to third parties are also
11. National markets for:
subject to conditions regarding: (a) lower level retail narrowband access eircom
(b) higher level retail narrowband access eircom
universal service funding;
administrative charges; eircom, Verizon, BT
interconnection; 12. Fixed Telephony - wholesale call termination on indi- Ireland, Magnet, Colt
vidual networks Telecom, Chorus/NTL
compliance with rules on numbering; and Smart Telecom

co-location and facility sharing;

13. Fixed Telephony - markets for:
misuse of data; (a) wholesale call origination on public telephone
eircom
network
consumer protection rules; and (b) wholesale call transit on public telephone net
eircom
work
security of public networks. (c) wholesale market for outgoing international
No
transit services
Additional obligations may be imposed on undertakings designated
as having significant market power or as Universal Service
Providers. Undertakings using the radio spectrum must also be
licensed.

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William Fry
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Persons intending to provide electronic communications services or
networks to third parties must submit a notification form to
ComReg. Operators are authorised once the duly completed form
is received. No costs are associated with authorisation; however,
operators who fail to notify ComReg are guilty of an offence and
liable to fines.
Use of the radio spectrum is also licensed by ComReg (see section 8).
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
See question 3.1.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Authorisations are personal and cannot be transferred.
Licences for the use of radio spectrum may be transferred if
permitted under the licence.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Authorisations are indefinite provided all the conditions of the
General Authorisation remain satisfied. The durations of wireless
telegraphy licences vary according to the type of licence.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Operators must obtain consent from the relevant road authority to
open a public road to establish underground infrastructure. A
licence is required from the local planning authority to use public
roads to establish overground infrastructure. Authorised operators
may enter private land to lop trees interfering with physical
infrastructure on giving the landowner 28 days notice.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Under the Planning and Development Regulations 2001, authorised
operators are exempt from planning permission for a range of
infrastructural developments, including:
underground telecommunications structures/cables;
transportable radio installations; and
antennae erection in specified cases.
Strict conditions are attached to each exemption.
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Ireland
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
ComReg has imposed access obligations on some SMP operators.
Ireland
eircom is obliged to meet reasonable requests from authorised
operators for access to and use of its infrastructure and associated
services and facilities in the following markets:
terminating segments of leased lines;
wholesale broadband access; and
wholesale unbundled access to metallic loops and sub-loops
for the purpose of providing broadband and voice services.
Meteor, Vodafone and O2 are subject to access obligations
regarding wholesale call termination on their individual networks.
eircom is subject to residual obligations in the fixed telephony
services and networks markets to negotiate interconnection
agreements with authorised operators.
There are no proposals mandating “passive access” to basic
infrastructure.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Under the Access Regulations, operators established in Ireland or
another EU Member State are entitled to negotiate with another
operator for access and/or interconnection. The other operator is
obliged to enter negotiations when requested and must offer
interconnection on terms and conditions consistent with other
obligations under the Access Regulations.
ComReg may impose obligations on operators controlling access to
end-users to protect end-to-end connectivity.
Section 57 of the 2002 Act entitles authorised operators to negotiate
an agreement to share infrastructure with other operators.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
ComReg has powers to resolve disputes under the Framework
Regulations and the 2002 Act.
Either party may refer a dispute to ComReg, which is empowered
to investigate and make determinations. Alternatively, ComReg
may resolve disputes through negotiations or informal contact with
the parties.
Determinations are binding on the parties. Failure to comply or to
co-operate with investigations under the Framework Regulations is
an offence.
Determinations may be appealed in the Irish courts.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
eircom is obliged to publish a Reference Interconnect Offer
following a designation of SMP in the fixed telephony services and
networks markets.
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 William Fry
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Access obligations in SMP designations are often coupled with
price controls. Maximum prices for mobile voice call termination
Ireland
have been imposed on Vodafone, O2, 3 and Meteor.
ComReg has also imposed a flat rate of Internet access call
origination at wholesale level on eircom.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Pursuant to SMP designations eircom, RTÉ Transmission Network
Ltd, Vodafone and O2 all have obligations to maintain separated
accounts.
No operators are subject to functional or legal separation.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
ComReg has set up a cross-industry forum to examine issues related
to next generation networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Pursuant to an SMP designation eircom is obliged to provide access
to the local loop and associated facilities and to negotiate in good
faith with parties seeking access. Cable TV operators have no such
requirements.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
No there are not.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
In 2007 ComReg imposed a retail price cap on eircom for fixed
narrowband access.
Irish mobile operators are subject to the EC Roaming Regulation.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Irish rules do not distinguish between business users and
consumers.
The rules place a premium on transparency: all contracts to provide
telecommunications services must be in writing, contain specific
minimum information and must be brought to the attention of the
customer prior to entering the contract.
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Ireland
ComReg has published a Code requiring operators to present tariff
information in an accurate, comprehensive and accessible manner.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
ComReg allocates numbers in accordance with the National
Numbering Conventions (“NNC”) established under the
Framework Regulations.
6.2 Are there any special rules which govern the use of
telephone numbers?
The use of numbers is governed by the NNC.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Telephone numbers are made available to operators on application
to ComReg. Operators then make a secondary allocation to
customers.
Under the Authorisation Regulations ComReg may, following a
public consultation, allocate economically valuable numbers
through a competitive or comparative selection procedure.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Under the Universal Service Regulations, all operators must
provide number portability to end-users. Mobile, geographic and
non-geographic numbers may be moved freely between operators.
Geographic number portability is available for fixed line numbers
but is restricted to the geographic area for which the number is
allocated.
VoIP services are considered to be services offered at fixed
locations.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Ireland’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
A lease or licence from the Minister for the Environment, Heritage
and Local Government is required under the Foreshore Acts 1933-
2003 for undertaking works on State-owned foreshore. Ministerial
consent is required for developments on privately-owned foreshore.
Laying of submarine cables on State-owned foreshore is usually
carried out under a licence from the Minister, which will contain
several conditions, including an annual rent.
Planning permission is not required to lay submarine cables.
However, an Environmental Impact Statement may be required
under the European Communities (Environmental Impact
Assessments) Regulations 1989-2001.
Besides the licence rent, there are no other fees.
William Fry
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
ComReg regulates use of radio spectrum by licensing the
possession and use of equipment under the Wireless Telegraphy
Acts 1926-1988.
8.2 How is the use of radio frequency spectrum authorised in
Ireland? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
ComReg is responsible for licensing wireless telegraphy equipment
in Ireland, with the exception of ships radio licensing (Department
of Transport). Authorisation may take the form of a licence or a
licence exemption.
ComReg’s licensing regime is based on a first-come-first-served
basis. Auctions are the preferred assignment method when demand
for spectrum exceeds supply.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Different licences are required in respect of equipment using
mobile, fixed and satellite technology (unless exemptions are
obtained).
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite communications are licensed under the Wireless
Telegraphy (Fixed Satellite Earth Stations and Teleport Facility)
Regulations 2007.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
ComReg may exempt classes of apparatus from the licensing
requirement where the risk of harmful interference from the
apparatus is negligible and the effective management of the radio
spectrum would not be badly affected.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Fees vary according to the class of licence and are set out in the
governing legislation. Fees may take the form of lump sums
payable annually or on specified anniversaries of licence award, or
may be calculated on the basis of items of equipment used.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The terms of some licences permit transfers or assignments subject
to ComReg’s consent. A limited form of trading was introduced
under the Third Party Business Radio scheme.
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Ireland
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Ireland
Operators can be obliged to retain call data for up to three years (see
question 9.3). Telecommunications are subject to the Data
Protection Acts and the Data Protection and Privacy Regulations
(see question 10.6).
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
No they are not.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The Criminal Justice (Terrorist Offences) Act 2005 provides for the
retention of traffic/location data for the purpose of detection,
prevention, investigation or prosecution of crime or safeguarding
the security of the State. The Garda Commissioner may issue
directions, in writing, requesting service providers to retain data for
a period of three years for such purposes. Service providers are
obliged to comply with disclosure requests made by members of
specified rank of the police or defence forces.
It is a criminal offence under the Postal and Telecommunications
Services Act 1983 (as amended) to intercept telecommunications
messages. There are exceptions for police investigations into
obscene or malicious phone calls and for intercepting and
monitoring specific telephone lines under directions issued by the
Minister for Justice, Equality and Law Reform or under other
lawful authority. The power to issue such directions is regulated
under the Interception of Postal Packets and Telecommunications
Messages (Regulation) Act 1993. Disclosure requests regarding the
use of telecommunications services must be in writing and signed
by an appropriately ranked police or army officer or person
designated by the Minister or ComReg.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Services provided over the Internet are regulated in the same
manner as other forms of electronic communication.
Internet service providers are subject to telecommunications
regulation insofar as they provide electronic communications
services. However, where they provide services exercising editorial
control over content or provide “information society services”, they
fall outside telecommunications regulation.
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 William Fry
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Where telecommunications operators or internet service providers
act as intermediary service providers (“ISPs”), they may avail of a
Ireland
mere conduit defence provided: (i) the information has been
provided by the recipient of their transmission services; or the
service provided consists of access to a communication network;
and (ii) the ISP did not initiate the transmission, select the
transmission receiver or select/modify the information contained in
the transmission.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
No, although some operators have entered into contractual
agreements to this effect.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Telecommunications operators and internet service providers may
differentially charge and block different types of traffic according to
their terms and conditions. There are no “net neutrality”
requirements.
10.5 How are ‘voice over IP’ services regulated?
VoIP services are regulated by ComReg which has issued a number
of guidelines in this area.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The Data Protection and Privacy Regulations permit direct marketing
e-mails to individuals and businesses subject to conditions. An
individual’s prior consent is required and both individuals and
businesses must be able to opt out freely at any time.
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Direct marketing e-mails must not hide the sender’s identity and
must include a valid e-mail address for the recipient to send a
request that the e-mails cease.
It is an offence to breach these Regulations, punishable by a fine.
The Regulations are enforced by the DPC.
Marketing communications are also covered by general consumer
protection legislation.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Under the Universal Service Regulations, ComReg may designate
undertakings to comply with universal service obligations, which
include the provision of access at a fixed location and directory
enquiries services. eircom has been designated universal service
provider in Ireland until June 2010.
The Regulations provide for funding for universal service
obligations by apportionment of the net cost on all operators where
the net cost is deemed by ComReg to be an unfair burden on the
provider. To date, no funding has been granted.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No there are not.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
The Broadcasting Bill 2008 aims to revise the law relating to
broadcasting services and content and to put the regulation of
premium rate services on a statutory basis. The Data Retention
Directive is due to be implemented shortly by primary legislation.
William Fry Ireland

John Handoll Claire Waterson

William Fry Solicitors William Fry Solicitors
Fitzwilton House, Wilton Place Fitzwilton House, Wilton Place
Dublin 2 Dublin 2
Ireland Ireland

Tel: +353 1 639 5111 Tel: +353 1 639 5177

Ireland
Fax: +353 1 639 5333 Fax: +353 1 639 5333
Email: john.handoll@williamfry.ie Email: claire.waterson@williamfry.ie
URL: www.williamfry.ie URL: www.williamfry.ie

John is a partner in the firm and heads the EU, Competition and
Regulation Unit, where he specialises in EC law including regulatory
matters. He is listed as a Leading Lawyer in recent editions of Legal
500, Chambers Global and PLC Which Lawyer Yearbook. John was
called to the English Bar in 1980 and was admitted as a solicitor
(England & Wales) in 1991. He qualified as an Irish Solicitor in
1997. John regularly represents clients in proceedings before the
Competition Authority and the European Commission. He advises
extensively on areas of sectoral regulation, including
telecommunications, broadcasting, transport and ports regulation,
as well as on free movement issues.
Claire is a senior associate in the EU, Competition and Regulation
Unit of William Fry Solicitors, which she joined after completing a
Masters Degree in European Law at the College of Europe, Bruges
(Belgium). Claire qualified as a solicitor in 2003. She specialises in
regulatory matters, and advises private and public sector clients
(including ComReg) on various aspects of telecommunications,
transport and energy licensing and regulation. Claire also advises
clients on the application of Irish and European competition law and
in the areas of State aid and public procurement law. Claire has
been listed as “one to watch” in Competition/European law in
Chambers Europe.

William Fry is one of Ireland’s leading practices with a staff of almost 400 providing legal services in over 20 practice
areas. We pride ourselves on delivering an excellent service to our broad range of clients.
The firm’s Competition & Regulation Unit is one of the leading specialist practices of its kind in Ireland. The Unit is
composed of a dedicated team of lawyers with extensive expertise of a broad range of competition and regulatory
matters at national, EU and international levels. Together with colleagues in our ComTech and Litigation Departments,
we provide a full suite of services to our clients in the telecommunications and broadcasting sectors.
One of the key attributes of the service provided by the firm is the depth of experience and level of expertise it can bring
to bear for the benefit of clients. The affairs of every client are assigned to a partner responsible for guiding our team
in creating effective working relationships and developing solutions to problems. The firm’s priorities are focused on
the need to achieve results for clients. Continued investment in people, technology and research maintain the firm’s
ability to provide practical and prompt solutions, while devoting exacting attention to detail.

145
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 Chapter 22
Japan
Mori Hamada & Matsumoto
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The Ministry of Internal Affairs and Communications (Soumu
Shou) (“MIAC”) is planning to promote the electronic
communications industry by changing existing legislation. The
MIAC committee tasked with a comprehensive review of the legal
structures for telecommunications and broadcasting (the “Review
Committee”) held 20 meetings between August 2006 and December
2007. MIAC disclosed the resulting report on December 6, 2007
(the “Committee Report”). In addition, MIAC released a
supplemental report in June 2008 summarising discussions held
after the Committee Report’s release. Currently, further discussions
are occurring in relevant working groups.
According to the Committee Report, the current complicated
regulations on telecommunications, broadcasting, network facilities
and relevant matters will be integrated comprehensively into one
new law, the Information and Telecommunications Law (the “New
Law”), which is due for submission to the Diet in 2010. The
Committee Report contemplates that under the New Law, the
current distinction based on the physical transmission method (i.e.,
between telecommunications (tsushin) and broadcasting (housou))
will be abandoned (see question 1.3), and regulations will address
three function-based categories: (a) the content; (b) the platform;
and (c) the facilities for transmission. As for legislation that is
relevant to telecommunications and radio frequencies, please see
question 1.3.
1.2 Is Japan a member of the World Trade Organisation? Has
Japan made commitments under the GATS/GATT regarding
telecommunications and has Japan adopted the WTO
Basic Telecommunications Agreement?
Yes, Japan has been a member of the World Trade Organisation
since January 1, 1995 and adopted the WTO Basic
Telecommunications Agreement in 1997.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Japan?
The table below provides a summary of current regulations on the
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Hiromi Hayashi
Akira Marumo
telecommunications system and broadcasting business in Japan
relevant to electronic communications networks or services:
Wire Wireless
Basic Law Cable Telecommunications Law Radio Wave Law
Telecommunication Business Law (the “TBL”)
Telecommunications
Law concerning Nippon Telegraph and Telephone
Corporation (Nihon Denshin Denwa K.K) (“NTT”) and others
Cable Television Broadcast Law Broadcast Law
Broadcasting
Law concerning Broadcast by using Telecommunications
Services
(Source: MIAC, Summary of the Chart for the First Meeting of the
Review Committee.)
Unlike other countries, Japan has traditionally separated regulation
of telecommunications business into two distinct categories:
telecommunications (tsushin); and broadcasting (housou). Tsushin
is defined as sending, delivering or receiving codes, sounds or
pictures by wire, wireless means or any other electromagnetic
means. Housou is generally defined as sending by wireless means
(in the case of the Broadcast Law) or by wire (in the case of the
Cable Television Broadcast Law) telecommunications directly to
the public. The major difference between the regulation of
telecommunications (tsushin) and broadcasting (housou) is that
confidentiality of the former is protected; thus, the regulation of
telecommunications content is avoided to the extent possible. In
contrast, broadcasting (housou) content is regulated in accordance
with the public welfare.
As noted above, the TBL is applicable only to telecommunications,
and the Cable Television Broadcast Law and the Broadcast Law are
applicable only to broadcasting. The TBL primarily regulates the
provision of electronic communications networks or services
regarding telecommunications (tsushin). The provision permits
competition in Japan, although several other laws restrict foreign
ownership.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
MIAC is a governmental body that has the regulatory authority
under the TBL and other relevant laws to grant any permission,
licence or approval that is required for telecom activity. The
competition law authority is the Fair Trade Commission (“FTC”),
Mori Hamada & Matsumoto
an independent administrative agency with the authority to prevent
unfair trade or market dominance. MIAC and FTC jointly issued
“Guidelines for promotion of competition in the
telecommunications business field” in March 2008, and they will
collaborate to promote further competition in the telecom field.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Yes, MIAC decisions may be appealed to Japanese courts.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
A carrier installing cable facilities, such as (i) terminal facilities that
are installed in multiple municipalities or (ii) relay facilities that are
installed in multiple prefectures, is required to register with MIAC.
Other carriers not operating at such levels are required to notify
MIAC prior to providing telecom services. In general, most carriers
are subject to the registration requirement.
The registration procedure typically takes about 15 days, depending
on the services to be provided and the circumstances under which
they will be provided. It is desirable also to unofficially consult
with MIAC (usually for an additional 1 to 2 months) before filing
an application for registration. If only notice is required, the prior
unofficial consultation with MIAC, if necessary, will take a few
days and preparation for notification a similar period.
Under the TBL, the fee for registration with MIAC is ¥150,000, but
no fee is necessary for providing notice to MIAC.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
A. Services - telecommunications (tsushin) or broadcasting
(housou)
(1) Telecommunications (tsushin) (See also question 2.1)
(a) Approved carrier (nintei jigyousha)
A carrier intending to conduct telecom businesses by installing
telecommunications circuit facilities, and those who intend to
exercise a right-of-way to install transmission lines (such conduct
or exercise, collectively, the “public utility privilege”), may,
separately from telecom business entry procedures such as
registration or notice, be granted the public utility privilege for all
or part of its telecom business by obtaining MIAC approval.
(b) Universal service carrier
Any telecom carrier who provides universal telecommunications
services (“Universal Services”) shall establish tariffs and submit
these to MIAC prior to implementation (see question 5.1 and
section 11).
(c) A carrier installing telecom facilities
With a few exceptions, any telecom carrier installing telecom
facilities for use of its telecom business (certain telecom facilities as
stipulated in Article 41 of the TBL) shall submit notices to MIAC
regarding its compliance with technical and administration rules
and the appointment of a chief telecommunications engineer. See
question 4.1 for further information regarding special regulations
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Japan
for a carrier installing Type I or Type II Designated Facilities.
(d) A carrier providing international services
Any telecom carrier who provides international telecom services is
required to obtain prior authorisation from MIAC before making
any arrangements with a foreign government, entity or individual
with respect to telecom business.
Japan
(2) Broadcasting (housou)
(a) Television - wireless
Regulation of the wireless television broadcasting business
primarily consists of (i) the Broadcast Law (Housou Hou) and (ii)
the Radio Wave Law (Denpa Hou).
The Broadcast Law sets forth general principles to regulate the
broadcast content (i.e. TV programmes). For example, a
broadcaster (defined as a party having obtained a licence for a
broadcast station under the Radio Wave Law) or a programme
compiling broadcaster (see question 12.1) shall not damage the
public peace and shall take a neutral political position (Article 3-2).
The broadcaster is required to set forth standards for television
programmes and produce programmes subject to such standards
(Article 3-3). Such regulation is also applicable to cable television
(“CATV”) and broadcasts using telecommunication services under
the Cable Television Broadcast Law and the Law concerning
Broadcast by using Telecommunication Services.
Broadcasters are required to obtain approval from MIAC and are
subject to foreign ownership restrictions under either law as set out
in question 12.1.
(b) Cable Television
A party planning to establish a CATV facility with more than 500
drop terminals and to provide CATV services is required, in
accordance with the Cable Television Broadcast Law, to obtain
permission from MIAC and notify MIAC of its service area and
other details prior to commencing CATV services. There is no
restriction of foreign ownership under the Cable Television
Broadcast Law.
B. Facilities - Wire or Wireless
Under the laws regulating network facilities, “telecommunications”
and “broadcasting” are not classified; instead, there is a division
between “wired” and “wireless”. Thus, the Cable
Telecommunications Law is applicable to both telecommunications
and broadcasting if the facilities involve wires, and the Radio Wave
Law is applicable to both telecommunications and broadcasting if
radio waves are used.
(1) Cable Telecommunications Law
The Cable Telecommunications Law requires a party planning to
establish a wired telecom facility to notify MIAC. This law will be
applied when other specific laws for cable telecommunications or
broadcasting are not applied. For example, a party who intends to
install CATV facilities with 500 or fewer drop terminals to provide
CATV services must only give prior notice (as opposed to obtaining
approval under the Cable Television Broadcast Law for such
installation as described in question 2.2A(2)(b)).
(2) Radio Wave Law
The Radio Wave Law regulates the use of radio waves and thus may
apply to both telecommunications and broadcasting in which radio
waves are used. Under the Radio Wave Law, any person or entity
planning to establish a radio station is required to obtain a licence
from MIAC, except for cases involving certain specialised radio
stations.
In order to obtain a radio station licence, an applicant must submit
to MIAC a standard application form containing information such
as (i) the purpose for the radio station, (ii) its facilities’ locations,
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and (iii) the type and frequency of radio waves to be used. If such 3.3 Are there any rules requiring established operators to
radio stations plan to provide broadcasting services, certain share their infrastructure, e.g. masts, sites, ducts or cables
information, such as a business plan, items for broadcasting, and the (i.e. dark fibre)? Are there any proposals to mandate
area for broadcasting, must be provided. ‘passive access’ to such basic infrastructure?

MIAC’s review will include consideration of the existence of an

Yes. Policy guidelines formulated by the “Joint Meeting of the IT
adequate financial basis to operate the planned business and
Strategy Council and the IT Strategy Headquarters” and established
conformity with standards provided in the relevant MIAC
Japan

pursuant to the TBL function as a managerial standard for the

ministerial ordinance. Note that MIAC shall allocate available
radio frequency (see “Frequency Plan” described in question 8.1);
thus, approval of a radio station licence will be subject to such
planning, broadcast content and broadcast area requirements.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
In general, licences may not be transferred, but exceptions exist
depending on the type of licence. A telecom carrier’s registration,
for example, may be transferred to a third party if its entire telecom
business is transferred (including by a merger (gappei) or a
corporate split (kaisha bunkatsu) in which a third party succeeds to
the entire telecom business).
2.4 What is the usual or typical stated duration of licences or
other authorisations?
It depends upon the type or kind of licences. In the case of notice
and registration for a telecom carrier, there is no stated licence
duration. In the case of a radio station licence, the duration is 5
years, with certain exceptions.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes, as stated in question 2.2, with MIAC approval, an approved
carrier (nintei jigyousha) may have certain rights to use land under
the TBL.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
authorisation of, and arbitration pertaining to, rights-of-way.
Owners of such basic infrastructure are required to share their
infrastructure under fair terms and conditions if other
telecommunications operators request and as far as there exist no
difficulties pursuant to relevant laws.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Generally, a telecom carrier installing telecom facilities shall
interconnect its facilities to other telecom carriers if so requested by
such carrier without justifiable reason for rejection under the TBL.
A carrier providing Universal Services is required to submit for
MIAC approval the terms and conditions (including tariffs) of its
services, and it must provide telecom services in accordance with
such terms and conditions (see question 5.1).
The biggest carrier providing telecommunications services in Japan
is the NTT group of companies, which includes NTT East
Corporation (“NTT East”), NTT West Corporation (“NTT West”)
and NTT Docomo Corporation (“NTT Docomo”). Because NTT
group companies have large scale facilities (e.g., cables direct to
users’ homes), such facilities potentially could prevent other
carriers from providing services. Under the TBL, the NTT group
companies’ facilities are categorised as Type I or Type II designated
facilities (“Designated Facilities”). Telecom carriers holding such
Designated Facilities are required to submit to MIAC (and
generally in the case of a carrier installing the Type I Designated
Facilities, obtain its approval regarding) the terms and conditions
(including tariffs) of interconnection with other carriers,
interconnect its telecom facilities in accordance with such terms and
conditions, and provide the services to other carriers equally (see
question 5.1).

Yes. For example, the Ministry of Land, Infrastructure, Transport

and Tourism (Kokudo-Kotsuu-Shou) has been preparing and
updating a Plan for Installing Cables Underground (Densen-rui
Tichuuka Keikaku) (the “Underground Plan”) since 1986 to
promote removal of above-ground cables and reinstallation of
electrical cables and telecom wires in underground ducts (“CC
Boxes”). Pursuant to the Underground Plan, before a road
administrator may designate a portion of a road as the location for
a CC Box installation, he or she must request opinions from the
Prefectural Public Security Commission (Todoufuken Kouan
Iinkai), municipal governments, electricity suppliers, and telecom
carriers whose network is installed nearby the road to be
designated.

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Mori Hamada & Matsumoto Japan

4.2 How are interconnection or access disputes resolved? Does “TBDSC”) for mediation or reconciliation in the above cases, but a
the national regulatory authority have jurisdiction to carrier may not proceed with both a MIAC award and a mediation
adjudicate and impose a legally binding solution? or reconciliation at the same time.

Mediation Reconciliation
Consultation
Award 4.3 Are any operators required to publish their standard
Order
interconnection contracts and/or prices?
1. Interconnection of telecom

facilities
2. Shared use of telecom facilities
3. Provision of wholesale telecom
services
4. Installation/maintenance of
telecom facilities for interconnection
5. Utilisation of land and works for
interconnection
Object 6. Provision of information for
interconnection
7. Entrustment of work
8. Utilisation of facilities for
provision of services
9. Operation of facilities for
provision of services
10. Utilisation or operation of radio
wave facilities operated by
non-licensed party
1. Interconnection of telecom
facilities
2. Shared use of telecom facilities
3. Provision of wholesale telecom
services
Japan
Operators providing Universal Services and services under Type I
Designated Facilities are required to publicly disclose tariffs setting
forth fees and other terms and conditions and post them at their
offices. Further, operators providing services under Type I
Designated Facilities and Type II Designated Facilities are required
to publicly disclose the tariffs setting forth interconnection charges.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?

Either Charges for interconnection are generally determined by a carrier

Acting Both consultation Either party to Either consultation
consultation
Party parties consultation party with some exceptions as follows:
party

Minister (a) As stated in question 4.1, charges for Universal Services and
Minister (referring
Neutral TBDSC TBDSC (referring to
to TBDSC for interconnection for a carrier installing Type I Designated
Party Mediator Arbitrators (3) TBDSC for
deliberation)
deliberation) Facilities are generally subject to MIAC approval.
1. Reply
(b) Interconnection charges for a carrier installing Type II
2. Hearing Designated Facilities require notice to MIAC.
3. Facts
Major
1. Interview
investigation 1. Hearing 1. Reply (c) In the case of (a) and (b) above, MIAC may, under certain
2. Mediation
Procedures
offer
4. Settlement 2. Order 2. Award circumstances under the TBL, impose a change to such
offer charges (see question 5.1).
5. Judicial
decision Charges for wholesale lease lines are not subject to price/cost
1. Lodging regulation, and providers may decide such prices at their own
1. Civil action to
opposition discretion. If providers cannot reach an agreement in order to
increase or
(only for a
decrease provide services by using wholesale lease lines, pursuant to the
party who was
monetary amount
Options to notified by TBL, MIAC may grant an award.
Refusal to (w/n 6 mos.)
Challenge bulletin of a
accept proposed None 2. Lodging
Procedural hearing and did
mediation opposition (except
Result not appear)
for the above)
2. Lawsuit to
3. Lawsuit to seek 4.5 Are any operators subject to: (a) accounting separation;
seek
revocation (w/n
revocation (w/n 6 (b) functional separation; and/or (c) legal separation?
mos.)
6 mos.)
Under the TBL, separation of accounting, functional and legal
(Source: MIAC, Fair Settlement of Disputes in the IT Era (8th duties is not explicitly required, but the follow requirements do
ed., Nov. 2008), Ch. 1.) exist:
(a) MIAC Order Telecom carriers providing Universal Services and installing
Type I Designated Facilities are required to organise their
MIAC may, under certain circumstances stipulated by the TBL, accounting pursuant to the relevant law (Article 24 of the
order a telecom carrier installing telecom facilities to start or reopen TBL).
(if suspended) negotiations with another carrier regarding an
Telecom carriers installing Type I and Type II Designated
agreement to interconnect the former’s telecom facilities if the Facilities are required to disclose their accounting documents
former refuses to enter into such agreement. (e.g., balance sheets and profit and loss statements) to the
(b) MIAC Award public (Article 30-5 of the TBL).
In the event carriers negotiating the interconnection of telecom Telecom carriers installing Type I and Type II Designated
facilities fail to agree on such items as monetary payments, a carrier Facilities may not, among other things, (i) use any
(or carriers) may apply to MIAC for an award (saitei) under the information that they are able to obtain from an
interconnection with other telecom carriers for purposes
TBL. Likewise, if a MIAC order has been issued already, the
other than interconnection and (ii) prioritise certain telecom
relevant carrier (or carriers) may apply to MIAC for an award. If
carriers without good reason (Article 30-3 of the TBL).
MIAC grants an award, the parties are deemed to have come to an
Officers and directors of a telecom carrier installing Type I
agreement. Any carrier dissatisfied with such effected award in
Designated Facilities may not serve as officers or directors of
respect of the financial conditions may seek an increase or decrease
its affiliates (Article 31-1 of the TBL).
by filing a lawsuit within 6 months of the day on which that carrier
is notified of the award result. In addition, NTT East and NTT West may not operate telecom
businesses across certain prefecture boundaries, such as long-
(c) Mediation (assen) and Reconciliation (chusai) by
distance telecom business, pursuant to the Law concerning NTT.
Commission
Further, consolidation between telecom carriers will be regulated
A carrier may choose to apply to the MIAC-run under Anti-monopoly Law.
Telecommunications Business Dispute Settlement Commission (the

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 Mori Hamada & Matsumoto
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
MIAC issued a report in December 2008 (the “NGN Report”)
discussing certain matters regarding next generation networks
(“NGN”), including how to determine interconnection charges.
Japan
The NGN Report proposed subjecting NGN to the interconnection
regulations applied to Type I Designated Facilities. The NGN
Report also noted that MIAC may reconsider how NGN should be
regulated from time to time, depending upon the circumstances
surrounding NGN.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Pursuant to the TBL and the Rule of Interconnection Charges,
telecom carriers installing Type I Designated Facilities are required
to unbundle their facilities based on 38 functions. Interconnection
for a carrier installing Type I Designated Facilities is subject to
approval from MIAC (see question 4.4), and setting forth
interconnection charges for unbundled facilities is one of the
requirements to obtaining such approval. If a CATV operator has
Type I Designated Facilities, it is required, under the TBL and Rule
of Interconnection Charges, to unbundle its facilities.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
In 2006, MIAC enacted a plan to dissolve Japan’s digital divide by
providing telecom carriers and municipal governments with
nationally-funded incentives to build fibre access networks.
According to MIAC’s 2008 White Report, FTTH infrastructure has
been installed in 86.5% (98.3% for all kinds of broadband access,
i.e., FTTH, ADSL and cable-internet) of Japanese households.
MIAC revised its 2006 plan in June 2008, aiming for a 90% FTTH
(100% for all kinds of broadband access) installation rate, and
continues such assistance.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Providers of telecom businesses, including fixed and mobile
services registered or notified to MIAC under the TBL, are not
required to submit a tariff or price chart unless they provide
Universal Services (see question 2.2) or have Designated Facilities
(see question 4.1). Such providers may decide the prices for their
services at their own discretion. However, MIAC has the authority
to order providers to correct or improve their business if, among
other things, fees or charges are not calculated fairly and clearly or
services are provided in an inappropriate manner, in either case to
the extent impeding consumers’ benefits.
Providers of Universal Services or those having Designated
Facilities are required to submit their tariff to MIAC and to provide
their services in accordance with such tariff. MIAC has the
authority to order providers to correct or amend the tariff if, among
other things, the tariff fails to set forth a method for calculating fees
or charges fairly and clearly.
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5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
As described above, the TBL regulates the provision of electronic
communications services. The TBL’s principal aim is to secure
consumer benefit by ensuring fair provision of services, especially
with respect to fundamental public services. In this regard, the TBL
requires providers to (i) give prior notice to consumers if services
are suspended or discontinued, (ii) explain the terms and conditions
to consumers, and (iii) process complaints and inquiries from
consumers properly and promptly. Further, MIAC has published
guidelines for protection of consumers.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers, including the mobile telephone numbers, and
network identifying codes are allocated by MIAC, following a
successful application by a telecom business provider. Telecom
business providers are required to file an application identifying the
necessity for telephone numbers and other items.
6.2 Are there any special rules which govern the use of
telephone numbers?
MIAC must maintain a Telecom Numbering Plan (the “Numbering
Plan”) in accordance with the TBL and the regulation regarding the
telecom number (the “Number Regulation”). A telecom business
provider is required to use the numbers only for the provision of
telecom business, treat users equally, and identify the type or
content of telecom service by the number, under the Number
Regulation. If a telecom business provider fails to comply with the
Number Regulation, MIAC may invalidate the allocation of the
number. In addition, if MIAC changes the Numbering Plan, MIAC
may change allocated numbers.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
To use telephone numbers, a customer needs to enter into an
agreement with telephone service provider. For a fixed telephone,
the provider would be NTT East or NTT West. For a mobile
telephone, there are few major providers, such as NTT Docomo,
KDDI Corporation, and Softbank.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Porting of fixed telephone numbers started in 2001. However,
availability of porting may depend on the location of the customer’s
new address. For mobile telephone numbers, porting started in
2006. Basic rules for porting are described in MIAC reports. A
reasonable charge can be levied on consumers for the porting of
their number.
Mori Hamada & Matsumoto
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Japan’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
As described in question 2.1, to bring submarine cables into Japan,
a registration or notice is required under the TBL as well as a
registration fee of ¥150,000. In addition, if a party installing
submarine cables enters into an agreement with a foreign person,
such party is required under the TBL to obtain MIAC authorisation
as described in question 2.2(d).
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio frequency spectrum is regulated by MIAC, which
is required under the Radio Wave Law to maintain a plan (the
“Frequency Plan”) to allocate the radio frequency spectrum. The
latest Frequency Plan was issued on January 1, 2009.
8.2 How is the use of radio frequency spectrum authorised in
Japan? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
MIAC generally has the authority to implement the Frequency Plan
by considering a business plan submitted by telecom carriers.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Pursuant to the Frequency Plan, MIAC distinguishes among types
of services, such as satellite, astro space, mobile, maritime,
aeronautical, broadcasting, and weather observation.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The installation of satellite earth stations is subject to licensing
under the Radio Wave Law and administered by MIAC.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Yes. Certain types of radio stations that discharge weak radio
waves (as designated by MIAC), such as a phone handset for home
use, wireless card systems, etc., are exempted from licensing under
the Radio Wave Law.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Fees for an application for a licence to establish radio stations under
the Radio Wave Law vary from less than ¥10,000 to around
¥150,000 depending on the power of the radio station emission.
There is a registration fee of ¥30,000 per each station generally, but
for a broadcasting station, such registration fee is ¥150,000.
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8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Under the Radio Wave Law, a spectrum licence generally may not
be traded or sub-licensed; however, it may be assigned in
conjunction with an inheritance, a merger (gappei), a corporate split
(kaisha bunkatsu) or a business transfer upon MIAC approval.
Japan
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Because the confidentiality of telecommunications is protected under
the TBL, use and retention of customer call information is generally
prohibited. The 2005 MIAC guidelines regarding the protection of
personal information in telecom businesses state that the providers of
telecom services are allowed to obtain certain limited personal
information only where such information is necessary to provide the
services, provided that, retaining or recording of telecommunications
content is not allowed. Further, the providers are subject to the Law
for Protection of Personal Information.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
No, operators are not obliged to maintain such capabilities.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
If the authorities seek to obtain such access, they are required to
follow the procedures set forth in the Criminal Procedure Law and
other relevant laws. Qualified prosecutors and policemen may
access the data pursuant to a court-issued warrant, which should
specify, among other things, a suspect’s name, a summary of the
suspected crime, which call to be intercepted, how and where an
interception is planned, and a planned term and other conditions for
interception. The interception is permitted only regarding certain
significant crimes, and an interception term may not exceed 10
days, provided a court may extend the term up to 30 days.
In addition, pursuant to the guidelines regarding the protection of
personal information in telecom businesses published by MIAC in
2005, if the police demand to obtain access to personal information,
such as a call’s date, time, or counter party, the police should obtain
a warrant for such access. (See also question 9.1.)
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
In addition to regulation under the TBL, which applies to Internet
telecom services, the Law concerning Provider’s Responsibility is
applicable to providers of telecom services intended for the public.
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 Mori Hamada & Matsumoto
This law prescribes certain requirements to be met by providers
relating to prevention or cessation of certain types of
telecommunications resulting in Internet users suffering damages.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
Japan
content carried over their networks?
Internet service providers (“ISPs”) may have immunity against
certain liabilities unless certain conditions set forth under the
relevant law are met. An ISP may not enjoy immunity for
infringement upon a third party’s information if (i) the ISP was
technically able to prevent the dispatch of such information, and
such ISP knew or should reasonably have known about the
infringement, or (ii) the ISP itself dispatched the information.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
A party whose right is infringed by information on the Internet may
ask ISPs to disclose the name, address and other information of an
infringing party if (i) an infringement is apparent and (ii) pursuant
to relevant law, the infringed party has a good reason for such
disclosure. Further, the ISPs association provides guidelines for
requesting deletion of information with respect to infringement. If
the ISPs do not respond to such requests, they may lose their
immunity (see question 10.2).
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
MIAC released a report regarding network neutrality in September
2007 (the “Net Neutrality Report”). Discussions regarding network
neutrality are currently under way, but MIAC basically considers
network neutrality to be important for Internet development and
NGN and regards network neutrality as a fundamental focus for its
broadband policy. The Net Neutrality Report identified two issues
as critical to network neutrality - fair allocation of network
development costs and fair access to the network by
telecommunications operators, including content providers - and
discussed, given the need to enable the network to absorb the rapid
increase of traffic, who should bear the costs of such development
and whether telecommunications operators may engage in packet
shaping to ensure the network’s service quality. In particular,
MIAC discussed whether heavy users should be required to pay
additional charges based on their packet usage and whether
distributors of rich content should be required to pay ISPs
additional charges. Currently, there is no specific law prohibiting
the requirement of such payment, and the Net Neutrality Report
essentially concluded that these matters should be left to the market.
As for packet shaping (or traffic blocking), four associations
comprised of telecommunications operators issued a guideline for
packet shaping in May 2008 pursuant to the discussion in the Net
Neutrality Report. The guideline provides that packet shaping may
violate the TBL because the confidentiality of telecommunications
is protected under the TBL, but it may be permitted in an
exceptional situation, such as general users experiencing difficulty
accessing a network because heavy users’ traffic or a specific
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application is excessively occupying the network. The guideline
also states that telecommunications operators should let users know
in the tariffs of the possibility of packet shaping and how and when
it would occur.
10.5 How are ‘voice over IP’ services regulated?
Voice over IP services are regulated by the TBL or the Law
concerning Broadcast by using Telecommunication Services
depending on their type (e.g., IP phone services or IP multicast
broadcasting).
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Marketing and advertising goods on the Internet is subject to the
Law concerning Specific Commercial Transaction. A party
marketing or advertising is required to, among other things, display
certain terms and conditions for the transaction, including the price
of goods and fees, planned delivery details, and the seller’s name,
and is prohibited from conducting false advertising.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Yes. The TBL defines the Universal Service as the
telecommunications service of which the availability all over Japan
should be secured because of its essentialness to the lives of people
in Japan. Under the ordinance, the service for public calls, home
telephone calls, and urgent calls to police or fire stations is included
the Universal Service. The Universal Service is funded by qualified
telecom service providers (i.e., NTT East and NTT West) and other
service providers that benefit by connecting to facilities of such
qualified providers.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
Under the TBL, there are no restrictions on direct or indirect foreign
ownership; however, under the Law regarding NTT, direct or indirect
ownership of one-third or more of NTT is prohibited. Likewise,
under the Radio Wave Law, the following entities or parties are not
eligible to obtain a radio station licence: (a) a person whose
nationality is not Japanese; (b) a foreign government or its
representative; (c) a foreign entity; and (d) an entity in which any of
the aforementioned persons or entities is the representative director,
constitutes 1/3 or more of the directors, or holds 1/3 or more of the
voting rights. Furthermore, under the Broadcast Law, radio station
broadcasters are subject to even stricter restrictions. In addition to
restrictions (a), (b) and (c), instead of (d) above, the Broadcast Law
provides that a company or entity in which any of the aforementioned
entities or person is the executive director, or holds 1/5 or more of the
voting rights, is not eligible to obtain a broadcaster licence.
For satellite broadcasts, the Broadcast Law splits broadcasters into
two categories: (a) a “facility supplying broadcaster” (Jyutaku
Mori Hamada & Matsumoto
Housou Jigyousha); and (b) a “programme producing broadcaster”
(Itaku Housou Jigyousha). Facility supplying broadcasters are
subject to foreign ownership restrictions set forth under the Radio
Wave Law. Programme compiling broadcasters are subject to
foreign ownership restrictions set forth under the Broadcast Law.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
As described in question 1.1, MIAC disclosed the Committee
Report regarding future plans in December 2007. According to the
Committee Report, the New Law will set forth the following
concepts.
A. Regulation regarding Content
According to the Committee Report, the New Law will classify
content into two categories: (a) content that may be used by the
public; and (b) content that is not intended for public use. The basic
purpose for this classification is to ensure the proper regulation of
services providing telecom content that is comparable to broadcast
content regulated under the Broadcast Law because it has “a clear
impact on a significant proportion of the general public.” As a
result, a service providing public content (a “Media Service”) may
be subject to regulation depending on how great the impact of the
Media Service is on the general public. If a Media Service clearly
has an impact on a significant proportion of the general public (a
“Specific Media Service”), it would be subject to relevant
regulation under the Broadcast Law. A “General Media Service” (a
Media Service other than the Specific Media Service), however,
will be subject to less regulation than at current. A broadcast using
communication satellites and providing pictures and other
information on the Internet might fall into this category. As to
whether the content has “a clear impact on a significant proportion
of the general public,” the Committee Report states that objective
factors, including (i) type of content (i.e., voice or data), (ii) quality
of such service (e.g., number of pixels), (iii) accessibility from
terminals, (iv) audience size, and (v) cost, would be taken into
consideration.
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Content not intended for public use, defined in the Committee
Report as “Open Media Content”, would be less regulated and thus
enjoy fuller freedoms of expression and communication.
B. Regulation regarding Platform
The Committee Report stipulates that a platform should facilitate
and improve the safety and convenience of information distribution,
Japan
including content delivery by electronic devices and provision of
public services by connecting and intermediating among suppliers
or between suppliers and users with physical telecom facilities. The
Committee Report cites as examples billing services, settlement
services, portal services, cybermalls, and search services. Although
such platforms have developed without specific regulation, the
Committee Report observes that some regulation might be
necessary if a market-dominating platform has the potential to
restrict information distribution. For instance, with Sky Perfect
Communications Inc. maintaining a market-dominating satellite
broadcast platform, the Broadcast Law was amended in 2008 to
regulate parties that arrange agreements between broadcasters and
users for fee-paying broadcasting and that provide installation
services for facilities to access such broadcast. By requiring such
parties to give prior notice to MIAC, the amendment aims to ensure
users’ best interests.
C. Regulation regarding Facilities
As many commentators have acknowledged, the classification
between wired and wireless communication is becoming blurred,
and the detailed regulations under the Radio Wave Law could limit
the flexibility of telecom services to expand. Consequently, the
New Law is intended to simplify the regulations regarding
facilities, which should lead to the integration of the Radio Law and
the Cable Telecommunication Law.
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 Mori Hamada & Matsumoto Japan

Hiromi Hayashi Akira Marumo

Mori Hamada & Matsumoto Mori Hamada & Matsumoto
Marunouchi Park Building, 2-6-1 Marunouchi Park Building, 2-6-1
Marunouchi Chiyoda-ku, Tokyo 100-8222 Marunouchi, Chiyoda-ku, Tokyo 100-8222
Japan Japan

Tel: +81 3 5220 1811 Tel: +81 3 5225 7738

Japan

Fax: +81 3 5220 1711 Fax: +81 3 5223 7638

Email: hiromi.hayashi@mhmjapan.com Email: akira.marumo@mhmjapan.com
URL: www.mhmjapan.com URL: www.mhmjapan.com

Hiromi Hayashi is an attorney with Mori Hamada & Matsumoto,
which she joined in 2001. She specialises in communications law
and regulation and has authored the Japanese portion of
Telecommunication in Asia in 2005. Her other areas of practice are
international and domestic transactions, takeover bids and corporate
restructuring. She was admitted to the Bar in 2001 in Japan and
in 2007 in New York. She worked at Mizuho Corporate Bank from
1989 to 1994 and at Davis Polk & Wardwell in New York from
2006 to 2007.
Akira Marumo is a partner at Mori Hamada & Matsumoto. He has a
broad range of experience in telecom regulations and corporate and
finance matters. He co-authored Multimedia Business and Laws in
1995, Law concerning Providers’ Liabilities in 2002 and the Japanese
portion of Telecommunication in Asia in 2006. He received an LLB
from the University of Tokyo in 1991, and an LLM from Columbia
University School of Law in 1997. He was admitted to the Bar in
1993 in Japan; and in 1998 in New York. He is a member of the
Tokyo Bar Association and the New York State Bar Association.

Mori Hamada & Matsumoto is a full-service international law firm based in Tokyo with offices in Beijing and Shanghai.
The firm has over 260 attorneys and a support staff of over 380, including legal assistants, translators and secretaries.
The firm is one of the largest law firms based in Japan and is particularly well known for its work in the areas of mergers
and acquisitions, finance, litigation, insolvency and intellectual property.
The firm regularly advises on the largest and most prominent cross-border transactions involving both domestic and
international companies, including mergers and acquisitions, joint ventures and financing transactions. The firm has
significant experience in transactional practices including licensing matters for software makers, broadcasting
companies, mobile communication service companies, network service companies, and other IT and
telecommunication companies. The firm also has significant experience in handling patent and copyright litigation, for
both domestic and international cases, involving software program and technology in the field of IT, telecommunication
and media.
The firm has gained prominence in international capital markets as a specialist in the global offering and in the
structuring of securities backed by Japanese assets. The firm’s international clients include multinational corporations
from a wide range of business sectors, including banking, insurance, finance, telecommunications, information
technology, real estate and manufacturing.

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Chapter 23
Korea
Bae, Kim & Lee LLC
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
According to the Telecommunications Business Act (“TBA”), the
objectives of the electronic communications industry policy, which
are prescribed in the first article of the TBA, are (i) to enhance
public welfare through sound development of the industry and (ii)
to enhance benefits to users. Relevant telecommunications
legislation includes the TBA and the Framework Act on
Telecommunications; and for radio frequencies, the Radio Waves
Act.
1.2 Is Korea a member of the World Trade Organisation? Has
Korea made commitments under the GATS/GATT regarding
telecommunications and has Korea adopted the WTO
Basic Telecommunications Agreement?
Yes, Korea is a member of the WTO; it has made commitments
under the GATS/GATT regarding telecommunications and it also
has adopted the WTO Basic Telecommunications Agreement.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Korea?
The provision of electronic communications networks and services
is primarily regulated according to the TBA and its subordinate
regulations. Subject to licensing requirements under the TBA, the
provision of electronic communications networks and services is
open to competition in Korea.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The primary government authority responsible for regulating the
telecommunications industry, as well as the broadcasting industry,
is the Korea Communications Commission (the “KCC”). The
general competition authority is the Korea Fair Trade Commission
(the “KFTC”). The KCC promulgates regulations that are specific
to the telecommunications industry, and performs the requisite
regulatory functions, such as granting telecommunication licences
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Yang Ho Oh
Kwang Hyun Ryoo
and adjudicating cases involving violations of the
telecommunications regulations. The KFTC overseas antitrust and
fair trade matters across legal disciplines, handling the investigation
and adjudication of antitrust and fair trade cases in all industries,
including telecommunications. Thus, a natural overlap of
jurisdiction exists where both authorities may, i.e., investigate the
same unfair practice matter in the telecommunications field.
However, provisions exist in the respective regulations which deal
with potential issues, i.e., double fines may not be imposed on the
same business operator for the same issue. The KCC, despite
having two of its members nominated by nongovernmental parties,
is one of the central administrative agencies under the jurisdiction
of the President, existing independently from other governmental
authorities but not entirely independent from the government since
it is a government entity within the executive branch. The same
applies to the KFTC, which is a central administrative agency under
the jurisdiction of the prime minister.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Yes. Decisions may be appealed to a court of competent
jurisdiction. In case of appealing decisions of the KCC, the Seoul
Administrative Court; and in case of appealing decisions of the
KFTC, the Seoul High Court. Before appealing to the courts,
however, decisions may be appealed to the relevant administrative
appeals commissions.
2 Licensing
2.1 If a license or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
1) A Facilities-based Telecommunications Service Provider
(“FSP”) licence is required to provide “key services” (i.e.,
telephone services, services through radio frequencies,
telecommunications network facilities lease services,
Internet access services, VoIP services, etc.) when using
one’s own telecommunications network and related facilities.
Countries, regional governments, foreign governments,
foreigners and entities where more than 49% of shares are
owned by foreigners and/or foreign governments are not
eligible for the FSP licence.
2) When providing “key services” using an FSP’s
telecommunications network facilities or services, or when
providing in-premise telecommunications services,
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registration to become a Specific Telecommunications
Service Provider (“SSP”) is required.
3) Finally, when providing telecommunications services other
than “key services”, such as data network services, value-
added network services, e-mail services, information-on-
demand services and other value-added telecommunications
services, using the facilities leased from an FSP, a report of
Korea
Value-added Telecommunications Service Provider (“VSP”)
must be submitted
The FSP licence application consists of (i) a cover letter, (ii)
business plan, including basic information regarding the applicant
company as well as the technical development support plan, (iii)
articles of incorporation, and (iv) a shareholder list. Upon receipt,
the KCC has two months to make a decision, after deliberation with
the Information and Communications Policy Deliberation
Commission. Applications for SSP registration or the VSP report
may be filed with the Regional Radio Management Office
(“RRMO”) at any time, with the review period up to 30 days for
SSP registration, and immediately for the VSP report.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Nothing else in general, as far as installation, operation and services
are concerned. However, a device certification (e.g., type approval,
type registration, EMC registration, safety inspection, etc.) is
required to manufacture, sell or import telecommunications
equipment in Korea. In addition, under the Telecommunications
Construction Business Law, a party who wishes to engage in the
telecommunications construction business is required to register
with the regional government.
2.3 May licenses or other authorisations be transferred and if
so under what conditions?
Yes. The FSP licence, SSP registration and VSP report may be
transferred in the event of a business transfer or merger. For such
transfers, approval from the KCC (in the case of FSP’s), or the filing
of a report to the RMO (in the case of SSP’s and VSP’s) is required.
2.4 What is the usual or typical stated duration of licenses or
other authorisations?
The duration of the FSP licence, SSP registration and VSP report is
usually not limited, except that the FSP licence for the services
using the allocated frequency bands can be viewed as actually
expiring upon the lapse of the term of the use of the frequency band.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes. Article 39 of the TBA stipulates that an FSP may make use of
others’ premises when necessary for the installation of line tracks,
aerial lines and the appurtenant facilities. If an agreement cannot be
reached for such use, the FSP may enforce the right to use the land,
pursuant to the Act on the Acquisition of Land for Public Works and
Compensation. Article 40 of the TBA also provides for a relatively
concise procedure for the “temporary” use of others’ premises, and
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Article 41 of the same provides for the right of an FSP to enter
others’ premises when necessary for the measurement, examination,
etc., for the installation and maintenance of its telecommunications
facilities.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
No, there is no specific planning or zoning regime that applies to the
installation of telecommunications infrastructure in Korea.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Yes. Under Article 33-5 and 34-3 of the TBA, an FSP may permit
access to, or allow for joint use of its telecommunications
equipment or facilities, such as ducts, cables, poles or stations, via
agreement with other telecommunications business operators. As
an exception, KT Corporation (“KT”), as the largest local telephone
and Internet access service provider and who is deemed to own
essential facilities in Korea, is obliged to provide other FSP’s with
its telecommunication line facilities and also must, for its local
telephone service and Internet access service, share their
infrastructure which may be needed for network-to-network
interconnection for its local telephone service and Internet access
service, upon request from other FSP’s. Another established
operator, SKT, as the nation’s largest mobile telephone service
provider, is also obliged to share its equipment or facilities upon
request from other FSP’s. Article 34-6 of the TBA sets forth the
principle of local loop unbundling. The Standards of Local Loop
Unbundling (the “SLLU”) established by the KCC provides for
passive access not only to copper local loop but also to fibre in the
loop.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Yes. Under Article 34 of the TBA, telecommunications service
providers may not, without a justifiable reason, refuse to enter into
interconnection agreements with other telecommunications service
providers who request such interconnection. In addition, KT, for its
local telephone service and Internet access service, and SKT, for its
2G mobile services, are designated as FSP’s who are obliged to
provide interconnection.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
If the requested telecommunications service provider(s) do not
execute the interconnection agreement within 90 days, or they do
not abide by the executed interconnection agreement, then the
requesting telecommunications service provider(s) may file an
application for arbitration with the KCC. The KCC’s arbitration
award is legally binding unless appealed to the court or the
administrative appeals commission.
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4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
No. Telecommunications service providers are not required to
publish interconnection contracts and/or prices. However, the
terms and conditions of the interconnection agreements executed
between service providers must comply with the Standards for
Interconnection of Telecommunications Facilities (“SITF”)
announced by the KCC, which provide for the scope, condition and
procedure of the interconnection, and the way to assess charges, etc.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes. The charges for the interconnection must be calculated using
the method set forth in the SITF. Since 2005, the interconnection
fees have been determined based upon the LRIC (Long-Run
Incremental Cost).
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Yes. FSP’s are subject to accounting separation under Article 36-2
of the TBA. Also, the subsidisation between different kinds of
telecommunications service by unfairly classifying profits and
expenses is prohibited according to Article 36-3 of the TBA. Under
the Standards of Accounting Separation announced by the KCC,
telecommunication service providers must separate its accounts
based on the kind of service; they must classify assets, profits and
costs related to telecommunications services by the relevant sort of
telecommunications service.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Interconnection fees are not determined comprehensively, but by
each category of service, as new network technologies become
available in the market. In the case of VoIP, for example, the KCC
determines the interconnection rate considering various factors,
such as the competition status in the market, etc.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Yes. According to the SLLU, FSP’s that own existing copper local
loop which provide local phone service must unbundle its facilities to
requesting telecommunication service providers who provide local
phone service or high-speed internet access service. The same
requirement doesn’t apply to cable TV operators unless they are
telecommunication service providers owning local loop infrastructure.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Yes. The SLLU regulates passive access to next generation
networks such as fibre in the loop. As an incentive to promote the
construction of fibre facilities, according to the Standards of the
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Providing Conditions of Telecommunication Facilities and the
Estimation of Cost published by the KCC, fibre cables (other than
fibre in the loop) which have been constructed since 2004 are
excluded from essential facilities mandatorily provided to other
telecommunication service providers.
5 Price and Consumer Regulation
Korea
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Yes. FSP’s must set forth the “terms and conditions,” including
service rate (i.e., price) by service type, with respect to the
telecommunications service which the carrier intends to provide,
and notify the same to the KCC; provided, however, that FSP’s
whose size and market share satisfy the criteria prescribed by the
Enforcement Decree of the Telecommunications Business Act,
namely KT for local telephone service and internet access service,
and SKT for cellular and PCS service, must obtain authorisation
from the KCC prior to implementing their terms and conditions.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
A telecommunications carrier must guarantee the fairness, speed
and accuracy in performing their business, and must not refuse to
provide telecommunications service without justifiable reason.
Telecommunications service charges must be reasonably
determined so as to meet the reasonable expectations for
development of the telecommunications business, and to provide
users with convenient and diverse telecommunications services in
the fair and inexpensive manner. Mutual benefit and efficiency
serve as overarching themes. A telecommunications carrier has the
obligation to provide universal service or else compensate for any
losses caused by provision thereof. Also it must take prompt
measures regarding the reasonable suggestions or complaints raised
by users with respect to its telecommunications service. If this
proves untenable, then it must notify users of the reason(s) thereof
and schedule for redress as soon as practicable.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The KCC allocates telephone numbers and data network codes after
deliberation on the application of a telecommunications service
provider or public agency.
6.2 Are there any special rules which govern the use of
telephone numbers?
Yes. The KCC has established the Detailed Rule[s] on the
Administration of Telecommunications Numbers (“DRAT”), too
detailed to enumerate here.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
According to KCC’s allocation of the identifying codes provided
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for in the DRAT, telecommunications service providers are the ones
to make telephone numbers available for network use and to
activate them for subscribers.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Korea
According to KCC’s public notifications, based on the TBA, users
are able to maintain their existing telephone numbers (local
telephone and mobile phone) despite a change in the
telecommunications carriers, provided it is for the same kind of
service. However, the porting of telephone numbers in switching
between different kinds of telephone services (e.g. switching
between local telephone service and mobile telephone service) has
not been implemented yet.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Korea’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Any person who intends to provide common services from abroad
into Korea by using its submarine cable without establishing
domestic premises must enter into a contract for the cross-border
supply of common services with a domestic FSP or a domestic SSP
that provides the same common service. The contract for the cross-
border supply of common service must be approved by the KCC.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes. Under the Radio Act, the KCC distributes radio frequencies
according to the purpose of use and allocates them to
telecommunications service providers.
8.2 How is the use of radio frequency spectrum authorised in
Korea? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
The Radio Waves Act provides for two basic categories of
frequency allocation - allocation for a fee and allocation by
deliberation. The KCC allocates radio frequencies after reviewing
the service provider’s application and may collect a fee for the
allocated frequency. For allocation, the KCC considers various
factors, such as efficiency of use, the financial and technological
ability of the applicant, characteristics of the radio frequencies to be
allocated, etc. Only a telecommunications service provider to
whom a radio frequency is allocated for a fee has the exclusive right
to use it. Spectrum auction has not been adopted yet.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Yes. Radio frequencies are allocated for a specific service (e.g.,
PCS, IMT-2000), according to the Frequencies Distribution Table
established by the KCC.
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8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Any person who intends to install a satellite earth station must first
obtain a licence from the KCC. A foreigner cannot obtain such a
license, with only narrow exceptions. Therefore, a foreigner must
contract with a domestic FSP, or a domestic SSP that provides the
same telecommunications service, for the cross-border supply of
telecommunications service, and obtain approval for the contract,
pursuant to Article 59 and 59-2 of the TBA. A satellite earth station
must be used within the scope of the license, pursuant to the
telecommunications method notified by the KCC.
8.5 Can the use of spectrum be made license-exempt? If so,
under what conditions?
Yes. The use of spectrum can be made license-exempt. For
example, certain bands are allocated for use by the government or
military, pursuant to the Radio Act.
8.6 If license or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The KCC may collect a fee for the allocation of the radio frequency,
in cases where (a) the frequency has a great economic value and a
technological ripple effect, (b) there are competitive demands for
the frequency, or (c) collecting a fee is necessary for the
development of the area where radio frequencies will be allocated.
Fees are calculated by considering the economic value and impact
surrounding the issuance of the frequencies, such as the available
frequencies subject to allocation, the bandwidth, and turnover
expected from the businesses receiving the frequencies allocation.
8.7 Are spectrum licenses able to be traded or sub-licensed
and if so on what conditions?
The right to use the radio frequency allocated for a fee may be
transferred or leased with the approval of the KCC, after three years
from the date of allocation. However, in case of bankruptcy or
other drastic change of economic conditions, the right to use the
radio frequency for a fee may be transferred or leased prior to the
three-year requirement.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Yes. As they relate to call data, telecommunications service
providers must retain (a) the date of telecommunication, (b) the
time of telecommunications’ commencement and termination, (c)
the number of outgoing and incoming calls, and the counterparties’
numbers, (d) frequency of use, and (e) data on tracing of certain
information connected to the information communications
networks, for 12 months, and in the case of local and long-distance
telephone service, for 6 months.
Also, as they relate to computer data, the telecommunications
service providers must retain (a) certain computer communications,
such as Internet log-records relating to usage of
telecommunications services by computer users, and (b) data on
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tracing of certain location information in connection with
information communications networks, for 3 months.
Pursuant to the Protection of Communications Secrets Act
(“PCSA”), no person may wiretap any telecommunications or
provide communication confirmation data without first meeting the
requirements and going through the procedures set forth in the
PCSA, the Criminal Procedure Act or the Military Court Act, except
for certain narrow exceptions. The PCSA, for example, permits the
wire-tap of telecommunications by prosecutors, judicial police
officers or by the head of intelligence and investigative agencies for
exceptional circumstances (e.g., matters of national security,
investigation on specific felonies, etc.).
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
There is no specific provision for the obligation to maintain call
interception capabilities. However, it is understood that
telecommunications service providers must maintain call
interception (i.e., wire-tap) capabilities because they are obliged to
cooperate with the communication-restricting measures, including
wire-tap of telecommunications, taken under the PCSA by any
prosecutor, judicial police officer or any of the heads of intelligence
and investigative agencies.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
With the permission of the court, any prosecutor or any judicial
police officer may, when deemed necessary to conduct an
investigation or to execute punishment, ask any
telecommunications service provider for the perusal of or the
provision of communication confirmation data.
Any court may, when it is deemed necessary for trial, ask any
telecommunications service provider to supply it with
communication confirmation data under the Civil Procedure Act
and the Criminal Procedure Act.
Any prosecutor, including any public prosecutor, may ask a court
including a military court to permit intercepting calls regarding any
suspect or person(s) under investigation, if there is substantial
reason to suspect that a crime provided for under the PCSA is being
planned or committed, or has been committed, and it is difficult to
prevent the commission of the crime, to arrest the criminal or to
collect evidence otherwise.
The heads of the intelligence and investigative agencies may, only
when it is a matter of national security, intercept calls with the
permission from a senior chief judge of the high court or upon
approval from the President.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Not in general. At present, Internet access service, VoIP service and
data transmission service are regulated as “key services”, requiring
either an FSP licence (if one’s own facilities are used), or an SSP
registration (if utilising an FSP’s facilities). Other Internet
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information services are regulated as value-added services. Access
to the Internet at a wholesale or retail level is regulated by the
general provisions of the TBA, such as the prohibition of unjust
refusal of access and prohibition against discrimination between
users.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
Korea
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
There are no general and unconditional immunity provisions. But,
if, upon receiving a request to delete relevant information, etc. from
any person whose legal interest is infringed upon or whose
reputation is damaged by the information distributed over the
information and communications network being operated and
managed by the telecommunications operators and internet service
providers, the telecommunications operators and internet service
providers delete such information or takes temporary or other
necessary measures, their liability may be mitigated or they may be
exempted from liability for damages under Article 44-2(6) of the
Telecommunications Network Utilisation Promotion and
Information Protection Act (the “IPA”). In addition, if the
telecommunications operators and internet service providers have
verified the identity of a user with proper care, then their liability
for any damage arising from the illegal use by a third party may be
mitigated or exempted from liability under Article 44-5(4) of the
IPA.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Yes. If any person whose copyright or other rights have been
infringed upon due to the reproduction or transmission of their
work(s) requests the online service provider to suspend the
reproduction or transmission of the their work, then the online
service provider is obligated to do so under Article 103(2) of the
Copyright Act. Likewise, if there is a request from the holder of
rights, then online service providers who aim principally at
forwarding works is obligated to take necessary measures according
to Article 104(1) of the Copyright Act and Article 46(1) of the
Enforcement Decree to the same. These include: 1) providing
technical assistance to identify the work by comparing titles and
characteristics, etc.; 2) providing measures to limit the search or
transmission of the work(s); and 3) where the illegal forwarding
party can be identified, dispatching a warning requesting the
cessation of copyright infringement.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There are no express provisions on net neutrality obligations under
the TBA. However, the TBA prohibits a telecommunications
business operator from committing an act of unfair discrimination
in executing an agreement with other telecommunications business
operators. The KCC indirectly regulates violations of net neutrality
obligations through the above provision. For instance, in a case
where an Internet service provider blocked VOD of a certain
contents provider (pre IPTV operator) on the ground that its traffic
was excessive, the KCC issued against the Internet service provider
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a corrective order to immediately suspend blocking, holding that
such act constitutes violation of an agreement between operators
and an act which undermines users’ interests.
10.5 How are ‘voice over IP’ services regulated?
Korea
VoIP services are regulated as one of “key services” under the TBA.
Therefore, a licence from the KCC is required for the VoIP service
and it is subject to the same regulations for the other “key services”
under the TBA. However, PC to PC-type service among VoIP
service is not included in the “key services” and may be provided
with the report of Value-Added Telecommunication Service.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Yes. The IPA regulates the “transmission of advertisement
information for profit”, such as: (i) telemarketing; (ii) transmission
of mobile phone text messages or fax; and (iii) transmission of e-
mails for marketing purpose. For instance, with respect to
telemarketing, mobile phone text messages and fax, the IPA adopts
the “opt-in” method, under which a marketing and advertising
entity is required to obtain prior consent from the potential
addressees before sending advertisements. As for e-mails, the IPA
adopts the “opt-out” method, under which a marketing and
advertising entity is prohibited from transmitting advertisements for
the purpose of profit against the addressee’s explicit rejection of
such information. In addition, any person who transmits
advertisements by means of e-mail must comply with certain
statutory requirements regarding form and content.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Yes. Under Article 3-2(1) of the TBA, all telecommunications
carriers have the obligation to provide universal service or
compensate any losses caused by the provision of such service. The
KCC designates telecommunications carriers providing universal
service, and the KCC may have those who are not universal service
carriers share the fund for reimbursing the whole or part of the
losses incurred from the provision of the service by universal
service carriers in proportion to their turnovers. The contents of
universal services shall be: (i) wire telephone service; (ii) telephone
service for emergency communications; and (iii) telephone service
at discounted or exempted rates for certain groups (i.e., the disabled
and low income earners).
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12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
Yes. The aggregate foreign investment in an FSP by foreigners or
foreign governments and “deemed foreigners” shall not exceed
49% of the total number of issued and outstanding voting shares of
the FSP, including stock equivalents with voting rights such as
stock depositary receipts and investment equities. For purposes of
the TBA, the term “deemed foreigner” means a Korean company in
which a foreigner is the largest stockholder, and foreigners or
foreign governments hold 15% or more of the stocks in the
aggregate; provided, however, that a “deemed foreigner” who owns
less than 1% of the total number of the stocks issued by a common
carrier of the FSP is excluded from determining whether the 49%
ceiling is exceeded. SSP’s and VSP’s are not subject to any foreign
shareholding restriction under the TBA, but practically only a
Korean entity, including a Korean subsidiary of a foreign company,
can register as an SSP or file the VSP report. Please note that a
more specific and strict foreign ownership regulation is applied to
KT.
According to the Korea-US Free Trade Agreement (the “FTA”),
reached on April 2, 2007 but not yet ratified by either country, the
current ceiling of 49% on direct foreign shareholding in domestic
telecommunications service providers will be maintained, with the
exception of KT and SK Telecom. Restrictions on indirect foreign
ownership (i.e., “deemed foreigners”) will be eliminated within two
years from the effective date of the FTA. Foreigners may then
invest in FSP’s through its subsidiaries or joint ventures in Korea
without being subject to the foreign ownership restriction.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
KCC is planning to establish regulations on the sharing of profits
from information usage fees between mobile communication
service providers and CP’s, and to improve the system to expand the
opening of wireless internet networks for the purpose of positively
fostering the contents industry. Further, the KCC will, in
preparation for an increase in the number of third generation mobile
phone subscribers in the second half of 2009, additionally assign
the remaining 2.1GHz band frequency, and withdraw and reassign
to a latecomer or a new entrant, a part of the 800/900MHz band
frequencies. In addition, in order to strengthen the protection of
personal information, the KCC has amended relevant public
notifications. Accordingly, telecommunications operators and
internet service providers will be obligated to store resident
registration numbers, credit card numbers and account numbers by
encoding them using safe encryption algorithms, starting on Jan.
29, 2010.
Bae, Kim & Lee LLC Korea

Yang Ho Oh Kwang Hyun Ryoo

Bae, Kim & Lee LLC Bae, Kim & Lee LLC
647-15 Yoksam, Kangnam 647-15 Yoksam, Kangnam
Seoul 135-723 Seoul 135-723
Korea Korea

Tel: +82 2 3404 0128 Tel: +82 2 3404 0150

Korea
Fax: +82 2 3404 0803 Fax: +82 2 3404 0803
Email: yangho.oh@bkl.co.kr Email: kh.ryoo@bkl.co.kr
URL: www.bkl.co.kr URL: www.bkl.co.kr

Yang Ho Oh is a partner in the Telecommunications, Media and
Technology (TMT) practice group at Bae, Kim & Lee LLC. He has
practiced in the fields of telecommunications, broadcasting, E-
Commerce, Government Policy & Regulation and Energy. He is a
member of the Korean and Seoul Bar Associations, and is also
admitted to bar in New York. He received his legal education at
Seoul National University Law School (LL.B., 1984) and Harvard
Law School (LL.M., 1994).
Kwang Hyun Ryoo is the head of the Telecommunications, Media
and Technology (TMT) practice group at Bae, Kim & Lee LLC. His
primary areas of practice include telecommunications, broadcasting,
Intellectual Property and E-Commerce. He is admitted to bar in
Korea (1994), as well as in New York (2003). He graduated from
Seoul National University Law School (LL.B., 1989), and also has
an LL.M. degree from Duke University School of Law (LL.M., 1999).

Bae, Kim & Lee LLC is one of the largest law firms in Asia, with over 200 attorneys and offices in Seoul, Beijing and
Shanghai. The firm offers expertise in every practice area of commercial interest, and serves a multinational clientele
spanning a wide variety of industries. Among the oldest business law firms in Korea, Bae, Kim & Lee LLC is dedicated
to providing highly focused, practical legal advice to business clients.
Major practice areas include: corporate and M&A; securities, banking and finance; corporate reorganisation and
bankruptcy; tax; real estate; antitrust and fair trade; employment; telecommunications; intellectual property and
information technology; white collar crime; and international arbitration and litigation.

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 Chapter 24
Kosovo
Boga & Associates
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The Law no. 2002/7 “On Telecommunications”, as amended (the
“Telecommunications Law” and/or “Law”) and related secondary
serve as guideline of policies and the objectives for electronic
communications industry in Kosovo. Said Law and related
secondary legislation governs telecommunications and radio
frequencies in Kosovo. The Ministry of Transport and
Telecommunication is empowered by the Law on
Telecommunications (article 3) to define the policies of
telecommunication in Kosovo and draft the secondary legislation
related to the sector.
The Telecommunication Regulatory Authority, being established as
an independent entity, has the power and is responsible for
implementation of the policies defined by the Ministry of Transport
and Telecommunication in compliance with the provisions of the
Law as well as adopt secondary legislation in the form of
administrative instructions and instructions (secondary legislation)
necessary for implementation of the Law (article 3 of the Law).
The Telecommunications Law states at the very beginning that it
aims to promote the investments and free competition in the market
establishing transparent legal and regulatory environment, based on
the Directives and Regulations of the European Union and other
international telecommunications standards and practices.
1.2 Is Kosovo a member of the World Trade Organisation? Has
Kosovo made commitments under the GATS/GATT
regarding telecommunications and has Kosovo adopted the
WTO Basic Telecommunications Agreement?
Kosovo State, whose independence was recognised internationally
from a significant number of countries, is not yet a member of the
World Trade Organisation therefore no commitments are made
under the GATS/GATT regarding telecommunications and/or the
WTO Basic Telecommunications Agreement are made as of today.
Anyhow, the Kosovo Parliament has recently joined the
International Monetary Fund (IMF) and World Bank Group
Organisations such as the International Bank for Reconstruction
and Development (IBRD); the International Finance Corporation
(IFC); International Development Association (IDA); Multilateral
Investment Guarantee Agency (MIGA); and International Centre
for the Settlement of Investment Disputes (ICSID). Kosovo
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Sokol Elmazaj
Iva Çuçllari
Parliament passed the Law no. 03/L-152 dated 29.05.2009,
authorised the government of the Kosovo to do all what is required
for adhering to said organisations.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Kosovo?
The Telecommunications Law takes into account the Directives and
Regulations of the European Union and other international
telecommunications standards and practices with respect to the
promotion of transparent market entry conditions and a competitive
marketplace in telecommunication industry in Kosovo (article 1.2).
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The regulatory body established by the Telecommunications Law to
regulate and foster the development of the telecommunications
sector in Kosovo is the Telecommunications Regulatory Authority
(the “TRA”). In virtue of article 4/1 of the Law on
Telecommunication, the Telecommunications Regulatory Authority
(the “TRA”) is established as an independent regulatory body and
shall implement the policies of the Government and the Ministry
pursuant to the Telecommunications Law, and all other
implementing legislation enacted pursuant thereto.
The competition body to ensure the development of a sound market
economy in Kosovo by prohibiting acts that restrict, suppress or
distort competition is the Kosovo Competition Commission,
established by the Law No.2004/36 dated 08.09.2004 “On
competition”.
Therefore both these entities are independent governmental bodies.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
The official acts and decisions of the TRA are subject to judicial
review and appeal by any legible party through the administrative
court procedures as designated by the applicable laws in Kosovo
(article 11.8).
Boga & Associates
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The Providers of telecommunications services in Kosovo are
eligible to offer networks and telecommunications services upon (i)
authorisation (i.e. the written permission issued by the TRA,
acknowledging the registration of a operator’s intention to provide
telecommunications services to the community) and/or (ii) licence
(i.e. written permission issued by the TRA to a service provider
required in all cases involving a end-resource, such as the right to
use number or frequency allocation, and space on a utility pole,
tower or in a conduit).
The Authorisation comprises all and any kind of electronic
communications networks and services that do not involve use by the
provider of frequencies and numbers. Whilst the Licence is granted to
those providers whose activity involves use of end-resources.
(i) Authorisation is issued subject to compliance with certain
conditions, which include, at a minimum, the applicant’s
agreement for the followings:
a) to provide services to the public on a transparent, non-
discriminatory basis;
b) to provide subscribers with a standard, non-
discriminatory, written contract, which will be
available to the TRA, upon request;
c) to implement systems that will ensure all subscribers
receive detailed and accurate billing;
d) to establish an effective dispute settlement procedure
for subscribers; and
e) publish and provide adequate public notice of changes
in access conditions, including tariffs, quality and
availability of services.
TRA establishes applicable classes or categories of services
for authorisations, which may include the followings:
a) data services, including fixed packet- or circuit-
switched data services offered to the public;
b) value-added data transmission services, including
multimedia, internet and electronic mail;
c) value-added voice transmission services, such as
store-and-forward and voicemail services, audio-text
and tele-text services, video-conferencing, re-
forwarding of messages, videophones;
d) premium rate services, such as shared cost, shared
revenue or free-phone toll-free and calling cards; and
e) satellite personal communications services.
(ii) The number of the Licences that the TRA may grant is
unlimited, except the technical limitations related to the
efficient use of the radio frequency spectrum, as specified in
the frequency spectrum resources plan. In the event of radio
frequency limitation, the TRA select licensees by the way of
the tender or auction process pursuant to the applicable law
(article 22.2 of the Law).
A services provider seeking to provide telecommunications services
that require a Licence under this Law shall prepare and deliver to
the TRA a description of services and the general conditions that set
out in the detail the prices.
A Licence is issued by the TRA, in case the Provider possesses
sufficient financial resources and technical capabilities to fulfil the
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Kosovo
conditions of the Licence.
According to the TRA’s regulation no. 180/07 dated 11 June 2007
“On fee payable by the providers applying for the
telecommunications services” the providers of telecommunications
service must pay the fee of EUR 50 (fifty) prior to their application
with the TRA for being equipt with the Licence and/or
Kosovo
Authorisation. This fee application is non-refundable in case the
provider withdrawals the application.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
The Law requires that telecommunication services and networks in
Kosovo must be offered based on valid Authorisation and/or
Licence issued by the TRA. No others requirements/permits are
foreseen in the Law prior to the networks being installed and the
telecommunications services being provided.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Article 26/3 of the Telecommunications Law provides that no
licence shall be transferred to any person, including transfers
pursuant to a judicially ordered liquidation, without the prior
written consent of the TRA.
The law is silent regarding the transfer of the authorisation.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Pursuant to article 26/1 of the Telecommunications Law the TRA
issues the licences for a period not exceeding 15 years. An annual
fee for this licence must be paid by the licensee every year during
the duration of the licence (i.e. renewal fee).
The Telecommunications Law is silent on the duration of the
Authorisation issued for electronic communication services not
involving the use of end-resources.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
TRA establishes the rules for use of the public and/or private owned
properties for the telecommunications services and service providers,
including, but not limited to transmission towers for wireless services,
utility pole attachment for wire-line services and other applicable
infrastructure forms. The TRA also establishes rules for minimising
the accidental destruction or damage of network facilities, including
the underground or aerial transmission cables (article 27).
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
According to article 27 of the Telecommunications Law the TRA
shall establish rules for the use of publicly and privately controlled
property with respect to telecommunications services and service
providers, including, but not limited to transmission towers for
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 Boga & Associates
wireless services, utility pole attachment for wireline services and
other applicable infrastructure forms. The TRA shall also establish
rules for minimising the accidental destruction or damage of
network facilities, including, but not limited to underground or
aerial transmission cables. To the best of our knowledge such rules
are not published by the TRA.
Kosovo
Moreover article 22/7 (e) of the Telecommunications Law states
that subject to the Licence requirements the licensee must comply
with the general conditions required for the protection of the
environment and the planning regime as well as the sharing of the
facilities relative to the telecommunication services.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
According to article 67 of the Telecommunications Law, the
Provider having a Licence to use radio frequencies must agree to
joint use/share with any Providers of the antenna facilities, devices
and installations, taking into consideration the technical parameters.
In case the Providers fails to enter into agreement for joint
utilisation of antenna facilities any of them may apply to TRA to
resolve the dispute according to procedures set forth in this Law.
Please also refer to our comments provided for the questions 3.1
and 3.2 above.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Providers offering public telecommunication services are oblige to
assure the network -to network interconnection.
The service provider authorised to offer interconnection services
must be registered at Kosovo’s register of business organisation
according to the UNMIK Regulation 2001/6 of 8 February 2001,
and Law 02/L-123 “On Business Organisations”, as amended and
pay the respective applicable fees (articles 40.1 (d); 40.2; and 40.3
of the Law).
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
According to article 11.2 of the Telecommunication Law, the TRA
is in charge to resolve disputes between the telecommunication
service providers, upon it owns motion or based in the request of
any of the service providers involved in the dispute.
The TRA within 6 (six) weeks following the application for dispute
resolution must resolve either to accept or reject the application
notifying the parties for the purposes therefore.
In case the application for dispute resolution is accepted by the TRA,
the later convene a hearing for the purposes of ascertaining all facts
by the providers and resolve to either accept or reject the claim.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Service providers based on mutual negotiations enter into a written
contract providing for the financial terms and technical conditions
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of network interconnection. This contract reflects all of the
requirements set forth in this Law.
Subject to article 56.6 of the Law, the service provider, upon the
written request of the TRA, shall supply the latter with any
contracts for interconnection so required. The interconnection
contracts between the providers are made by the TRA publicly
available, excluding the specific information deemed to be business
confidential as identified and agreed by the parties (article 56.6).
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Service providers having significant power market (i.e. the
wholesaler) providing access interconnection must offer it on a
cost-oriented basis. The TRA is in charge to review the fees and
stipulate the financial formula for cost allocation or impose limits
on the fees (article 53.3 of the Telecommunication Law).
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
According to article 42.1 of the Telecommunications Law,
providers of public telecommunications networks and services must
ensure appropriate separation of the organisational and accounting
levels to facilitate the distribution of incomes, expenditures and
costs for each telecommunications services performed. Further the
providers must annually audit the financial statements according
international accounting standards and as required by applicable
Kosovo laws or UNMIK Regulations, publish the audited financial
statements and submit such annual report to the TRA.
Service providers of public telecommunications services with
significant market power shall clearly separate the organisational
structures and the financial records of its various activities in order
to accurately account for the profits and losses of each individual
commercial activity (article 45.3 of the Law).
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The Telecommunications Law is silent on access regulatory
conditions applicable to so-called next generation networks or IP-
based networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
The Law is silent on requirements for cable TV operators.
Please refer to our comments of question 4.1 above.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
The Telecommunications Law is silent on provisions regarding
next-generation access (fibre to the home, or fibre to the cabinet)
and/or incentives to build fibre access networks and to the best of
our knowledge there is no regulation proposed.
Boga & Associates
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Service providers seeking to provide telecommunications services
based on the licence issued by the TRA must deliver to the late
description of services and the general conditions, providing in
details the prices for such services.
Pursuant to article 23 of the Telecommunications Law the TRA
issues written approval of the prices provided the service provider
not later than 7 (seven) days, unless the TRA determines that
additional information and/or calculations are required.
The TRA may order to the service provider to change the prices and
conditions, even after the TRA’s approval, if it determines that such
changes are necessary to protect the end-users and/or the
competition in the market.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Telecommunications services in Kosovo are based on the costs
efficiency rule meaning that for the same service offered by the
same service provider the price must be equal throughout Kosovo
territory (article 24 of the Law).
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The telephone numbers and the network identifying codes are
allocated by the TRA which is in charge of administering the Plan
of Numbering, and insures the efficient use of the numbers/serial
numbers by the Providers of the telecommunication services in
Kosovo (article 37 of the Telecommunication Law).
6.2 Are there any special rules which govern the use of
telephone numbers?
The use of numbers and the serial numbers must have prior
approval from the TRA.
The TRA is in charge of preparing the plan numbering and
assigning numbers to the service providers on non-discriminatory
bases (article 37.1 of the Law).
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The Telecommunications Law is silent on the procedures of
numbers activation for the use by the customers.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The TRA assigns the numbers for an indefinite period of time.
According to article 39 of the Telecommunication Law, the
assignment of numbers by a service provider is not transferable,
except for the following cases:
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Kosovo
(i) the subscriber of a fixed public telephone network wishing to
change the service provider of the telecommunication services
is eligible to keep the geographical numbers assigned, provided
he/she stays within the same geographical location; or
(ii) the subscriber possesses non-geographical numbers then
he/she may port the number assigned, when they change the
Kosovo
service provider of the telecommunication.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Kosovo’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
The Telecommunications Law is silent on any rules governing the
bringing of the submarine cables into Kosovo’s territorial waters,
this is due to the geographic position of the Republic of Kosovo
located in the mainland.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Subject to article 28 of the Telecommunications law, service
providers seeking to use radio frequencies shall obtain a grant of
right to use such frequencies from the TRA prior to the provision of
such services. The TRA shall grant the right to use radio
frequencies pursuant to this Law and other relevant legislation.
8.2 How is the use of radio frequency spectrum authorised in
Kosovo? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
As per our comments in question 8.1 above the use of frequencies
in Kosovo is the subject of the Licence issued by the TRA. The
TRA classifies certain spectrum resources as reserved for auction
procedures and not available on the basis of an individual request,
including, but not limited to, mobile services in GSM standard, and
fixed wireless services (article 28.4 of the Law).
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Telecommunications Law does not make a distinction between
mobile, fixed and satellite usage when granting the spectrum rights.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The Telecommunications Law is silent on regulation and
installation of satellite earth stations and their use for up-linking and
down-linking.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
TRA is in charge of defining the band of radio frequencies which
are not subject to licensing from the TRA and shall make such
information open for the public domain (article 28.3).
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8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The grant of the licence for the use of radio frequency spectrum is
the subject of an annually fee (article 35.1 of the Law).
Kosovo
Subject to the Ordinance of the ART “On Licences and
Authorisations” (see www.art-ks.org), this fee levies on 1% of the
licensee annual turnover.
The licence to use radio frequencies related to security and defence
of Republic of Kosovo or protection against natural and/or disasters
and/or for amateur radio is exempted from this annual fee.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The Telecommunications Law allows the transfer of a licence to use
frequency spectrum only upon prior approval by the TRA (articles
34.1), while it is silent on the possibility to trade or sub-licensed.
Anyhow based in our experience no licence may be trade/sub-licensed
without prior approval by the competent authority which has issued it.
9 Data Retention and Onterception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Yes, the providers of telecommunications services in Kosovo are
obliged to retain call/traffic data for at least 3 (three) years (article
75.3).
The traffic and billing data shall be processed in accordance with
the confidentiality requirements of this Law or other applicable
laws and UNMIK Regulations in force.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
No. The Law does not foresees any Provider’s obligation to
maintain capabilities for call interception (wire-tap).
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Call data required for certain purposes such as for billing and/or
traffic and users information and/or finding out frauds and/or
marketing of a service provider may be processed only by personnel
under the supervision of the service provider, and their access to
such traffic data shall be to the extent needed to accomplish such
work (article 75.4 of the Telecommunications Law).
Anyhow, according to the article 77.1 of the Law, Service providers
of public telecommunications networks and services may
identify/find out the caller, without prior approval of the latter, in
the event of disturbances or threatening calls to a subscriber.
The service provider stores the information gathered by tracing and
forwards it to the subscriber, and/or to Kosovo authorities in
connection with criminal proceedings or the securities in Kosovo.
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10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The Law does not regulate the Internet in a different way to other
electronic communication services. In virtue of the Law the
internet is considered one of the components of the
telecommunication services.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The Law is silent on protection of the Providers (both
telecommunications and internet services provider) from the
liability for content carried over their networks.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
There are no provisions in Law obligating the Providers to assist
content owners whose rights is/or may be infringed by means of
file-sharing or other activities.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There are no provisions in Law obliging the Providers to differently
charge and/or block different types of traffic over their networks,
nor any ‘net neutrality’ requirements.
10.5 How are ‘voice over IP’ services regulated?
There are no provisions in Law regulating voice over IP services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
There are no provisions in Law preventing, restricting or otherwise
governing internet or email communications including marketing
and advertising communications.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The Telecommunications Law ensures the universal service that is,
a set of services to which all users shall, upon request, have access
at affordable price, notwithstanding their place of residence.
Boga & Associates Kosovo

The TRA elects the provider of the universal services, based on the 13 Future Plans
open bid procedure. The Provider of the universal service is
obliged to provide the users with access to emergency services,
including police, fire and medical ambulance dispatch etc. 13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
All providers of Telecommunications Services must make a
reasonable and non-discriminatory contribution to fund the To the best of our knowledge there are no imminent and significant

Kosovo
Universal Service (article 49.3 of the Law). changes to the legal and regulatory regime for telecommunications
services in Kosovo.
12 Foreign Ownership Rules

12.1 Are there any rules restricting direct or indirect foreign

ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?

The Telecommunications Law does not provide restriction related

to direct or indirect foreign ownership interest in electronic
communications companies.

Sokol Elmazaj Iva Çuçllari

Boga & Associates Boga & Associates
Nene Tereza Street, Entry 30, No.5 Nene Tereza Street, Entry 30, No.5
Pristina Pristina
Kosovo Kosovo

Tel: +381 38 223 152 Tel: +355 4 2251050

Fax: +381 38 223 153 Fax: +355 4 2251055
Email: selmazi@bogalaw.com Email: icucllari@bogalaw.com
URL: www.bogalaw.com URL: www.bogalaw.com

Mr. Elmazaj is a senior manager at Boga & Associates, which he
joined in 1996. He is actually the Country Manager for Kosovo
office. He has managed several investment projects in Kosovo
jurisdiction including international clients operating in
telecommunication, energy and real estate.
In the field of telecommunication he has build a vast experience in
managing telecommunications projects, including licensing and
regulatory issues, network build, diverse contractual matters etc.
Mr. Elmazaj has also acquired excellent experience in other areas
such as commercial/corporate, competition, energy, litigation, IP
issues, banking & finance, mergers and acquisitions, real estate etc.
He managed a number of due diligences for international clients
considering to invest in Albania or Kosovo in the field of industry,
telecommunications, banking, real estate etc.
Mr. Elmazaj graduated from Faculty of Law at the University of
Tirana, Albania, (1996). He is an Albanian native and speaks
excellent English and Italian.
Mrs. Çuçllari has gathered sound experience in telecommunication,
energy, concessions, corporate/commercial, environment, real
estate, water administration issues etc.
She has been involved in several due diligence assignment at Boga
& Associates on behalf of national and international clients investing
in Albania and Kosovo mainly regarding projects in the fields of
telecommunication, energy, real estate etc.
Her expertise in telecommunication includes advising new entrant
operators, mobile, fixed operators, rural operators and internet
services providers, for both jurisdiction of Albania and Kosovo.
Mrs. Çuçllari had a five year experience from 2000 to 2005 as in
house lawyer for Albtelecom sh.a, the former state owned fixed
telephony company in Albania. During this time she was involved
in the privatization process of the company, while actively
participating in the due-diligence work team.
She graduated from Faculty of Law at the University of Tirana
(2000). She is member of Albanian Bar Association and is fluent in
English and Italian.

Boga & Associates, established in 1994 has emerged as one of the premiere law firms in Albania, earning a reputation
for providing the highest quality legal services to its clients.
The practice maintains its commitment to quality through the skills and determination of a team of attorneys and other
professionals with a wide range of skills and experience.
Boga & Associates represents a broad spectrum of high-profile clients, including financial institutions, local and
international, banking entities, commercial companies, international and governmental agencies, airlines, industrial
complexes, mining and petroleum concerns, non-profit organizations, embassies, public utilities.
Over the years the firm has advised in the areas of privatisation of national resources and enterprises, concessions, real
estate transactions, credit facilities, custom issues, tax and accounting issues etc.
During 2007, 2008 and 2009 Boga & Associates was rated as best legal firm in Albania from Chambers and Partners
and International Financial Law Review (IFLR) in the fields of Corporate, Finance, Dispute Resolution and Real Estate,
Intellectual Property and Projects.

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 Chapter 25
Malta
Emirates International Telecommunications LLC,
together with Mamo TCV Advocates
1 Framework
1.1 When did Malta first liberalise telecommunications
networks and/or services?
The first gradual steps towards full liberalisation of the
telecommunications sector in Malta began in 1991, with the
liberalisation of all terminal equipment except for the first
telephone set. In 1993 VSATS that were not connected to the public
telecommunications network were liberalised by an Order of the
Prime Minister, but the fixed incumbent (Maltacom) regained its
exclusive rights over VSATs in the licence granted to it in 1998.
The year 1994 saw further liberalisation, with Telepage Limited
being granted an exclusive licence to operate a National Radio
Paging Service and further liberalisation taking place in regard to
data modems, telefax machines, second telephone sets and PABXs,
telex equipment, coin boxes, and voice facilities over private
satellite links not connected to the PSTN. Data network operators
were allowed to be licensed to provide internet access as from 1995.
In 1997 the Telecommunications (Regulation) Act 1997 empowered
the Prime Minister to appoint a telecommunications regulator - the
Office of the Telecommunications Regulator (OTR). This regulator
functioned until the end of 2000, being succeeded by the Malta
Communications Authority which was nominated as the competent
authority to regulate telecommunications as from 1 January 2001.
In 1998 Telemalta (as the fixed incumbent was originally named)
was partly privatised and renamed Maltacom plc. In late 2000 a
second mobile communications licence was issued to Mobisle
Communications Limited, which set the scene for competition in
mobile telephony (the original operator in this regard being
Vodafone Malta). Cable services were liberalised as of 1 June 2001
while fixed line telephony and the international gateway service
followed suit in 2003.
1.2 Has Malta fully implemented the EU 2003 regulatory
framework? If Malta has not fully implemented the new
regulatory framework, have proceedings been brought
against Malta by the European Commission and if so, for
which contraventions?
Malta has fully implemented the EU 2003 regulatory framework
through the adoption of the Electronic Communications Regulation
Act and various subsidiary regulations. A series of decisions issued
by the Malta Communications Authority from time to time further
supplement this legislation.
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Prof. Andrew Muscat
Brigitte Zammit
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Electronic Communications (Regulation) Act (“ECRA”)
regulates electronic communications networks and services and
provides generally for the powers of the Malta Communications
Authority (“MCA”) as well as the rights and obligations of authorised
undertakings. It further lays down the general principles concerning
inter alia access and interconnection, accounting separation and
financial reporting, general authorisations, end-user rights and
obligations, conditional access and radio frequency spectrum. The
Malta Communications Authority Act in turn establishes the MCA,
which is the national regulatory authority for the electronic
communications sector in Malta, and regulates its functions and
operations. Subsidiary legislation supplements these main Acts in
order to implement the EU framework. The primary set of regulations
are the Electronic Communications Networks and Services (General)
Regulations, which contain detailed substantive provisions on all
aspects of the EU regulatory framework. Another set of regulations
are the Electronic Communications Services (General) Regulations,
which inter alia regulate issues such as the finding of a dominant
position and obligations of operators enjoying such a position,
including the duty to comply with quality of service targets, the duty
to negotiate interconnection agreements, carrier selection and pre-
selection, and tariffs for fixed services. The provisions of Directive
2002/58/EC on privacy in electronic communications are further
implemented into Maltese law by two sets of subsidiary regulations
respectively enacted under the Data Protection Act and the ECRA. In
addition, general competition, consumer and data protection laws
apply to electronic communications networks and services as do
specific policies and regulations concerning the use of land,
tenements, roads etc for the laying of various network components and
the provisioning of services.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
Electronic communications networks and services are regulated by
the MCA. MCA also has concurrent jurisdiction on competition
matters with the Office for Fair Competition (“OFC”). The OFC is
set up under the Competition Act. A memorandum of
understanding is in place between the MCA and the OFC which
regulates the modalities of addressing this joint competence. Under
the MCA Act, the Communications Appeals Board is empowered to
hear and determine appeals from the MCA. A further right of
Mamo TCV Advocates
appeal lies from the decisions of such Board to the Court of Appeal.
The Broadcasting Authority may further play a regulatory role
where the underlying networks operated by an authorised
undertaking are such as enable broadcasting. An operator that is
authorised by the MCA to provide electronic communications
services including inter alia services that concern the provision of
content over its networks will be regulated by both the MCA and
the Broadcasting Authority in respect of different matters. For
example advertising matters fall within the competence of the
Broadcasting Authority. Other specific regulatory authorities
include the Office of the Commissioner for Data Protection (which
regulates privacy matters within the telecoms sector) and specific
sub-bodies within the Ministry for Infrastructure, Transport and
Communications (which regulate the use of land, tenements, roads
etc. for the laying of various network components and the provision
of services).
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
The MCA has jurisdiction over the full range of the electronic
communications sector. Such jurisdiction may either be enjoyed
exclusively or jointly with other authorities such as the competition
authority, the broadcasting authority and/or the data protection
commissioner, as indicated in the relevant parts of this Chapter.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
In order to be properly authorised to operate and/or provide
electronic communications networks and/or services, an operator
must simply notify the MCA of the network or service he wishes to
operate and/or provide and pay the fee relating thereto. Upon doing
so such notifying operator acquires a general authorisation to
operate such network and/or provide such service. If, however, the
service required to be offered by the operator requires the use of
frequencies, then a licence must be obtained by the said operator.
Insofar as the general authorisation is concerned, the law lays down
a set of general conditions that may be attached thereto, which
essentially reflect those contained in the EU Directive on general
authorisations.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
Any operator that is deemed to enjoy significant market power
(“SMP”) in a particular relevant market will need to comply with
specific obligations laid down by the aforementioned electronic
communications laws and regulations as well as the general rules of
competition law.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
The status of market analyses in 2009 as of the date on which this
chapter is going to print is as follows: the markets on (i) retail
public telephone call services provided at a fixed location and (ii)
wholesale voice call termination on individual mobile networks,
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have already been notified to the Commission. The MCA published
its final decision in regard to (i) (see
http://www.mca.org.mt/newsroom/openarticle.asp?id=713&source
=0) and is soon due to publish its decision on (ii) (see
http://circa.europa.eu/Public/irc/infso/ecctf/library?l=/malta/registe
red_notifications/mt20090926&vm=detailed&sb=Title). The
markets on (iii) retail access to the public telephone network at a
Malta
fixed location and (iv) wholesale call origination on fixed networks,
are due to be notified to the European Commission shortly. See
http://www.mca.org.mt/newsroom/openarticle.asp?id=741 and
http://www.mca.org.mt/newsroom/openarticle.asp?id=737&source
=0 respectively. A national consultation was launched in Malta in
regard to all these 4 markets.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Please see our reply to question 1.6 above.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
As noted above, in order that frequency spectrum may be used to
provide services the operator must be in possession of a licence for
the use of the specified frequencies. Such licence is usually non-
transferable and subject to a time limit and identifies the specific
purposes for which the identified frequencies may be used by the
licensee.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
As a rule licences and other authorisations are granted on a non-
transferable basis. Not only are they non-transferable, but licensees
and authorised undertakings must further notify the MCA of any
change in control within their corporate structure.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
There is no duration set by law for which licences or other
authorisations may be granted. Insofar as frequency licences are
concerned, these are usually granted for a period of 8 years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The Utilities and Services (Regulation of Certain Works) Act regulates
access to public and private land in order to install telecommunications
infrastructure. Under this Act, any person may apply to the Malta
Transport Authority (“MTA”) to order that cables and wires be placed
or other works be carried out either below, above or by the side of any
tenement (defined to include any road, path, building or water) and that
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trenches, pits, poles, that are essential to the proper working of the
electrical power and telecommunications systems be cut, placed,
erected in or affixed to any tenement. Alternatively, any person may
request the MTA to order the collocation or the use of the same
facilities in relation to any cables, wires or other accessories used or to
be used by them for the provision of any electronic communications
service or any other utilities or services.
Malta
It is worth noting a new policy framework that is about to be
implemented by the Malta Transport Authority that will regulate
road interventions made by operators when installing or re-laying
network elements whether underground or overhead. This new
policy lays down a series of guidelines, some of which entail a
significant departure from current practice. For example, utilities
would as a rule be obliged to be laid underground and will only be
laid overhead in exceptional circumstances; where trenches need to
be dug in the road by the utilities service provider, the latter must
subsequently resurface the whole width of the road; etc.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Apart from the general planning and zoning regime regulated by the
general planning and zoning legislation, the Utilities and Services
(Regulation of Certain Works) Act and the Right of Way for
Utilities and Services (Fees) Regulations (LN 94 of 2005) may be
applicable in particular cases.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
See reply to question 3.1.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
The MCA may impose access-related conditions, including the
obligation to interconnect, on operators designated as having SMP
and otherwise where necessary to secure efficiency, sustainable
competition and benefits to end-users. SMP conditions may also
require the dominant provider to interconnect its network and make
available relevant facilities to third parties and to publish the terms
and conditions on which it is willing to do so.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Interconnection or access disputes may be referred to the MCA for
resolution in accordance with the procedure laid down by law. The
MCA will give the disputing parties an opportunity to resolve the
dispute amicably but if this is not possible it will issue a binding
determination itself. The MCA is bound to reach such decision within
the time limits laid down by the MCA Act. As discussed earlier, this
decision may be appealed to the Communications Appeals Board and
the latter’s decision may further be appealed to the Court of Appeal.
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4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Operators having a dominant market position have an obligation to
publish a reference interconnection offer which should inter alia
include the terms and conditions of providing interconnection and
the rates of the various interconnection services offered.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Pursuant to the SMP market review process, interconnection and/or
network access is subject to charges that must be cost-based,
transparent and non-discriminatory.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Any electronic communications public network, or services
operator that is also engaged in another activity other than this on
the basis of special or exclusive rights, must: (i) keep separate
audited accounts; and (ii) have structural separation for the
activities associated with the provision of electronic
communications networks or services. Details of the scope and
extent of the accounting separation obligation imposed on SMP
operators can be found in the MCA decision of 20 July 2009,
available at www.mca.org.mt
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
In August 2008 the Ministry for Infrastructure, Transport and
Communications launched a Green Paper on Next Generation
Access Infrastructure (https://secure2.gov.mt/mitc/MediaCenter/
PDFs/1_nextgeneration%20greenpaper.pdfhttps://secure2.gov.mt/
mitc/MediaCenter/PDFs/1_nextgeneration%20greenpaper.pdf).
Regulatory conditions were a central part of the consultation
document and a decision has not yet been taken. No consultation
has taken place, nor has a decision been made, on interconnection
arrangements in an IP environment.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
In Malta the incumbent owner of access infrastructure, GO plc, is
required to unbundle its local loop by providing metallic path
facilities on the basis of fully unbundled local loops or shared
access, together with associated cabling, site access and ancillary
services (wholesale local access market). GO has published a
reference unbundling offer (RUO) and charges are cost-oriented.
Cable TV operator Melita Cable is not bound to provide access.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
See reply to question 4.6.
Mamo TCV Advocates
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Retail markets under electronic communications law have all been
deemed competitive by the MCA following recent market reviews,
except for the market on retail access to the public telephone
network at a fixed location. The MCA is however intending to
notify the Commission of its intention to liberalise the market. It is
to be borne in mind that even when markets become effectively
competitive they remain subject to ex post regulation under general
consumer and competition law.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The ECRA and subsidiary regulations include a number of
consumer protection obligations and requirements include a
number of consumer protection obligations and requirements which
apply over and above general consumer protection law. These
obligations apply to specific categories of operator, including
providing operator services and directory enquiries, publication of
terms and conditions and pricing information, requirements for
accurate billing, restrictions on sales and marketing dispute
resolution and details of any limitations on the services being
provided, special measures for users with disabilities and quality of
service measures.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers are allocated by the MCA in accordance with
the Numbering Plan, on an objective, transparent and non-
discriminatory manner. The MCA may attach conditions to rights
for use of numbers to ensure efficient and effective management of
all numbering resources. No undertaking shall assign to locations,
terminals, persons or functions on public electronic
communications networks, numbers that have not specifically been
allocated to that person by the Authority for the purpose of
providing publicly available electronic communications services.
6.2 Are there any special rules which govern the use of
telephone numbers?
Please see question 6.1.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Please see question 6.1.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
An undertaking providing a publicly available telephone service,
including a mobile service, is obliged to ensure that a subscriber to
such service may, upon request, retain his number independently of
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the undertaking providing the service - in the case of geographic
numbers at a specific location, and in the case of non-geographic
numbers at any location. No such obligation, however, applies to
the porting of numbers between networks providing fixed services
and mobile networks. In March 2008 the MCA issued an updated
decision on number portability laying down key principles in
relation thereto. Official operator specifications endorsed by the
Malta
MCA are also in force both in regard to fixed and mobile porting.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Malta’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
A general authorisation for operating an electronic communications
network must be obtained from the MCA before submarine cables
can be brought into Maltese territorial waters and landed therein.
Planning and zoning applications will further need to be obtained.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes, it is specifically regulated by the MCA.
8.2 How is the use of radio frequency spectrum authorised in
Malta? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Unless licence-exempt (see question 8.5), a licence is required from
the MCA. When selection procedures are required, auctions are
considered by the MCA to be the most suitable assignment
mechanism where no social and cultural objectives are at risk.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Distinctions are made in the grant of spectrum rights between
mobile, fixed and satellite usage. Licence conditions for use of the
allocated frequencies are set out in the specific licence document.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The MCA requires an undertaking to possess a number of licences
or authorisations in respect of the establishment and operation of a
satellite earth station and the provision of satellite services in Malta.
First, in terms of the Radiocommunications Act, possession and use
of radiocommunications equipment, including equipment used to
establish a satellite earth station in Malta, is subject to a licence.
Second, depending on the earth station’s operating frequencies and
other technical characteristics, it may be necessary for Malta to
undertake a frequency coordination process with any affected
neighbouring country. A Form of Notice for Earth Stations should
therefore be duly completed (preferably by the satellite operator)
and submitted to the MCA. Co-ordination is required to minimise
the risk of cross-border interference and is expected to take at least
4 months. Third, the operation of electronic communications
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networks and the provision of services are subject to a general
authorisation, which is granted by the MCA upon notification.
Notifying operators are included in a register of authorised
undertakings. In order to be authorised, an undertaking must have
registered presence in Malta in accordance with the requirements
stipulated in the notification form. Fourth, the responsibility to
issue licences for the initial transmission intended for reception by
Malta
the public of sound or television broadcasting by satellite falls
within the remit of the Government of Malta or the responsible
Minister. Such responsibility may be delegated to the Broadcasting
Authority through an Order published in the Government Gazette.
In such a case the Broadcasting Authority will be authorised to issue
the necessary authorisation and to regulate content.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
The use of spectrum may be made licence exempt but only where
there is little risk of harmful interference and provided that there are
no other impediments.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Licence fees payable for the first GSM paired 200kHz channel in
the 900 MHz and, or 1800 MHz bands will amount to €3,490 plus
2.5% of the undertaking’s total gross revenue. Each additional
GSM paired 200 kHz channel in the 900 MHz and, or 1800 MHz
bands shall in turn attract a fee of €3,490. Under the
Radiocommunications Act, the current licence fees for satellite
earth stations are contained in the Fees (Radiocommunications)
Regulations.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
To date the MCA has not published any regulations on spectrum
trading or sub-licensing.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
On the interception of messages, traffic data and other call records,
the main rule is that no such interception may take place without the
user’s consent unless such interception is required for public
security and law enforcement purposes. The rules practically
replicate the general provisions of the Privacy Directive
2002/58/EC on this issue verbatim.
On data retention, the Processing of Personal Data (Electronic
Communications Sector) Regulations (“DP Regulations”) provide
that data must be retained by operators for the following periods: (i)
insofar as concerns communications data relating to Internet access
and e-mail, for a period of 6 months from the date of
communications; and (ii) insofar as concerns communications data
concerning fixed network telephony, mobile telephony and Internet
telephony, for a period of 1 year from the date of communication.
The Electronic Communications (Personal Data and Protection of
Privacy) Regulations in turn oblige service providers to ensure that
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they have in place the necessary technical and administrative
capacity and all other requirements to enable them to comply with
the provisions of regulations 19 and 21 of the DP Regulations, for
the purposes of granting access to data as established in regulation
20 of the said regulations and to retain such data for such periods as
established by regulation 22(a) and (b) of the said regulations.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
See reply to question 9.1.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
See reply to question 9.1.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Services provided over the Internet are regulated by the electronic
communications laws and regulations discussed above. In addition,
the Electronic Commerce Act is also relevant. Internet Service
Providers are subject to telecommunications regulation.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The E-Commerce Act, which transposes Directive 2000/31/EC on
electronic commerce into Maltese law, provides that entities providing
mere conduit (the transmission, in a communications network) of
content or providing access to a communications network is not liable
for the content transmitted other than under an injunction - provided
that such provider does not initiate the transmission, select the receiver
of the transmission or modify the content of the transmission. The acts
of transmission and of the provision of access referred to above
include the automatic intermediate and transient storage of the content
transmitted insofar as this takes place for the sole purpose of carrying
out the transmission in the communications network and provided that
the content is not stored for any period longer than necessary for the
transmission.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Such obligations only arise in those circumstances in which the
operator or ISP becomes aware or is made aware by the aggrieved
content owner of the illegal activity taking place. In such cases the
operator/ISP is obliged to act expeditiously to remove or disable
access to the infringing material. The operator/ISP must promptly
inform the competent public authorities and shall grant to any such
Mamo TCV Advocates
authority upon request information enabling the identification of
recipients of their service with whom they have agreements.
Nothing in the law however is to be interpreted as imposing any
obligation on operators/ISPs to monitor the content which they
transmit or store or to actively seek facts or circumstances
indicating illegal activity.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
We are, to date, not aware of any specific regulation on these issues
in Malta.
10.5 How are ‘voice over IP’ services regulated?
In view of technological neutrality, VoIP services are as a general
rule regulated in much the same way as conventional voice
telephony services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Marketing and advertising rules apply across the board but specific
rules apply when marketing by electronic means. The specific rules
are contained in Processing of Personal Data (Telecommunications
Sector) Regulations (LN 16 of 2003) as subsequently amended.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The concept of universal service obligation exists and is regulated
by Maltese law. The current scope of universal service consists of:
(1) a connection to the public telephone network at a fixed location;
and (2) access to publicly available telephone services.
In addition, universal service provision covers services that are
closely associated with basic telephony, as they are necessary for
users to be able to make full use of the publicly available telephone
services. These are: the provision of directories and directory
enquiry services; public pay telephones; and special measures for
disabled users.
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Where the Malta Communications Authority, on the basis of a net
cost calculation, finds that an undertaking is subject to an unfair
burden, the Authority is bound to:
(a) introduce a mechanism to compensate that undertaking for
the determined net costs under transparent conditions from
public funds; and/or
(b) share the net cost of universal service obligations between
Malta
providers of electronic communications networks and
services.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No specific prohibitions apply.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Salient changes include the following: first, as a result of a market
review carried out by the MCA in November 2008, the wholesale
broadband access market was deemed to be effectively competitive
and consequently all obligations concerning this market, which
were previously imposed on GO plc and the cable operator (not
enforced), ceased as from 1 July 2009. Second, the Malta Transport
Authority has earlier this year issued a policy framework to regulate
intervention works on the road network, which policy will have
significant more onerous obligations on network operators. See
further reply to question 3.1 above.
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Andrew Muscat
Mamo TCV Advocates
Palazzo Pietro Stiges, 90 Strait Street
Valletta VLT 1436
Malta
Tel: +356 2123 1345
Malta
Fax: +356 2123 1298
Email: andrew.muscat@mamotcv.com
URL: www.mamotcv.com
Andrew is a partner at Mamo TCV Advocates and his areas of
specialisation include corporate, banking and financial services,
information and communications technology law, general
commercial practice and competition law. His practice has included
advising on joint ventures and corporate vehicles, European
financing and in the general field of commercial and company law,
with emphasis on company law, financial services law, competition
law and general economic and commercial law. This has included
the giving of expert advice on issues of contract drafting, litigation,
corporate restructuring and legal input into corporate strategy,
including strategies relating to corporate establishment and location
of business activities in Europe.
Mamo TCV Advocates evolved from the merger in 2000 of two
leading Maltese law firms - Tonna Camilleri Vassallo & Co., and
John Mamo & Associates. Today, the firm is one of the largest
legal practices in Malta. Operating from offices in the capital
Valletta, the practice offers an impressive depth and breadth of
expertise which enables the firm to handle a variety of different
legal areas, and to provide, in essence a “one-stop-shop” service
to clients.
Mamo TCV Advocates operates overseas through an international
network of lawyers to cover a broad range of legal areas, in
particular in corporate and commercial practices, banking and
finance, information and communications, intellectual property
and shipping. We are also the preferred correspondents in Malta
for various leading law firms based in Europe, particularly those
operating from the UK.
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Brigitte Zammit
EIT LLC
Business Central Towers, Tower B, Level 16
Dubai Media City, Dubai, PO box 191681
U.A.E.
Tel: +971 5069 5494 9
Fax: +971 4363 1900
Email: brigitte.zammit@eitl.ae
URL: www.eitl.ae
Brigitte is currently Senior Legal Counsel with Emirates International
Telecommunications LLC (EIT), a telecommunications investment
company which is headquartered in Dubai and which actively
manages telcos in Malta (GO plc), Greece (Forthnet), Tunisia
(Tunisie Telecom) and London (Interoute). Since graduating in
2001 she has specialised in electronic communications law,
particularly in telecommunications and media law, data protection
law and online gambling law. She is currently co-authoring a book
on online gambling law (due for publication in the UK in the coming
months). Until September 2008 she worked in this CMT sector with
Mamo TCV Advocates and subsequently with London City firms
Preiskel & Co LLP and Charles Russell LLP. Last September she
moved in-house with EIT and her work currently involves advising
on telecommunications regulatory matters, M&A law and corporate
law (particularly company law and capital markets law) and drafting
of commercial agreements in this sector.
Emirates International Telecommunications (EIT) is a Dubai-
based company that specialises in investing in the
telecommunications sector. Its long-term investment strategy,
empowered by its unique active management model, enables it
to increase shareholder value. Profitable and sustainable
telecommunications investments are EIT’s raison d’etre.
EIT’s shareholders, TECOM Investments LLC and Dubai
Investment Group LLC (both subsidiaries of Dubai Holding LLC,
a privately-held investment conglomerate), give it sound
financial strength and a global standing. EIT manages several
investments in Europe and North Africa, consisting of integrated
fixed and mobile telecom operators, alternative network
operators, Pay-TV platforms and mobile operators.
Chapter 26
Mexico
Bello, Gallardo, Bonequi y Garcia, S.C.
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The 2007-2012 National Development Plan published in the Federal
Official Gazette on May 31st, 2007 represents Mexico’s main
planning instrument, containing the strategies for the achievement of
objectives related to the electronic communications industry.
The Plan sets the objectives, policies and strategies that shall orient
the government during the six-year mandate.
In the telecommunications field the Plan and the corresponding
sector programme establishes the following strategies:
To increase the competition among the concessionaries.
To promote the cooperation between the government and the
society in order to create strategies for the use of the
information and communication technologies.
To promote de-connectivity technology infrastructure
development.
To update the legal framework in order to increase the
telecommunication services.
To propose financial and sustainable schemes.
To develop the necessary conditions and mechanisms in
order to promote investment in telecommunications.
The relevant telecommunications and radio frequency legislation is
mentioned in question 1.3 below.
1.2 Is Mexico a member of the World Trade Organisation? Has
Mexico made commitments under the GATS/GATT
regarding telecommunications and has Mexico adopted the
WTO Basic Telecommunications Agreement?
Yes, Mexico has been a member of the World Trade Organisation
(WTO) since January 1st, 1995 and has adopted said Agreement
(GATS/SC/56/Suppl.2, dated April 11th, 1997).
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Mexico?
In Mexico electronic communications networks and services are
open to competition and are regulated in the following provisions:
Federal Telecommunications Law (FTL).
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Carlos A. Bello Hernández
Claudia Junco Gurza
General Means of Communications Law.
Telecommunications Regulations.
Restricted Audio and Television Service Regulation.
Federal Radio and Television Law.
Satellite Communication Regulations.
Local Services Regulations.
Long Distance Service Regulations.
Long distance and international long distance
telecommunication services resale Regulations.
Public Telephony Service Regulations.
International Telecommunications Regulations.
Numbering Plan.
Signalling Plan.
Quality Plan.
Regulations for the implementation of number portability.
Interconnection and Interoperability Plan.
International treaties executed by the President and ratified
by the Senate.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The telecommunications regulatory authorities in Mexico are the
Secretariat Communications and Transportations (SCT) and the
Federal Telecommunications Commission (COFETEL).
In Mexico a modernisation of the telecommunications legal
framework occurred in 1995-1996, when the FTL was enacted,
followed by a Decree from August 1996 that created COFETEL as
a desconcentrated agency of the SCT with technical an operative
autonomy. COFETEL’s Internal Regulations establish its internal
organisation and provides COFETEL with a regulatory distinct
framework from that of the SCT. COFETEL’s main functions are
included in the FTL.
With the new telecommunications legal framework COFETEL
acquires new powers and can resolve some issues without the
intervention of the SCT. However, some functions are carried out
by both entities and as of today, they are working together in order
to eliminate such duplicity.
Currently SCT’s main functions are:
to define the policy of the telecommunications sector;
to grant concessions and permits;
to impose sanctions; and
to authorise modifications to the concessions and permits.
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COFETEL’s main functions are:
to enforce the compliance of the concession and permit
obligations;
to issue an opinion for SCT to consider in relation with the
granting of concessions and permits; and
to propose sanctions to the SCT.
Mexico
Additionally, other authorities that participate in the
telecommunications fields are the National Foreign Investment
Commission (CNIE) and the Federal Competition Commission
(COFECO).
According to the Mexican Foreign Investment Law, the foreign
investment in telecommunications activities may participate to a
limit of 49% of the capital stock of Mexican companies. In the case
of mobile telephony services a favourable resolution of the CNIE is
required for foreign investments to participate, directly or
indirectly, in a percentage higher than 49% of the capital stock of
Mexican companies.
The CNIE may authorise Neutral Investment in Mexican
Companies. Neutral Investment shall not be taken into account for
determining the percentage of foreign investment in the capital
stock of Mexican companies.
The COFECO is a desconcentrated agency of the Secretariat of
Economy with technical and operational autonomy, and which
principle responsibility is to protect the process of competition and
the free access to markets, through the prevention and elimination
of monopolistic practices and other restrictions to market efficiency.
COFECO’s main activities include:
Approval of mergers and acquisitions that must be notified to
the COFECO.
Investigation of monopolistic practices prohibited by the
Federal Economic Competition Law.
Authorisation of companies that wish to participate in
privatisations and public tenders for the granting of
concessions and permits in regulated sectors.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
In Mexico, the decisions of the national regulatory authority may be
appealed through the following processes:
An administrative-law appeal before the superior within the
same authority.
A judiciary appeal before the Federal Courts.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Under the Mexican regulation there are three types of licences to
operate in Mexico:
Concession.
Permit.
Registry.
The type of licence that will be required depends of the
telecommunications service.
Concession
Article 11 of the FTL makes reference to the concessions, which
will be required:
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1. To use or exploit frequency bands in the National Territory,
except the free use and the official use spectrum:
The grant of this concession will be done through a public
bid. The bidders must comply with the requirements
established in the public bid rules.
The winning bidder shall pay for the concession and shall
comply with all of the included obligations.
This type of concession cannot be used to provide
telecommunication services, in order to provide services a
public telecommunication network concession is required.
2. To install, operate and exploit a public telecommunications
networks:
In order to obtain a public telecommunications network
concession a company or individual may file an application
before the SCT.
The interested party must provide the information and
documentation established in the “Agreement in order to
obtain an Interstate Public Telecommunications Network
Concession” or in the “Agreement in order to obtain a Local
Public Telecommunications Network Concession”
depending of the coverage of the services it intends to
provide.
The application must contain the following information:
General information of the interested party.
Services description.
Business Plan.
The documentation that shows the legal, technical,
financial and administrative capabilities of the
interested party.
The SCT shall authorise, within a period of 120 calendar
days the corresponding concession.
This type of concession authorises the concessionaire to
provide the requested telecommunications services.
3. To occupy geostationary orbital positions and satellite orbits
assigned to Mexico, and exploit their corresponding
frequency bands:
Orbital positions are managed by the International
Telecommunications Union (ITU).
Concessions to occupy geostationary orbital positions and
satellite orbits assigned to the country, and exploit their
corresponding frequency bands, shall be granted through a
public bid.
4. To exploit the emission and reception rights for the signals of
frequency bands associated with foreign satellite systems
that cover and may provide services in the National Territory
(landing rights concession):
In order to obtain a landing rights concession a filing before
the SCT is required.
According to the FTL and the Satellite
Communications Regulations the application must
contain, among others, information related to the
satellite, the frequencies, earth stations and a business
plan.
The SCT must authorise, within a period of 120 calendar
days the corresponding concession.
This type of concession authorises the concessionaire to
provide the requested telecommunications services.
All of the concessions mentioned before shall be granted to
Mexican Individuals and/or corporations. Foreign investment
is allowed up to 49% of the capital stock of such corporations,
except for mobile telephone services in which a favorable
resolution of the CNIE is required for foreign investment to
participate, directly or indirectly, in a percentage higher than
49% of the capital stock of Mexican companies.
Bello, Gallardo, Bonequi y Garcia, S.C.
Permit
According to the FTL a permit is required:
to operate as a reseller of telecommunication services,
without being a public telecommunication network; and
to install, operate or exploit a transmit earth station.
1. Telecommunication services reseller
A reseller of telecommunications services is defined as an
entity that provides telecommunication services to third
parties using the capacity of a public telecommunications
network concessionaire, without owning itself or possessing
transmission infrastructure.
As of today, resell of all telecommunication services is
allowed, however only long distance and public telephony
have a specific regulation and the requirements to obtain a
reseller permit are established in the specific regulations for
each service.
2. Transmit earth station permit
A permit is required to install, operate and exploit earth
transmission stations, the Satellite Communications
Regulations establish the requirements that the application
must contain. Receive only earth stations do not require any
kind of permit or registry.
The interested parties must file an application before the SCT
in order to obtain both types of permits. The SCT shall
analyse the documentation and within 90 calendar days a
permit must be granted if all of the requirements were met.
Registry
A registry is required in order to provide value added services.
The interesting party must file an application before COFETEL.
The Federal Government Fees Law establishes the fees that shall be
paid by the interesting party in order to obtain a concession, a
permit or a registry.
The amount of the government fees depends of the type of filing
(for studying the application, for granting the concession or permit,
for modifying a concession or permit, etc.). There are additional
payments for spectrum licences (please refer to question number
8.6 below).
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
As mentioned before, in order to obtain a concession to occupy
geostationary orbital positions and satellite orbits assigned to the
country, and use their respective associated frequency bands and/or
a landing rights concession, a favourable opinion from COFECO is
required. The same case applies for the participation of public bids
to access spectrum.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
In order to transfer a concession or permit an authorisation is
required. Such request is filed before the SCT.
The SCT must authorise a transfer within 90 calendar days, provided
that the assignee commits to comply with all of the pending
obligations and assumes the conditions that the SCT may establish.
In case the transfer’s purpose is to assign the right to operate and
exploit a public telecommunications network, or a frequency to
another concessionaire or permit holder that already holds a
concession or permit for the provision of similar services in the same
geographic area, the SCT requires COFECO’s favourable opinion.
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Mexico
The corresponding transferee may request the transfer three years
after the concession or permit was granted.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Mexico
The frequency band concession may be granted for up to 20 years
and may be renewed for the same term.
The public telecommunications network concession may be granted
for up to a maximum of 30 years, and may be renewed for the same
term.
In order for the renewals to be authorised, the concessionaire must
have complied with the conditions established in the concession and
must request the renewal before the beginning of the last fifth of the
term of the concession and accept the new conditions that may be
established by the SCT. The SCT must resolve within the 180
calendar days.
The orbital position and the landing rights concessions may be
granted for up to 20 years and may be renewed for the same term.
Value Added Registries and permits for transmit earth stations have
an undefined duration, while permits for the resale of
telecommunication services have a ten-year duration.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
In order to gain access to public land a Federal, local or municipal
permit must be acquired. There is no specific provision in the
telecommunications regulation; it may also vary from municipality
to municipality.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
According to the FTL, the general means of communication and the
services provided fall under Federal Jurisdiction. There is no
Federal regulation that unifies the regime applicable to the
installation of network infrastructure.
The installation, operation and maintenance of the aerial and
underground cable and the equipment for the public
telecommunications networks services are considered public
interest, and must be in compliance with the applicable state and
municipal provisions of urban development and environment
protection.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
The general answer is no, however the recent Interconnection and
Interoperability Plan (February, 2009) considers infrastructure
sharing as an interconnection services and it is the first time it is
regulated in Mexico. It is just related to interconnection, so it can
be considered that there is no regulation on infrastructure sharing
and there are not any proposals to mandate “passive access” to such
infrastructure.
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4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Mexico
The FTL establishes that the public telecommunication network
concessionaires shall adopt open network architecture designs in order
to allow the interconnection and compatibility with other networks.
For such purpose the SCT, through COFETEL, will establish and
administer the numbering, switching, signalling, transmission,
charging and synchronisation technical plans, to which the public
telecommunication network concessionaries must be subject.
The interconnection must protect the users’ and the
concessionaires’ interests according with the following purposes:
To allow the development of new concessionaires and new
telecommunications services.
To provide concessionaires with a non-discriminatory
treatment.
To promote a healthy competition among concessionaires.
The public telecommunication network concessionaires must
interconnect their networks through the execution of an agreement
within a period of 60 calendar days counted from the date of the
interconnection request.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
According to the applicable Mexican regulation the concessionaires
must execute the interconnection agreement within a period of 60
calendar days counted from the date it is requested by one of them.
If the term expires and the parties do not have an agreement,
COFETEL will decide upon the conditions that the parties had not
agreed on within the following 60 calendar days. COFETEL’s
decision is mandatory for the parties.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
According to Mexican regulation, the SCT will maintain a
Telecommunications Registry, in which will be registered, among
others, the interconnection agreements with other networks of the
concessionaries and the rates to the public telecommunications
services. The information contained in the Registry may be
consulted by the public at any time.
As for the publication of the interconnection contracts, the
Interconnection and Interoperability Plan obliges the
concessionaires with the most number of accesses to publish, on a
yearly basis, their interconnection conditions.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
According to Mexican regulation, the public telecommunication
network concessionaires may establish their own interconnection
rates based on reciprocity amongst them. Rates must allow the
concessionaire to recover at least the long run average incremental
cost and concessionaires cannot grant discounts on the rate due to
different traffic volume. However, if no agreement is reached on
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interconnection, COFETEL may impose an interconnection rate
that must be observed and will be mandatory. Rates must be
registered before COFETEL.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
According to the Mexican regulation the telecommunication
network concessionaires must keep separate accounting records for
services and to grant for itself, subsidiaries and affiliates, separate
and non-discriminatory rates for the different interconnection
services. Also the telecommunication network concessionaires
shall provide accounting information regarding services, regions,
function and network components, in accordance with the methods
and time frames established by the SCT for such purpose, in order
that the SCT understand the operation and exploitation of the
telecommunications services.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The administrative authority should issue new guidelines to
establish the way that the existing and access regulatory conditions
will apply to the next generation networks and IP-based networks.
If no regulation is issued, the existing interconnection and access
regulatory conditions will apply.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
According to the applicable regulation there is no obligation to
unbundled facilities.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
No, there is no regulation or proposal for regulation about this in
Mexico.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
No, they are not; however, if COFECO determines that an operator
is dominant in a specific market, COFETEL may issue specific
regulation related to tariffs. As of today, there has not been a legally
successful dominant declaration from COFECO, so COFETEL has
not been able to issue specific regulation for dominant carriers.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
In Mexico, consumer rights are protected by the Federal Consumers
Protection Law. The Consumer Protection Federal Agency shall be
entrusted with the application of such law.
Bello, Gallardo, Bonequi y Garcia, S.C.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The telephone numbers and the networks identifying codes are
allocated by COFETEL through the Numbering Plan.
6.2 Are there any special rules which govern the use of
telephone numbers?
The Numbering Plan and the Consumer Public Registry (this last
one is for commercial purposes, not telecommunication purposes).
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
According to the Numbering Plan and the applicable regulation,
only the public telecommunication network concessionaires
authorised to provide local telephony may obtain telephone
numbers.
The interested concessionaires must file an application before
COFETEL four months before the requested telephone numbers
will be used. COFETEL must resolve within a period of 60
calendar days.
The corresponding concessionaire will allocate the telephone
number to the customer by contract.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Number portability is regulated by the Regulations for the
Implementation of Number Portability and it is defined as the
process that allows telephone users to keep their number when
changing telephone service providers.
The FTL establishes that the concessionaire shall allow the
portability when the SCT declares that it is technically and
economically feasible. In Mexico number portability started on
July 5th, 2008 and is as follows:
Fixed to Fixed within the same local service area.
Mobile to Mobile within the same local area and under the
same contract modality.
Non-geographic service to the same non-geographic service.
The telephone user shall file a portability application before the
recipient operator and comply with the contract requirements for
the service.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Mexico’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
The telecommunications regulation requires a public
telecommunication network concession for the installation of
submarine cables. The Regulation for the Use and Management of
Territorial Sea, Navigable Routes, Beaches, Terrestrial-Maritime
Federal Zones and Terrains makes reference to such concession.
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8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of the radio frequency spectrum is regulated in the FTL and
Mexico
by the SCT, along with COFETEL who issues and updates the
National Frequency Allocation Chart.
8.2 How is the use of radio frequency spectrum authorised in
Mexico? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
According to the Mexican Regulation the use of the radio frequency
spectrum shall be classified in accordance to the following:
I. Free Spectrum: May be used by the public in general without
need for concession, permit or registration.
II. Spectrum for Certain Uses: Granted through concession and
that can be used for the services authorised by the SCT in the
corresponding concession title.
III. Official Use Spectrum: Exclusive use for the Federal Public
Administration, State and municipal governments, granted
through direct assignment.
IV. Experimental Use Spectrum: The SCT may grant by means
of direct and non-transferable concession to prove the
technical and economic viability of developing technologies
in the country and abroad for scientific purposes or for
temporary equipment tests.
V. Reserved Spectrum: Those frequencies neither designed nor
granted by concession by the SCT.
The concessions for frequency bands of the spectrum for certain
uses will be granted by means of a public call for bids and the
auction has been the figure for such bids.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The National Frequency Allocation Chart allocates different uses to
the frequency bands, based on the ITU Radio Regulations and
bilateral treaties. Spectrum concessions usually indicate the service
that may be provided with that spectrum.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
In order to install a satellite transmit earth station a permit is
required (please refer to question 2.1 above). According to the FTL
a permit shall not be required to install and operate receive only
satellite earth stations.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
All spectrum use requires a concession; however, the exception is
the free use spectrum. For the use of this type of spectrum some
technical parameters have to be observed. The SCT publishes rules
from time to time related to the technical parameters and
frequencies that may fall under free use spectrum.
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8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Article 14 of the FTL establishes that spectrum concessions will be
granted by means of a public call for bids and auction. The Federal
Government will have the right to get an economical fee for the
Mexico
granting of the corresponding licence.
In the auction each participant will be able to offer a bid for the
specific frequency bands. The winner will have to make the
payment of the amount offered as a fee to the Federal Government,
plus the amount set for the value added tax (IVA).
Authorisation fees are generally estimated by MHz.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Sub-licensing the concessions or permits is not allowed.
The only way to transfer the concessions or permits is through the
process established in question 2.3 above.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
According to the Mexican Regulation the public
telecommunication network concessionaries may keep a separate
control and registry of their users, in both kinds of lines, prepaid
and post-paid, as well as keep a control of the communications that
be made from owned and leased lines, in order to identifies the
users and the communication.
The Mobile Telephony Users National Registry Rules (May, 2009)
obliges mobile concessionaires to keep call data, such as originating
number, number called, duration, time, date, type of communication
(voice, SMS, data transmission) and location of the device (of the
cell used for the device).
The obligation to retain the communications data ceases twelve
months from the communications.
There are some principles of data protection applicable specifically
to telecommunications in the mentioned Rules, however, data
protection in Mexico is regulated only at the government level by
the Governmental Public Information Access and Transparency
Federal Law. In 2010 regulation for the use of personal data by
private companies will be regulated.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
As mentioned before, the public telecommunications network
concessionaires must keep a registry and control of the
communications that are made from owned and leased lines, in
order to identify for e.g. type of communication (voice, data, MMS,
SMS), the necessary data to trace the origin and destination of
communications, necessary data to determine the date, hour and
duration of the communication, etc. But according to the Mexican
regulation interception of messages, traffic data and call records is
forbidden, except in the case of a judge order.
Article 16 of the Mexican Constitution establishes that the
interception must be authorised by a Federal judge, specifying the
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type of interception, the people involved and its duration.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Public telecommunications network concessionaires shall take
security measures to respect the data maintained, such as, customer
care, protection, no manipulation, illegal access, destruction,
alteration or cancellation of the data, and the authorised staff that
manage and control it.
The concessionaries may only deliver the data conserved to the
Republic General Attorney and the States General Attorneys for
investigation of crimes as extortion, enjoyable, and abduction, or
other felony or related to organised crime. The concessionaires
must submit the conserved data to the authorities within the
seventy-two hours after the notification. A more specific procedure
is still pending and has to be issued by COFETEL.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The FTL establishes that in order to provide value added services
(internet) in Mexico a registry requested before COFETEL is required.
There is no telecommunication regulation on the access at a wholesale
and/or retail level, only consumer protection regulation.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
No, Mexican regulation does not establish specific defence
available to protect telecommunications operators and/or internet
service providers from liability for content carried over their
networks. Such protection may to be included in the private
agreements that the carriers execute with their customers.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
The Mexican Regulation does not establish any
telecommunications operators and/or internet service providers to
assist content owners whose rights may be infringed by means of
file-sharing or other activities. The concessionaires shall provide
information when COFETEL and/or SCT require that information
in the case of a court order.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
The Mexican Regulation does not establish any prohibition for
Bello, Gallardo, Bonequi y Garcia, S.C.
telecommunications operators and/or internet service providers to
establish differentially charge and/or block different types of traffic
over their networks, however this may be established in the private
agreements that operators execute with their customers.
In accordance with the Mexican regulation, the public
telecommunications network concessionaires shall adopt open
architecture network designs to allow the interconnection and
compatibility with other networks, so it favours net neutrality.
10.5 How are ‘voice over IP’ services regulated?
In Mexico there is no specific regulation for voice over IP services,
so the rules for the public switched telephone services also apply to
voice over IP and a public telecommunications network concession
is required for the provision of such services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The Federal Consumer Protection Law establishes the rules
applicable to the rights of consumers in transactions carried out
through electronic or optical means, or through any other
technology, but it lacks regulation for the prevention of marketing
and advertising communications, only telephone marketing is
restricted through the Consumer Public Registry if an individual
includes its phone number in such Registry.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
In Mexico the universal service obligation is regulated and
established in the concession titles that require the concessionaire to
bring social coverage according to a negotiation between the
concessionaire and SCT.
There are no general guidelines on universal service; however,
Mexico has some programmes to extend the telecommunication
services to rural zones such as E-Mexico and the universal service
fund.
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Mexico
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
Mexico
According to the Mexican Foreign Investment Law, the foreign
investment in telecommunications activities may participate only
up to 49% of the capital stock of Mexican companies. In the case
of Mobile telephony services, a favourable resolution of the
National Foreign Investment Commission (CNIE) is required for
foreign investment to participate, directly or indirectly, in a
percentage higher than 49%.
The CNIE may authorise neutral investment in Mexican
Companies. Neutral Investment shall not be taken into account for
determining the percentage of foreign investment in the capital
stock of Mexican companies and allows foreigners to hold greater
economic interests in Mexican companies.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
The Interconnection and Interoperability Plan was published on
February 10th, 2009. This Plan regulates and promotes specific
aspects of the interconnection, such as the interconnection
agreements, the resolution of interconnection disputes, and
technical and economic issues of the interconnection.
Currently the Interconnection and Interoperability Plan is subject to
a legal process before because of the inconformity of some
concessionaires.
On February 9th, 2009 the FTL was amended in order to establish
the obligation of the public telecommunications network
concessionaires to conserve a record and control of the mobile
telephone users and their communications. In addition on May
15th, 2009 the Mobile Telephony Users National Registry Rules
were published and new mobile phones must be registered before
they are activated, the existing phones have a one year period for
their registry.
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 Bello, Gallardo, Bonequi y Garcia, S.C. Mexico

Carlos A. Bello Hernández Claudia Junco Gurza

Bello, Gallardo, Bonequi y Garcia, S.C. Bello, Gallardo, Bonequi y Garcia, S.C.
Agustin Manuel Chavez No. 1 - 001 Agustin Manuel Chavez No. 1 - 001
Col. Centro de Ciudad Santa Fe, 01210 Col. Centro de Ciudad Santa Fe, 01210
Mexico, D.F. Mexico, D.F.

Tel: +52 55 5292 5232 Tel: +52 55 5292 5232

Mexico

Fax: +52 55 5292 5233 Fax: +52 55 5292 5233

Email: cbello@bgbg.com.mx Email: cjunco@bgbg.com.mx
URL: www.bgbg.com.mx URL: www.bgbg.com.mx

CARLOS A. BELLO. Born in Mexico City, on April 9, 1973.
Education: Universidad Pontificia de Comillas (Master Degree,
Telecommunications Law, 1999-2000); Universidad
Iberoamericana (Law Degree, 1992-1997). Experience: Partner of
the law firm Bello, Gallardo, Bonequi y García, S.C., (2001 - to
date); professor of law, Universidad Iberoamericana, Undergraduate
and Graduate Programs (2005 - to date); Academic coordinator of
the Master in Telecommunications and New Technologies Law,
Universidad Anahuac del Sur (2001-2003); Deputy Director of
International Regulation, Federal Telecommunications Commission
(1997-1999). Additional Activities: Participant in various
International Conferences at the International Telecommunications
Union and at the Interamerican Telecommunications Commission;
Speaker in various national and international courses and
conferences. He is member of the Universidad Iberoamericana Law
School’s Technical Board, the Board of Directors of the
Telecommunications Law Institute (Instituto de Derecho de las
Telecomunicaciones - IDET), the Mexican Association of
Telecommunication Resellers and President of the Mexican Chapter
for the Society of Satellite Professionals International (SSPI).
Areas: Telecommunications Law, Space Law, Communications and
Media, Government Contracts and Public Bids.
CLAUDIA JUNCO. Born in Mexico City, on August 10, 1978.
Education: Universidad Iberoamericana (Master Degree,
International Business Law, 2004-2006); Universidad
Iberoamericana (Law Degree, 1997-2000). Experience: Associate
of the law firm Bello, Gallardo, Bonequi y García, S.C., (November
2004 - to date); professor of law, Universidad Iberoamericana,
Undergraduate Programs (August 2002 - to date); she has worked
in a Public Notary, in the legal area of a company, as well as in a
law firm. Additional Activities: Participant in various national and
international courses and conferences. Speaker at the Number
Portability Forum: The Mexican Experience in the number portability
process. Organised by the Superintendent of Telecommunications
(El Salvador, February, 2008), member of the Board of Directors of
the Mexican Chapter for the Society of Satellite Professionals
International. Areas: Telecommunications Law, Communications
and Media, Government Contracts and Public Bids.

Established in 2001, Bello, Gallardo, Bonequi y Garcia, S.C. (BGBG), has become a significant player in the Mexican
legal market meeting growing the need of specialised legal counselling. The versatility of its members allows BGBG to
offer personalised services in each of its areas of practice. Professionalism, quality services and a results-driven culture
distinguish BGBG from other major law firms in Mexico. A real global expertise, hands-on experiences and an excellent
academic background constitute the main asset of its members.
BGBG is comprised of lawyers whose expertise is focused on six areas of practice: Telecommunications; Alternative
Dispute Resolution; Banking and Finance; Corporate; Intellectual Property; and Litigation. BGBG has the expertise to
satisfy the need of Telecommunication companies. BGBG is also an active member in forming professionals through its
active participation in several university programmes, setting the standards for the new telecom practitioners.

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Chapter 27
Netherlands
NautaDutilh N.V.
1 Framework
1.1 When did The Netherlands first liberalise
telecommunications networks and/or services?
In the early 90s, telecommunications services, except for voice
telephony, were liberalised as a result of the Services Directive
(Directive 90/338/EEG). In 1994 (GSM 900) and 1996 (DCS
1800) telecommunications networks and services for mobile
communications were liberalised. In 1996 two licences were
granted for alternative fixed network operators. In 1998 the (EU)
ONP regulatory framework was implemented in a new
Telecommunications Act, creating the necessary legal conditions
for full liberalisation. As a result of the EU 2003 regulatory
framework for electronic communications, the Telecommunications
Act was amended in 2004.
1.2 Has The Netherlands fully implemented the EU 2003
regulatory framework? If The Netherlands has not fully
implemented the new regulatory framework, have
proceedings been brought against The Netherlands by the
European Commission and if so, for which contraventions?
Yes, a thoroughly revised Telecommunications Act, implementing
the EU 2003 regulatory framework, entered into force on 19 May
2004, containing the implementation of the European framework.
Currently, only one infringement procedure is pending against The
Netherlands, regarding the 112 obligation.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Telecommunication Act (TA) is the most important regulation,
providing rules regarding interoperability, licensing and
registration, numbers, rights of way, market analysis procedures,
consumer protection, universal service, privacy, dispute resolution
between operators, interception, and supervision by the Dutch
national regulatory agency OPTA. Most rights and obligations are
specified in national plans, governmental decrees, ministerial
regulations and (market analysis) decisions by OPTA. The most
important plans are the Frequencies Plan and the Numbering Plan,
in which the destination for frequencies, respectively numbers, is
laid down. Important governmental decrees are: the Decree on
Interoperability; the Decree on Frequencies; the Decree on
Universal Services and End User Interests; and the Decree on
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Paul M. Waszink
Piet Sippens Groenewegen
Interception. More specific regulation regarding the
abovementioned subjects is laid down in the Ministerial Regulation
on Universal Services and End User Interests, and in several
Ministerial Regulations regarding Interception.
Other laws and regulations that govern the operation of networks
and the provision of services are laid down in the Media Act, the
Competition Act, the Data Protection Act, the Act on OPTA, and the
Dutch Civil Code (in particular Book 3 and 6, for example
regarding contracts with consumers and rules regarding the use of
general conditions).
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
OPTA, the Independent Post and Telecommunications Authority, is
the national regulatory agency (NRA) that supervises all rules laid
down in the TA or based on the TA, except for: (i) licensing and
supervision regarding frequencies; (ii) universal service
obligations; (iii) legal interception; and (iv) terminal equipment.
With regard to these four issues the Minister of Economic Affairs is
the competent authority. With regard to frequencies and
interception obligations, most supervisory tasks are executed by the
Telecom Agency, a (non-independent) agency of the Ministry.
OPTA does not have the competence to directly apply the Dutch
Competition Act. To avoid possible conflicts of competence, OPTA
and the Dutch Competition Authority (“NMa”) entered into a
cooperation protocol. In addition, OPTA and the Data Protection
Authority (“CBP”) agreed in a cooperation protocol. In 2008
OPTA and the Telecom Agency entered into a cooperation protocol.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
See above question 1.4. The most important subjects that are
supervised by OPTA are: interoperability/interconnection; market
analysis and SMP regulations; numbering; rights of way; consumer
protection (including prevention of spam/malware); privacy
regulation; and dispute resolution. OPTA indicated that consumer
protection has its special attention. OPTA acts regularly against
persons or entities sending unsolicited e-mail, SMS or fax messages
(‘spamming’).
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1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
Netherlands
generation IP-based network (resulting in a planned phasing out of
most of its MDF Access locations), has prompted OPTA to
designate KPN as party having SMP on the market for wholesale
broadband access, also as of 1 January 2009.
In addition, cable operators Ziggo and UPC are obliged to resell

their (analogue) radio and television signals as well as the

A licence is not required for either the installation or provision of a
connection to its (wholesale) competitors (with the exception of
public electronic communication network or for the provision of
KPN), also called WLR-Cable. The implementation of that
public electronic communication services. Providers are, however,
obligation will get its shape in Q3/Q4 2009.
required to register with OPTA. Registered parties are required to pay
a yearly fee for supervision costs but no individual conditions or
obligations are attached to this registration. For the use of radio 2 Licensing
frequencies, a licence by the Ministry of Economic Affairs is required.

2.1 If a licence or other authorisation is required to install or

1.7 Are any network operators or service providers subject to operate electronic communications networks or provide
rules governing their operations over and above rules and services over them, please briefly describe the process,
conditions governing authorisations and imposing SMP timescales and costs.
obligations, for example under competition law?
Registration forms are publicly available at www.opta.nl, in Dutch
All providers are, like any other undertaking, obliged to act in as well as in English. The registration procedure takes
accordance with general (ex post) competition law, as laid down in approximately six weeks.
the Dutch Competition Act and the EC competition regulations. In
A licence for the use of frequencies must be requested from the
the event the competence of both OPTA and the NMa concur, OPTA
Ministry of Economic Affairs (see also hereunder section 8). More
will handle the matter (pursuant to the cooperation protocol between
information can be found at www.agentschap-telecom.nl. The
OPTA and NMA). The same applies in case the competences of
length of the procedure depends on the type of license and the
OPTA and CBP (the Data Protection Authority) concur.
method of allocation. Licence holders are not excluded from the
obligation to register with OPTA.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
In 2005, OPTA notified a first round of market analysis decisions to
operated and services provided?
the European Commission, regarding all markets that were
mentioned in Commission Recommendation dated 11 February
For the installation, maintenance or removal of cables of a public
2003 (2003/311/EC). These market analysis decisions were valid
communications network in public land, approval from the
until 1 January 2009.
municipality is required (see section 3). In addition, for the
With regard to Commission Recommendation dated 17 December installation of certain (large) broadcasting equipment (such as
2007 (2007/879/EC), OPTA notified a follow up second round of antennas) a construction permit may be required.
(draft) market analysis decisions in July and August 2008, related to
the following subjects:
2.3 May licences or other authorisations be transferred and if
(i) fixed telephony (both retail and wholesale, including CPS
so under what conditions?
and WLR obligations);
(ii) termination to fixed telephony networks (regulating ‘fixed A licence for the use of frequencies may be transferred to another
terminating rates’ or ‘FTRs’);
party but approval by the Minister of Economic Affairs is required
(iii) unbundled local loop (both to copper lines and to glass fibre (Article 3.8 TA). The right to use a number may be transferred,
lines); subject to OPTA’s approval. An approval from the municipality for
(iv) wholesale broadband access; the installation of a cable (see above question 2.2) cannot be
(v) leased lines; transferred.
(vi) transit (conveyance) services; and
(vii) broadcasting transmission services. 2.4 What is the usual or typical stated duration of licences or
None of the drafts were vetoed by the Commission and entered, other authorisations?
though slightly amended after remarks by both the Commission and
market parties in the national consultation procedure, into force as A licence for the use of a number/numbers is usually granted for an
of 1 January 2009. In short, OPTA has deregulated the (consumer) indefinite period. The duration of frequency licences vary. The
retail markets for fixed telephony services as well as the wholesale duration of licences for the use of GSM 900, DCS 1800, UMTS and
market for transit services. OPTA continued its ex ante regulations DVB-Terrestrial is currently 15 years. The Minister of Economic
for CPS/WLR, for ULL (including access to glass fibre lines) and Affairs aims to issue frequency licences for the use of 2.6 GHz
for leased lines. spectrum (in 2010) for a period of 20 years The WLL (fixed
location) licences in the 3.5 GHz and the 26 GHz band were granted
The regulation regarding fixed and mobile termination tariffs is
for a period of 12 years. Licences can be renewed. For example,
continued but OPTA has indicated that, following the ‘EC
the duration of the GSM 900-licences was extended by 3 years.
Recommendation on the regulatory treatment of fixed and mobile
termination rates in the EU’, its regulation will be reconsidered.
OPTA initiated research thereto in Q2 2009.
In addition, incumbent operator KPN’s rolling out of its a next-
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3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes. Chapter 5 of the TA provides rules regarding rights of way
(digging rights), more in particular regarding the installation,
maintenance or removal of cables in or on public and privately
owned land.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Pursuant to Article 5.4 TA, municipalities coordinate and regulate
the work that is performed within their territories regarding the
installation, maintenance or removal of cables (and cable-related
equipment) in and on public land.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
An arrangement for possible sharing of ducts and cables is laid
down in Article 5.12 of the TA. Network providers are obliged to
comply with reasonable requests by other providers for the shared
use of all facilities (among which cables and ducts) that fall within
the ambit of the toleration obligation.
Article 3.11 of the TA provides for the sharing of sites and masts. A
party that has a licence to use radio frequencies for the provision of
public electronic communication networks or services is obliged to
comply with reasonable requests to share the use of aerial
installation points.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Providers of public electronic communication networks, as well as
providers of public electronic communications services that control
the access to end-users (such as certain MVNOs) have a general
obligation to negotiate on interconnection. Providers of (fixed and
mobile) voice telephony have a statutory duty to achieve
interoperability (by means of direct or indirect interconnection).
Only a provider of a public electronic communications network
may exercise a right under interconnection/interoperability rules.
With regard thereto, the Supreme Administrative Court has ruled
that a request for interconnection may only be aimed at improving
communications or accessibility of the own end users of the
requesting party, as opposed to requests that are made to improve
communications or contactability for other than its own end users.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
OPTA is authorised to settle disputes regarding, inter alia,
interconnection and to impose conditions on parties in the event
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Netherlands
negotiations to come to an interconnection agreement fail.
Additionally, OPTA has the authority to resolve disputes regarding
existing interconnection agreements and to amend conditions
imposed, but only if the obligations in the agreement are in
violation of provisions of the TA or of regulations based on the TA.
Netherlands
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Providers that are designated as a party having SMP are, in almost
all instances, obliged to publish information regarding
interconnection, such as prices, though they do not obligatory have
to disclose full (standard) contracts. Mobile Network Operators
KPN, Vodafone and T-Mobile as well as MVNO Tele2 are obliged
to provide access to their mobile networks and additionally obliged
to publish information regarding interconnection (e.g. regarding
services, technical conditions, charges, locations of access points).
All fixed network operators (among which KPN, Tele2, UPC,
Ziggo, BT) are likewise obliged to provide access and publish
similar information.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Both fixed and mobile termination rates (FTRs and MTRs) are (ex
ante) regulated by OPTA. MTRs are currently regulated in line
with a voluntary tariff reduction by mobile network operators KPN,
Vodafone and T-Mobile and MVNO Tele2 that was secured by
OPTA in a market analysis decision of 30 June 2007. As of 1 July
2009, maximum MTR’s for KPN and Vodafone are EUR 0,07 per
minute. T-Mobile and Tele2 (which makes use of T-Mobile’s
network) are allowed to charge a maximum EUR 0.081 per minute.
However, appeal proceedings against the establishment of these
tariffs are still pending.
As of 1 January 2009 FTRs are capped on EUR 0.0065 per minute
for all regulated fixed operators. This tariff remains in force until
OPTA has established KPN’s maximum FTR, which maximum will
be calculated by means of a wholesale cap system based on KPN’s
embedded direct costs (EDC). KPN’s regulated FTR will then also
apply for all other fixed operators (‘full reciprocity’).
Following the recently adopted ‘EC Recommendation on the
regulatory treatment of fixed and mobile termination rates in the
EU’, OPTA has announced to initiate research for reconsideration
of both fixed and mobile terminating tariffs. Yet is unclear whether,
and when, amendment of the current tariffs can be expected
although interested parties were requested to give their input.
In addition, KPN’s charges for unbundled local loop access (for
MDF access, SDF access, and Metro-level) as well as charges for
certain leased lines must be cost oriented but the charges, based on
the aforementioned EDC-method, have yet to be determined for the
period 2009-2012.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
(a): No there are not.
(b): No there are not.
(c): No there are not.
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4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
In 2006, KPN announced the introduction of an NGN (‘All IP’
Netherlands
network). Related thereto, KPN announced the dismantling of the
current MDF access points used by DSL providers. OPTA indicated
in 2007 and 2008 that it will only allow the dismantling if there is a
fully satisfactory alternative for MDF access. OPTA requested KPN
and alternative DSL providers to come to a voluntary arrangements
regarding the phasing out of its MDF access points, after which KPN
entered into Memorandums of Understanding with other market
parties such as Tele2 and BBNED.
OPTA elaborated on the intended dismantling of the MDF locations
in its new market analysis decisions that entered into force on 1
January 2009 (in particular wholesale broadband access and ULL).
One of the aspects is that KPN is obliged to provide wholesale
broadband access (WBA) to its copper infrastructure, both low
quality WBA (WBA LQ; the basis for consumer oriented services)
and high quality WBA (WBA HQ; the basis for corporate services).
With regard to WBA HQ, OPTA has obliged KPN to provide access
to its optical fibre infrastructure as well. KPN is however not
required to provide WBA LQ over optical fibre.
OPTA did not consider it necessary to impose a cost orientation
measure on KPN regarding WBT LQ, because the combination of
an access and non-discrimination are considered to be sufficient to
solve competition problems. With regard to WBT HQ, a cost
orientation obligation was imposed on KPN.
Furthermore KPN is obliged to provide unbundled access to its
local loop access infrastructure, not only copper access but also
including optical fibre ULL. This means that KPN is obliged to
meet all reasonable request for unbundled access to the copper
(MDF and SDF) and fibre (ODF) access network, on a non-
discriminatory basis and against cost oriented charges. In addition
KPN is obliged to publish a reference offer regarding all its
regulated ULL-products.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Yes, see also question 4.6. incumbent operator KPN is obliged to
provide unbundled copper local loop access (MDF, SDF and Metro
level access) on a non-discriminatory manner against cost-oriented
tariffs. In addition, the terms and conditions must be made public in
a Reference Offer that can be found at www.kpn-wholesale.com.
OPTA supervises these obligations and, if necessary, takes
enforcement actions.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
See above questions 4.6 and 4.7. KPN is obliged to provide access
to its local loop access infrastructure on a non-discriminatory basis
against cost oriented tariffs, both copper (MDF and SDF) and
optical fibre (ODF). Extra safeguards to prevent margin squeezes
are introduced by OPTA in policy rules.
KPN is obliged to provide high quality wholesale broadband fibre
access. KPN is however not obliged to provide low quality
wholesale broadband fibre access.
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5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
As of 1 January 2009 KPN is no longer designated as party having
SMP on the retail markets for voice telephony for consumers,
including voice over broadband (VoB). KPN remains a party
having SMP on the retail markets for corporate customers, but this
regulation contains a sunset clause: as soon as high capacity WLR
(i.e. for corporate customers) is implemented, all retail regulation
for retail fixed telephony on KPN ceases to apply. No retail price
controls are imposed regarding mobile, fixed or other services.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Chapter 7 of the TA provides special rules with regard to the
provision of electronic communications services to consumers.
Most importantly, a provider is obliged to provide transparent
information to consumers regarding the identity of the provider, the
services offered, applicable tariffs, service quality and general
terms and conditions, as well as the possibility to bring complaints
before a complaints committee. Pursuant to Article 7.2. TA, a
provider is obliged to notify a consumer four weeks in advance in
case of a change of a contract clause. In case the amendment does
not qualify as an improvement of the contractual conditions, the
provider must give its customer the possibility to terminate his or
her contract free of charge. In addition, information obligations
based on general civil law, for example with regard to e-commerce,
distance selling and general conditions, also apply.
As of 1 July 2009, a consumer can terminate his contract regarding a
communication service with a one month notice after the initial period
and in case the contract contains an automatical renewal clause.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The Minister of Economic Affairs, after consulting OPTA, is
responsible for laying out numbering plans. Upon application by
providers of public electronic communications networks or services or,
in certain cases, upon application by natural persons, OPTA may assign
numbers laid out in numbering plans. OPTA has the authority to deny,
alter or revoke a number assignment or number reservation and is
required to deny an application if assignment violates the relevant
numbering plan or if it is reasonably expected that the applicant will not
or cannot comply with the requirements under the TA.
6.2 Are there any special rules which govern the use of
telephone numbers?
Numbers included in a numbering plan or set out in the TA may not
be used if they have not been assigned or violate an assignment.
Numbering ranges intended to be used for geographic and mobile
numbers may not be used to offer paid information services. Paid
information services (0900-number range) are subject to further
regulations related to prior indication of costs.
NautaDutilh N.V.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Numbers for fixed voice and for mobile telephone are allocated to
network operators (providers) rather than to end users directly.
Numbers specifically for information services may be assigned to
providers of such services and, under certain circumstances, to
consumers as well.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Public communications service providers must offer a customer the
possibility to continue using his/her number if the customer, upon
termination of the contract, chooses to sign up with a different
service provider (in the case of fixed lines: provided that the
customer stays within the relevant geographic area).
7 Submarine Cables
7.1 What are the main rules governing the bringing into The
Netherland’s territorial waters, and the landing, of
submarine cables? Are there any special authorisations
required or fees to be paid with respect to submarine
cables?
The TA does not include specific provisions regarding (the landing
of) submarine cables. However, environmental and/or zoning
requirements may apply.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes, the use of radio frequency spectrum is regulated by the
Minister of Economic Affairs: the Minister determines a frequency
plan allocating specific sets of frequencies to specific types of use.
A licence is required for the use of radio frequency spectrum and
may be requested from the Minister who may grant the licence
subject to certain conditions.
8.2 How is the use of radio frequency spectrum authorised in
The Netherlands? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
The granting of licences can take place in three ways, to be
determined by the Minister of Economic Affairs in each specific
case: i) in the order the applications were received; ii) by means of
a comparative test (‘beauty contest’); or iii) by means of an auction.
This does not apply to the use of frequencies for the performance of
essential public (governmental) responsibilities, for responsibilities
for public broadcasting and for the execution of certain mandatory
statutory rules.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The TA does not distinguish between mobile, fixed or satellite use
of spectrum rights. However, for certain frequency licences that are
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issued technical specifications and conditions (for example
regarding coverage) have been set that must be complied with.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Netherlands
The use of radiofrequencies in outer space with associated
geostationary satellite orbit positions or non-geostationary satellite
orbits (i.e. down-link traffic from the satellite to earth) is not yet
specifically regulated in the Telecommunication Act. A satellite
operator must enter into ad hoc agreements with the Dutch State.
According to ITU rules, The Netherlands is responsible for
compliance on the part of the relevant satellite operator with
international rules and obligations.
Frequency use on The Netherlands’ territory (terrestrial use, or ‘up-
link traffic’ use; i.e. using an earth station present in The
Netherlands, has been regulated in Chapter 3 TA. For terrestrial use
of frequencies, a licence must be obtained.
Lastly, the Space Activities Act (SAA) regulates space operations and
space objects covered by Dutch jurisdiction and regulates the creation
and management of a register of space objects. The SAA relates to the
object (i.e.: a satellite or a radio station in space), and not to the (use
of) frequencies. Pursuant to the SAA, each ‘object’ requires a licence.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
No licence for the use of spectrum rights is required for (sets of)
frequencies that may be, pursuant to the frequency plan, used by
any person. In addition no licence is required for (sets of)
frequencies used by governmental bodies charged with providing
security, defence or to maintain order.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Fees for the use of radio frequency spectrum may be charged in the
interests of optimal use of available frequency space. These fees
could be a certain percentage of the monetary advantage acquired
from the frequencies as determined in a ministerial decree
published prior to the granting of a licence. The fee may be an
amount which must be paid periodically, or immediately.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The transfer of a licence requires the permission of the Minister for
Economic Affairs (Article 3.8 TA). Permission may be obtained
subject to restrictions.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The European Directive 2006/24/EC of 15 March 2006 on the
retention of data generated or processed in connection with the
provision of publicly available electronic communications services
or of public communications networks and amending Directive
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 NautaDutilh N.V.
2002/58/EC has not been implemented in The Netherlands yet,
consequently no general requirement to retain communications data
exists yet. However, the implementation act is expected to enter
into force before the end of 2009. Most likely, all providers will be
obliged to retain the communication data for a period of one year.
Netherlands
Notwithstanding its obligations under the Data Protection Act, a
service provider is furthermore required to take appropriate
technical and organisational measures to protect the personal data
and privacy of its customers. A provider must ensure that processed
and stored traffic data from subscribers or users are removed or
made anonymous as soon as these data are no longer necessary for
the communications transfer. Further, at the request of a subscriber,
the service provider has to provide completely itemised or partially
non-itemised bills. Except for providers of broadcast transmission
services, a communications service provider is required to provide
the authorities, upon their request, with the information necessary to
enable the authorities to wiretap or record telecommunications,
such as number information and name and address of the person or
entity to whom a certain number is assigned (Chapter 13 TA). In
cases of pre-paid mobile telephony, providers are required to keep
name and address information for three months. If the authorities
request further information on users or traffic related to users,
communications service providers are required to provide the
authorities with such information.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Telecommunications services and networks may only be provided
to the public if these services and networks comply with certain
standards on legal interception (Article 13.1 TA). Providers of
telecommunications networks and services must swiftly comply
with any request for assistance with legal interception or for
information relating to customers and their communications traffic
by a competent governmental authority (Article 13.2 TA).
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Detailed technical and operational requirements and protocols are
specified in a series of governmental decrees and ministerial
regulations. Failure to comply with statutory obligations related to
legal interception may lead to administrative sanctions by the
Telecom Agency or to criminal prosecution. The prosecuting
attorney can order the legal interception.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet access services are not regulated any differently from other
electronic communications services. OPTA’s market analysis
findings resulted in the incumbent operator KPN being designated
as having significant market power in the unbundled local loop
market. Consequently, KPN is required to offer unbundled local
(sub)loop access, both to copper lines and to fibre lines. KPN is
designated as a party having SMP on the market for wholesale
broadband access as well but KPN is not obliged to provide
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Netherlands
wholesale broadband fibre access; only copper.
No retail regulation has been imposed by OPTA. The retail
broadband market is considered to be effectively competitive.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Article 6:196c Dutch Civil Code (“DCC”) provides a legal basis for
defence to protect providers for ‘mere conduit’, ‘caching’ and
‘hosting’. Article 6:196c DCC is the Dutch implementation of
articles 12,13 and 14 of European Directive 2000/31/EC on
Electronic Commerce.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Although case law indicates that only after a judgment against the
defendant a service provider is obligated to remove the infringing
content, the precise obligations of service providers are not clear.
However, it can be assumed that a service provider is liable if it is
unmistakenly clear that content is unlawful. Because it is not in any
case clear which content is unlawful, a special notice and take down
code of conduct has been developed for the Netherlands. This code
is not legally binding.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Yes, providers are able to differentially charge and/or block
different types of traffic over their network. There are no specific
requirements regarding net neutrality (yet).
With regard to spam: the use of an automatic calling system without
human intervention, faxes and electronic mails for the transmission
of unrequested communications to subscribers for commercial or
public service purposes is permitted only with the prior consent of
the subscriber.
When companies have obtained a customer’s address in connection
with the sale of any of its products or services, they may use these
addresses for sending unsolicited email for similar products or
services, provided an opt-out possibility is given.
10.5 How are ‘voice over IP’ services regulated?
Voice over IP services, as in ‘Skype’ type of services are not
regulated. However, providers of Voice over Broadband services -
i.e. telephony services that make use of an IP-based network and
not of traditional PSTN-networks - have the same obligations as
providers of PSTN-telephony services.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
A limited concept of universal service, relating only to voice
NautaDutilh N.V. Netherlands

telephony subscription, to public phones and to paper and electronic 13 Future Plans
telephone directories is currently offered by KPN. KPN does not
receive any funding for this service and is permitted to terminate
this service with one year’s notice (Article 9.1 TA and 22 USD). 13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
KPN announced it aims to end its universal service tasks with

regard to public phones, the end date is yet unclear.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
No, there are not.
Netherlands
Charges for regulated KPN wholesale services, such as ULL,
wholesale broadband access, WLR and wholesale call origination
will be determined in Q3 or Q4 2009. These tariffs will be laid
down in a Wholesale Price Cap Decision, in which all KPN-charges
will be based on the Embedded Direct Costs (EDC) method.
In addition MTRs and FTRs of all dominant mobile and fixed
operators will be reconsidered by OPTA in 2009/2010, resulting
from the EC’s Recommendations regarding fixed and mobile
terminating tariffs.
Furthermore, the Minister of Economic Affairs aims to auction
licences for the use of the 2.6 GHz spectrum (destination: mobile
communications services) in 2010. Preparations (such as
consultation rounds) start in 2009.
A proposal by the Minister to make the legal regime regarding
licenses for the use of radio frequencies more flexible is expected to
enter into force early 2010.

Paul M. Waszink Piet Sippens Groenewegen

NautaDutilh N.V. NautaDutilh N.V.
Strawinskylaan 1999 Strawinskylaan 1999
1077 XV Amsterdam 1077 XV Amsterdam
Netherlands Netherlands

Tel: +31 20 7171 447 Tel: +31 20 7171 903

Fax: +31 20 7171 331 Fax: +31 20 7171 331
Email: paul.waszink@nautadutilh.com Email: piet.sippens@nautadutilh.com
URL: www.nautadutilh.com URL: www.nautadutilh.com

Paul Waszink was admitted to the Dutch Bar in 2000. Paul
specialises in telecommunications and media law, with a special
focus on administrative (regulatory) litigation. He represented
several telecommunications operators in many telecommunication
and media law related proceedings, among others against OPTA
(regarding fixed and mobile telephony, ULL, wholesale broadband
access and wholesale broadcasting transmission services,) against
the Minister of Economic Affairs (in 2G and 3G frequencies related
proceedings, and the Media Authority (regarding cable network
access disputes).
In addition, he advises and litigates for numerous enterprises that
are active in the media sector including the National State Lottery,
the Dutch Public Broadcaster NOS, and cable operator Ziggo.
Piet Sippens Groenewegen chairs NautaDutilh’s Telecommunications
& Media Group. Piet specialises in telecommunications, media and
IT.
He has been active in these fields since the early 1990s. He drafts
and negotiates contracts, advises and litigates for and on behalf of
telecommunications operators (fixed, mobile and satellite), internet
providers as well as media companies. Furthermore, Piet has
represented clients before various regulators in disputes on
infrastructure access and regulated tariffs. Piet advises and litigates
in high profile cases inter alia for Vodafone NL. In addition, Piet
advised Warburg Pincus on the regulatory aspects of the acquisition
of cable operators Casema and Essent Kabelcom (now Ziggo). He
is frequently involved in leading outsourcing deals, especially in the
financial industry.
Piet has been involved in the purchase and sale of ICT networks,
tenders for the provision of ICT networks and auctions of frequency
licences.

NautaDutilh is one of the leading independent law firms in the Benelux and one of Europe’s pre-eminent law firms. It
is the largest law firm in the Benelux market with 400 lawyers, civil law notaries and tax advisers in offices in
Amsterdam, Rotterdam, Luxembourg, Brussels, London and New York. NautaDutilh works in close cooperation with
leading law firms worldwide on a non-exclusive basis. The firm provides a broad range of high-level legal services and
advises a wide variety of clients in high complex transactions and legal issues.
NautaDutilh is recognised by the major international legal directories, The European Legal 500 and Chambers’ Global
Directory, both of which recommend NautaDutilh as a leading firm in the Benelux markets.

189
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 Chapter 28
New Zealand
MGF Webb
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
Policies and objectives
On 3 May 2006, the Ministry of Economic Development (MED)
published the Telecommunications Stocktake Cabinet Paper,
announcing a comprehensive telecommunications reform package
aimed at aligning New Zealand’s regulatory regime more closely
with international best practice.
This was seen to be a vital part of the Government’s aim to
transform the New Zealand economy and improve New Zealand’s
broadband performance relative to other OECD countries.
The Telecommunications Stocktake produced two key outcomes:
the Telecommunications Amendment Act (No 2) 2006,
which is to date the most significant amendment to New
Zealand’s telecommunications legislation, the
Telecommunications Act 2001 (the Telecommunications
Act); and
the Government Digital Strategy 2.0 in August 2008, which
included the creation of a Broadband Investment Fund - a
contestable fund aimed at facilitating high speed broadband
connections to businesses in urban centres and key users in
the health and education sectors, extending the reach of
broadband into underserved regions and improving the
resilience of New Zealand’s international connections.
Legislation
The primary legislative instrument which relates to
telecommunications regulation in New Zealand is the
Telecommunications Act.
Industry-specific legislation also includes the Telecommunications
(Residual Provisions) Act 1987, the Telecommunications
(Interception Capability) Act 2004, the Unsolicited Electronic
Messages Act 2007, the Radiocommunications Act 1989 (the
Radiocommunications Act) and its associated Regulations and the
Broadcasting Act 1989.
The telecommunications industry is also governed by more generic
legislation, such as the Commerce Act 1986 (the Commerce Act),
the Fair Trading Act 1986, the Consumer Guarantees Act 1986 and
the Privacy Act 1993 (including the Telecommunications
Information Privacy Code 2003).
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Malcolm Webb
Ken Ginn
1.2 Is New Zealand a member of the World Trade
Organisation? Has New Zealand made commitments under
the GATS/GATT regarding telecommunications and has
New Zealand adopted the WTO Basic Telecommunications
Agreement?
Yes, New Zealand has been a WTO member since 1 January 1995.
New Zealand signed the GATS in 1994 and made commitments under
the GATS Agreement on Basic Telecommunications Services in 1997.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in New Zealand?
The Telecommunications Act regulates the supply of
telecommunications services in New Zealand. It established three
key regulatory elements:
an industry-specific regulator, the Telecommunications
Commissioner;
an access regime for regulated ‘designated services’ and
‘specified services’; and
a framework for universal service obligations, the
Telecommunications Service Obligations (TSOs) (see
question 12.1).
The core principle of the access regime for regulated services under
the Telecommunications Act is “to promote competition in
telecommunications markets for the long-term benefit of end-users
of telecommunications services within New Zealand” (section 18),
taking into account any resulting efficiencies. The Commerce
Commission and the Minister responsible for telecommunications
are required make the recommendation, determination or decision
that best gives effect to this purpose when exercising their powers
under the Telecommunications Act.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The Commerce Commission is both the telecommunications
regulator and the competition authority. It is responsible for
enforcing the competition provisions in the Commerce Act, as well
as fulfilling its regulatory role under the Telecommunications Act.
It is independent from the Government.
Under the Telecommunications Act, the regulatory role of the
Telecommunications Commissioner was created within the
Commerce Commission. The Telecommunications Commissioner
MGF Webb
makes determinations in investigations and disputes relating to
regulated telecommunications services.
The MED is responsible for developing telecommunications policy
and providing advice to the Minister on such policies.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
There are limited rights of appeal to the High Court of New Zealand
for decisions made by the Commerce Commission, and generally
only on questions of law. The High Court may also grant leave to
appeal to the Court of Appeal.
Parties with sufficient standing may also apply to the High Court
for judicial review of the decision.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
No, there are no formal licensing or registration requirements in
order to provide telecommunications services, or to establish and
operate telecommunications facilities, in New Zealand.
However, radiocommunications licences are required for the
provision of services that use radiospectrum (see section 8).
Also, network operators may voluntarily register with the Ministry
of Economic Development under the Telecommunications Act in
order to enjoy special rights of access to land and to road reserves
to lay or construct telecommunications lines (see question 3.1).
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
See question 2.1. Consents may be required under general building
and environmental legislation.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Not applicable. See question 2.1.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Not applicable. See question 2.1.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes, persons can apply to the MED under the Telecommunications
Act to be classified as a “network operator” for the purposes of
rolling out a telecommunications network.
Network operators enjoy special rights of access to land and road
reserves to construct, erect, lay or maintain telecommunications
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New Zealand
lines (but this status is not a prerequisite to rolling out a
telecommunications network).
In order to qualify for network operator status, the Minister must be
satisfied that such status is necessary to enable the applicant to
commence or carry on a business providing:
New Zealand
facilities for telecommunications between 10 or more other
persons that enable at least 10 of those persons to
communicate with each other; or
facilities for broadcasting to 500 or more other persons that
enable programmes to be transmitted along a line or lines to
each of those persons (Telecommunications Act, section 103).
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
No, there is no specific regime; only a general regime under the
Resource Management Act 2001.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Yes, co-location of equipment for fixed telecommunications
services at sites used by Kordia Limited (previously known as
Broadcast Communications Limited) and co-location on cellular
mobile transmission sites are specified services under Schedule 1 of
the Telecommunications Act.
The Commerce Commission has set the non-price terms of access
on which the mobile co-location service must be made available
with reference to all access providers and all access seekers of the
service under a standard terms determination (STD). Under the
STD, an access seeker may request an access provider in writing to
provide the regulated service on the terms of the STD without the
need to enter into a separate agreement (except in relation to price).
The access provider must comply with such a request.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Yes. Interconnection for the origination and termination of calls on
the fixed PSTN of Telecom (the incumbent fixed network operator),
and the fixed PSTN of others, are regulated services under Schedule
1 of the Telecommunications Act.
In relation to fixed-to-mobile termination, the Minister accepted
deeds of undertaking from Telecom and Vodafone (the two mobile
network operators in New Zealand) specifying a reducing mobile
termination rate over a period of years, in lieu of regulation. This
rate will apply to any person that interconnects with either Telecom
or Vodafone during that time.
As at late 2009, the Commerce Commission is currently conducting
an investigation into whether mobile termination access services
(fixed-to-mobile voice termination, mobile-to-mobile voice
termination and SMS termination, together MTAS) should become
a regulated service under the Telecommunications Act. The
Commission is expected to make its recommendation to the
Minister in December 2009.
The Telecommunications Act contains a number of access
principles, and limits on those access principles, which qualify the
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 MGF Webb
obligation to provide regulated services.
The standard access principles are:
principle 1: the access provider must provide the service to
the access seeker in a timely manner;
New Zealand
principle 2: the service must be supplied to a standard that is
consistent with international best practice;
principle 3: the access provider must provide the service on
terms and conditions (excluding price) that are consistent
with those terms and conditions on which the access provider
provides the service to itself; and
principle 4: the access provider must, if requested, provide an
access seeker with information about a designated access
service or specified service at the same level of detail, and
within the same time frame, that the access provider would
provide that information had it been requested by one of its
own business units.
The access principles are limited by the following factors:
reasonable technical and operational practicability having
regard to the access provider’s network;
network security and safety;
existing legal duties on the access provider to provide a
defined level of service to users of the service;
the inability, or likely inability, of the access seeker to
comply with any reasonable conditions on which the service
is supplied; and
any request for a lesser standard of service from an access
seeker.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Interconnection access disputes can be lodged with the Commerce
Commission by either an access provider or access seeker. The
Commerce Commission can make binding determinations of the
following types:
determinations between a single access seeker and a single
access provider; or
standard terms determinations made with reference to all
access seekers and all access providers of a regulated service.
The Commerce Commission can also make pricing review
determinations to amend the price on which a regulated service is to
be provided.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Yes. Telecom and any other declared “major operator” under
section 111A of the Telecommunications Act (of which there are
currently none) must make publicly available a copy of:
the procedures that apply to interconnection with a PSTN or
PDN owned or operated by that supplier; and
all the applicable terms and conditions of supply for
interconnection with that PSTN or PDN.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes. There are sixteen “designated services”, set out at Schedule 1
of the Telecommunications Act, that are subject to price regulation.
These designated services include interconnection with Telecom’s and
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other fixed PSTNs, various retail services offered by means of
Telecom’s fixed PSTN, a number of Telecom unbundled network
elements (including LLU, UBA and their associated backhaul
services) and number portability services. The applicable pricing
principle is defined separately for each service, and includes TSLRIC,
bill and keep (pure or hybrid) and retail minus approaches.
Mobile termination, co-location and roaming services are currently
not subject to price regulation (but this is currently under
investigation by the Commerce Commission).
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Yes. Telecom has been subject to operational and accounting
separation since the Telecommunications Amendment Act (No 2)
2006.
The legislative scheme is contained in Part 2A of the
Telecommunications Act. As required by legislation, Telecom has
also agreed detailed Separation Undertakings in a legally
enforceable deed with the Crown. In accordance with the
Separation Undertakings, Telecom has established three distinct
business units (access services, wholesale services and retail
services) which provide their services to external and internal
customers on the same terms and conditions. Compliance with the
deed is overseen by the Independent Oversight Group.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Existing regulation has been enacted as technology-neutral
legislation. The focus of telecommunications regulation in New
Zealand is on the service, rather than the underlying technology.
Sub-loop unbundling is recognition of the types of access that will
be required in a next generation network environment.
The industry collective known as the Telecommunications Carriers’
Forum (TCF) has established an IP Interconnect working party to
develop an industry code of practice for IP interconnection and to
facilitate the consultation process between Telecom and other
service providers in regard to the approach of IP interconnection
services. The consultation will cover, at a minimum, the process for
transitioning from fixed PSTN interconnection for voice services to
IP interconnection for voice services and the introduction of IP
interconnection for virtual private network services.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Yes. Telecom is required to provide the following unbundled
network elements to all access seekers on standard terms (including
price) set by the Commerce Commission:
Telecom’s unbundled bitstream access;
Telecom’s unbundled bitstream access backhaul;
Telecom’s unbundled copper local loop network;
Telecom’s unbundled copper local loop network co-location;
Telecom’s unbundled copper local loop network backhaul
(distribution cabinet to telephone exchange); and
Telecom’s unbundled copper local loop network backhaul
(telephone exchange to interconnect point).
There is no analogous regulation in relation to cable TV operators.
MGF Webb
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
As part of Telecom’s Separation Undertakings, Telecom has
committed to certain milestones - including in relation to the
delivery of fibre to the premises (FTTP) access services - that must
be met over a defined period. The Separation Undertakings include
a commitment that Telecom’s Wholesale Unit will provide an FTTP
access service to service providers in areas where Telecom has
deployed an FTTP access network architecture.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
The TSO Deed for Local Residential Telephone Service provides
that residential subscribers on the Telecom network are entitled to a
“free local calling option” and a requirement that Telecom’s line
rentals only increase in line with the rate of inflation and that
Telecom’s rural line rentals do not exceed urban line rentals.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The Unsolicited Electronic Message Act 2007 restricts certain
forms of electronic communication for anti-spam purposes (see
question 10.6).
The Telecommunications Information Privacy Code 2003,
published by the Privacy Commission, protects personal
information held by telecommunications agencies by amending the
privacy principles that apply under the Privacy Act 1993 in relation
to telecommunications agencies.
The TCF has also published a Customer Transfer Code (approved
by the Commerce Commission as a telecommunications access
code under the Telecommunications Act) which governs the
transfer of a customer’s telecommunications services between
service providers to ensure a seamless experience for all parties
involved in the transfer process.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
New Zealand’s Number Administrator administers the New
Zealand numbering regime. Numbers are allocated in blocks by the
Number Administrator, with certain codes limited to specified call
types.
6.2 Are there any special rules which govern the use of
telephone numbers?
There exists a Number Administration Deed (NAD) which sets out
the specific rules relating to code use and allocation. The NAD is
a private contract (a deed) between various telecommunications
industry participants. Service operators who choose to become
party to the deed agree to abide by its terms in respect of the other
members of the NAD.
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New Zealand
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
There is a specified procedure in the NAD relating to the
New Zealand
availability of codes and numbers for network use. As the NAD is
a private contract, it is up to individual service operators to make
number ranges available for use on their own network. In turn,
other operators normally agree to recognise those number ranges on
their networks. There is no central body responsible for this task.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Local and mobile number portability (LMNP) is a designated
service subject to regulation under the Telecommunications Act.
The Commerce Commission published its LMNP Determination in
April 2006. The LMNP service was available to all customers as of
1 April 2007. All network operators are required to comply with the
rules for technical and operational compliance as set out in the
LMNP Determination and related documents.
7 Submarine Cables
7.1 What are the main rules governing the bringing into New
Zealand’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
No, there are no specific rules relating to submarine cables.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Radio spectrum licensing and registration is regulated under the
Radiocommunications Act. The MED, through the Registrar of
Radio Frequencies, is responsible for issuing radio spectrum
management rights.
8.2 How is the use of radio frequency spectrum authorised in
New Zealand? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
Spectrum management rights are normally granted to exclusive
right-holders through a spectrum auction process. Ownership of
management rights entitles the manager to issue spectrum licences
over the band of frequencies owned.
Spectrum management rights auctions are conducted by the MED
and rights are awarded to the highest bidder. Bidders at an auction
remain subject to general competition law relating to business
acquisitions under the Commerce Act, which may require a
successful bidder to apply for authorisation under the Commerce
Act.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
No distinctions are made between fixed, mobile and satellite usage.
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8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
There is no specific regulation relating to satellite stations. More
generally, the Radiocommunications Act applies. A licence is
New Zealand
required under the Radiocommunications Act to up-link to a
satellite if the uplink comes from within New Zealand’s
jurisdiction.
In contrast, no such licence is required for down-linking from a
satellite to New Zealand, though a satellite operator has the option
of protecting its down-link from interference by obtaining a
“receiver protection licence”.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Certain bands of spectrum are made exempt from the licensing
regime in the Radiocommunications Act. For example, there is
provision for general approval for certain radio devices such as TV
remote controls and garage door openers.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Generally, there are no ongoing fees. However, a holder of
management rights may separately charge a fee for a spectrum
licence issued under those rights (see question 8.2).
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Spectrum management rights are tradable property rights that can
be transferred, subdivided or aggregated. Licences can be issued
that relate to the management rights and fees may be charged by the
right-holders for such licences.
There are few conditions imposed on the trading of management
rights, though they remain subject to competition law restrictions in
the Commerce Act. However, to give effect to Government policy,
management rights are commonly issued with a condition
prohibiting the manager from transferring their interest in the
management right, or to issue any spectrum licence, to any foreign
government (or to any party on behalf of any foreign government)
without first obtaining the written approval of the Chief Executive
of the MED. The MED has stated that the intention of such a
provision is not to restrict foreign investment, but rather to deal with
possible situations where the activities of a foreign government in
New Zealand were prejudicial to New Zealand’s national or foreign
policy interests.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The Telecommunications (Interception Capability) Act 2004
requires network operators to identify, intercept and obtain “call
associated data” or the content of the communication under a
warrant or authority, but does not otherwise expressly require the
general retention of such data for any particular period.
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New Zealand
The Telecommunications Information Privacy Code 2003 provides
privacy principles that apply specifically to telecommunications,
including to subscriber information, traffic information and the
content of a telecommunication.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Yes, the Telecommunications (Interception Capability) Act 2004
requires network operators to ensure that every public
telecommunications network that the operator owns, controls, or
operates, and every telecommunications service that the operator
provides in New Zealand, has an interception capability.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Surveillance agencies (which include law enforcement agencies
and intelligence and security agencies) may carry out the lawful
interception of telecommunications under an interception warrant
or any other lawful interception authority. Such warrants or
authorities may be issued under the existing law enforcement
legislation listed in the Telecommunications (Interception
Capability) Act 2004 (and the procedure for obtaining such
warrants or authorities under the applicable legislation applies).
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
No. Access to Internet services are not subject to separate
regulation in New Zealand.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
There is no express legislative protection of this nature in New
Zealand, although common law defences continue to be available in
the appropriate circumstances.
“Section 92A”, a controversial amendment to the Copyright Act
1994 that has not yet been brought into force, and its associated
provisions includes an express ‘mere conduit’ defence where the
Internet service provider reasonably implements a policy for
terminating accounts of repeat infringers of copyright. The entry
into force of section 92A was delayed indefinitely on 23 March
2009. Section 92A is currently the subject of a review by the MED.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
See question 10.2.
MGF Webb New Zealand

10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications

New Zealand
The treatment of different types of Internet traffic is not expressly companies whether in fixed, mobile, satellite or other
wireless operations?
regulated in New Zealand.

The Kiwi Share obligation, contained in Telecom’s constitution,

10.5 How are ‘voice over IP’ services regulated?
Voice over IP services are not expressly regulated in New Zealand.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Yes, the Unsolicited Electronic Message Act 2007:
prohibits unsolicited commercial electronic messages with a
New Zealand link from being sent;
requires commercial electronic messages to include accurate
information about the person who authorised the sending of
the message and a functional unsubscribe facility in order to
enable the recipient to instruct the sender that no further
messages are to be sent to the recipient; and
prohibits address-harvesting software or a harvested-address
list from being used in connection with sending unsolicited
commercial electronic messages in contravention of this Act.
Enforcement mechanisms include formal warnings, civil
infringement notices, enforceable undertakings, as well as general
powers for the courts to impose injunctions, penalties and damages.
There are also search and seizure provisions.
provides that the consent of the Kiwi Shareholder (the Crown) is
required before a person acquires a relevant interest (which includes
a beneficial interest) in 10% or more of Telecom’s shares.
Telecom’s constitution also provides that a person who is not a New
Zealand national may not acquire a relevant interest in 49.9% or
more of Telecom’s shares without the consent of the Kiwi
Shareholder. If the Kiwi Shareholder has not consented, the
shareholder will be given three months’ notice to dispose of the
excess shareholding, after which Telecom’s Board may sell the
shares on the shareholder’s behalf.
Apart from that, there are no telecommunications-specific rules
relating to foreign ownership in networks.
More generally, the Overseas Investment Act 2005 sets out
limitations on the foreign ownership of “significant business assets”
in New Zealand.
Further, there are common restrictions as to foreign ownership of
spectrum management rights (see question 8.7).
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?

11 USO The Commerce Commission is currently conducting an

investigation into whether mobile termination access services
(fixed-to-mobile voice termination, mobile-to-mobile voice
11.1 Is there a concept of universal service obligation; if so how
termination and SMS termination) should become a designated
is this defined, regulated and funded?
service or specified service under the Telecommunications Act.
The Commission is expected to make its recommendation to the
Yes, the Telecommunications Act provides for the ministerial
Minister in December 2009.
declaration of TSO instruments. The purpose of a TSO instrument
is to facilitate the supply of certain telecommunications services to The Commission has also announced that it intends to recommence
groups of end-users within New Zealand to whom those services an investigation into whether the mobile roaming service should be
may not otherwise be supplied on a commercial basis or at a price moved from a specified service to a designated service.
that is considered by the Minister to be affordable to those groups
of end-users. There are currently two TSO instruments:
TSO Deed for Local Residential Telephone Service between
the Crown and Telecom; and
TSO Deed for Telecommunications Relay Services for the
hearing impaired between the Crown and Sprint
International New Zealand.
Funding of TSO losses comes from industry participants defined
under the Telecommunications Act as “liable persons”. TSO
determinations are issued each year by the Commerce Commission.
These determinations set out the amount each liable person must
pay to the TSO provider, apportioned on the basis of weighted
revenue received by each liable person for providing
telecommunications services in the relevant period.

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 MGF Webb New Zealand

Malcolm Webb Ken Ginn

MGF Webb MGF Webb
110 Customs Street West, PO Box 105-426 110 Customs Street West, PO Box 105-426
Auckland Auckland
New Zealand New Zealand
New Zealand

Tel: +649 970 4101 Tel: +649 970 4109

Fax: +649 970 4102 Fax: +649 970 4102
Email: malcolm.webb@mgfwebb.com Email: ken.ginn@mgfwebb.com
URL: www.mgfwebb.com URL: www.mgfwebb.com

Malcolm Webb is a partner of MGF Webb.
He has unrivalled legal and industry expertise in advising
telecommunications clients on the most important regulatory issues
and commercial transactions that affect their businesses and is
regarded as New Zealand’s leading lawyer in this field.
Malcolm is the Co-Chair of the Communications Law Committee of
the International Bar Association.
Before starting the firm in 2004, Malcolm was a senior partner at
Bell Gully.
Ken is a senior solicitor at MGF Webb.
He has undertaken a considerable amount of work in the
telecommunications and media law areas in both commercial and
regulatory contexts during the course of his legal career.
In the area of telecommunications, Ken has been heavily involved in
a range of telecommunications regulatory proceedings and in the
drafting of interconnection agreements in a number of countries.
Ken has qualifications in the areas of law and health sciences. His
particular areas of interest include commercial, competition,
information technology, intellectual property and privacy law.

MGF Webb is an Auckland-based specialist law firm with a practice spanning cutting-edge regulatory and competition
advice, and strategic transactions in the communications, technology and media industries. The firm is involved in
providing advice in New Zealand, Australia, Hong Kong and elsewhere in the Asia Pacific region.

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Chapter 29
Norway
Simonsen Advokatfirma DA
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The overall policies and objectives for the electronic
communication industry are, according to the Electronic
Communications Act, article 1-1, to secure goods and reasonably
priced and future-oriented electronic communication services for
users throughout the country through efficient use of society’s
resources by facilitating sustainable competition, as well as
stimulating industrial development and innovation.
1.2 Is Norway a member of the World Trade Organisation? Has
Norway made commitments under the GATS/GATT
regarding telecommunications and has Norway adopted
the WTO Basic Telecommunications Agreement?
Norway is a member of the World Trade Organisation. Norway has
adopted the WTO Basic Telecommunications Agreement and,
further, Norway has made commitments under the GATS/GATT
and stated that there are no restrictions or bindings within the
Norwegian telecommunications sector.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Norway?
The Norwegian regulations on electronic communications networks
and electronic communications services are set out in the Electronic
Communications Act of 4th July 2003. For mobile networks the
provision could also be regulated in the licence required. The
provision of electronic communications networks and services in
Norway has been fully open to competition since 1998.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The Norwegian Post and Telecommunications Authority (NPT) is
the national regulatory authority in the sector of
telecommunications, and have the regulatory responsibilities for the
telecommunications markets in Norway. The NPT is responsible
for securing the end-users access to high-quality basic
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Torstein Losnedahl
Espen Tøndel
telecommunications services at reasonable charges by promoting
effective competition in the telecommunications markets.
The Norwegian Competition Authority (NCA) is the competition
law authority, and is monitoring and has the regulatory
responsibilities for the competition in all markets in general. The
NCA is in principle also the regulatory authority responsible for
competition in the telecommunications markets. However,
competition in this market can also be specific, it is therefore also
regulated by sector regulation which is within the NPT’s area of
responsibility.
The NPT and NCA are independent from the government.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Decisions by the NPT and NCA might be appealed to respectively
by the Ministry of Transport and Communications and the Ministry
of Government Administration and Reform. Finally, decisions from
the Ministries can be appealed to the ordinary courts of justice.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Authorisation is required to install electronic networks, c.f.
Regulations 4th March 2005 on authorisation of electronic
communications networks and radio equipment installation
contractors. The regulations apply to requirements for
authorisation for the installation and maintenance of radio
equipment, public and private electronic communications networks
and connected terminals.
Application for authorisation must be on a specified standard form
drawn up by the NPT, and sent to the NPT together with certificates,
references, etc. as mentioned in article 7 in the Regulation.
Application with necessary certificates and references enclosed will
be considered without undue delay.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
In addition to installation and maintenance authorisation, the
provider must obtain necessary permits and approvals from
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building authorities. The provider is obliged to register with the
NPT and if possible to obtain a licence for radio frequencies.
Further, the radio equipment used must be approved by the NPT
unless the equipment already meets requirements in international
agreements to which Norway is a party.
Norway
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Authorisations for installation and maintenance are not to be
transferred. The authorisation applies to an enterprise at a particular
address. Installation contractor activities which take place under a
different name or address, including an enterprise branch, require
separate authorisations.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The duration of installation and maintenance authorisation is 4
years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Except administrative provisions dealing with access to public
roads in order to install telecommunications infrastructure, there are
no specific legal or administrative provisions dealing with access to
public and private land in order to install telecommunications
infrastructure.
However, in the Electronic Communications Act, article 12-3, the
Ministry of Transport and Communications may issue a decision or
give consent to undertake the compulsory purchase of title or right
to use real property for the installation of electronic
communications networks and equipment for electronic
communications.
Compensation shall be paid for the burden the decision to undertake
a compulsory purchase is assumed to place on the owner or holder
of the right of use.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
There is no specific planning or zone regime that applies to the
installation of telecommunications infrastructure. However, the
general Norwegian Planning Act must also be observed when
performing such constructions work.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
According to the Electronic Communications Act, article 4-4, the
NPT may impose on a provider obtaining rights of way over public
or private land in accordance with article 12-3, an obligation to give
other providers without corresponding rights access to co-location.
Further, the NPT may impose providers to share infrastructure
when considerations of effective use of resources, considerations of
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health, environment, public safety or other social considerations
indicate that duplication of infrastructure should be avoided.
Finally, the NPT may impose on a provider with significant market
power an obligation to meet a reasonable request for co-location or
other shared utilisation of infrastructure within the market where
the provider has significant market power, when it is appropriate to
promote sustainable competition. For instance Telenor ASA is
appointed as provider with significant market power in the market
for access and call origination on public mobile telephone networks
(market 15), and is obliged to meet any request for co-location at
reasonable prices.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
According to the Electronic Communications Act, article 4-2, any
provider of access to electronic communications networks and
services has the right and obligation to negotiate with other
providers on interconnection for provision of public
communications services.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
On request by one party in interconnection or access dispute, the
NPT may mediate to achieve agreement between the parties, c.f.
Electronic Communications Act, article 11-1. However, the NPT
also has jurisdiction to adjudicate and impose binding solutions in
such disputes, c.f. Electronic Communications Act, article 11-2.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
The following operators are required to publish their standard
interconnection contracts and/or prices:
Retail markets:
In the market for access to the public telephone network at a
fixed location for residential and non-residential customers
(market 1), transparency and price regulation (on the
wholesale level) obligations are imposed on Telenor.
Wholesale markets:
In the market for call origination on the public telephone
network provided at a fixed location (market 2), transparency
and price regulation obligations are imposed on Telenor.
In the market for call termination on individual public
telephone networks provided at a fixed location (market 3),
transparency and price regulation obligations are imposed on
Telenor, Get, Hafslund, In Telecom, Lyse, NetCom,
NextGenTel, Orange, TDC, Tele2, Telio, Ventelo and Verzion.
In the market for wholesale (physical) network infrastructure
access (included shared or fully unbundled access) at a fixed
location (market 4), transparency and price regulation
obligations are imposed on Telenor.
In the market for wholesale broadband access (market 5),
transparency obligations are imposed on Telenor.
In the market for wholesale terminating segments of leased
lines, irrespective of the technology used to provide leased or
dedicated capacity (market 6), transparency and price
regulation obligations are imposed on Telenor.
Simonsen Advokatfirma DA
In the market for voice call termination on individual mobile
networks (market 7), transparency and price regulations
obligations are imposed on Telenor, NetCom, Tele2,
Network Norway, TDC, Barablu and Ventelo.
Remaining regulation in the “old markets”:
In the market for telephone services provided at a fixed
location (formerly market 3, 4, 5 and 6), transparency
obligations are imposed on Telenor.
In the market for the minimum set of leased lines (formerly
market 7), transparency and price regulation obligations are
imposed on Telenor.
In the market for transit services in the fixed telephone
network (formerly market 10), transparency and price
regulation obligations are imposed on Telenor.
In the market for wholesale trunk segments of leased lines
(formerly market 14), transparency obligations are imposed
on Telenor.
In the market for access and call origination on mobile
networks (formerly market 15), transparency and price
regulation obligations are imposed on Telenor.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
In market 3, Telenor, Get, Hafslund, Intelecom Group, Orange,
NetCom, NextGenTel, TDC, Tele2, Telio, Ventelo and Verizon are
appointed as operators having a significant market power in the
markets for originating, termination and transit in the network.
Relevant markets are related to intercommunication between the
networks of the different bidders. Intercommunication is necessary
to ensure all-to-all-communication. The regulation shall arrange
for increased competition within home telephony, as well as
stimulate further growth in the broadband telephony. The
maximum price for the various intercommunication products shall
be equivalent to the price level that constituted Telenor’s offer at the
time of resolution. Furthermore, Telenor’s prices for connecting
services for intercommunication, and possible co-localisation
requested as part of the intercommunication products, shall be cost-
orientated. Telenor was also instructed to keep records of the costs
for intercommunication in the fixed network, and there was a non-
discrimination requirement as well as publishing standard
agreements for various types of intercommunication.
The other providers of termination in the fixed network were
instructed to have “fair” termination prices, and had an obligation
to publish their termination prices.
In market 7, NetCom and Telenor have a price cap regulation in
relation to mobile termination rates. Over a 3-year period the price
shall be adjusted down to an efficient level. Telenor and NetCom’s
prices have been symmetrical since 1 July 2008.
In addition Tele2, Network Norway, and MVNOs such as TDC,
Ventelo and Barablu have been ordered to have a similar, but a far
more reasonable price cap regulation. The NPT resolution prepares
for that asymmetry not taking place until the end of 2011 at the
earliest.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Telenor is subject to accounting separation in the following
markets:
Market for wholesale broadband access (market 5).
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Norway
Market for wholesale terminating segments of leased lines,
irrespective of the technology used to provide leased or
dedicated capacity (market 6).
Market for wholesale trunk segments of leased lines
(formerly market 14).
Market for access and call origination on mobile networks
Norway
(formerly market 15).
No operators are subject to functional or legal separation.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The Electronic Communications Act is supposed to be technology
neutral and next generation networks are therefore not regulated
any differently from other technologies.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
As an owner of existing copper local loop infrastructure, Telenor is
required to unbundle their facilities. Price regulation obligations
are imposed and maximum prices that can be charged for access to
the copper based LLUB are set to NOK 95 per month, c.f. decision
from the NPT regarding market 4 (wholesale (physical) network
infrastructure access (including shared or fully unbundled access) at
a fixed location).
Further Telenor is obliged to accept any reasonable request for Bit-
stream Access to the existing copper based infrastructure, c.f.
decision from the NPT regarding market 5 (wholesale broadband
access).
There is no requirement to unbundle the cable-TV infrastructure.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
With respect to access to infrastructure which is based on access
media other than copper, PT is of the opinion that in the short run it
will not be suitable to impose obligations in the LLUB market
(market 4). This is primarily based on the anticipated negative
effect that such obligations might have on investment incentives,
especially in relation to investments in new fibre and radio access
infrastructure.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Retail tariffs are not regulated.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The Electronic Communications Act hold a set of minimum
requirements for electronic communications services such as
ensuring the consumers access to making calls to the public
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emergency service, operator assisted services directory enquiry
services and text telephone services.
Customers’ terms and conditions are required to be filed with, but
not approved by, the regulator. However, the Electronic
Communications Act ensures the consumers minimum rights when
contracting with a provider.
Norway
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The NPT determines plans for numbers, names and addresses for
electronic communications networks and services, and telephone
numbers and network identifying codes are allocated by the NPT in
accordance with the plans.
6.2 Are there any special rules which govern the use of
telephone numbers?
The use of telephone numbers are separately regulated in the
Regulations 16th February 2004, no. 426, on numbering resources
for electronic communications networks and services (Numbering
Regulations).
The Electronic Communications Act secures access to end-users to
free carrier selection and number portability and other customer
rights.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The use of numbering resources from mandatory numbering plans
requires authorisation from the NPT. Providers of electronic
communications networks and services, or end users may obtain
such authorisation. Mandatory numbering plans must be followed
if numbering resources from these plans are used in order to offer
access to electronic communications networks and services.
The NPT allocates the numbers to the service providers in batches.
The service providers assign and activate the numbers for customer
usage.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The basic rules applicable to the ‘porting’ of telephone numbers
(fixed and mobile) will appear from the Electronic Regulations,
chapter 3. The provider shall release the number, which the end-
user requests to be migrated, to the other provider. The recipient
provider shall obtain written authorisation from the end-user before
migration. Authorisation given by e-mail, SMS or fax shall also be
regarded as written authorisation. The original provider is obliged
to carry out the migration of the number for a specific end-user to
the recipient provider within five working days after receiving a
correct request from the recipient provider. Each provider shall
cover its own costs in connection with provider portability. The
original provider may claim the costs of the migration of numbers
from the recipient provider. End-users shall not be billed separately
for this.
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7 Submarine Cables
7.1 What are the main rules governing the bringing into
Norway’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
For the landing of submarine cables, a preliminary permission from
the Ministry of Transport and Communications is required.
Applications do not carry any fees.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio spectrum is regulated in the Electronic
Communications Act, chapter six. The NPT is the relevant
authority with regard to the administration of radio spectrum in
Norway.
8.2 How is the use of radio frequency spectrum authorised in
Norway? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Radio frequencies may not be used unless the spectrum manager
(the NPT or the Ministry of Transport and Communications) have
assigned a licence or issued a general authorisation which gives a
right of use. When assigning radio frequency licences, efficient use
of society’s resources through sustainable competition, free
movement of services and harmonised use of radio frequencies
shall be taken into account.
When the number of radio frequency licences is limited, selection
criteria must be objective, transparent, non-discriminatory and
proportional. The NPT and the Ministry have used both auctions
and comparative beauty contests to allocate spectrum between
candidates.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
There are no distinctions made between mobile, fixed and satellite
usage in the granting of spectrum rights.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
For establishment and operation of satellite earth station facilities, a
licence for the right to use radio spectrum is required. The operator
has also to pay yearly fees and register at the NPT. The necessary
form is available at the authority’s home page at www.npt.no.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Unless the relevant spectrum is specifically mentioned in the
Regulations of 20th April 2007, no. 439, regarding general
authorisations for the use of radio frequencies, the use of spectrum
requires a licence from the NPT.
Simonsen Advokatfirma DA
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The Electronic Communications Act contains provisions on
standardised administrative charges. Holders of licences of
frequencies designated to the mobile system, however, are obliged
to pay an annual frequency fee set annually by decision of the
Ministry of Transport and Communications.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Licensed spectrum is tradable, but in order for the seller to be
relieved of, and the buyer to assume, the rights and obligations that
follow from the frequency licence, the transfer must be approved by
and registered with the NPT.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The Norwegian Data Inspectorate has granted license to
operators to store traffic data for at least 3 months. Based on the
fact that the operators do this out of their own interest, it has not
been necessary to make special orders to storage in order to
arrange for legal access to information pursuant to the Electronic
Communications Act section 2-8.
9.2 Are operators obliged to maintain call interception (wire-
tap)capabilities?
As mentioned above, the operators have been ordered to arrange for
legal access to information. Call interception is covered by this
obligation.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
In principle the operators are obliged to maintain secrecy about the
contents of and the use of electronic communication.
Pursuant to the Norwegian Criminal Procedure Act section 118,
first paragraph, and section 230, first and fourth paragraphs, the
courts and the police are entitled to request that the Ministry of
Transport and Communication makes exemptions from the secrecy
as have been decreed by law. The Ministry of Transport and
Communication has delegated the power to consider this to the PT
by delegation decision 15 September 1995.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet service providers are subject to telecommunications
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Norway
regulations and regulated in the same way as other electronic
communications services.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
Norway
content carried over their networks?
The ecommerce directive is implemented into Norwegian law
through the e-commerce act of May 23rd 2003, no. 32. The
regulation on mere conduit applies and is contained in articles 16
through 18 of the act. However the ISP’s obligation to contribute
to hinder illegal file sharing in their networks is not explicitly
regulated in Norwegian law, but the Ministry of Cultural and
Church Affairs is of the opinion that such an obligation applies to
the ISP’s. A case is brought before the court of first instance on the
matter and is currently awaiting trial.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
There is no explicit positive legal provision that states such
obligations. As mentioned under question 10.2, the Ministry of
Cultural and Church Affairs is of the opinion that the ISP shall
contribute to hinder illegal file sharing and a case has been brought
to the court of first instance by the rights holders. Another case
going for the court of second instance is the ISP’s obligation to
disclose the identity behind an IP-address in a civil case brought by
the rights holders against an ISP.
The NPT has dismissed the ISP in question from its duty of
confidentiality, but the ISP nevertheless contests the rights holders’
claim.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
To the first question; there are no explicit blocking requirements in
the Norwegian law. However in a court case coming up in the court
of first instance against an ISP, rights holders have claimed that the
ISP in question shall block its customers’ access to The Pirate Bay.
The service providers are able to block traffic according to their
terms of service.
To the second question, the NPT has issued Guidelines for
Neutrality on the Internet dated February 24th 2009, and most
major service providers have endorsed these guidelines. The
Guidelines do not have status as law and will not be able to be
sanctioned and the NPT does not have any competence to intervene
in any way in case the Guidelines are not followed.
10.5 How are ‘voice over IP’ services regulated?
VoIP services are regulated in the same manner as voice services
provided over other platforms.
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10.6 Are there any rules to prevent, restrict or otherwise govern 12 Foreign Ownership Rules
internet or email communications, in particular, marketing
and advertising communications?
12.1 Are there any rules restricting direct or indirect foreign
The Marketing Control Act (Act No. 9 of 9 January 2009) contains, ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
in section 15, rules that restrict businesses’ ability to direct
wireless operations?
Norway

marketing towards natural persons using methods of

telecommunications which permit individual communications, such
There are no foreign ownership restrictions applicable to
as e-mail, fax or automated calling systems, without the prior
authorisation to provide any telecoms services.
consent of the recipient (opt-in).

11 USO 13 Future Plans

13.1 Are there any imminent and significant changes to the

11.1 Is there a concept of universal service obligation; if so how
legal and regulatory regime for electronic communications?
is this defined, regulated and funded?

According to the European Economic Area Agreement, Norway is

The concept of universal service obligations is closer defined and
obliged to implement EU Directives regarding electronic
regulated in chapter 5 in the Electronic Communications Act. In
communications networks and services. The EU regulatory
Norway the Authority has entered into an agreement with Telenor
framework has been fully transposed into national law through the
to secure provision of the following services: 1) access to public
Electronic Communications Act of 4 July 2003, no. 83. Pursuant to
telephone services throughout the country; 2) public pay
this legislation, relevant product and services markets, and
telephones; 3) directory enquiry services; 4) telephone directories;
geographic markets, are defined and reviewed in the electronic
and 5) special services for the disabled and other end-users with
communications area. Any changes in the EU Directives regarding
special needs.
Electronic Communications will require changes in the national law
in Norway.

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Simonsen Advokatfirma DA Norway

Torstein Losnedahl Espen Tøndel

Simonsen Advokatfirma DA Simonsen Advokatfirma DA
C. J. Hambros plass 2 D, P.O. Box 6641 C. J. Hambros plass 2 D, P.O. Box 6641
St. Olavs Plass St. Olavs Plass
NO-0129 Oslo NO-0129 Oslo
Norway Norway

Tel: +47 9095 0536
Fax: +47 2195 5501
Email: tl@simonsenlaw.no
URL: www.simonsenlaw.no
Torstein Losnedahl has experience from working in the field of
telecommunications since 1999. He joined Simonsen in 2005,
having come from a position as Assistant Director General in the
Ministry of Transport and Communications. He has experience from
working with matters of law in the telecoms sector and from
auctions of licenses for radio spectrum, and international experience
as a representative in international satellite organisations, in Radio
Spectrum Committees and Radio Spectrum Policy Groups within the
EU and as a national expert on telecommunications within the WTO.
Norway
Tel: +47 9204 4966
Fax: +47 2195 5501
Email: et@simonsenlaw.no
URL: www.simonsenlaw.no
Espen Tøndel is a leading lawyer in Norway within the fields of
information technology, telecommunications and media law. He has
substantial experience in strategic counselling as well as counselling
in regulatory matters and dispute resolutions. Tøndel assists key
players from both the customer - and the supplier side in matters
concerning telecoms, IT, Internet, mergers and acquisitions within
the TMT-industry, e-commerce, e-money and PKI. Tøndel possesses
thorough experience with leading project teams and conducting
negotiations related to procurements of telecommunications
infrastructure and large telecommunications and IT systems. With
regard to IPR, his experience embraces to list but a few, licence
agreement and distribution agreements for software, technology and
content. Tøndel assists the movie industry (Motion Picture
Association) in its combat against violation of copyright on the
Internet. A major part of his work is conducted in English.

SIMONSEN Advokatfirma DA is one of the leading law firms in Norway, and provides professional legal assistance
within all aspects of the business law. Our clients includes Norwegian and foreign corporations, institutions,
organisations and individuals as well as governmental bodies.
SIMONSEN has for a number of years assisted actors within the broadcasting and distribution of information related to
most legal issues that may arise in that connection.
Our assistance covers:

Composing distribution contracts for TV, video and other audiovisual media
Drawing up contractual structures for development and management of networks and negotiating contracts with
suppliers
Discussing a number of questions with respect to contract law, regulatory issues and intellectual property rights
Establishing corporate structures, funding of suppliers and joint venture constellations with regard to relevant
business models.
The broadband technology renders possible new ways of distributing information, especially sound and picture. This
brings about many questions related to intellectual property rights, data protection and regulatory issues. SIMONSEN
holds extensive experience within all these areas.

203
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 Chapter 30
Portugal
Macedo Vitorino & Associados
1 Framework
1.1 When did Portugal first liberalise telecommunications
networks and/or services?
The first liberalising telecom law was enacted in 1989, however it
would take another decade for all market segments to become
legally liberalised.
During this period a number of providers sprouted as the
progressive privatisation of Portugal´s main operator, Portugal
Telecom (“PT”), led to the reduction of the State’s weight in the
telecommunications market by shifting public intervention from the
holding of the incumbent to regulation.
1.2 Has Portugal fully implemented the EU 2003 regulatory
framework? If Portugal has not fully implemented the new
regulatory framework, have proceedings been brought
against Portugal by the European Commission and if so,
for which contraventions?
Yes. The current EU regulatory package was transposed into two
acts, 2004 Communications Law and to the 2004 Electronic
Communications Privacy Law. Nevertheless, despite delay in the
transposition, Portugal initiated and completed the market
assessment procedures far before the enactment of the new law.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The cornerstone of the telecom legislation is the 2004
Communications Law, which contains provisions regarding general
market framework, licensing, interconnection and all
telecommunications networks and service provision. This act is
seconded by a significant number of Government statutory
instruments and regulations issued by the NRA (ANACOM).
Specific issues such as telecom privacy, radio-communications and
mobile terrestrial network deployment are the subject of
autonomous legislation.
The key statutes and regulations setting the current legal
telecommunications framework are:
(a) General framework: Law no. 5/2004, of 10 of February (the
2004 Communications Law).
(b) Data privacy: Law no. 41/2004, of 18 of August (the 2004
Electronic Communications Privacy Act), and Law no.
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João de Macedo Vitorino
Pedro Ramalho de Almeida
67/98, of 26 of October (the 1998 Data Privacy Act).
(c) Radiocommunications: Decree-Law no. 151-A/2000, of 20
July (the 2000 Radiocommunications Act), Decree-Law no.
11/2003, of 18 of January (2003 Radiocommunications
Network Deployment Act), followed by a large number of
statutory instruments and regulations.
(d) Telecom services: Law no. 23/96, of 26 July (1996 Essential
Public Services Law).
(e) Telecom equipment and network deployment: Decree-Law
no. 123/2009, of 21 of May.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
Almost all aspects of the electronic communications markets are
regulated by ANACOM, who also acts as enforcing agency for
some specific issues.
According to its statutes, ANACOM is a public entity endowed
with financial and administrative autonomy with the general
purpose of regulating, supervising and representing the
communication sector.
Although ANACOM´s statutes were not modified by the 2004
Communications Law, some of its supervision powers and
particularly its regulatory policy objectives were broadened along
with the new harsher penalties for infringement of electronic
communications laws.
Most of the regulatory and licensing powers are concentrated in
ANACOM. However, other central and local administrative
authorities have smaller but relevant roles.
Central Administrative agencies:
At the central Government, there is the Competition Authority
(“AdC”), an agency empowered to enforce antitrust law who have
a major role particularly on merger of telecommunications
companies.
Also, at central administration level, the quality standards agency
(Instituto Português da Qualidade), the Food and Economic Safety
Authority (ASAE), the Data Protection Commission (CNPD) and
the Consumer Directorate General have a relevant role especially in
the approval and testing of telecommunications equipment and
consumer related matters.
Local authorities:
With the liberalisation of the market and the emergence of the new
players, municipalities also became much more active in their
efforts to control the deployment of telecommunications networks
both in public and private property.
Macedo Vitorino & Associados
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
Under the 2004 Communications Law, ANACOMs regulatory
policy objectives may be summarised in two key objectives:
(a) the promotion of effective competition on the provision of
electronic communications network and service provision by
guaranteeing the user benefit in terms of the provision of
innovative, avoid market distortions and make rational the
use of frequency allocation and numbering resources; and
(b) consumer protection by ensuring access to the universal
service, tariff transparency and protection against abusive
legal terms and conditions imposed by operators and the
protection of privacy.
The 2004 Communications Law also brought two very important
innovations in respect of ANACOM´s powers and duties:
(a) a consultation and transparency mechanism referred to as
“general consultation procedure”, under which ANACOM
will be required to hold public consultations as part of its
regular decision making process; and
(b) the power of administrative courts to review the merits of
ANACOM’s decisions on appeal. Until the 2004
Communications Law, appeal courts could only review
decisions on legal and procedural grounds.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
Under the 2004 Communications Law there is a single licensing
title, the General Authorisation.
Any undertaking intending to provide electronic communications
services is required to notify ANACOM of the proposed activities
upon which it may begin its commercial activity, unless these
services are subject to individual right of use.
General Authorisations may be subject to certain conditions such as
the obligation to:
(a) provide interoperability of services and interconnections
networks and grant access to end users of national numbering
plan numbers;
(b) maintain the integrity of public communications networks,
including conditions to prevent electromagnetic interference
between electronic communications networks and/or
services;
(c) comply with environmental and town and country planning
requirements and with certain conditions for the use of radio
frequencies, and human exposure of the public to
electromagnetic fields caused by non-ionising radiation by
electronic communications networks;
(d) ensure personal data and privacy protection, despite the
obligation to enable legal interception, and comply with
consumer protection rules applicable to electronic
communications, particularly restrictions related to the
transmission of illegal or harmful content, in particular, in
electronic commerce;
(e) comply with the restrictions caused by major disasters in
order to ensure communications between emergency services
and authorities and broadcasts to the general public; and
(f) pay administrative charges, both to the relevant central and
local authorities, and contribute to the funding of the
universal service.
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Portugal
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
Presently the PT Group is subject to special obligations as the
Portugal
universal service provider.
All other special obligations imposed on PT and other operators
presently arise of the telecom regulatory framework.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
All notifications were served under the 2003 Recommendation.
ANACOM identified 19 relevant markets and analysed all but one
(access to mobile networks).
The most important notifications were:
(a) fixed narrow band retail services (markets 1 to 6 and 19, the
latter regarding access to non geographic numbering);
(b) fixed narrow band wholesale services (markets 8 to 10);
(c) wholesale broadband services (markets 11 and 12);
(d) retail leased lines (market 7);
(e) wholesale line rental (markets 13 and 14);
(f) access, termination in mobile networks and international
roaming (markets 15 to 17, only the 16th and 17th,
respectively termination and roaming were analysed and
subject to regulation); and
(g) wholesale broadcast services (market 18).
It should be noted that the 2007 review did not produce any material
changes, other than the reshuffling of names and the end of some
exotic (but irrelevant) markets previously defined (notably market 19).
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Under the 2004 Communications Law the process is relatively
simple. The applicant must submit a form to the regulator
accompanied by a certificate of the registration issued by the
competent Trade Register Office. In addition other information
may be requested, particularly if the applicant intends to provide
telecom services. In this case the applicant may be required to state:
i) type(s) of network(s) those entities wish to establish, operate,
control or make available;
ii) description of the nature, characteristics and functioning of
the network(s), including the purpose of the network,
geographic coverage scope, technology to be used, network
architecture, description of the information systems,
indication whether the network is owned or belongs to
another entity, whether the network installation requires the
occupation of public domain or of private property, whether
the network provision involves the use of radio spectrum or
numbering facilities;
iii) indication of the date set for the beginning of the network
provision;
iv) indication of the address of the entity and of the contact person
for the purpose of notifications to be carried out by ANACOM,
as well as of the responsible person in situations of disaster or
within the scope of the National Emergency Plan; and
v) indication of the shareholding composition at 1st and 2nd level.
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There are several fees applicable depending on the type of licensing
required. These fees apply to spectrum use, as well as number and
specific network features that require specific licensing.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
Portugal
operated and services provided?
Before the installation or the provision of the operator or the
service, in some cases other permits may be required, e.g.:
(a) the construction approval;
(b) the urban planning approval; and
(c) the environmental approval.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
In accordance with the article 37 of the Communications Law, the
licence can be transferred. The owners have to inform the
ANACOM of the transfer and his conditions. ANACOM has 45
days to authorise if it allows the transfer or not.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
General authorisations do not have a stated duration; only rights of
use are granted for limited, usually an initial 15-year term, which
may be extended up to 20 years. Thereafter, such rights are
renewable for successive 15-year terms upon request by the
licensee a year before term of the licence.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Yes. The Decree-Law no. 68/2005, of 15 March, enable providers
of electronic communications networks to construct infrastructure
on public land and the Decree-Law n.º 59/2000, of 19 April, creates
an obligation on all public entities that administer part of the public
domain to define and publish access conditions for operators.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
It depends mostly on the municipalities, except for mobile
terrestrial aerials which have a specific licensing regime.
Nevertheless, there is a general rule encouraging operators to co-
locate and share network facilities.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
There is a general principle network sharing principle under the
2004 Communications Law.
Also, as part of the SMP assessment process ANACOM identified
certain infrastructures (ducts) owned by PT Group as being subject
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to regulation and therefore establishing a reference offer.
Moreover, recent regulations intending to generally facilitate the
deployment of networks, but particularly NGN’s, imposed the
adoption of new regulation aiming at the elimination of vertical
barriers to the roll out of networks (specifically FTTH access).
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
The 2004 Communications Law establishes a general
interconnection obligation as part of the rights granted by the
general authorisations. In addition, ANACOM may impose specific
access and interconnection obligations on all operators whenever it
believes to be suitable to promote competition and protect the
costumer, including the possibility to impose technical and
operational interconnection requirements.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Yes, pursuant to the 2004 Communications Law, disputes between
different communications providers concerning network access and
the relevant terms and conditions for such access may be referred
for extra-judicial resolution to ANACOM.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Yes. At present the incumbent PT Comunicações (fixed) in both
origination and termination markets and all operators (although
differently) in termination markets are subject to interconnection
price caps.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes. Especially since 2008, Anacom has imposed several remedies,
notably on mobile termination rates. Moreover, it has shown
resistance to reducing the regulatory burden on PT’s fixed
undertakings.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Only PT’s fixed line operator has specific cost accounting
requirements to fulfil, an obligation imposed under the 1997
regulatory framework. This obligation, however, should not be
confused with any other remedy such as accounting, functional or
legal separation (e.g. on wholesale).
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Yes. The first regulations date back to 2006 and referred to flat rate
IP interconnection, however, in 2009, NGN’s have become a major
telecom policy priority. In order to allow for their deployment the
Macedo Vitorino & Associados
Government enacted new statutes aimed at simplifying licensing
procedures and, to a smaller extent, incentive operators to roll out
their networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Only PT Comunicações is subject to such obligations. There is an
extensively regulated local loop unbundling reference offer (ORALL).
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Yes. As referred to in question 4.6 the Government published
legislation aimed at facilitating the rollout of NGN. These
incentives consisted of: (i) defining a principle of equal access to
ducts and poles on public domain; (ii) redefining the access
principles of access to ducts on privately owned property; and (iii)
offering of credit lines specifically for NGN deployment.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
As referred above, only wholesale price controls apply, except
where international roaming services is concerned.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Yes, communication services are subject to several special rules on
contract terms and information availability.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone number and network identifying codes are allocated by
ANACOM.
Each operator or service provider has a determinate prefix number
which is given by ANACOM following the National Numbering
Plan (“PNN”).
6.2 Are there any special rules which govern the use of
telephone numbers?
Yes, the principles of the PNN define the usage for each numbering
range.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
All numbers, including signalling codes, are granted upon request
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Portugal
by ANACOM. All numbers are granted to operators and service
providers who then pass them to users.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Portugal
Since 2001 all fixed geographic numbers are subject to portability,
this obligation was extended in 2002 to mobile services.
Number portability is always requested by users to the receiving
operator who then will process the request through the number
portability entity and the other operators.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Portugal’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
There are no specific rules governing the bringing of submarine
cables.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes. The management of the radio electric spectrum is a specific
task of ANACOM under the 2004 Communications Law. It is
ANACOM’s duty to allocate these frequencies according to the
criteria of:
(a) availability;
(b) guarantee of effective competition in the relevant market;
and
(c) effective and efficient use of the frequencies.
8.2 How is the use of radio frequency spectrum authorised in
Portugal? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
As far as special use of specific spectrum licenses is concerned, for
uses such as GSM, UMTS, TDT, ANACOM’s tradition is to award
spectrum licenses through large and high profile “beauty parades”.
However, for other used, e.g. microwave and satellite links
ANACOM uses single or radio network licensing procedures under
the Radiocommunications Law. These licenses are much simpler
and follow a “first in first served” principle.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The National Board of Frequency Allocation (“NBFA”) specifies
the access to spectrum rights.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite earth stations have no specific requirement as ANACOM
enforces ITU-R regulations regarding Earth stations. However,
prior to the deployment of a specific service (e.g. a specific VSAT
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service), even using international allocated frequencies, it is
advisable to consult ANACOM to ensure that frequencies conform
to the NBFA.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Portugal
Under 2000 Radiocommunications Law, ANACOM has several
regulatory powers in addition to the already granted by the 2004
Communications law, namely, the granting of permanent or
temporary radio licenses, exemption from licensing of certain
classes of services and stations (certain classes of stations or
networks, such as VSAT stations, SRD-Short Range Devices,
cordless telephones - analogical or digital - portable and satellite
stations and mobile satellite terminals).
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The licence or authorisation for the use of radio frequency are
submitted to fees (article 32 n.º 1 al. f) and 105 of the
Communications Law). These fees are established by the
Government.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The spectrum licences are able to be traded (article 32(1)(e) and
article 37 of the 2004 Communications Law).
The owner of the spectrum licences have to inform ANACOM of
the transfer and respect the transfer´s conditions. To date these
procedures have seldom been used.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Yes. According to the Data Retention Directive, transposed in
2008, operators are required to retain call data provided for a one-
year-period from the date of the communication.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Yes. Undertakings providing publicly available electronic
communications networks and services may be subject in the
exercise of their activity to the provision of systems of legal
interception to competent national authorities, as well as the supply
of means of decryption or decoding.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Legal interception has to be determined by a criminal court order,
other than that is deemed a criminal offense. The authorisation must
be requested by the public prosecutor or by the criminal police.
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Portugal
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
No, the services over the internet are regulated by the 2004
Communications Law, except in respect of content.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Yes. Under existing regulations operators are deemed mere
intermediaries in the transmission of information, and therefore are
not liable for content.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
No. Under telecom regulations operators are not under any specific
obligation to act against customers that may be using their networks
for unlawful activities.
However, under the general law, there may be cases where a
specific and lawful knowledge of an obviously illegal activity or
content is should prompt an operator to have an active role in
removing or disabling access to such content.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
No. There is no obligation to remove the disputed contents or to
disable access to the information on the grounds of a claim made by
an interested party, where the illegality is not obvious.
10.5 How are ‘voice over IP’ services regulated?
VOIP services are regulated at two levels: (i) wholesale, with a
special framework under the RIO (reference interconnection offer);
and (ii) as an access service through the allocation of a specific
numbering range for “nomad” services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Decree-Law 7/2004 establishes the rules for Internet or email
communications. The unsolicited marketing communications
through automatic calling devices email without the consent are
prohibited.
Macedo Vitorino & Associados Portugal

11 USO 12 Foreign Ownership Rules

11.1 Is there a concept of universal service obligation; if so how 12.1 Are there any rules restricting direct or indirect foreign
is this defined, regulated and funded? ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?

Portugal
There is a concept of universal service obligation. The universal
service obligation is defined as a minimum set of services that
should be made available to all users for an affordable price and No. There are no rules restricting direct or indirect foreign
independently of their location. ownership interests in electronic communications companies.
The USO is regulated by ANACOM and defined by the 2004
Communication Law. 13 Future Plans
With the right to expand the definition of universal service to
accommodate new market needs, ANACOM may also use retail
13.1 Are there any imminent and significant changes to the
price controls as a tool to ensure the provision of universal services.
legal and regulatory regime for electronic communications?
This means that ANACOM may decide to require providers to
make available to the public low price service packages, lower the With the adoption of the new directives arising of the 2007 review,
upper limit of certain service tariffs, or to apply uniform tariffs in changes are expected. However there is a consensus that changes
the whole national territory. should address specific issues and whilst maintaining current major
guidelines.

João de Macedo Vitorino Pedro Ramalho de Almeida

Macedo Vitorino & Associados Macedo Vitorino & Associados
Rua do Alecrim 26 E Rua Prof Manuel Cavaleiro Ferreira, 3, 2A
1200-018 Lisbon Lisbon
Portugal Portugal

Tel: +351 213 241 910 Tel: +351 962 075 875
Fax: +351 213 241 929 Fax: +351 213 241 929
Email: jvitorino@macedovitorino.com Email: palmeida@macedovitorino.com
URL: www.macedovitorino.com URL: www.macedovitorino.com

João de Macedo Vitorino, founding and managing partner of Macedo
Vitorino & Associados (1996) is member of the Portuguese Bar
Association, admitted to practice before the Supreme Court.
He specialises in M&A, international private law, international
arbitration and is also devoted to telecommunications law and
project finance.
Graduated in Law from Lisbon University (1988), he received his
Masters in Civil and Procedural Law (1994) and was Assistant
Professor at Lisbon University (1990-2000) lecturing on Civil
Procedural Law and International Private Law.
He served as a Member of the Board of Directors of Univertel (now
a subsidiary of Spanish cable operator Cableuropa SA) between
1999-2001.
Pedro Ramalho de Almeida has been involved in the telecom market
for almost 15 years during which has held various positions in IT
companies and both fixed and mobile operators. He also practiced
law as a telecom lawyer and, currently, is a consultant at Macedo
Vitorino in telecom regulatory affairs.
Pedro Ramalho de Almeida is member of the Bar Association, and
holds a law degree by the Universidade Católica (Lisbon), an LL.M
by the University of Kent (Canterbury, UK) and an MBA by the
business schools of the Católica and Nova Universities (Lisbon).

Macedo Vitorino & Associados was established in 1996. The firm has a broad-based practice and provides a full range
of legal services.
We have strong relationship with many of the leading international firms in Europe and in the United States, which
enable us to handle effectively cross border translations.
We are prepared to advise on a full range of telecommunications’ legal issues including:
Application for telecommunication licences before the National Communications Regulator
Competition issues
Cable television
EU directives on telecommunications services
Internet Content agreements
Internet telephony and internet contracts
Interconnection
Mergers and acquisitions
Programming acquisition
The international directory “Legal 500” ranks Macedo Vitorino & Associados among Portugal´s leading commercial law
firms, for its expertise in banking, finance, and derivates, corporate law, intellectual property, tax, telecommunications
and dispute resolution.

209
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 Chapter 31
Romania
Pachiu & Associates
1 Framework
1.1 When did Romania first liberalise telecommunications
networks and/or services?
The liberalisation of the telecommunications networks and services
began in Romania in 1998 with the liberalisation of the telephone
services in the country.
1.2 Has Romania fully implemented the EU 2003 regulatory
framework? If Romania has not fully implemented the
new regulatory framework, have proceedings been brought
against Romania by the European Commission and if so,
for which contraventions?
Romania was one of the first countries in Europe to incorporate the
provisions of the 2002 EU telecommunications directives (i.e. the
Access Directive (Directive 2002/19/EC), the Authorisation
Directive (Directive 2002/20/EC), the Framework Directive
(Directive 2002/22/EC), the Universal Service Directive (Directive
2002/22/EC) and Directive 2002/58/EC on privacy and electronic
communications, as well as Directive 2002/77/2002 on competition
in the markets for electronic communication networks and services)
in its national legal framework on telecommunication.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Romanian legal framework on telecommunications may be
separated in three categories of norms:
1. Legal framework in the fields of electronic
communications and of postal services
Government’s Emergency Ordinance No. 79/2002 on the
general regulatory framework of communication, as
amended to date;
Government’s Ordinance No. 34/2002 on the access to the
public electronic communications networks and related
infrastructure and the interconnection of such networks, as
amended to date;
Law No. 304/2003 regarding the universal service and users’
rights regarding electronic communications networks and
services, as amended to date;
Law No. 506/2004 regarding the processing of personal data
and the protection of privacy in the electronic
communications field, as amended to date;
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Remus Ene
Andrei Dumitrache
Law No. 504/2002 on audio and visual transmissions, as
amended to date; and
Government’s ordinance No. 31/2002 on postal services, as
amended to date etc.
2. Legal framework in the information technology field
Law No. 260/2007 regarding the registration of the
commercial operations through electronic means;
Law No.135/2007 regarding the documents’ recording in
electronic format;
Law No.451/2004 regarding the temporal marking;
Law No.365/2002 on the electronic commerce, republished;
Law No.455/2001 on the electronic signature; and
Law No.196/2003 on preventing and combating
pornography, with the subsequent amendments and
completions etc.
3. Legal framework regarding radio equipments and
telecommunications and electromagnetic compatibility
terminal equipments
Government’s Decision No. 88/2003 on radio and
telecommunication terminal equipment an the mutual
recognition conformity;
Government’s Decision No. 982/2007 regarding magnetic
compatibility; and
the Romanian legal framework on communications and IT is
completed with the decisions of the President of the National
Authority for Administration and Regulation in
Communications (the Romanian regulatory authority in
communications).
The above mentioned legal framework is not applicable to
communications networks included in the national defence system.
The legal regime of such networks is established by special
regulations.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The Romanian regulatory authority in the field of communications
and information technology is the National Authority for
Administration and Regulation in Communications (NAARC).
The main purpose of NAARC is that of regulating, supervising and
enforcing in Romanian the communications policies and
regulations adopted at EU or national level (for details please see
question 1.5 below).
According to Government Emergency Ordinance 22/2009 by which
it was established, for the performance of its scope, NAARC
collaborates with the main following governmental bodies:
Pachiu & Associates
the Romanian Minister of Communications and
Informational Society;
the Romanian Minister of Administration and Internal Affairs;
the Romanian Competition Council;
the Romanian Consumer Protection Authority; and
the Romanian Audiovisual Council.
Notwithstanding the above, as of the date of establishment of the
NAARC, the Romanian Minister of Communications and
Informational Society has took over the regulation powers as regards
IT, including the sanctioning of unsolicited commercial messages.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
NAARC has the following main competencies in the field of
electronic communications:
issuance and updating of general authorisations for
electronic communications;
ensuring the harmonisation of the numbering resources at
European level, in accordance with the relevant EU norms
and regulations;
elaborating the Romanian numbering and radio frequencies
plan and administering the national numbering and radio
frequencies resources;
issuance of licences for use of the numbering resources and
for the use of the radio spectrum for the provision of
electronic communications services;
issuance of licences, technical approvals assignment
authorisations for radio emissions;
issuance of rules and regulations regarding the use of
numbering resources and radio spectrum;
collection of authorisation, issuance and other administrative
fees charged from electronic communications
networks/services operators and providers;
keeps the record of the use and authorisations issued for
numbering resources and radio spectrum in the national
Register of radio frequencies;
establishing of the relevant markets for electronic
communications and determines the major electronic
communications services providers on the market and their
special responsibilities according to relevant legal
provisions;
controlling the activity of the electronic communications
services providers and applying sanctions and penalties for
infringements of the relevant legal provisions;
regulating networks interconnection, licensing and
authorisation and environmental protection in relation to
electronic communications activities; and
resolving the disputes arising between electronic
communications services providers and operators for the
purpose of ensuring competition on the relevant market and
users’ protection.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
Under Romanian communications legislation, any entity providing
electronic communications networks or services must file a
notification in this regard with NAARC. The form and substance
of such notification is set out under the relevant legal provisions.
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Romania
The notification must bear in attachment the following data:
identification data of the electronic communications
networks or services provider;
description of the networks or services to be provided; and
estimated date of services commencement.
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Any change to the data attached to the initial notification must be
notified to NAARC within 10 days of its occurrence.
Following notification, the electronic communications networks or
services provider is registered with the relevant register maintained
by NAARC.
Notified electronic communications networks or services providers
obtain the following main rights:
the right to access third party estate under the conditions
provided in relevant laws;
the right to negotiate and conclude interconnection
agreements with other providers of electronic
communications services or networks; and
the right to be appointed as provider of the universal service
on national or regional level.
Upon the request of the notified provider, NAARC shall issue a
type-certificate attesting the fact that the relevant provider has been
duly notified and setting out the limits to the provider’s rights set
out under the precedent paragraph.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
Network operators and services providers are subject to any piece
of legislation applicable to any part of their activity, in addition to
the rules and conditions governing their authorisation. Therefore,
besides being subject to conditions imposed by the NAARC
authorisation, network operators and services providers must
observe the legal provisions on competition, on consumer
protection, on corporate governance, on use of public infrastructure
and on public procurement as well as any other applicable norms.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
To date no markets have been notified to the European
Commission.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Besides the general notification procedure, electronic communication
services or networks providers are required to obtain specific licenses
for utilising radio frequencies or numbering resources.
Generally, the issuance of the licenses for the use of radio
frequencies is performed based on an open, transparent and non-
discriminatory assignation procedure, within a maximum of 6
weeks as of the receipt by the issuing authority of a complete
application in this regard. Certain licences may be assigned based
on competitive or comparative selection procedure, in which case
the term is of maximum 8 months. The issuance terms are subject
to revision by the authorities whenever such is necessary with
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regard to observing the provisions of an international agreement to
which Romanian is a party.
The licence for using numbering resources, whose destination had
been established by the National Numbering Plan, is assigned based
on a similar procedure, within a 3-week term as of the receipt by the
issuing authority of a complete application in this regard. The term
Romania
may be 6 weeks in case of competitive or comparative selection
procedure.
The owner of a licence for the utilisation of radio frequencies has
the obligation to pay to NAARC a yearly tariff for the use of the
radio spectrum. The value of the tariff is established by the
Minister of Communications and Informational Society.
NAARC may impose to the owners of licences for the use of
numbering resources the payment of a yearly tariff of the use of the
aforementioned resources.
Moreover, any entity acting as a supplier of (i) public electronic
communications and information technology networks, (ii)
electronic communications and information technology services for
the public, or (iii) postal services has to pay to NAARC a yearly
monitoring tariff. The tariff is calculated as a fixed percentage
(which cannot exceed 0.4%) from the total turnover obtained by the
aforementioned entity in the preceding fiscal year. Any of the
entities which are required by law to pay the monitoring tariff may
request to NAARC that the tariff will be calculated as a percentage
of the total income obtained from the performances of activities
related to electronic communication services instead of its turnover.
Notwithstanding the above, Government Emergency Ordinance No.
79/2002 provides that the suppliers which have a total turnover not
exceeding the RON equivalent of EUR 100,000 for the preceding
fiscal year, are not required to pay the monitoring tariff.
As regards the use of a radio frequency, depending on the procedure
for granting such licence, the entity obtaining such licence may be
required to pay a licensing fee.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Besides the general authorisation and the radio frequency and
numbering resources licenses mentioned under question 2.2 above
(if applicable), a network operator may have to obtain various other
permits or approvals, such as building permits regarding the
construction works which may have to be performed for the
deployment of a network.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
In principle general authorisation may not be transferred.
The radio frequency and numbering resources licenses may be
transferred under certain conditions set out by the relevant legal
provisions and with the approval of the issuing authority (e.g.
NAARC). Nevertheless, a license may not be transferred in case
such transfer may result in a distortion or restriction of competition
on the relevant market.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The general authorisation does not have any legal time limit. The
general authorisation shall remain valid for as long as the notifying
entity is able to observe the legal terms and conditions regarding the
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provision of the notified electronic communication service or network.
The radio spectrum licence is generally issued for a 5-year term
with the following exemptions:
licences for short term trial use or on occasional basis, whose
term is a maximum of 6 months;
licences assigned based on competitive or comparative
selection procedure, whose term is established individually
for each licence; and
licences regarding the use of certain frequencies for which
the law provides a shorter term.
The numbering resources licenses are assigned for a period of 10
years and may be successively renewed for equal terms.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Under the provisions of Government Emergency Ordinance No.
79/2002, electronic communications services or networks providers
have the right to access and use private or public property with
regard to the provision of the services or networks which they are
duly authorised to provide. Such right of access and use is,
however, limited by the law and is exercisable only under specific
conditions regarding reaching an agreement with the owner of the
property, the way in which such access restricts use of property, the
opportunity and feasibility of access, compliance with applicable
urbanism regulations, traffic regulations, fire safety and
environmental regulations etc.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Installation of network infrastructure must generally comply with
the planning and zoning regime applicable to the areas where such
is installed.
Nowadays, the electronic communications network infrastructure
has become a major point on the agenda of municipalities with
regard to the development of underground channelling networks for
telecommunications which are meant to host existing aerial
infrastructures. Similar projects may be found also at national or
regional level, usually in connection with the communication routes
(roads, rail lines, channels etc.).
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
Government Emergency Ordinance No. 79/2002 provides that
NAARC has the right of obliging electronic communications
network or services providers to share their existing infrastructure
with other electronic communications networks or services
providers, if several conditions provided by the law, such as the
following, are cumulatively met:
the works for installing the infrastructure are performed over
a public or private property;
the guest electronic communications networks or services
provider cannot benefit of the right of access provided by law
or of similar facilities and the individual installing of similar
infrastructure by the guest electronic communications
Pachiu & Associates
networks or services provider would give rise to
disproportionate expenses;
the sharing of infrastructure does not adversely affect
(technically or economically) the activity of the first electronic
communications networks or services provider; and
the sharing of the infrastructure does not require major
additional installation works.
In case of imposing the sharing of infrastructure by two or more
electronic communications networks or services providers,
NAARC has the obligations of setting out also the terms and
conditions such sharing shall be carried out.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
All entities authorised to provide electronic communication networks
and services have the right and obligation to negotiate and conclude
access and interconnection agreements with other authorised
electronic communication services and networks providers.
NAARC may impose the obligation to grant access or to
interconnect to any electronic communication networks and
services provider, especially in those cases when the electronic
communication networks and services providers control access to
the final users of the services (usually SMP operators) as well as in
any other cases in which refusal of access or interconnection may
distort or restrict competition on the relevant market.
NAARC has the right to intervene whenever an access or
interconnection agreement may not be reached between electronic
communication networks and services providers, ex oficio or upon
the request of any of the involved parties, and resolve upon the terms
and conditions the interconnection or access shall be carried out.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
As set out under question 4.2 above, NAARC has the right to
intervene whenever an access or interconnection agreement may
not be reached between electronic communication networks and
services providers. The intervention of NAARC may be solicited
by any of the involved parties. The terms and conditions
established by NAARC for interconnection or access in such case
are binding upon the involved parties. Nevertheless, any decision
of the NAARC in this regard is subject to appeal in front of the
Bucharest Court of Appeal.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Following in-depth analysis performed by NAARC, there were
identified a number of operators having a significant power on the
market of access to the public fixed telephone networks for call
origination, termination and transit and on the market of leased
lines-terminal segments services and the market of access to its own
mobile telephony network for call termination. Together with other
liabilities, the NAARC imposed on such operators the obligation to
make publicly available the tariffs for all the services that are
necessary for interconnection to the public fixed/mobile telephone
network they operate, for the purpose of call termination.
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4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The NAARC published a set of documents setting out the
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maximum and/or average interconnection tariffs that may be used
by various operators of fixed and mobile operators. The
aforementioned tariffs depend from operator to operator and, as a
general rule, they have been established taking into consideration,
among others, the market power of each operator.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Upon the designation of the providers with significant power on the
electronic communications market, these providers were imposed a
series of obligations regarding transparency, non-discrimination,
the cost-orientation of the tariffs, as well as the obligation of
keeping separate accounts, which should enhance the development
and the reliability of a competitive environment on the electronic
communications market.
The obligations of keeping separate accounts and of the cost-
orientation of the tariffs imposed by NAARC are meant to promote
economic efficiency and competition for the maximum benefit of
the end-users.
The separate financial statements are concluded for one financial
year and are published within 60 days, at the latest, since the
publishing of the annual financial statements regulated by the
financial-accounting legislation, but their publication shall not
exceed 6 months from the conclusion of the financial year they
were prepared for.
In order to verify the compliance with the provisions and terms
imposed upon operators designated as having significant power on
the electronic communications services market, NAARC decides
that the operators on which the accounting separation obligation
was imposed shall submit their statements to be audited by a body
which would ensure a high qualitative level of the audit.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
In an NAARC official release regarding regulatory strategy up to
2010, it is forecasted that the regulatory policy has to take into
account the relative lack of economical feasibility of the current
business models based on unconditional access to the local loop
which had a very poor development in practice. Furthermore, the
introduction of next generation networks reduces even further the
feasibility of the unconditional access to the local loop model.
Therefore, the NAARC’s policy is that of outlining a regulatory
regime with regard to the introduction of “bit stream” type
solutions, in parallel with developing the existing local loop access
conditions in accordance with the new available technologies.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
NAARC has the competency to impose on operators to unbundle
their facilities and to grant unconditioned access to a local loop. In
such case the operator on which the obligation has been imposed
has to issue a reference offer whose form and minimal substance is
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set out in the Annex to Government’s Ordinance No. 34/2002 on the
access to the public electronic communications networks and
related infrastructure and the interconnection of such networks.
By decision no. 801/2003, NAARC designated S.C.”Romtelecom”
S.A. as an operator having significant power on the market for the
Romania
provision of the unbundled - full or shared - access to the twisted
metallic pair local loop, for the purpose of providing broadband
electronic communications services and publicly available
telephone services at fixed locations.
Consequently, Romtelecom imposed the obligation of granting
unbundled access to the local loop to all interested providers, on
non-discriminatory basis as well as to publish an unbundling
reference offer and to keep separate accounts of related operations
and cost oriented tariffs. Romtelecom published, on September 11,
2004, the Reference Unbundling Offer (RUO), and - 15 days later -
the company also published the Frame Agreement for the
unbundled access to the local loop.
As regards cable operators, if NAARC determines that granting
access to third parties to the local infrastructure of any cable
operator is promoting competition on the market and insures that
the final consumers’ benefits are maximised, then NAARC may
impose similar obligations to such operator.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Currently, there are no regulations in force in Romania relating to
next generation access. Despite the recent recommendations from
the European Commission in this regard, discussions over such
piece of legislation have yet to start, waiting for standpoints from
big players on the market, such as Romtelecom, who owns most of
the existent wire infrastructure in Romania.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
At present date, the former national telephone services provider,
Romtelecom, which is also one of the largest SMPs in the telephone
services market in Romania, has been obliged to observe certain
conditions on tariffs charged for access and call services.
Furthermore, Romtelecom has also certain tariff related obligations
regarding the local loop unbundling and granting access.
Other SMPs in Romania, i.e. Vodafone, Orange, and Cosmote, are
also functioning under certain cost related regulations imposed by
NAARC.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Under Law No. 304/2003 regarding the universal service and users’
rights regarding electronic communications networks and services,
the provision of electronic communications services to consumers is
subject to several rules which regard the following principal aspects:
obligations of the providers with regard to the universal
service;
special obligations of SMPs; and
rights of final consumers.
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6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The Romanian authority which allocates telephone numbers and
network identifying codes is the NAARC. The aforementioned
authority may allocate the right to utilise resources of the National
Numbering Plan only to electronic communications and
information technology service providers which are authorised in
accordance with the provisions of Government Emergency
Ordinance 79/2002 as subsequently modified, on the general
framework for regulating communications.
6.2 Are there any special rules which govern the use of
telephone numbers?
According to Government Emergency Ordinance No. 79/2002,
NAARC must adopt the National Numbering Plan. NAARC has to
insure the administration and management of national numbering
resources, in accordance with the National Numbering Plan and the
international treaties to which Romania is a party, and to make
available to all electronic communication services providers
adequate numbering resources.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The licence for the utilisation of numbering resources from the
National Numbering Plan (LUNR) is granted by NAARC with the
observance of a standard licensing procedure. According to this
procedure, the LUNR is issued within 3 weeks as of the date when
NAARC has received a duly filled application accompanied by all
supporting documents required under Romanian legislation. In case
the numbering resources are granted through a procedure of
competitive or comparative selection, the LUNR will be issued
within 6 weeks. The telephone numbers granted by NAARC to an
electronic communications service provider, with the observance of
one of the aforementioned procedures, will be made available by such
service providers to its end-users (customers) on a contractual basis.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Number portability was available as of the 21st of November 2008,
for the following numbering categories:
fixed telephone numbers (geographic and location
independent) - any fixed telephony subscriber will have the
possibility to keep his/her fixed telephone number, when
he/she decides to give up their subscription to the current
fixed telephone provider and to subscribe to another fixed
telephone provider; geographic numbers can be ported only
within the same geographic area (respectively within one
county or within the municipality of Bucharest and Ilfov
county). The two providers, from/to which the numbers are
ported, must offer services within the same geographic area
and have blocks of geographic numbers, allotted by LURN,
in the respective geographic area;
mobile telephone numbers (non-geographic) - any mobile
telephone subscriber will have the possibility to keep his/her
mobile telephone number, when he/she decides to give up
their subscription to the current mobile telephone provider
and to subscribe to another mobile telephone provider,
Pachiu & Associates
irrespective of the technology used (2G, 3G, CDMA etc.), of
the payment method (post-paid or prepaid) or the type of
services provided (voice, fax, data transmission); and
non-geographic numbers, other than mobile telephone
numbers - this category includes telephone numbers for free
access services (0800-type), universal access numbers
(0801-type) and universal personal numbers (0802-type) and
Premium Rate services (0900-, 0903- and 0906-type); the
users of such services will have the possibility to keep their
numbers when they request transfer from one provider of
publicly available services to another, provided the initial
destination of the number is maintained.
Fixed telephone numbers cannot be ported to mobile telephone
networks and vice versa.
A number may be ported only upon the subscriber’s request, when
the latter decides to switch from a provider of publicly available
telephone services (donor provider) to another such provider
(acceptor provider).
The acceptor provider is held responsible for carrying out the porting
process, as it is the one to initiate this process, upon receiving a porting
request from an end-user. The porting process cannot exceed, under
regular circumstances, a maximum term of 10 working days.
According to the provisions of Law no. 304/2003 on the universal
service, the porting-related amounts due by subscribers must be
affordable.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Romania’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Romanian legislation has no specific requirements applicable to the
bringing into Romania’s territorial waters and landing of submarine
cables.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of radio frequency spectrum is conditioned by the prior
obtaining of a licence issued by NAARC. However, there are some
frequency categories which can be used freely by any entity.
8.2 How is the use of radio frequency spectrum authorised in
Romania? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
As mentioned herein, except for the situations where the use of
radio frequency spectrum is free, the general rule is that a licence
has to be obtained from the regulating authority. NAARC may
grant licences (depending on the category of the radio frequency)
by direct entrustment, competitive selection or comparative
selection of candidates. The competitive selection represents a
procedure for granting a licence for the utilisation of a radio
frequency to the candidate offering the highest value for the
licensing tax, provided however that a set of minimum technical,
administrative and financial conditions are pre-met by such
candidate. During the comparative selection, the candidate which
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will receive the utilisation of radio frequency licence is determined
by comparing the offers submitted by all candidates with technical,
administrative and financial conditions preset by NAARC.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Romania
In Romania, the most important and the most widely used radio
communication services are: land mobile service; sound
broadcasting and television service; fixed service; maritime mobile
service and maritime mobile-satellite service; aeronautical mobile
service and aeronautical mobile-satellite service; fixed-satellite
service; land mobile-satellite service; radiolocation service;
maritime and aeronautical radio navigation service; and
meteorological aids service. However, in the process of granting
spectrum rights, there are no differences between mobile, fixed and
satellite usage apart from the conditions provided by the National
Frequency Allocation Table specific for each radio spectrum.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
NAARC allots and assigns radio frequencies for fixed-satellite
radio-communications networks and grants radio frequencies usage
licenses and assignment authorisations for the purpose of using
satellite communications terminals within the mobile-satellite
service.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
According to applicable legislation, transmission in the radio
spectrum is allowed only after obtaining a licence for the use of
radio frequencies or a broadcasting licence, as the case may be.
However, there are certain categories of frequencies which can be
used freely, on a licence-exempt basis, for certain types of
applications and under the strict observance of mandatory technical
and operational parameters. As a rule, reception in the radio
spectrum is free. Nevertheless, certain specific situations provided
in the procedure for licensing the rights to use the radio spectrum
require obtaining a licence for the use of radio frequencies.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
As a general rule, the usage of the radio frequency spectrum is
conditioned by payment of a usage tariff. The aforementioned tariff
is calculated by NAARC for each entity using a radio frequency
spectrum, based on various technical aspects of the radio frequency
spectrum used, as detailed in the licence obtained by such entity.
At the same time, for the radio frequencies granted through
competitive selection or comparative selection of candidates’
procedures, the Romanian Government may impose a licensing
tariff to be paid by the entity which will obtain the licence for using
the radio frequency.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The licence for the utilisation of radio frequencies granted through
the process of direct entrusting may be assigned with the
observance of the following cumulative conditions:
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a) licence’s provisions regarding assignment;
b) the assignee must be authorised by NAARC in accordance
with applicable legal provisions;
c) the assignee must undertake all obligations under the licence;
and
d) obtaining NAARC’s prior approval.
Romania
In addition to the above, for licences granted observing the
competitive selection or comparative selection of candidates’
procedure, all the conditions that were taken into account when the
initial licence was issued must be observed when assigning the
licence.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
According to the provisions of Law No. 298/2008 on the storing of
electronic communication (transposing the provisions of Directive
2006/24/CEE), operators are obliged to create and maintain a
database where they have to store the following types of data at
place such data at the disposal of competent state authorities:
a) data necessary for tracking and identifying the source of
communication;
b) data necessary for identifying the destination of
communication;
c) data necessary for determining time and date of the
communication;
d) data necessary for determining communication type (call, sms);
e) data necessary for identifying the equipment used; and
f) data necessary for determining the location of the equipment.
The operators have the obligation to store such data for 6 months
after the communication date.
Upon processing or storing any data transmitted through their
network, telecommunication operators must observe the laws on the
processing of personal data and the protection of individuals’ rights
regarding processing of personal data (i.e. Law No. 677/2001 and
Law No. 506/2004).
9.2 Are operators obliged to maintain call interception (wire-
tap)capabilities?
Decision No. 258/2008 of the National Telecommunication
Regulatory Authority, amending the Decision No. 1333/EN/2003
on the authorisation of telecommunication operators, provides that
all operators have the obligation of supporting the governmental
authority competent in the field of communication with regard to,
among others, the legal interception of telecommunications.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Competent state authorities which have the right to access the
information stored by the telecom operators are: the Romanian
Minister of Administration and Internal Affairs (police), the Public
Ministry (state prosecutors), the Romanian Intelligence Service; the
Foreign Information Service.
The data may be accessed by the competent authorities only based
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on a court order issued after criminal prosecution had begun against
the person who’s communications are scrutinised. In cases of
extreme emergency, where waiting for a judge’s mandate would
cause harm to the penal prosecution process, data may be obtained
based on the justified order of the public prosecutor. Such order must
be ratified by the competent judge within 48 hours as of issuance.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Services over the Internet do not have a specific regulation
framework. Consequently, the general national legislation
applicable to all electronic communications apply accordingly.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The telecommunications operators and internet services providers
do not bear any liability for the transmitted or temporarily stored
content or for content to which they to which facilitate access,
subject to specific conditions provided under Law No. 365/2002, on
electronic commerce, as amended.
Such criteria are:
1) In case of mere transmission of information, if the
operator/ISP: did not originate the transmission, did not
direct the transmission to a person of its choice, did not alter
or control in any manner the content of transmission.
2) In case of temporarily stored information or cached
information, if the operator/ISP: does not alter the content of
information, fulfils the legal requirements regarding access
to the information, observes the rules and trade customs
regarding information up-date, does not interfere with the
legal enquiries regarding nature and destination of stored
information and takes immediate measures for the removal
or blocking of access to information in due cases.
3) In case of permanently stored information and hosting, if the
operator/ISP had non knowledge about the illegal or causes
any harm to third party content of the stored information and
takes immediate measure for removal or blocking of illegal
information upon due notice.
4) In case of search engines and hyper-links, if the operator/ISP
had non knowledge about the illegal or causes any harm to
third party content of the stored information and takes
immediate measure for removal or blocking of illegal
information upon due notice.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Under the provisions of the Law No. 365/2002, all operators and
ISP have the legal obligation to inform the competent authorities
about any potential illegal activities or information transmissions
over their network. Operators and ISP have also the obligation of
providing to the competent authorities any information on activities
Pachiu & Associates
or transmissions over their networks or services.
Upon notice from the competent authority regarding an illegal
activity or transmission through its service or over its network, and
operator or ISP must immediately take action in order to block the
illegal activities, remove content, disconnect users or limit access as
well as any other due actions.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
It is common for network operators or internet services providers to
differentially charge for different types of traffic, such as traffic for
household users with unguaranteed band width, traffic generated by
business clients with guaranteed bandwidth, as well as “transport
traffic” between two locations.
The operators can block different types of traffic with observance to
the applicable legislation and according the agreements concluded
with the beneficiaries.
10.5 How are ‘voice over IP’ services regulated?
The provider of VoIP services addressed to the public have to
observe certain quality standard conditions regarding the service.
Such standard quality conditions are set out in the NAARC
Decision No. 138/2002 regarding certain minimum requirements
for the provision of electronic services. Under such provisions, the
VoIP service providers regarding local calls must inform the
beneficiaries of the quality class in which the service is rated
(established by the same Decision) and to perform the provision of
the service at the tariff corresponding to the quality class. For long
distance and international calls the VoIP services providers must
observe certain mandatory quality criteria provided in the Decision.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
According to Law No. 365/2002 on electronic commerce, the
performance of any commercial communications via email is
strictly forbidden, except for the situations when the recipient has
manifested his express consent to such communications. Moreover,
even if the recipient has expressed his approval for commercial
communications, he has the right, at any time, to revoke his
approval, by notifying the person making the communications.
The methodology for the implementation of Law No. 365/2002
provides that all commercial communications must begin with the
word “ADVERTISING” (rom. PUBLICITATE) in capitals.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
In accordance with Law No. 304/2003, NAARC has the obligation
to insure the access to the universal service on the entire territory of
Romania. For this purpose NAARC will appoint one or more
providers of universal service for supplying one or more of the
services included in the universal service. The services included in
the universal service are:
a) access to the public telephone network, at a fixed point;
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Romania
b) subscribers’ information and access to subscribers’ registers;
and
c) access to public pay phones.
NAARC may force the providers of the universal service to apply
common tariffs or to observe certain thresholds or increase of tariffs
control formulas. Moreover, the aforementioned authority may
Romania
impose on the providers to offer to low-income consumers or
consumers with special needs certain tariff packages in
advantageous commercial conditions.
For achieving the scope provided under letter b) above, Law No.
304/2003 establishes that all electronic communications providers
which assign telephone numbers to consumers have the obligation
to make available to all suppliers of subscribers’ information and
subscribers’ registers, all relevant information, in an equitable, non-
discriminatory and cost-oriented manner.
The universal service providers may be obligated by NAARC to
insure a sufficient number of public pay phones, covering a suitable
geographical area, and allowing proper access to them for persons
with disabilities. Nevertheless, at this stage, to the best of our
knowledge no order for the director of NAARC has been issued in
this regard.
As regards the financing of the universal service, the applicable
secondary legislation provides that the cost incurred for the
provision of the universal service will be funded from contributions
paid by all electronic communications and information technology
service providers having a yearly turnover of more than EUR
3,000,000. The value of the contribution will be set yearly by order
issued by the director of the NAARC.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
The general rule set out by Romanian legislation is that there are no
restrictions as regards foreign ownership interests in a company
registered in Romania. Consequently, there are no specific provisions
applicable to electronic communications companies whether in fixed,
mobile, satellite or other wireless operations which may limit or
restrict in any manner the foreign control over such companies.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
At present, NAARC and the Romanian Minister of
Communications and Technology Information have initiated a
project for amending the legal provisions governing the right to
access and use private or public property by services or networks
providers. This change is required as the current provisions
regulating this aspect have proved to be very difficult to enforce.
Consequently, the new project promises to ease the access of
providers to public and private property, for the purpose of
installing, operating and providing to the public electronic
communication networks and services.
The envisaged legal amendments are still undergoing the legislative
approval procedure and are expected to enter into force by the end
of 2009.
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 Pachiu & Associates Romania

Remus Ene Andrei Dumitrache

Pachiu & Associates Pachiu & Associates
4-10 Muntii Tatra Street, 5th floor 4-10 Muntii Tatra Street, 5th floor
Bucharest 1, RO 011022 Bucharest 1, RO 011022
Romania Romania
Romania

Tel: +4021 312 1008 Tel: +4021 312 1008

Fax: +4021 312 1009 Fax: +4021 312 1009
Email: remus.ene@pachiu.com Email: andrei.dumitrache@pachiu.com
URL: www.pachiu.com URL: www.pachiu.com

Remus has graduated the Law School of Bucharest Dimitrie
Cantemir University and attended the Academy of European Law on
European competition law.
Remus is a senior member of the Bucharest Bar Association and a
member of the National Romanian Bars Association.
He provides legal assistance in matters related to foreign
investments in Romania, commercial and corporate law, tax law and
regulatory.
Remus is also a regular contributor to several reviews and legal
publications.
He is fluent in Romanian, English and conversant in French.
Andrei graduated the Law School of “Nicolae Titulescu” University
in Bucharest and is currently attending a LLM in US and Global Law
for International Business Lawyers with the Sufforlk University Law
School in Boston, MA.
Andrei is a senior member of the Bucharest Bar Association and a
member of the National Romanian Bars Association.
As partner within Pachiu&Associates law firm, Andrei is heading the
Tax and Financing and Securities Departments and his area of
expertise includes tax, corporate and real estate law, commercial
and capital market’s law.
Andrei is also a regular contributor to several reviews and legal
publications, both in Romania and abroad, covering tax, public-
private partnership, and securitisation.
Andrei is fluent in Romanian and English and conversant in French
and German.

Pachiu & Associates is a Bucharest based business law firm established by Romanian attorneys. The firm currently
consists of 21 lawyers plus additional staff comprising paralegals, authorised translators and supportive staff. The
lawyers of the firm are all graduates of leading universities in Romania or abroad. More than half of the lawyers are
senior members of the Bucharest Bar Association. All lawyers are fluent in Romanian and English, and some are fluent
in German, French or Spanish. The firm provides for a full range of commercial and corporate legal advice from its
main office in Bucharest and its secondary office in Cluj-Napoca (west of Romania).
The firm has extensive expertise in matters related to corporate governance, corporate disputes, securities, mergers and
acquisitions, insolvency, commercial contracts, offshore and tax structures, labour law, real estate, anti-trust law,
intellectual property, banking and project financing, secured transactions, cross-border transactions, public acquisitions,
procurement, and litigation. Apart from its consistent mergers & acquisitions and cross-border transactions practice,
the firm has developed a strong practice in tax, securitisation and real estate, construction, labour and intellectual
property.
The firm maintains a close relationship with some leading multinational law firms and other small and medium-sized
law firms from abroad, so as to ensure efficient liaison with important foreign business centres and jurisdictions.
So far we have been assisting several companies in matters related to acquisitions on the telecom market and to the
development of telecommunication infrastructure.

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Chapter 32

Serbia Matija Vojnovic

Moravcevic Vojnovic Zdravkovic oad

v

Slaven Moravcevic
v

in cooperation with Schoenherr

1 Framework telecommunications networks; and

s) establishing prerequisites for development and market
competitiveness of the national telecommunications industry.
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is 1.2 Is Serbia a member of the World Trade Organisation? Has
relevant to telecommunications and radio frequencies? Serbia made commitments under the GATS/GATT
regarding telecommunications and has Serbia adopted the
The policy principles and goals are set out in the WTO Basic Telecommunications Agreement?
Telecommunications Law (Official Gazette of the Republic of
Serbia, no’s.44/03, 36/06) (Zakon o telekomunikacijama) (the No. Serbia submitted and formally entered into membership
“Telecommunications Law”) negotiations in December 2004 and currently has observer status.
The main principles include:
a) implementation of a transparent and non-discriminatory 1.3 How is the provision of electronic communications
regulatory framework regarding licence issuance, network networks or services regulated? Is the provision of
interconnection and tariff policy; electronic communications networks or services open to
competition in Serbia?
b) harmonisation of the legal and regulatory framework with
the relevant EU regulations;
As one of its main principles the Telecommunications Law
c) liberalisation and privatisation;
encourages competition in all areas of telecommunications. In the
d) development of institutional framework for market
area of mobile telephony, three (3) licences are currently held by state-
liberalisation;
controlled Telekom Srbija (with OTE as minority shareholder),
e) safeguarding investments; Telenor, and Vip (member of mobilkom Austria group). Due to the
f) establishing of the fund for universal service cost recovery relative reluctance of the regulator to enact relevant by-laws and issue
and ensuring availability of the universal service; new licences in the sphere of fixed telephony, Telekom Srbija (i.e.
g) network and service convergence and the creation of a Serbia’s national operator) still has a factual fixed-line monopoly,
supporting regulatory framework; despite the fact that in 2005 Telekom Srbija lost the exclusive right to
h) development of telecommunications infrastructure and provide fixed telephony services. In May 2009, the by-law for fixed
gradual migration from circuit switched networks for voice wireless access (FWA) for public telecommunications networks and
transfer to packet switched networks; services in the frequency band 411.875-418.125/421.875-428.125
i) development of 3G mobile networks and broadband fixed MHz for the territory of the Republic of Serbia was enacted and a
and wireless Internet access; public auction for the first two (2) licences was successfully held.
j) introduction of advanced telecommunications services;
k) increase in the number of subscribers of public fixed and 1.4 Which are the regulatory and competition law authorities?
mobile telecommunications networks and the degree of How are their roles differentiated? Are they independent
Internet usage; from the government?
l) developing tariff policy in line with the practice of EU
Member States; The telecommunications regulatory authority is the
m) improving the business efficiency of the national operator; Telecommunications Agency (“RATEL”). According to the
n) creating conditions for efficient radio-frequency spectrum Telecommunications Law, RATEL’s competencies include anti-
management and its non-discriminatory usage; trust measures in respect to telecoms operators. On the other hand,
o) preparation and implementation of a modern numbering and general authority for the protection of competition is the
addressing plan; Commission for the Protection of Competition pursuant to the Law
p) strengthening of security and safety in the on Protection of Competition (Official Gazette of the Republic of
telecommunications sector; Serbia, no.79/05) (Zakon o zastiti konkurencije).
q) introduction of digital broadcasting; RATEL has certain authority relating to competition issues
r) enhancement and public commercial usage of unused including:
telecommunications capacities of public enterprises’ private a) determining the significant market power (SMP) of public
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 Schoenherr
telecommunications operators (“Operator(s)”);
b) prohibiting/restricting any anti-competitive or monopolistic
activity or behaviour under a licence granted to an Operator;
c) defining a special tariff regime for public
telecommunications services (“Services”) over which an
Operator has a monopoly. Services that are not open to full
price competition;
Serbia
d) defining a special tariff regime if an Operator, having a
monopoly or significant market share, cross-subsidises a
competitive network or service;
e) ordering an Operator, having a monopoly, to provide
interconnection to other Operators;
f) defining conditions for interconnection contracts between an
Operator having a monopoly and other operators in cases
where an Operator does not accept an interconnection
request, even where that request represents an offer made
subject to standard conditions, or if it does not answer to that
request within a reasonable period of time;
g) ordering an Operator having a monopoly to allow another
Operator to access its network in order to provide value
added public telecommunications services;
h) ordering an Operator having a monopoly to supply leased
lines to another Operator based on a reasonable request and
available network capacity; and
i) controlling any merger, acquisition, take-over or any other
change with regard to the organisational form of
telecommunications companies which may result in a
monopoly or a company with a significant market share.
Therefore, antitrust competences in the telecom sector are divided
between RATEL and the Commission.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Decisions of RATEL are final and therefore are not subject to
ordinary administrative remedies set out by the Law on General
Administrative Proceedings (Official Gazette of the Republic of
Serbia, no’s.33/97, 33/01) (Zakon o opstem upravnom postupku).
However, RATEL’s decisions can be challenged in an
administrative dispute before a competent court (the Supreme Court
of Serbia) pursuant to the Law on Court Proceedings in
Administrative Matters (Official Gazette of the Federal Republic of
Yugoslavia, no.46/96) (Zakon o upravnim sporovima).
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The Telecommunications Law provides that any natural or legal
person may construct, own or operate a public telecommunications
network and/or provide public telecommunications services, if
RATEL has previously granted him/her the relevant licence.
RATEL is authorised to grant licences (individual licences and
general licences) for:
a) public telecommunications networks;
b) public telecommunications services;
c) radio stations; and
d) technical licence.
An individual licence can be granted to a local, foreign natural or
legal person whose intention is to build, own or operate a
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Serbia
telecommunications network or to provide Services in cases of
scarcity of resources (e.g. radio frequencies or numbering). RATEL
is authorised to determine the type of Services for which an
individual licence may be granted. Issuance of individual licences
is conducted through a public bidding procedure. The terms and
conditions for the public bidding procedure are be set out by
RATEL in the Guidelines on Public Bidding for Licence Issuance
(Official Gazette of the Republic of Serbia, no.12/09) (Uputstvo o
procedure javnog nadmetanja za izdavanje licence). A general
licence is a licence granted to any local, foreign natural or legal
person whose intention is to operate a telecommunications network
or provide Services under standard conditions.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
A construction permit is needed in order to construct the necessary
network facilities. A construction permit will be issued by the
competent ministry when the construction relates to: buildings with
communication systems of international and local-trunk
importance; and/or buildings to be constructed in the territories of
two or more municipalities, including the main facilities.
Furthermore, RATEL may also grant all telecom-related licences
and approvals, such as: radio station licences, granting its holders
the right to use radio stations and a specified radio frequency; and
technical licences (certificates), confirming the technical
compliance of telecommunications networks, systems or equipment
with the prescribed norms and standards, thereby allowing licence
holders to procure, install and/or put into operation such
telecommunications networks, systems or equipment.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
The transfer of a licence (both individual and general) is subject to
the approval of RATEL. Furthermore, the licence itself often
contains change of control clauses.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The validity of an individual licence shall not exceed 20 years.
However, there is a possibility of renewal based upon a request of
the licence holder. General licences are not limited in duration.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Operators are entitled to request a right of passage (pravo prolaza)
or a right to use the land owned by another person (easement)
(sluzbenost) if it is necessary for establishing a public
telecommunications network or system, and installation of
telecommunications equipment. In the case that the operator and
the property owner are unable to reach an agreement on the right of
way or easements, RATEL is authorised to regulate right of use or
right of way issues. In practice, it is not rare for the operators to
enter into site-sharing agreements.
Schoenherr
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
The Planning and Construction Law (Official Gazette of the
Republic of Serbia, no’s.47/03, 43/06) (Zakon o planiranju i
izgradnji) stipulates that zones designated for telecommunications
installation or infrastructure should be defined under a general plan
which is within the competence of the city/municipal authorities.
RATEL approves plans and structures of specific networks prior to
the roll out.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or
cables (i.e. dark fibre)? Are there any proposals to
mandate ‘passive access’ to such basic infrastructure?
RATEL has the right to order sharing and/or enabling of
telecommunications infrastructure, if it is technically or in any other
way feasible. The owner of shared telecommunications
infrastructure has the right to fair compensation. Optional sharing
of telecommunications infrastructure is subject to prior
authorisation from RATEL provided that economical and/or
technical requirements are met. State controlled telecoms giant
Telekom Srbija is generally prepared to enter into site-sharing (also
known as tele-housing) agreements with other telecom operators
and networks (including TV stations). Currently, there are no
proposals to change infrastructure access.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Yes. RATEL has issued the Rules on General Terms for
Interconnection of Public Telecommunications Networks (Official
Gazette of the Republic of Serbia, no.53/08) (Pravilnik o opštim
uslovima za interkonekciju javnih telekomunikacionih mreza) (the
“Rules for Interconnection”) which sets out a framework for
interconnection.
The Rules for Interconnection set the following criteria:
a) contractually regulated interconnection;
b) transparency of interconnection offers;
c) non-discrimination regarding the condition of
interconnection;
d) setting fees and other payments according to relevant costs
including reasonable revenues; and
e) availability of interconnection in telecommunications points
where interconnection is technically and economically
feasible.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
If an operator refuses the request for interconnection by another
operator or operators fail to reach an interconnection agreement
within three (3) months from the date of filing the initial request,
then the operator can request that RATEL render a decision
substituting the interconnection agreement. RATEL is obliged to
render a decision within sixty (60) days from the date of the
submission of the request. RATEL’s decision is final and binding
upon the parties.
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Serbia
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
All interconnection contracts have to be registered with RATEL.
Information stated in interconnection contracts is publicly available
except if they are classified as a business secret.
Serbia
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or
cost regulation and, if so, how?
Interconnection charges levied by an SMP Operator can be limited
by RATEL if the charges are not based on the criteria set out in the
Rules for Interconnection.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
An SMP Operator is obliged to keep separate accounts for each
concluded interconnection contract.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The Rules for Interconnection do not yet regulate the new network
technologies (e.g. next generation networks, IP-based networks).
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
No information is available for this Section.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
To-date, no proposals have been put forward to regulate next
generation access.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Retail and network prices are set freely by the operators. However,
due to the lack of competition in regard to particular services (e.g.
fixed telephony) RATEL has the right to establish a special tariff
regime in the following cases:
a) if there is only one operator for a particular service or if an
Operator has a significant market power in the service
market; and
b) if a Operator cross-subsidises or co-finances another
telecommunications network or service of its own using
revenues generated from the operation of the network or
provision of service where it has a monopoly or significant
market share.
Fixed line telephony is currently subject to special tariff regime
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since this sector is still under monopoly of Telekom Srbija (declared
as fixed line SMP Operator since 2006).
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Serbia
An Operator shall ensure confidentiality and security of the
transmitted data. The operator is not permitted to disclose any
information about the content, terms and conditions of a message
transmission beyond the statutory minimum requirement. The new
Personal Data Protection Act was adopted on 23 October 2008 and
has been applicable since 1 January 2009. However, data protection
and consumer protection policies are still in their infancy.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
RATEL is competent for allocation of telephone numbers and
network identifying codes based operators’ requests.
6.2 Are there any special rules which govern the use of
telephone numbers?
Certain categories of telephone numbers i.e. priority numbers
(police, emergency, etc.) and special tariff numbers have been
allocated by RATEL. RATEL has enacted numeration plans,
decisions and by-laws.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
General rules and obligations concerning the availability of
telephone numbers are set down in the Plan of Numeration for
Telecommunications Networks (Official Gazette of the Republic of
Serbia, nos.br.57/2008, 77/2008, 105/2008, 107/2008) (Plan
numeracije za telekomunikacione mreze). The obligations between
the operators and customers are regulated through an agreement
with the subscriber. After signing the subscription agreement, the
operator is generally obliged to activate the subscriber’s number
within 15 days except in cases of technical difficulties.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
There are no rules regulating the porting of telephone numbers. The
Ministry of Telecommunication and Information Society’s action
plan provides that the necessary by-law will be adopted by the end
of 2009.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Serbia’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Since Serbia is a landlocked country, this section is not applicable.
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8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Radio frequency spectrum use is regulated under the
Telecommunications Law. RATEL is authorised to manage the
radio frequency spectrum.
8.2 How is the use of radio frequency spectrum authorised in
Serbia? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Usage of the radio frequency spectrum is subject to licensing by
RATEL in accordance with the Radio Frequency Spectrum
Designation Plan (Plan namene radio frekvencijskih opsega).
Conditions are set down by RATEL in the Rules on Procedure for
Radio-Station Licence Issuance and on Data and Documentation to
be Submitted together with Radio-Station Licence Request (Official
Gazette of the Republic of Serbia no.100/05) (Pravilnik o postupku
izdavanja dozvole za radio stanice i podacima i dokumentaciji koji
se podnosi uz zahtev za pribavljanje dozvole za radio stanicu).
Furthermore, these rules determine the procedure according to
which radio frequency licences are granted. Different documents
have to be submitted depending on whether a licence is requested
for a single-channel radio link radio station, radio broadcasting
station or a multi-channel terrestrial and satellite link radio station.
A licence can be extended by submitting a written request not later
than 60 days before the expiry of the licence.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Yes. Approvals for the spectrum make distinctions between mobile,
fixed and satellite usage.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Relevant by-laws for installation of satellite earth stations have not
yet been enacted. Serbia is party to the key satellite treaties and
organisations (EUTELSAT, INTELSAT, INMARSAT), while
RATEL, announced the further development of this sector, and
installation of a central satellite platform in the town of Ivanjica.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Yes. Certain government authorities such as the police, military and
the Ministry of Foreign Affairs do not require spectrum licences.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
RATEL sets formulas for calculating fees for:
a) radio frequency usage;
b) radio stations in broadcasting services;
c) mobile and fixed services;
d) public services;
Schoenherr
e) satellite services; and for
f) other radio stations.
The following criteria are taken into account when calculating fees:
a) number of inhabitants in the service area;
b) level of development of the area covered by the service area
of the radio network;
c) signal type; and
d) mode of radio-frequency usage.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Licences cannot be traded or sub-leased.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
The Telecommunications Law stipulates that retention of traffic
data is permitted in the following instances:
a. Customer billing purposes - individual customers’ traffic
data can be kept and processed to the extent necessary for
customer billing purposes. This data can be provided only to
the sender and the message recipient at their request in a time
period not longer than the period in which the claims may be
contested or collected from the customers.
b. Government purposes - The operators must allow the
authorised government authorities to access and analyse the
data traffic in accordance with the relevant law.
The Protection of Personal Data Act does not contain specific rules
pertaining to telecommunications.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Telecommunications Law requires operators to maintain call
interception (wire-tap) capabilities. Lawful interception is provided
for under the Telecommunications Law. The lawful interception
standards and requirements in mobile telephony are not in the
public domain (they have been only delivered by RATEL to the
Operators in a form of a state secret). In respect to the Internet,
RATEL’s lawful interception rules have been very heavily criticised
by the public and have been recently withdrawn by RATEL for this
reason. The National Security Service (BIA) plays a key role in the
preparation of rules and procedures of lawful interception.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
Call data and/or interception access is subject to a court order.
Certain government bodies (the Ministry of Internal Affairs,
Security Information Agency, Military Information Agency and
Military Police) are authorised to access call data and intercept
calls.
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Serbia
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
Serbia
broadband access) level? Are internet service providers
subject to telecommunications regulation?
RATEL sets out the Rules on Terms and Conditions for Providing
Internet and other Data Transfer Services and on Contents of
Authorisations.
Internet services are generally subject to the same principles as
other services including the need for a permit granted by RATEL.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
An internet service provider (“ISP”) is obliged, based on a decision by
the competent authority, to warn the user responsible for spamming,
distributing damaging content or who is in breach of intellectual
property rights about such actions. In case the user continues to send
spam, distribute damaging content or breach intellectual property
rights, the ISP may stop providing internet services.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
An ISP is under no obligation to assist, in any way, owners whose
rights may have been infringed by file-sharing or other activities.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
RATEL’s bylaws that govern provision of Internet services
generally prohibit any form of discrimination. Individual telecom
licences also contain non-discrimination clauses. These general
rules do not prevent Operators from offering different tariff
packages and pricing models, and imposing special requirements
concerning the type content.
10.5 How are ‘voice over IP’ services regulated?
In 2008, RATEL adopted the Rules on Conditions for Providing
Voice Transfer Services over the Internet and Licence Content
(Official Gazette of RS, no.94/08) (Pravilnik o uslovima za
pruzanje usluga prenosa govora koriscenjem Interneta i sadrzaju
odobrenja). Providing VoIP services is subject to approval by
RATEL. RATEL has the authority to issue a licence to any local or
foreign person that fulfils the conditions stipulated. A licence is
valid for five (5) years and may be renewed.
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10.6 Are there any rules to prevent, restrict or otherwise govern least once a year, with a report on new connections to the public
internet or email communications, in particular, marketing telecommunications network.
and advertising communications?
Currently, there is a public consultation between the Ministry of
Telecommunications and Information Society and interested parties
The Consumer Protection Act (Official Gazette of the Republic of
regarding the list of USO and the scope of USO. A by-law
Serbia, no.79-05) (Zakon o zastiti potrosaca) stipulates that the
regarding the USO is expected to be adopted during 2009.
offer of goods and services through the electronic media can be
Serbia

done only with the prior consent of the customer (opt-in). General
rules and restrictions of the Law on Advertising (Zakon o 12 Foreign Ownership Rules
oglasavanju) also apply to internet advertising.

12.1 Are there any rules restricting direct or indirect foreign

11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The Telecommunications Law introduces the concept of universal
services. Universal services are defined as a set of
telecommunications services of a specified quality and scope which
are available to all users of the public telecommunications network
in the Republic of Serbia, at reasonable prices.
The scope of universal services includes:
a. access to public fixed telephone services, including the
service of data transmission using voice telephony which
enables quality access to the Internet;
b. special measures to ensure equal access to the public voice
service for disabled and socially disadvantaged users;
c. free access to emergency services;
d. phone services relating to public pay phones; and
e. access to telephone operator and directory enquiries.
RATEL is authorised to assign the operator/provider of universal
services. The provider of universal services has the right to fair
compensation for providing universal services. The provision of
universal services is financed by payments received from other
operators.
The universal services operator is obliged to provide RATEL with a
bi-annual report on the costs of universal service provision, and, at
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
There are no rules restricting direct or indirect foreign ownership.
On the other hand, telecoms licences may contain change of control
clauses, and restriction of foreign ownership to 49% does exist in
the broadcasting sector.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Since May 2009 mobile telecommunication services (both post paid
and pre-paid) are subject to a special 10% tax, in addition to
standard VAT rate. This controversial 10% “mobile tax” has been
introduced as another measure of Serbian Government to address
the financial crisis.
2009 and 2010 are likely to be years of change in the area of Serbian
telecommunications. A by-law relating to number portability is
expected to be adopted by RATEL in 2009. The new Law on
Electronic Communication Networks and Services, which should
me bore compliant with EU standards is announced for 2010.

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Schoenherr Serbia

Matija Vojnovic Slaven Moravcevic

v

Moravcevic Vojnovic Zdravkovic oad Moravcevic Vojnovic Zdravkovic oad

v v

in cooperation with Schoenherr in cooperation with Schoenherr

Francuska 27, SRB-11000 Belgrade Francuska 27, SRB-11000 Belgrade
Serbia Serbia

Tel: +381 11 320 2600 Tel: +381 11 320 2600

Serbia
Fax: +381 11 320 2610 Fax: +381 11 320 2610
Email: m.vojnovic@schoenherr.rs Email: s.moravcevic@schoenherr.rs
URL: www.schoenherr.rs URL: www.schoenherr.rs
www.schoenherr.eu www.schoenherr.eu
Matija Vojnovic is a local partner with Moravcevic Vojnovic Zdravkovic Slaven Moravcevic, is a local partner with Moravcevic Vojnovic
v v v

OAD in cooperation with Schoenherr specialising in M&A, projects,
finance, and competition. Matija advises international clients on their
market entry and heads the team that provides full-service transaction
support in implementation of their investments. Matija has been
involved on various M&A and PPP transactions in Serbia, Montenegro,
and Bosnia. He is frequently engaged in different sectors and
regulated industries, including energy, infrastructure, insurance,
financial services, telecommunications, IT, media, and pharmaceutical
industry. He holds an LLM in international business law and
contributes to several industry and legal guides on Serbian legal
developments.
Zdravkovic oad in cooperation with Schoenherr, where he
specialises in corporate, M&A, real estate, energy and
telecommunication. Before joining the firm in 2003, he worked as
the legal advisor for the Federal Ministry for Telecommunication
(since 1998). Slaven primarily advises international clients on all
aspects of their investments in Serbian real properties (including
zoning, construction and expropriation law), and has been engaged
as the lead counsel on some of the largest and most challenging
local property deals. Slaven has extensive experience in the
telecommunications and oil & gas sectors.

Schoenherr is a leading corporate law firm in Central and Eastern Europe, operating through offices in Belgrade,
Bratislava, Brussels, Bucharest, Budapest, Kyiv, Ljubljana, Prague, Sofia, Vienna, Warsaw and Zagreb. More than 240
professionals service national and international clients from our offices in Belgrade, Brussels, Bucharest, Budapest,
Kyiv, Ljubljana, Sofia, Vienna and Zagreb. The firm has a long standing tradition of advising clients in all fields of
commercial law providing seamless service that transcends national and company borders.
Moravcevic Vojnovic Zdravkovic OAD in cooperation with Schoenherr has been active on the Serbian market since
2001. The firm’s practice is client-orientated, with specialised practice groups that provide industry-focused services
to meet the demand of a competitive, developing and rapidly changing marketplace.
v

In addition to Serbia, Moravcevic Vojnovic Zdravkovic OAD in cooperation with Schoenherr frequently acts in Bosnia
v

and Herzegovina, Montenegro, and Macedonia through specialised country desks.

225
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© Published and reproduced with kind permission by Global Legal Group Ltd, London
 Chapter 33
Singapore
Allen & Gledhill LLP
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The overall policies and objectives, set out in the ‘Intelligent Nation
2015 Masterplan’, are to transform key economic sectors,
government and society through the sophisticated and innovative
use of infocomm and to establish an ultra-high speed, pervasive,
intelligent and trusted infocomm infrastructure.
The primary legislation relevant to telecommunications and radio
frequencies is the Telecommunications Act (Chapter 323) (‘TA’).
The Broadcasting Act (Chapter 28) (‘BA’) may be relevant where it
regulates broadcasting services and apparatus.
1.2 Is Singapore a member of the World Trade Organisation?
Has Singapore made commitments under the GATS/GATT
regarding telecommunications and has Singapore adopted
the WTO Basic Telecommunications Agreement?
Yes, to all of the above.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Singapore?
The provision of electronic communications networks or services is
regulated by the TA and BA as described in question 1.1 and is open
to competition.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The Infocomm Development Authority (‘IDA’) is the
telecommunications industry regulator and the Media Development
Authority (‘MDA’) is the broadcasting industry/apparatus
regulator.
IDA is also responsible for the regulation of competition in
telecommunications, including infrastructure and spectrum. IDA
has published a ‘Code of Practice for Competition in the Provision
of Telecommunication Services’ (‘Code’) which addresses anti-
competitive conduct, abuse of dominance, and consolidations
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Tham Kok Leong
Alexander Yap
among licensees and/or other entities.
MDA is more of a ‘content’ regulator as opposed to IDA (which is
the telecommunications infrastructure/service or ‘systems’
regulator).
IDA and MDA are both statutory boards of the Singapore Ministry
of Information, Communications and the Arts (‘MICA’) acting as
agencies which carry out specific plans and policies of MICA.
Neither is truly independent from the government.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Yes, decisions of IDA and MDA may be appealed to the Minister
for Information, Communications and the Arts (‘Minister’).
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
A person who installs and operates an electronic communications
network is generally licensed as a Facilities-Based Operator
(‘FBO’) while a person who provides services over such a network
is generally licensed as a Services-Based Operator (‘SBO’) (under
an Individual or Class Licence, depending on the services being
offered).
Applicants for an FBO licence are required to submit an application
in writing, together with a non-refundable application fee of
S$1,000. Successful applicants will generally be awarded their
licences within eight weeks. The annual licence fee is 1% of the
annual fair value of the consideration received or receivable for
licensable activities taking into account the amount of any trade
discounts and volume rebates allowed, except for licences for
public cellular mobile telephone services, public mobile broadband
multimedia services and public fixed-wireless broadband
multimedia services, where the fee depends on the results of a
comparative selection and/or auction.
Applications for SBO licences are to be submitted online at a
prescribed website. Generally, no application fee is applicable and
successful applicants will be awarded their licences within two to
14 days. The annual licence fee depends on the type of licence and
ranges from S$0 to S$5,000.
Allen & Gledhill LLP
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
In relation to installation of networks it may be necessary to
acquire, inter alia:
approvals for any building/site installations from the Urban
Redevelopment Authority (‘URA’) and the Building and
Construction Authority (‘BCA’);
permits from Customs for importation of equipment; and
approvals from the Maritime Port Authority (‘MPA’) for
landing submarine cables.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
No. In general, licences issued by IDA are not transferable without
the prior written approval of IDA (which approval may be subject
to conditions). Other authorities have varied rules.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Typical durations for the following licences are:
FBO licence - valid for 10 to 20 years and subsequently
renewable every five years;
SBO (Individual) licence - valid for three years and
renewable every three years; and
SBO (Class) licence - perpetual.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The TA provides that an FBO licensee who has been designated as
a ‘public telecommunication licensee’ (‘PTL’) may enter state land
and private land to inspect, install and/or maintain any installation
or plant for telecommunications, subject to specified conditions
(such as giving of notice of entry to the occupier/owner, obtaining
prior approvals from IDA and the Singapore Land Authority and
paying compensation for any damage, disturbance or disability).
The approval of other applicable statutory authorities (such as the
Land Transport Authority) may also be required prior to such entry,
depending on the land in question.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
In carrying out its activities under the TA, the PTL is required to
comply with local laws and planning/zoning requirements of the
URA - Singapore’s land use planning authority.
3.3 Are there any rules requiring established operators to share
their infrastructure, e.g. masts, sites, ducts or cables (i.e.
dark fibre)? Are there any proposals to mandate ‘passive
access’ to such basic infrastructure?
FBO Licensees are required to share or provide ‘passive access’ to
their infrastructure, in accordance with the procedure set out in the
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Singapore
Code, where such infrastructure constitutes ‘Critical Support
Infrastructure’ under the Code or where IDA concludes that sharing
is in the public interest.
4 Access and Interconnection
Singapore
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Licensees who use switching or routing equipment to provide
telecommunication services to the public have a duty under the
Code to interconnect with each other.
There are no fixed criteria for qualifying for interconnection. While
interconnection agreements need to adhere to minimal regulatory
requirements prescribed under the Code, licensees requiring
interconnection typically enter into interconnection agreements
through commercial negotiations. IDA will generally not intervene
in the negotiation, implementation or enforcement of an
interconnection agreement unless one of the parties has been
classified by IDA as a ‘dominant licensee’ (‘Dominant Licensee’).
IDA requires Dominant Licensees to provide interconnection
related services and mandated wholesale services to other licensees.
Licensees who seek to interconnect with a Dominant Licensee may
do so:
pursuant to the Dominant Licensee’s ‘Reference
Interconnection Offer’ approved by IDA;
on the terms and conditions that the Dominant Licensee has
agreed with a similarly situated licensee; or
pursuant to an individualised interconnection agreement.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Interconnection agreements entered into by non-Dominant
Licensees are essentially private contracts and IDA will not resolve
disputes arising therefrom, although licensees may request IDA to
provide an interpretation where the dispute in question turns on the
interpretation of:
the TA;
subsidiary legislation under the TA;
a decision of IDA; or
a provision of the Code.
IDA has the discretion to provide conciliation (as defined in the
Code) or resolve disputes between licensees which arise from the
implementation of an interconnection agreement entered into by a
Dominant Licensee, in accordance with the Code and IDA-issued
dispute resolution guidelines.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
No, although IDA may publish interconnection contracts involving
a Dominant Licensee with portions redacted, in accordance with the
Code.
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4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes, charges for IDA-specified interconnection and/or network
Singapore
access are subject to regulation if a Dominant Licensee is providing
the interconnection and/or network access. The Dominant Licensee
must obtain IDA’s approval for its charges.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
Dominant Licensees and licensees controlled by or related to a
Dominant Licensee are subject to accounting separation.
Functional separation has been imposed on the providers of the
Next Generation National Broadband Network (‘NGNBN’), a
nationwide ultra-high speed all-fibre broadband network. The
industry structure of NGNBN has, from a regulatory perspective,
been segmented into three parts:
network company responsible for the design, build and
operation of passive infrastructure such as dark fibre and
ducts (‘NetCo’);
operating company responsible for wholesale network
services over active infrastructure such as switches and
transmission equipment; and
retail service providers who sell services to end-users.
Operators may be subject to legal separation where imposed by
IDA.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
IDA recently issued the ‘Code of Practice for NGNBN NetCo
Interconnection’ (‘NGNBN Code’) to specify obligations and
responsibilities of NetCo in relation to interconnection and access
to the NGNBN.
IDA has launched public consultations for proposed revisions to
existing interconnection and access regulations and is in the midst
of considering responses.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Dominant Licensees are required to provide telecommunication
services on an unbundled basis. However, Dominant Licensees
may offer other licensees the option of purchasing packages
containing multiple telecommunication and non-
telecommunication services or equipment.
From a broadcasting and content-regulation perspective, cable TV
operators licensed by MDA are required to comply with MDA’s
‘Code of Practice for Market Conduct in the Provision of Mass
Media Services’ (‘MDA Code’). Dominant licensees under this
MDA Code cannot require a customer/advertiser to purchase/lease
any other separate service, advertising capacity or equipment as a
condition for purchasing/leasing a service or advertising capacity.
However, such dominant licensees may offer a customer/advertiser
the option of purchasing services/advertising packages.
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4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
A total of S$1 billion in grants have been earmarked by the
government for subsidising next-generation access. Part of the
relevant regulatory framework is described in question 4.5 (second
paragraph) and question 4.6.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Yes, retail price controls are imposed on Dominant Licensees for all
telecommunication services except for resale of public switched
telephone services.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
No, there are no special rules governing the provision of electronic
communication services to consumers (as opposed to businesses).
For example, the Code governs the provision of telecommunication
services to ‘End Users’, defined to mean ‘a business or residential
subscriber of any telecommunication service in Singapore’.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers and network identifying codes are allocated by
IDA in accordance with the ‘National Numbering Plan’.
6.2 Are there any special rules which govern the use of
telephone numbers?
Each telephone number must be used by the relevant licensee for
the service the number was allocated for.
Numbers are categorised by first digit, according to the type of
service provided.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Telephone numbers are made available for network use either by an
administrative allocation of number levels (i.e. typically in blocks
of 10,000 numbers) or via auction.
Operators may request for administrative allocation when their
level of utilisation reaches a specified percentage.
IDA progressively makes available number levels in a sequential
manner although operators can also bid for out-of-sequence
numbers.
Numbers are activated in accordance with the instructions of
operators.
Allen & Gledhill LLP
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Licensees must implement number portability, subject to IDA’s
number portability regulations and charging principles.
Fixed and mobile line operators must each adopt the relevant
centralised database approach prescribed by IDA - ‘Query on
Release routing solution’ and ‘All Call Query’ respectively.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Singapore’s territorial waters, and the landing, of
submarine cables? Are there any special authorisations
required or fees to be paid with respect to submarine
cables?
Only FBO licensees may land submarine cables in Singapore and
the approval of the MPA is required prior to any cable laying,
lifting, repair or inspection works. For construction of a submarine
cable landing station, the necessary approvals for any building/site
installations would be required from URA and/or BCA. Land use
planning approval may also be required from URA and/or BCA in
relation to connectivity involving public roads.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes, by IDA.
8.2 How is the use of radio frequency spectrum authorised in
Singapore? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc?
The use of radio frequency spectrum is authorised by IDA and
spectrum may be allocated:
administratively according to the opportunity cost of the
relevant spectrum; or
via auction for frequency bands which are in scarce supply.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Yes, distinctions are made between different types of wireless
services, broadly classified as follows:
mobile services (includes public cellular mobile
telecommunication services, public radio paging services,
mobile data services, trunked radio services and wireless
broadband services);
fixed services (includes point-to-point fixed links, fixed
wireless access, high altitude platform stations and other
fixed services);
satellite services (includes fixed and mobile satellite
services);
broadcasting services; and
short range devices.
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8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
For installation and use of satellite earth stations, applicants require
licences from IDA, which may include:
an FBO licence for satellite uplink/downlink facilities;
Singapore
a Satellite Communication Station Licence; and
relevant radio frequency spectrum licences.
Typically, licensees must comply with IDA’s technical and other
requirements for satellite earth stations such as site location,
emissions and aerial characteristics.
Other approvals may also be required (e.g. from URA and BCA for
the site and building plans of the earth station, MDA for
broadcasting, etc.).
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Certain uses of certain spectrum are licence-exempt subject to
compliance with IDA requirements, including use of such spectrum
by:
radio-frequency identification (RFID) deployments;
ultrawide band technology (UWB) and certain Short Range
Devices (SRD); and
cordless systems (e.g. PHS and DECT).
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Fees are listed in the Telecommunications (Radio-communication)
Regulations. Briefly: (a) application and processing fees for use of
spectrum vary based on specific use and bandwidth; and (b) annual
fees for use of spectrum vary based on the following categorisation,
exclusivity of use and bandwidth:
network and systems;
satellite downlink frequencies;
common frequencies for in-building or on-site wireless
systems; and
block of assigned frequencies for multi-channel radio-
communication networks and systems.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
In general, spectrum licences are not transferable without the prior
written approval of IDA (which approval may be subject to
conditions).
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
There are generally no express call data retention obligations
(though specific SBO licences may specify a minimum period of
retention for call detail records).
The Code provides that unless prior consent is obtained, licensees
are not to provide call data to third parties for marketing purposes
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and may use such information only for specified purposes such as:
planning, provisioning and billing; and
managing bad debt and preventing fraud.
The Code also imposes a duty on licensees to take reasonable
measures to prevent unauthorised use of call data.
Singapore
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
There are no express obligations on operators to maintain call
interception capabilities save that under the TA, IDA and its
licensees have a broad obligation to comply with the directions of
the Minister, where such directions ‘may include’ provisions for the
stopping, delaying and censoring of messages and the carrying out
of any other purposes which the Minister thinks necessary.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
There is no stated process for obtaining access to retained call data
and/or intercepting calls (though specific SBO licences may specify
that retained call data is to be ‘made available for inspection by
authorised Singapore government agencies in a timely manner’).
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Generally, no. For example, certain services over the Internet, such
as IP telephony services and Internet-based voice and data services,
are regulated under the TA as telecommunications services, and
these services would require an SBO licence in the same way other
licensable electronic communications services are regulated.
There are no specific rules which govern access to the Internet at a
wholesale and/or retail level.
Internet service providers would typically require either an SBO or
FBO licence and are also subject to content regulation under the BA.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
There are protections (‘Protections’) available to telecommunications
operators and/or internet service providers who qualify as ‘network
service providers’ (‘NSPs’) under the Copyright Act (Chapter 63) and
the Electronic Transaction Act (Chapter 88), generally similar to ‘safe
harbour’ provisions in the United States.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
To qualify for Protections, the NSP must comply with conditions
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which include:
terminating accounts of users who are repeat infringers; and
taking down infringing content after receiving notice from
the rights owner.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Telecommunications operators and/or internet service providers are
able to differentially charge and/or block different types of traffic
over their networks and there are no legislated ‘net neutrality’
requirements save as implied by a PTL’s obligation not to show
undue preference or exercise undue discrimination discussed in
question 11.1.
10.5 How are ‘voice over IP’ services regulated?
To provide ‘voice over IP’ services using E.164 telephone numbers
in Singapore, a FBO or SBO licence is required. Licensees must
comply with regulations on provision of directory and emergency
services, calls to/from other telecommunication networks, quality
standards, number portability, locality of customers and
administration of subscribers and resellers’ particulars.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Email communications are directly addressed by the Spam Control
Act (Chapter 311A) which prohibits the sending of messages to
email addresses obtained through dictionary attack or address
harvesting and regulates the sending of unsolicited commercial
email in bulk by imposing labelling and ‘unsubscribe’
requirements.
Communications in general are governed by a variety of laws. For
example, the Undesirable Publications Act (Chapter 338) prevents
the importation, distribution and reproduction of obscene and
objectionable publications and the Singapore Code of Advertising
Practice may be relevant to marketing and advertising
communications are subject to the Singapore Code of Advertising
Practice.
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Yes, there is a concept of universal service obligation under the TA.
As a general rule, it is applied only to PTLs and is not financed by
a statutorily-created fund (such as universal service funds in other
jurisdictions) or contributions from industry.
In general, a PTL may not show undue preference towards, or
exercise undue discrimination against, any person or class of
persons in, inter alia, price and performance characteristics of
services provided or terms and conditions under which services are
provided.
Under the NGNBN Code a universal service obligation, to provide
mandated services to all subscribers to the NGNBN as from 2013,
has been imposed on NetCo.
Allen & Gledhill LLP Singapore

12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
the Minister may require persons to take specified steps in
relation to the assets or business of, or shares in, a
telecommunication licensee, if in the opinion of the Minister
an acquirer of any such item is not a ‘fit and proper person’
or if there are national interest considerations.

wireless operations?
There are no specific rules restricting direct or indirect foreign
ownership of electronic communications companies. However,
note that:
IDA has a broad discretion to specify licence conditions and
can impose restrictions on foreign ownership, control or
funding;
special rules apply to ownership interests of a designated
telecommunications licensee (‘DTL’). All FBO licensees, as
well as specified SBO licensees, are DTLs. IDA approval is
required: (i) for the acquisition of > 12% of a DTL; and (ii)
for the appointment of the CEO and members of the board of
the DTL; and
Singapore
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
The TA and the Code were revised in 2005, the result of a
comprehensive review of developments in the telecommunications
sector and practical experience from regulating the sector. The
Code is currently undergoing its triennial review and several rounds
of public consultation on the new Code have already occurred. The
‘Intelligent Nation 2015 Masterplan’ mentioned in question 1.1 is
one of the key factors shaping the form of the new Code.

Tham Kok Leong Alexander Yap

Allen & Gledhill LLP Allen & Gledhill LLP
One Marina Boulevard #28-00 One Marina Boulevard #28-00
Singapore 018989 Singapore 018989
Singapore Singapore

Tel: +65 6890 7526 Tel: +65 6890 7627

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Email: tham.kokleong@allenandgledhill.com Email: alexander.yap@allenandgledhill.com
URL: www.allenandgledhill.com URL: www.allenandgledhill.com

Tham Kok Leong is a Partner in Corporate & Commercial and is the
Head of the Technology & Corporate Intellectual Property Practice
Group. His practice area centres on technology and intellectual
property transactions, agreements and advice. He has substantial
experience in advising on, negotiating and drafting a wide range of
commercial agreements related to intellectual property and IT,
outsourcing, telecommunications, e-commerce, e-banking, contract
manufacturing, technology transfer, research and development,
merchandising, franchising, licensing, sports, media and publishing,
sales and agency and distributorships.
Kok Leong graduated from the National University of Singapore with
an LLB (Hons) degree. He was called to the Singapore Bar in 1994,
when he joined Allen & Gledhill. Kok Leong is listed in The Asia
Pacific Legal 500 2008/2009 and Who’s Who Legal. Kok Leong is
also recognised as a leading lawyer for Technology, Media and
Telecommunications in Singapore by Asia Law Leading Lawyers
(2008 and 2009).
Alexander Yap is a Senior Associate in Corporate & Commercial and
a member of the Firm’s Technology & Corporate Intellectual Property
Practice Group. Alexander has experience in negotiating, drafting
documentation for and advising on a wide range of commercial
matters which relate to intellectual property and information
technology, such as acquisitions, collaboration agreements,
outsourcing arrangements and software licensing, including several
ground-breaking projects of national scope.
Alexander graduated from the University of Oxford with a BA
Jurisprudence degree and is a member of both the IT Committee
and the Young Lawyers Committee of the Law Society of Singapore.
He was called to the Singapore Bar in 2006.

Allen & Gledhill LLP is an award-winning law firm, having been a multiple recipient of the International Financial Law
Review Singapore Law Firm of the Year award, Who’s Who Legal Singapore Law Firm of the Year award and Asian
Legal Business Singapore Deal Firm of the Year award. The Firm, which is currently the largest and leading law firm
in Singapore, offers a full range of legal services. The Firm continues to retain its first tier rankings in Chambers Global,
The Asia Pacific Legal 500 and IFLR 1000.
Many of the Firm’s Partners are consistently rated the best lawyers in their respective fields of expertise by industry
watchers. With recognised experts in all major areas of the Firm’s practice - Corporate & Commercial, Corporate
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to meet the needs of the Firm’s clients.

231
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 Chapter 34
Slovakia
Cechová & Partners
1 Framework
1.1 When did Slovakia first liberalise telecommunications
networks and/or services?
Telecommunications networks were formally liberalised on 1
January 2003 by the previously valid Act No. 195/2000 Coll. on
Telecommunications, as amended.
1.2 Has Slovakia fully implemented the EU 2003 regulatory
framework? If Slovakia has not fully implemented the new
regulatory framework, have proceedings been brought
against Slovakia by the European Commission and if so,
for which contraventions?
Act No. 610/2003 Coll. on Electronic Communication, as amended
(hereinafter referred to as the “Electronic Communications Act”),
implemented the EU 2003 regulatory framework. Its provisions
entered into force from 1 May 2004. On the other hand, in 2005 the
Commission informed Slovakia via four Communications about
some insufficiencies in the implementation of relevant Directives.
The Commission initiated proceedings pursuant to Article 226 of
the Treaty and Slovakia responded via an amendment of the
Electronic Communications Act (Act No. 117/2006 Coll.).
Reservations of the Commission were directed to the powers of the
Telecommunications Office of the Slovak Republic and the
Commission also objected that Article 8 of the Framework
Directive was not properly transposed.
Penultimate amendment of the Electronic Communications Act
(Act No. 654/2007 Coll.) has transposed Directive 2006/24/EC of
the European Parliament and of the Council on the retention of data
generated or processed in connection with the provision of publicly
available electronic communications services or of public
communications networks and amending Directive 2002/58/EC
(hereinafter referred to as the “EU Data Retention Directive”) and
it has come into effect partially from 29 December 2007 and in its
entirety from 1 April 2008.
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The Electronic Communications Act (Act No. 610/2003
Coll. on Electronic Communications, as amended);
Act No. 220/2007 Coll. on Digital Broadcasting, as amended
and executive regulation thereto;
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JUDr. Simona Haláková
Mgr. Jakub Ondrejka
Act No. 308/2000 Coll. on Broadcasting and Retransmission,
as amended, and numerous by-law legislation; and
Act No. 166/2003 Coll. on Protection of Privacy against
Unauthorised Use of Informational and Technical Instruments
(Act on Protection against Wiretapping), as amended.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
The Ministry of Transport, Posts and Telecommunications of the
Slovak Republic (hereinafter referred to as the “Ministry”):
a) elaborates proposals of the national policy in electronic
communications and submits them to the Government of the
Slovak Republic for approval;
b) elaborates a proposal of the national table of frequency
allocations and submits it to the Government for approval; and
c) provides for international relations in the field of electronic
communications at the level of the European Union,
international governmental organisations and international
non-governmental organisations.
The Telecommunications Office of the Slovak Republic (hereinafter
referred to as the “Office”) is the national regulatory and pricing
authority in the sector of electronic communications pursuant to the
Electronic Communications Act. Further, the Office co-operates with
other agencies, e.g. the Council for Broadcasting and Retransmission
in the sector of radio and television broadcasting and retransmission
and the Slovak Commercial Inspection in performance of state
supervision over the electronic communications.
The Antimonopoly Office of the Slovak Republic co-operates with
the Office in issues related to determination of relevant markets,
analysis of relevant markets in the field of electronic communications
and determination of undertaking with significant market power on
the relevant market in the field of electronic communications. It also
acts as the general competition authority for issues of abuse of
dominant position, cartel agreements and mergers.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
The Office in the sector of regulation of electronic communications
primarily:
sets conditions for provision of networks and services;
regulates competition on the relevant market in the field of
electronic communications;
performs administration of numbers and frequencies;
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Cechová & Partners
regulates prices; and
performs state supervision over the electronic
communications.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
Provision of networks, services or networks and services can be
performed only on the basis of a general authorisation. The Office
shall grant the undertaking an individual authorisation for use of
numbers pursuant to the Electronic Communications Act or an
individual authorisation for use of frequencies pursuant to the
Electronic Communications Act, if it is necessary to grant an
individual right of use for numbers or frequencies for provision of
network, service or network and service.
General authorisation defines rights and conditions for provision of
networks, services and operation of radio facilities that can apply to
all or to some of them. An undertaking intending to provide
networks, services or networks and services shall be obliged to
notify the Office of this fact prior to initiation of their provision.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
Yes, they are also subject to rules governing competition law under
Act No. 136/2001 Coll. on Protection of Competition, as amended.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
Slovakia has notified the European Commission of 17 relevant
markets. The Office identified the fixed network operator, Slovak
Telekom, a.s., to be an SMP in 13 relevant markets including retail
fixed residential and business markets, wholesale fixed origination
and termination, local loop unbundling and wholesale terminating
segments of leased lines. Mobile operators such as T-Mobile
Slovensko, a.s. and Orange Slovensko, a.s. were recognised as SMP
undertakings in the relevant market of voice call termination on
individual public mobile networks.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Provision of networks, services or networks and services can be
performed only on the basis of a general authorisation. The Office
shall grant the undertaking an individual authorisation for use of
numbers or an individual authorisation for use of frequencies if it is
necessary to grant an individual right of use for numbers or
frequencies for provision of network, service or network and service.
General authorisation No. 1/2008, as amended, defines rights and
conditions for provision of networks, services and operation of
radio facilities that can apply to all or to some of them.
Subordinating to general authorisation is for free but if the notifying
party voluntarily requests issuance of a certificate confirming
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Slovakia
fulfilment of notification duty, it shall be obliged to pay EUR 16.50
in the form of stamp fee. The administrative fee is paid to the
Office by undertaking performing under general authorisation in the
amount of 0.08% from annual proceeds arising from the provision
of electronic communications networks, services, or networks and
services from the preceding closed accounting period but at least
Slovakia
EUR 33.19. As concerns notification based on the general
authorisation, please see response to question 2.2 below.
Other general authorisations issued by the Office govern the
operation of various types of radio equipment.
Individual authorisation for use of numbers - the Office shall
allocate numbers on the basis of an application of the undertaking
providing public network, public services or public network and
public service within three weeks following the delivery of a
complete application. The administrative fee for allocation of a
number under the Electronic Communications Act is EUR 49.50
and regular fees for use of allocated numbers start from EUR 3.32
to EUR 663.88 per year.
Individual authorisation for use of frequencies - the Office shall issue
the individual authorisation in accordance with the plan of use of
frequency spectrum. The Office shall issue the individual
authorisation at the latest within six weeks from the date of delivery
of a complete application in case of frequencies that are available in
accordance with the plan of use of frequency spectrum. If the number
of rights for use of frequencies is limited or in case of selected
frequencies, for which the conditions of allocation are determined in
the plan of use of frequency spectrum, the Office shall allocate the
frequencies based on the application and the result of selection
proceedings pursuant to the Electronic Communications Act. During
competitive selection proceedings, the Office shall suspend the
proceedings on application. The stamp fee for filing an application
for use of frequencies is EUR 6.50 but further administrative fees
paid annually for use of frequencies varies significantly.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Undertaking intending to provide networks, services or networks
and services shall be obliged to notify the Office of this fact prior to
initiation of the provision. The date of receiving a sufficient and
complete notification by the Office shall be decisive for the
capability to provide networks, services or networks and services.
Upon delivery of a sufficient and complete notification, the Office
shall register the notifying party as an undertaking providing
networks, services or networks and services. The Office shall
publish the registration on the Internet within one week following
the delivery of such notification.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Individual authorisation for use of frequencies - the undertaking
may transfer its rights resulting from the assigned individual
authorisation for use of frequencies to other undertaking only with
the approval of the Office if as a consequence of the transfer there
is no distortion of competition and no change in the use of
frequency, if the use has been harmonised internationally.
The approval of the Office is needed also for transfer of a terrestrial
operational licence. The Office shall not grant any transfer of rights
of operator of multiplex resulting from a terrestrial operational
licence unless specific statutory conditions set up by Act No.
220/2007 Coll. on Digital Broadcasting of Programme Services and
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Provisions of other Content Services via Digital Transmission, as
amended, are met.
Otherwise, the general principle of Slovak administrative law,
based on which an administrative permit/license always applies to
its addressee only, applies and therefore such administrative
permit/license is non-transferable. The same applies to a
Slovakia
notification under the general authorisation, which is not
transferable either.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
General authorisation is issued for an indefinite period of time.
Individual authorisation for use of numbers is granted for a
requested definite period or an indefinite period of time and
respective authorisation shall remain valid, inter alia, under the
condition that the undertaking shall pay an annual payment for each
number in use.
Individual authorisation for use of frequencies could be granted for
a maximum of ten (10) years. The Office may repeatedly prolong
the authorisation for a maximum of ten (10) years but in cases
justified by the return on investment period, the period could be
longer. The duration of an individual authorisation to operate a
radio facility for radio analogue and television analogue terrestrial
broadcasting is dependent also on a license for analogue terrestrial
broadcasting which can be issued for a term of up to twelve (12)
years. Moreover, the undertaking shall be obliged to pay annual
payments for use of frequencies.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Pursuant to the Electronic Communications Act the undertaking
providing the public network shall be entitled, in the public interest
and to the necessary extent, to:
a) install and operate public networks and build their lines in
third party’s real estate;
b) access the third party real estate in relation to installation,
operation, repair, and maintenance of lines; and
c) perform necessary adjustments of land and its vegetation,
especially to remove and disbranch trees and other
vegetation endangering the safety and reliability of line, if
the owner or user of the real estate has not done so despite
prior notice.
The obligations corresponding to the rights pursuant to letter (a) are
an easement related to affected real estate. The respective
undertaking shall submit a proposal for the notice entry of easement
to the land registry.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
No, but the Electronic Communications Act prescribes some special
provisions regarding planning and zoning regime.
The document necessary for standard territorial and construction
proceedings under Act No. 50/1976 Coll. on Territorial Planning
and Construction Order (the Construction Act), as amended, shall
be the statement of the concerned electronic communications
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undertakings on existence of underground or aerial lines and radio
links in the location of the construction and on the possibility of
interference with radio transmission.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
If an undertaking providing electronic communications networks,
electronic communications services or networks and services
cannot place a new line or install a telecommunications facility or
if it can do so only with unreasonable restrictions on the use of third
party’s real estates, due to the need of protection of environment,
public health, public order or due to objectives of territorial
planning, it may request another undertaking providing electronic
communications networks, electronic communications services or
networks and services to allow it to use the existing physical
infrastructure including constructions, premises and parts of lines,
under non-discriminatory conditions and for compensation, unless
this requires significant additional works and related costs. Should
such undertakings fail to conclude a contract thereof, any of them
shall be entitled to file a proposal for decision to the Office.
An SMP undertaking could be obliged by the Office to provide access
or interconnection, to meet a reasonable and justified request for
access and use of specific network elements and associated facilities,
and a request for interconnection of networks by a requesting
undertaking, particularly in cases when the Office finds out that
denial of access or unreasonable terms and conditions set up by the
SMP, as the owner of the network infrastructure, in relation to the
requesting undertaking would not allow for effective competition on
the market for end-users or would not be in their interest.
We are not aware of any new proposals to mandate “passive access”
to basic infrastructure.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
An undertaking providing a public network shall have the right and,
upon the request of other undertaking providing public networks,
obligation to negotiate network interconnection and, if feasible, to
interconnect its network with the network of the requesting
undertaking on the basis of a contract. Irrespective of the obligations
imposed on SMP undertakings, the Office may oblige, after
consultations pursuant to the Electronic Communications Act, the
undertakings which control access to at least one network
termination point identified by one or more numbers in the
numbering plan to provide for end-to-end connection, in justified
cases also to interconnect the networks within the period determined
by the Office. The undertaking of another Member State requesting
access or interconnection in the Slovak Republic does not need to
have authorisation to operate in the Slovak Republic if it does not
provide services or networks in the Slovak Republic.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Upon a proposal, the Office shall resolve the disputes between
undertakings that have arisen in relation to meeting the obligations
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resulting from the Electronic Communications Act. The Office
shall decide the dispute within four months at the latest. Should the
importance of the case so require, the Office may prolong this
period at a maximum of four months. The Office may enter into the
negotiations on concluding contracts on access, interconnection or
shared use of equipment on its own initiative or upon request of any
of contractual parties. Should the Office conclude that the proposed
contracts are contradictory to the Electronic Communications Act,
it shall start proceedings and issue a final decision on the matter.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Pursuant to the Electronic Communications Act, the undertakings
providing public networks shall be obliged to submit the concluded
interconnection contract and its amendments in both written and
electronic form to the Office within 45 days following its
conclusion. The Office shall publish notification of conclusion of
an interconnection contract, including basic technical and economic
conditions of interconnection. Further, the Office shall allow
everyone requesting so to look into the contracts, except for those
parts of the contracts which will be designated by contracting
parties as business secret. However, the price for interconnection
shall not be regarded as a business secret.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
If the Office finds out, on the basis of the relevant market analysis,
that the lack of effective competition enables the SMP undertaking to
require unreasonable prices, it shall be entitled to impose the SMP
undertaking, with regard to provision of specific types of access or
interconnection on the given markets, to set the prices so that they
include only costs connected with provision of access or
interconnection and they do not include costs which do not relate
with such provision pursuant to a price calculation method
determined by the Office which shall include types of costs and rules
for their allocation. The Office shall take into consideration the
extent of investments made by the SMP undertaking and reasonable
rate of return on the invested capital and the related risks. The Office
shall be obliged to ensure that the prescribed return on investment and
pricing mechanisms of the SMP undertaking support effective
competition and represent a benefit for end-users.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
The Office is entitled to impose on SMP undertaking providing
network access or interconnection to keep separate accounts in the
accounting system for each specific activity related to provision of
network access or interconnection and to require vertically
integrated undertaking to make its wholesale and its internal prices
more transparent in order to avoid giving preference or
discriminating some services by redistribution of costs and
revenues from other services and among the other services, except
for the public telex service and the public telegraph service.
Further, any undertaking providing public network, public service
or public network and service is obliged to keep separated
accountancy of costs and revenues from provision of networks,
services or networks and services, in the extent necessary for
structurally separated and legally independent undertaking, so that
all costs and revenues from those activities with their respective
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Slovakia
calculation supporting materials and detailed calculation methods,
including detailed breakdown of fixed assets and structured costs
could be identified, if:
(i) such undertaking has special or exclusive rights for provision
of services in other sectors than the sector of electronic
communications within the EEA; and
Slovakia
(ii) its annual turnover for a preceding accounting period from
the provision of networks, services or networks and services
in the entire territory of the EU is at least EUR
66,387,837.75.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Currently, the Electronic Communications Act does not contain any
specific provisions regulating IP-based networks and we are not
aware of any contemplated legislative activities of the Ministry or
the Office in this respect either.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
The Office imposed duty to the SMP undertaking in Slovakia
(Slovak Telekom, a.s.) to give third parties access to specified
network elements including unbundled access to the local loop.
Therefore, Slovak Telekom, a.s. was obliged under the Electronic
Communications Act to issue the reference offer for unbundled
access to the local loop and to submit it to the Office for publishing
within 60 days from the validity of the decision imposing such duty,
i.e. from 14 June 2005. Mandatory requirements of the reference
offer are stipulated in the Annex 2 to the Electronic
Communications Act.
Theoretically, a cable TV operator may be also obliged to unbundle
its facilities if the Office will identify such cable TV operator as
SMP undertaking on the relevant market.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Under publicly available sources, there are not any specific
regulations or proposals for regulations relating to next-generation
access except for the Electronic Communications Act. The
Electronic Communications Act subsumes under the term
electronic communications network also transmission of the signal
through optical fibres.
Pursuant to Decree of the Ministry of Finance of the Slovak
Republic No. 46/2007 F.s. on provision of grants for the purpose of
informatisation of the society, grants for penetration of broadband
access to the internet may be granted by the Ministry of Finance of
the Slovak Republic.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
In relation to mobile services, price controls are imposed by
Regulation (EC) No 717/2007 of the European Parliament and of
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the Council on roaming on public mobile phone telephone networks
within the Community and amending Directive 2002/21/EC.
In relation to fixed services, the Office may use and has
exceptionally used price-cap regulation. This regulatory method
enables operators to set their prices independently in certain limits
and the Office only controls meeting these conditions. The Office
Slovakia
shall be entitled to oblige the SMP undertaking on the market of
services for end-users, on which the analyses of the relevant market
showed that there is not effective competition on the markets, to use
a price calculation method encompassing types of costs and rules
for their allocation.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Under the Electronic Communications Act, a consumer shall have
the right to:
a) enter into a contract with the undertaking, if there is no
reason for its refusal pursuant to the Electronic
Communications Act;
b) the provision of the public service to the extent agreed in the
contract and for the price according to the tariff;
c) the correction of defects in provision of the service that were
not caused by him/her and without any costs for him;
d) upon his/her request, the provision with the bill itemised with
respect to particular outgoing calls;
e) reimbursement of a proportionate part of the price for the
period during which the service was not provided, in case
such situation was caused by the undertaking in accordance
with the General Conditions; and
f) the provision of access to operator assistance inquiry
services.
Also, all generally applicable consumer protection regulations will
apply to provision of electronic communications services, as well.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The Office:
a) manages the use of numbers;
b) prepares and issues the numbering plan;
c) assigns numbers and number blocks according to the
numbering plan; and
d) decides on the arrangement of the borders of the public
telephone network.
6.2 Are there any special rules which govern the use of
telephone numbers?
The Office shall set forth the rules for setting and use of numbers
and the general terms and conditions for their assignment in the
Numbering Plan. In its elaboration, the Office shall respect
international agreements and obligations of the Slovak Republic
resulting from its membership in international organisations, and it
shall also take into account the development of new services and
ensuring of a sufficient amount of numbers. The Numbering Plan
is defined in Measure of the Telecommunications Office of the
Slovak Republic No. O-14/2007.
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6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Telephone numbers are assigned in a process of primary and
secondary assignment. Number blocks assigned by the Office to
the operators can be consequently assigned to customers by
operators.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
The undertaking providing public telephone service, including
mobile services, shall be obliged to ensure that any user, who
requests so, will be able to retain his telephone number regardless
of the undertaking providing service in case of:
a) geographic numbers within the geographically defined
numbering area determined by the Office at the specific
location of connection of the subscriber; and
b) non-geographic numbers at any location.
This obligation shall not apply to number portability between fixed
and mobile public networks.
The Office shall be obliged to ensure that the prices for
interconnection in ensuring number portability are cost-oriented
and, if users are required to pay direct payments for services related
to number portability, the prices should not act as a disincentive or
discouragement for the use of these services by customers.
Pursuant to Measure of the Telecommunications Office of the
Slovak Republic No. O-19/2009 effective from 1 September 2009,
“porting” shall be finished not later than on the fifth day following
the day of delivery of relevant request. Further, the Office
recommends that the “porting” should be free of charge for
customers and if not, such direct payment asked from the customer
should not exceed EUR 4. However, potential maximum limit of
payment asked from customers for “porting” are only a
recommendation of the Office and it is not mandatory.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Slovakia’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Inapplicable and therefore unregulated, since Slovakia is a
landlocked country.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The Office performs management of frequency spectrum, which
includes:
a) co-operation with the Ministry in respect of elaboration of a
draft national table of frequency allocations;
b) preparing a plan of use of frequency spectrum;
c) allocation or assignment of frequencies and authorisation to
operate radio facilities;
d) co-ordination and monitoring of use of frequency spectrum;
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e) granting consent to the transfer of rights for use of
frequencies.
Respective links to the National Table of Frequencies Allocations
and the Plan of Use of Frequency Spectrum are published on the
website of the Office (www.teleoff.gov.sk).
8.2 How is the use of radio frequency spectrum authorised in
Slovakia? What procedures are used to allocated spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Please see our answer to question 2.1 (individual authorisation for
use of frequencies) thereto.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The Electronic Communications Act does not distinguish between
mobile, fixed and satellite usage of frequencies. However, services
are divided pursuant to the National Table of Frequencies
Allocations of the Slovak Republic into three categories:
a) primary services;
b) permitted services; or
c) secondary services.
Primary services (e.g. fixed) and permitted services (e.g. mobile)
are operated on a principle of equality but in the stage of drafting of
frequency plans, the primary service has priority in choosing
frequencies. Information, into which particular category a service
falls and other relevant data regarding particular frequencies could
be obtained from the National Table of Frequencies Allocations.
Please note that the National Table of Frequencies Allocations
regulates frequencies from 9 kHz to 1000 GHz.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Standard regulation as described in answer to question 2.1 above
applies. A decisive factor would be under which frequencies such
satellite earth stations would be operated, i.e. if general
authorisation or individual authorisation for use of frequencies is
required for such operation. Applicable Slovak legislation does not
differentiate between uses for up-linking and down-linking.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
No, it cannot be completely licence-exempt. The considered radio
frequency spectrum has to be compared with the National Table of
Frequencies Allocations and the Plan of Use of Frequency
Spectrum and relevant rules for use of such spectrum set up therein
to identify whether only general authorisation is required or
individual authorisation for use of frequencies is necessary.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The fee for the right of use of frequencies is a one-off payment for
allocation or assignment of frequencies. The recurring payment is
the fee for use of each frequency and identification codes. The one-
off payment shall be payable under the decision of the Office on the
individual authorisation. The Office shall cancel the decision on
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assignment of frequencies if the successful participant of the
selection proceeding did not settle the one-off payment for
allocation or assignment of frequencies in due date.
The particular price list is defined in Measure of the
Telecommunications Office of the Slovak Republic No. O-2/2004
stipulating the tariffs for the right to use frequencies, as amended.
Slovakia
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The undertaking may transfer its rights resulting from the assigned
frequencies to another undertaking only with the approval of the
Office. The Electronic Communications Act prescribes statutory
conditions limiting transfer of these rights.
The Act on Digital Broadcasting prescribes specific limitations for
approval of transfer of rights of a multiplex operator resulting from
terrestrial operational licence. For further details please see our
answer to question 2.3 above.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Slovakia has transposed the EU Data Retention Directive to the
Electronic Communications Act. Therefore, Slovakia has set data
retention periods for storing traffic data, location data and data of
communication parties for purposes stipulated by the Electronic
Communications Act for (i) 6 months regarding Internet access,
Internet e-mail and Internet telephony, and (ii) 12 months regarding
other forms of communications. Categories of data to be retained
(under Article 5 of the EU Data Retention Directive) have been fully
transposed to the Electronic Communications Act in Annex IV thereto.
The above mentioned data are stored only in electronic form by
undertakings (every person/entity that is authorised to provide
network, service or network and service in the field of electronic
communications regardless of the legal form and way of financing) in
the extent in which they are created or processed during the provision
of service, network or network and services. Such data and
information in connection with these data, needed for identification of
the user, shall be submitted to the criminal proceedings authorities,
courts or to other authorities generally competent to access wiretapped
information for free on the basis of a written application and without
undue delay pursuant to the Criminal Proceedings Act.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Undertaking providing public networks, public services or public
networks and public services using coding, compression,
encryption or other way of keeping secrecy of the transferred
signals, shall provide for at its own expense that the information
acquired during the interception and recording of traffic in networks
is provided to state authorities or criminal proceedings authorities in
a comprehensible way. The Office shall issue a list of forbidden
devices, which shall be forbidden to connect to the network on the
basis of proposal from a state authority.
Costs incurred by obliged operators when obtaining the above
mentioned devices may be treated as tax expenditure and
depreciated as fixed tangible assets.
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9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The subject of telecommunications privacy may be disclosed to the
Office and person concerned, to their authorised representatives or
Slovakia
legal successors. Under conditions closely stipulated by the Act on
Protection against Wiretapping also the subject of
telecommunications privacy may be disclosed to state authorities
within the scope governed by special regulations and also to
criminal proceedings authorities for the purpose of examination,
investigation and prosecution of crimes or unauthorised use of
telecommunications devices.
The Act on Protection against Wiretapping does not contain any
specific retention periods; however, Section 3 thereof states that
fundamental rights and freedoms could be restricted by usage of
information-technical instruments only to the unavoidable extent
and not longer than necessary for reaching statutory intention. The
approval for usage of the information-technical instruments (which
is issued by the court) could be granted for a maximum of 6 months
but its extension is possible.
Concerning data retention periods relating to data retention
requirements arising from the EU Data Retention Directive, please
see our answer to question 9.1 above.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
The general regulation of electronic communications does not
contain any material differences applicable to the Internet.
Provision of services over the internet is regulated differently, for
example by Act No. 22/2004 Coll. on Electronic Commerce, as
amended, Act No. 108/2000 Coll. on Consumer Protection in
Distance Selling, as amended, Decree of the National Security
Office No. 136/2009 Coll. on Manner and Procedure of Usage of
Electronic Signature in Commercial and Administrative Matters, or
Act No. 250/2007 Coll. on Consumer Protection, as amended.
Please see our answer to question 10.5 below concerning rules on
retail or wholesale access applying to VoIP services.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The Electronic Communications Act explicitly stipulates that it
does not apply to the content of services provided through
electronic communications networks, unless provided otherwise.
On the other hand, the Act on Electronic Commerce stipulates that
an internet service provider is not liable for the information
provided by a recipient of its services and stored at such recipient’s
request in the memory of the electronic equipment serving the
purpose of information searches, provided that the internet service
provider does not have knowledge of illegal content of the
information stored or of illegal activity of such recipient of services
and the internet service provider acts without undue delay to
eliminate the illegal state; however, the internet service provider is
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liable for the information if the recipient of services acts in
accordance with instructions of the internet service provider.
Internet service providers are not required to monitor the
information, nor are they entitled to seek the information being
transmitted or stored. However, if they obtain knowledge of the
illegality of such information, they are required to remove them
from the electronic communications network or at least to disable
access to it. The relevant court may order the internet service
provider to remove the information from the electronic
communications network even if the internet service provider did
not have knowledge of the illegality of the information.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
If they are aware of the illegality of such information, they are
required to remove such information from the electronic
communications network or at least disable access to such
information. If they are not aware of such illegal state, they will be
required to remove such illegal content upon relevant court’s ruling.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
We assume that such behaviour may be regarded as potentially
discriminatory or as a distortion of competition and thus it would be
unlawful. The Electronic Communications Act does not stipulate
any “net neutrality” requirements but it prohibits discrimination
between undertakings and distortion of competition in the
electronic communications.
10.5 How are ‘voice over IP’ services regulated?
VoIP services accessing public telephone network are regulated
pursuant to the Electronic Communications Act as public telephone
services or electronic communications services. On the other hand,
VoIP services providing voice communication between internet
users only without a possibility to access public telephone network
are not treated either as public telephone services or electronic
communications services and thus they are not regulated by the
Electronic Communications Act.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
Act No. 147/2001 Coll. on Advertising, as amended, inter alia
stipulates that advertising can not be disseminated by automatic
telephone call system, telefax and electronic mail without prior
consent of the user who is recipient of the advertisement.
Similar restrictions of direct marketing are contained also in the
Electronic Communications Act, particularly in its part dealing with
“unsolicited communication”. Electronic mail messages for the
purpose of direct marketing shall only be allowed with a user’s prior
consent. The consent given may be revoked at any time. Sending of
electronic mails for the purpose of direct marketing shall be prohibited
if the address and identity of the sender is unknown and therefore the
user may not send a request to cease mailing of such messages. Prior
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consent shall not be requested in case of direct marketing of the 12 Foreign Ownership Rules
undertaking’s own goods and services to the user whose contact
information for delivery of an electronic mail the undertaking has
acquired in the context of selling goods or services and in accordance 12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
with the Electronic Communications Act or special regulations.
companies whether in fixed, mobile, satellite or other
wireless operations?

11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The universal service is defined by the Electronic Communications
Act as a minimum set of services, which are available in the specified
quality in the whole territory of the state to all end-users regardless of
their geographical location and at affordable price, which is the price
taking account of the consumer price level and income of inhabitants.
The undertaking providing the universal service shall have the right
for compensation of identified net costs related to performing of the
universal service obligation, if its revenues from the service are lower
than costs provably needed for the provision of the universal service.
The Office may establish a special universal service account for
compensation of net costs. The Office shall determine the amount of
contribution to the special account for every undertaking separately.
Under publicly available sources, Slovak Telekom, a.s., has been
determined by the Office as the undertaking providing universal
service.
Slovakia
No, there are no specific rules restricting direct or indirect foreign
ownership interests in electronic communications companies
stipulated, however, Act No. 92/1991 Coll. on Conditions of
Transfer of State Property to Other Persons, as amended, imposes
some restrictions regarding privatisation of the remaining state
share in Slovenské Telekomunikácie, a.s., now Slovak Telekom, a.s.
Those restrictions are, however, not aimed against foreign
ownership. Further, Act No. 308/2000 Coll. on Broadcasting and
Retransmission, as amended, requires that an applicant for a
broadcasting or retransmission licence with foreign shareholding
has an “adequate” share of Slovak shareholders and their
participation in the corporate bodies is secured.
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Currently, under publicly available sources, there aren’t any
significant amendments to the Electronic Communications Act in
the legislative process.

JUDr. Simona Haláková Mgr. Jakub Ondrejka

v v

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Tel: +421 2 5441 4441 Tel: +421 2 5441 4441

Fax: +421 2 5443 4598 Fax: +421 2 5443 4598
Email: simona.halakova@cechova.sk Email: jakub.ondrejka@cechova.sk
URL: www.cechova.sk URL: www.cechova.sk
v

Simona Haláková is a partner in Cechová & Partners. She joined the Jakub Ondrejka graduated from the Law Faculty of Comenius
firm in 2000. She is an associated member of the Slovak Bar University, Bratislava, Slovakia and received his Master degree in
v

Association since 1998 and passed the Bar exams in 2001. Before
v
2006. Before joining Cechová & Partners, he worked with the
joining Cechová & Partners, she worked with Aliancia Advokátov Slovak Investments and Trade Development Agency (SARIO). He is
Law Firm. an associated member of the Slovak Bar Association since 2007.
Simona graduated from the Law Faculty of Comenius University, Jakub concentrates in his professional practice mainly on regulatory
Bratislava, Slovakia and received Master degree in 1998. She law in the areas of banking, insurance, securities, state aid and
completed her dissertation work in Civil law focused on Securing of telecommunications. He has also gained extensive experience in
obligations and received her Dr. Jur. in 2001. corporate law. He is a Slovak national and is fluent in Slovak,
Simona concentrates in her professional practice mainly on regulatory English and Czech.
law in the areas of banking, insurance, securities, energetics and
telecommunications. She has also gained extensive experience in
commercial contracts and commercial law, M&A and corporate law.
She is a Slovak national and is fluent in Slovak, English and Czech.

Cechová & Partners is one of the leading and largest commercial law firms in Slovakia with considerable international
experience. It provides its services to foreign as well as domestic clients since its establishment in 1990, being one of
the first law firms established in Slovakia after the commencement of transformation to a free market economy. Cechová
v

& Partners is an independent Slovak law firm and regularly ranks as top tier in most legal surveys of the Slovak legal
v

market. Cechová & Partners draws from the European Union law expertise of its Brussels office, the first such office
established by a Slovak law firm, as well as from an extensive network of co-operating law firms abroad.

239
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 Chapter 35
South Africa
Lisa Thornton Inc
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
The Electronic Communications Act, 2005 (ECA) is the primary
legislation regulating the electronic communications industry. It
deal with a number of areas including licensing, spectrum,
interconnection, rights of way, numbering, broadcasting,
competition, universal service and consumer issues.
In addition to the ECA, there is other legislation that regulates
certain aspects of the industry:
Electronic Communications and Transactions Act (ECTA);
Competition Act; and
Regulation of Interception of Communications and Provision
of Communication-Related Information Act (RICA).
In addition to regulating the industry, the government has interests
in licensees, inter alia, Telkom, Sentech, the South African
Broadcasting Corporation, and Broadband Infraco.
1.2 Is South Africa a member of the World Trade
Organisation? Has South Africa made commitments under
the GATS/GATT regarding telecommunications and has
South Africa adopted the WTO Basic Telecommunications
Agreement?
South Africa is a member of the World Trade Organisation. In
1994, SA made commitments to open up the value added market
segment to competition. In 1997, SA made commitments in terms
of the Fourth Protocol on Basic Telecommunications, to open up
other market segments, and to establish an appropriate regulatory
environment as set out in the Reference Paper.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in South Africa?
Electronic communications networks and services are primarily
regulated by the Independent Communications Authority of South
Africa (ICASA) in terms of the ECA. However, the Minister of
Communications (Minister) is responsible for making policy and
issuing policy directions to ICASA and for making key regulatory
decisions regarding licensing and spectrum.
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Lisa Thornton
There currently exists some competition in the provision of
networks and services. However, SA is still transitioning from a
regulatory framework protecting certain licensees to a competitive
industry. Although nearly 400 licences were converted to
individual electronic communications network services (ECNS)
and electronic communications services (ECS) licences comparable
to the service licences of the incumbents, the establishment of a
regulatory framework effectively facilitating competition remains
hampered by a number of factors, including that certain key
provisions in the ECA are not clear, for example, regarding
interconnection, facilities leasing and competition matters.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
ICASA must regulate the electronic communications industry in
terms of the ECA, including in respect of competition matters.
The Competition Act relates to competition matters across all
industries, including the electronic communications industry. The
Competition Act establishes the Competition Commission
primarily with investigative powers, the Competition Tribunal with
adjudicative powers, and the Competition Appeal Court.
There is concurrent jurisdiction between ICASA and the
competition authorities in respect of competition matters in the
electronic communications industry. However, exactly how this is
supposed to work has not been finally determined, contributing to
the limited effectiveness of both regulators.
ICASA is in name, independent. However, in key respects its
independence is lacking, i.e., in the appointment procedure (the
Minister appoints ICASA Council), and the funding mechanism
(ICASA’s budget is submitted to Parliament through the Minister).
Similar issues arise in respect of the Competition Commission.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
ICASA’s decisions are not appealable; however, its decisions, as
well as those of the Competition Commission, may be taken on
review to the High Court.
Decisions of the Competition Commission may be heard on appeal
or review by the Competition Tribunal. The Competition Appeal
Court hears appeals and review decisions of the Competition
Tribunal.
Lisa Thornton Inc
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The provision of ECNS, ECS and broadcasting services (BS) requires
either an individual or class licence or must be exempt from licensing.
ECNS, ECS and BS licences are either individual or class.
Those licensees that are individual include ECNS of national or
provincial scale, and voice telephony ECS that use numbers allocated
by ICASA. Licence applications for individual licences may only be
made in response to an invitation and in respect of individual ECNS
licences, only after a policy direction issued by the Minister.
Class licences include ECNS of municipal scale, data ECS and
voice ECS where numbers are sub-allocated by licensees. ICASA
must act on class registration applications within 60 days and it if
fails to do so, there is a deemed registration.
ICASA has prescribed that certain services may be exempt from
licensing, including non-profit ECS, resellers of ECS and private
ECNS; service providers must nevertheless apply for exemptions.
Application and licence fees are set out in regulations, with
application fees for individual licences left to be decided at the time
an invitation is issued. The licence fee for most licences is 1.5
percent of gross profit. Community and public BS licensees and
licensees with an annual turnover of less than R13,000,000 are
exempt from paying licence fees.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
In addition to service licensing, if a service provider intends to use
spectrum, that provider must obtain the required spectrum licence.
All equipment must be type approved by ICASA.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Individual or class licences may be assigned, ceded or transferred
with the prior permission of ICASA.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Individual ECNS licences are issued for twenty years, ECS licences
for fifteen years, and BS licences for from ten to fifteen years. Class
ECNS and ECS licences are issued for ten years, and class BS licences
for seven years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The ECA grants to all ECNS licensees certain rights regarding
access to land, including, inter alia:
to enter upon any land and construct and maintain facilities,
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South Africa
subject to environmental regulations;
to use underground conduit pipes;
to construct and maintain facilities under streets, roads and
footpaths;
South Africa
to place gates on property owners’ fences; and
to cause trees or vegetation to be cut, subject to
environmental regulations.
ECNS licensees must exercise their rights in accordance with
regulations to be prescribed by ICASA.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
No; however, the Minister is required, in consultation with the
Ministers of Provincial and Local Government, Land Affairs,
Environmental Affairs, inter alia, to “develop guidelines for the
rapid deployment and provisioning of electronic communications
facilities”, facilitating governmental approvals, e.g., zoning
approval, and resolving disputes with landowners.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
There are no existing or proposed rules requiring the sharing of or
access to facilities. Interconnection regulations made in terms of
the Telecommunications Act require Telkom to co-locate unless it is
not ‘technically feasible’; however, these regulations, now
functionally obsolete, have never been enforced.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
In terms of chapters 7 and 8 of the ECA, every licensee must
interconnect and every ECNS licensee must provide facilities, upon
request, on terms negotiated, unless the request is unreasonable.
ICASA may exempt licensees from their obligations, but only if they
do not have significant market power (SMP). ICASA must promulgate
regulations to facilitate interconnection and facilities leasing.
In terms of chapter 10 of the ECA, ICASA may impose specific
licence conditions regarding, inter alia, interconnection and access,
on licensees determined to have SMP.
ICASA has neither made regulations in terms of chapters 7 and 8
nor imposed licence conditions in terms of chapter 10.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
According to chapters 7 and 8, if the parties are unable to agree on
terms and conditions, and the dispute is referred to ICASA, ICASA
may do one of three things:
impose the terms and conditions;
propose terms and conditions and instruct the parties to re-
negotiate; or
refer the matter to the Complaints and Compliance
Committee (CCC).
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 Lisa Thornton Inc
If referred to the CCC, the CCC must hear the matter and make a
recommendation to ICASA as to the appropriate action, which
could include, if the licensee has repeatedly been found guilty,
suspension or revocation of its licence.
Regarding implementation disputes, the CCC must hear and decide
South Africa
matters on an expedited basis in accordance with regulations to be
prescribed by ICASA.
Chapter 10 provides for ICASA to issue cease and desist orders
where a licensee is found to have engaged in an anti-competitive
act. The regulations required to implement these provisions have
not been promulgated.
Similarly, the Competition Act prohibits anti-competitive acts,
including abuses of dominant positions, charging an excessive price
and refusing to give access to an essential facility. The Competition
Commission investigates anti-competitive acts and the Competition
Tribunal adjudicates.
Although there have been complaints filed with ICASA and the
Competition Commission, there have been no successful
prosecutions, due mainly to dominant players employing delaying
and diversion tactics, taking advantage of legislative impreciseness
and inexperienced regulators.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Although ICASA must provide a regulatory framework that may
include reference offers containing model terms and conditions, and
may impose licence conditions requiring publication of offers, it has
done neither.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
ICASA may prescribe regulations establishing a framework of
wholesale interconnection and facilities leasing rates taking into
account chapter 10, which deals with competition matters.
The existing regulations (under the now repealed
Telecommunications Act) set up a pricing regime (albeit a
discriminatory one). However, those regulations are functionally
obsolete as licence categories have changed with the completion of
the licence conversion process.
ICASA has failed to regulate interconnection and facilities leasing
pricing in terms of the ECA, due to, inter alia, ambiguous
legislative language in this regard.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
ICASA has the authority to require accounting separation as a
licence condition on licensees determined to have SMP. It does not
appear that ICASA has the authority to require functional or legal
separation.
The Competition Tribunal has the authority to order divestiture in
certain circumstances where a prohibited practice has been found to
have occurred.
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4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The ECA does not make a distinction between technologies used in
respect of regulating interconnection and facilities leasing.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
The Minister has issued a policy direction to ICASA that all licensees
must have access to the local loop, and that local loop unbundling
must be completed by 2011.
There are no cable TV operators in South Africa.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
The ECA provides that notwithstanding a finding of SMP, ICASA
may exempt ECNS licensees from the obligation to lease fibre
loops servicing residences on the condition, inter alia, that the
network is newly constructed in an area not previously served by
the licensee.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
In terms of the Telecommunications Act, the retail prices of Telkom,
Vodacom and MTN, were, to some extent, regulated by the
imposition of price caps. Nonetheless, retail prices in SA remain
comparatively high.
Under chapter 10 of the ECA, ICASA may impose retail price
controls as licence conditions. This, however, must be preceded by
determinations by ICASA of relevant markets, the effectiveness of
competition in markets, SMP, and appropriate pro-competitive
licence conditions.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
ICASA has made regulations setting out a licensee code of conduct,
minimum standards for end-user and subscriber service charters,
and a code of conduct with regard to people with disabilities.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
ICASA must prescribe a numbering plan for the efficient use and
allocation of numbers, to accommodate the various protocols used
and services provided, and to transform the numbering plan to a
non-geographic numbering system utilising electronic numbering
allowing the interoperation between telephone numbers and the
Internet domain name system.
Lisa Thornton Inc
ICASA has not prescribed numbering plan regulations in terms of
the ECA; however, there are numbering plan regulations made in
terms of the Telecommunications Act.
In terms of the ECA, the provision of ECS using numbers allocated
by ICASA requires an individual ECS licence. Thus, only
individual ECS licensees may obtain allocations from ICASA.
ECTA established the .za Domain Name Authority to assume
responsibility for the .za domain name space.
6.2 Are there any special rules which govern the use of
telephone numbers?
The specific rules governing the use of numbers are located in the
numbering plan regulations.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
There are rules in the numbering plan regulations regarding the
issuance of numbers to customers, including, inter alia, that the
allocation must be controlled by the original applicant even though
sub-allocations are allowed, and the number must be used for the
purpose stated in the original application and in accordance with
any conditions imposed by ICASA.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
ICASA was required to prescribe regulations in terms of the ECA
to ensure that number portability was introduced in 2005. Although
ICASA has not prescribed number portability regulations in terms
of the ECA, there are number portability regulations made in terms
of the Telecommunications Act, dealing with number portability
between fixed licensees on the one hand and mobile licensees on
the other.
The implementation of number portability is dependent on
specifications, inter alia, to be negotiated between licensees and
published by ICASA. This process has not been completed in
respect of geographic (fixed) number portability.
Mobile number portability is currently being implemented.
7 Submarine Cables
7.1 What are the main rules governing the bringing into South
Africa’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
An ECNS licence authorises the landing of a submarine cable in
SA. No special rules govern the landing of submarine cables
although the Minister proposed some time back to impose rules that
would require licensees to, inter alia, obtain a separate
authorisation from the Minister.
There are other regulatory requirements applicable, such as those
under the National Environmental Management Act for an
Environmental Impact Assessment, and the Sea-Shore Act for a sea-
shore lease.
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South Africa
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
South Africa
Spectrum is primarily regulated by ICASA. The Minister has the
authority to approve (or disapprove) the radio frequency band plan
and to decide whether the migration of users that are government
entities, is permitted.
8.2 How is the use of radio frequency spectrum authorised in
South Africa? What procedures are used to allocated
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
Spectrum licences are awarded on an ad hoc basis.
ICASA may make regulations and criteria for awarding licences for
competing applications and has recently proposed regulations
which indicate that the evaluation criteria and selection process,
which might include a beauty parade or auction or both, will be set
out in invitations to apply for specific spectrum.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Spectrum licences are awarded consistent with the band plan, which
indicates which spectrum is designated for which type of service.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The installation of satellite earth stations is regulated no differently
than the installation of facilities in respect of other spectrum. A
spectrum licence and an ECNS licence are required.
The Minister has issued a policy direction to ICASA to issue an
invitation for individual ECNS licences for the provision of satellite
infrastructure.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
ICASA may exempt certain uses of spectrum from the licensing
requirement, and prescribe the conditions under which unlicensed
use may take place. It has prescribed certain spectrum licence
exemptions including for the use of the 2.4 GHz band for wide band
wireless systems, inter alia.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Application and licence fees for the various uses of spectrum have
been prescribed by ICASA on an ad hoc basis. ICASA has recently
proposed spectrum fees based on certain formula depending on type
of use.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The ECA enjoins anyone from using spectrum without a spectrum
licence granted to that person, and therefore sub-licensing is not
allowed.
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 Lisa Thornton Inc
Spectrum licences may be transferred, but only twelve months after
the date of issue or in the case of commercial operations, twelve
months after the facilities are operational.
South Africa
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
In terms of RICA, all service providers must store communications-
related information that identifies the origin, destination,
termination, duration, and equipment used. The time period for
retention is three years.
In addition, service providers must gather and retain personal
information about customers regarding their identity and contact
details.
In broad terms, RICA itself is data protection legislation. It
prohibits interception and monitoring except in the specific
circumstances set out. Similarly, the Promotion of Access to
Information Act prohibits the disclosure of certain personal
information. There are some voluntary privacy provisions set out
in ECTA. However, the South African Law Reform Commission
has drafted comprehensive data protection legislation, which has
been approved by Cabinet for consideration by Parliament.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
RICA establishes an obligation on services providers to have the
capability to intercept communications.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The circumstances under which government entities or other persons
may intercept or monitor communications include, inter alia:
if a judge issues an direction on application of a law-
enforcement officer;
interception with the written consent of one of the parties to
the communications;
interception in the carrying on of a business;
interception by law-enforcement personnel to prevent
serious bodily harm;
interception by law-enforcement personnel to determine the
location of a person in an emergency;
interception in a prison; and
monitoring of the radio frequency spectrum by the regulator.
Similarly, RICA prohibits the provision of communications-related
information except if, inter alia, a judge issues a direction on
application of a law-enforcement officer.
Unauthorised interception or provision of communications-related
information is a criminal offence subject to fines and imprisonment.
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10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet networks are regulated as ECNS. Internet services are
regulated as ECS (and not BS, which attract additional regulation in
respect of inter alia, content). If an entity is merely a content
provider, it does not need a licence or fall within the ambit of the
entities that are regulated under the ECA.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
ECTA provides for the limitation of liability for service providers,
if such providers are members of an industry representative body
that has been recognised by the Minister, and have adopted that
body’s code of conduct.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Although there is no obligation on service providers to monitor use,
there is an obligation to take down offending information upon
receiving a take down notice in terms of ECTA in order to retain the
legislative limitation of liability in respect of caching, hosting and
information location tools.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
There are no net neutrality requirements in South Africa.
10.5 How are ‘voice over IP’ services regulated?
Voice over IP services are not regulated differently than other voice
services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
ECTA provides that anyone who sends unsolicited commercial
information must give the recipient the opportunity to be removed
from the list, and provide information on how that person got on the
list.
Lisa Thornton Inc South Africa

11 USO 13 Future Plans

11.1 Is there a concept of universal service obligation; if so how 13.1 Are there any imminent and significant changes to the
is this defined, regulated and funded? legal and regulatory regime for electronic communications?

The ECA establishes the Universal Service and Access Agency of
South Africa (USAASA) to promote universal service, under the
direction and control of the Minister. The Minister must determine
the meaning of universal service and universal access.
The ECA also establishes the Universal Service and Access Fund
(USAF), to which licensees contribute 0.2 percent of annual
turnover. Money is to be paid out of the USAF if Parliament
appropriates money for that purpose.
ICASA may place universal service obligations (USOs) on
individual licensees.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
All licensees must be either citizens, or entities registered in SA
with their principle place of business in SA.
ICASA, in granting licences, must ensure that services, viewed
collectively, are provided by persons or groups from a diverse range
of communities in SA, and must promote the empowerment of HDIs.
In respect of new individual licences, ownership by HDIs must be no
less than 30 percent or some other percentage prescribed by ICASA.
Although HDI is not defined in the ECA, ICASA has recommended
that it include South African citizens who are black people, as well as
women and people with disabilities; associations whose majority
members are such persons; and juristic persons, were greater than 25
percent of the share capital is held by such persons.
In respect of commercial BS licensees, foreigners may not exercise
control, have a financial interest or interest in voting shares or paid-
up capital in a licensee of more than 20 percent, or constitute more
than 20 percent of the board of directors.
South Africa
Although the ECA come into force less than five years ago
promising to substantially alter the regulatory framework leading to
competition and universal service, it has become apparent that in
addition to the huge amount of regulatory work that needs to be
completed by ICASA, the ECA must be amended if it is to be
successfully implemented. The 2009 elections brings renewed
hope that this will happen. There are a number of proceedings in
process, such as the development of broadband policy, that might
lead to the required legislative amendments. In the meantime, there
will be incremental movements to improve the competitiveness of
the industry as ICASA continues to implement, where it is able, the
provisions of the ECA.
Lisa Thornton
Lisa Thornton Inc
PO Box 1377
Saxonwold 2132
South Africa
Tel: +2783 444 5025
Fax: +2787 805 5429
Email: lat@thornton.co.za
Lisa Thornton founded Lisa Thornton Inc in 2000 to provide high
quality, solution oriented services to the ICT industry in South Africa
focusing on telecoms, broadcasting and new media. She recently
founded the sister company, Lisa Thornton Consulting, in the USA,
to focus on broadband development projects.
Lisa has been named the sole leading individual lawyer in the area
of technology, media and communications law in South Africa by
PLC Which Lawyer, the leading telecommunications lawyer in Cross
Border - Communications Handbook, and is listed in the
International Who’s Who of Business Lawyers. Lisa was the most
highly nominated individual for inclusion in the upcoming
publication, “Digerati: everyone you need to know in SA
technology”.
Her colleagues and clients have said that “Lisa has one of the
sharpest minds in her field”, and is “the best telecoms lawyer that I
have had the privilege of working with”.

Lisa Thornton Inc is a leading South African law firm for the ICT industry providing a range of services including
contractual, commercial, regulatory, competition, administrative and constitutional law, as well as policy advice, to all
sectors of the industry including telecommunications, broadcasting, new media and computing.
The firm has experience in South Africa, the USA, and in a number of African countries other than South Africa, and
has done work for various international organisations. The firm’s clients include large and small businesses,
entrepreneurs, civil society, regulators, governments, and academia.
Lisa Thornton Inc offers an alternative to the experience of working with large firms. Although it is small, it is able to
deliver high quality, professional, solution oriented and timely work product on both small and large matters by focusing
on one subject matter, and by teaming up with trusted colleagues outside the practice as and when necessary.

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 Chapter 36
Switzerland
Bratschi Wiederkehr & Buob
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
Switzerland started to liberalise the telecommunications markets in
the early 1990s: the Swiss Postal and Telecommunications
Organisation (PTT) lost its monopoly in the field of terminal
equipments and value added services. A broader liberalisation
came into force on January 1, 1998, with the new Federal Law on
Telecommunications (LTC) of April 30, 1997, together with the
Federal Law on the Organisation of the Telecommunications
Company of April 30, 1997, shaping Swisscom as the former
monopolist in the new legal form of a publicly owned corporation
with limited liability; since 1999 Swisscom is a listed company with
registered shares at the Swiss Exchange and ADRs at the New York
Stock Exchange; nevertheless, 55% of the share capital is still
owned by the Swiss government.
The LTC which was designed to bring effective competition to the
telecommunications markets allows the consumers to freely choose
their service providers. Since 1998, the market supervision is
entrusted to the Federal Communications Commission (ComCom),
an authority independent from the government. The actual
administration of the telecommunications markets is carried out by
the Federal Communication Office (OFCOM). Experience during
the first years after the liberalisation of the telecommunications
markets has shown that Swisscom remained a dominant
telecommunications provider, in particular since the LTC did not
contain any unbundling provisions. This problem has been (partly)
remedied through a revision of the LTC in 2006 which came into
force in April, 2007.
The electronic communications regulatory regime does encompass
electronically delivered content, if the information transmitted is
not to be qualified as “broadcasting” being the emission of a
programme. Broadcasting legislation and respective operating
licences set out many content-related obligations as contained in the
new Radio and Television Act of March 2006, in force since April
2007. General legislation and court practise also provide for certain
criminal and civil law provisions in relation to content, e.g.
combating defamation, obscenity, and harassment. With respect to
interception of telecommunication traffic the Post and
Telecommunication Interception Act could become relevant.
In addition to the Telecommunication Act and to the Radio
Television Act, the Competition Act and the Act on Price
Surveillance are potentially relevant to the telecommunication
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Rolf H. Weber
Simon Osterwalder
business. With respect to energy consumption of electronic home
devices, the Energy Act and the Energy Ordinance will be
applicable to television set top boxes from January 2010.
Generally, it can be said that the Swiss legislator is following the
liberalisation of the telecommunications markets in the European
Union, partly at close speed, partly with some delay (for example in
the case of the unbundling). Nevertheless, all-over-all, the Swiss
telecommunications policies and objectives for the electronic
communications industry are quite similar to those of the EU
Member States.
1.2 Is Switzerland a member of the World Trade Organisation?
Has Switzerland made commitments under the GATS/GATT
regarding telecommunications and has Switzerland
adopted the WTO Basic Telecommunications Agreement?
Switzerland is a Member State of the World Trade Organisation and
as such bound by the General Agreement on Trade in Services
(GATS). Consequently, Switzerland is obliged to observe the
general most favoured nation commitment and the specifically
accepted undertakings.
Notwithstanding the fact that Art. VIII GATS is interpreted in a
rather strict way to curtail abuses of monopolies and to prevent
exclusive service suppliers, this provision does not, according to the
general opinion, force any Member State to liberalise its markets;
the present liberalisation status of Switzerland is therefore in
compliance with the GATS. The Fourth Protocol of 1997 to the
GATS which includes certain commitments in respect of basic
telecommunications and which requires the Member States to adopt
domestic telecommunications regulations in a market-oriented way
is met by the Swiss legislation (compliance with the respective
requirements). The Swiss schedule of specific commitments covers
telephone, packet-switched data-transmission, circuit-switched
data-transmission, telex and telegraph, facsimile and private leased
circuit services. Furthermore, Switzerland committed to maintain
no limitation on market access to national treatment of cross-border
trade, consumption abroad and commercial presence.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in Switzerland?
Looking at the letters of the law, the electronic communications
networks and services are open to competition in Switzerland.
Due to the small and fragmented markets in Switzerland, the
incumbent (Swisscom) has kept a very strong market position,
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amounting to a current market share of approx. 60% in fixed line
telephony and approx. 62% in mobile telephony. Nevertheless
network competition is well established in Switzerland due to a
strong cable TV-industry which started to offer - in addition to
radio- and TV-programmes - also fixed line telephony and
Broadband Internet-services since the liberalisation of the
telecommunication market in 1998. Furthermore, investments of
local utility companies in new FTTH-infrastructure are currently
stimulating the infrastructure competition between the incumbent
and the cable TV-network operators (in particular in urban areas).
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The market supervision is entrusted to the Federal Communications
Commission (ComCom), an authority independent from the
government. The actual administration of the telecommunications
markets is carried out by the Federal Communications Office
(OFCOM) which is also competent in the radio and television
(broadcasting) markets.
The Federal Act on Cartels (FAC) embodies the Competition
Authority as competent institution to apply antitrust law in practice.
The Competition Authority is an authority independent from the
government. In connection with the evaluation of the existence of
a market dominant position in telecommunications markets, the
OFCOM and the ComCom, respectively, are requested to look for
advice from the Competition Authority on matters related to
competition law.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Decisions of the ComCom are subject to the possibility of an appeal
to the Federal Administrative Court (Bundesverwaltungsgericht);
its decisions can be appealed to the Federal Supreme Court
(Bundesgericht). Decisions taken by the OFCOM are also
appealable to the Federal Administrative Court and to the Federal
Supreme Court.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
Each network operator or service provider has to notify the
OFCOM about its intent to operate respective networks or provide
respective services. Provided that certain technical and financial
regulatory criteria are met, a telecommunications licence is
normally granted. The OFCOM keeps a register of the network
operators and service providers. In principle, no licence is required
to install or operate electronic communications networks or provide
services over them in Switzerland, with the exception of two cases:
a licence is needed to provide universal service being an important
political aspect in the alpine (and rural) regions of Switzerland. The
granting of the licence is based on a public call for tenders,
however, so far Swisscom has been the only applicant and the
procedure is therefore limited by the fulfilment to the legal
conditions (Art. 14/15 LTC). Furthermore, a licence needs to be
obtained for the rendering of mobile services since the frequency
spectrum is regulated. The mobile telephony licences were
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allocated in two different proceedings some years ago: the GSM-
licences were subject to competitive tender proceedings based on
quality criteria in 1998, the practically not very important WLL-
licences and the four UMTS-licences were allocated in auction
processes in 2000. Both the licence for universal service as well as
Switzerland
the licence for mobile services are granted by the ComCom.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
As explained, the rendering of universal access services and the use
of the radio frequency spectrum is subject to a licence; the LTC and
its implementing ordinances outline the requirements for the
granting of such licences. Further permits or approvals - in fact
subject to authorisations of public and private property owners - do
not have to be met or obtained before networks can be installed or
operated and services provided.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
If the holder of a licence would like to transfer a licence, the
ComCom has to approve such transfer. Basically the ComCom is
evaluating whether the new envisaged holder of the licence is
meeting the legal requirements which apply in case of the granting
of the licence.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Both the licence for universal service as well as the licence for
mobile services shall have a limited duration determined by
ComCom in the terms of the licence (Art. 14 and 24c LTC). Mobile
licences have been granted for ten years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The general principles of property law and planning law apply,
however, Art. 35 LTC grants the right to a network operator to use
public land for cable ducts. The respective right should be used in
a reasonable and proportional manner; furthermore, different
network operators are asked to join forces including the obligation
of the owner of a cable duct to offer space to a competitor if the
capacity has not been fully used for its own cables.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
As far as masts for mobile telephony are concerned, the applicable
cantonal and municipal planning or zoning regimes being force
must be observed by the network operators. Again, as in the case
cable ducts, network operators are bound to join forces and to use
(to the extent possible) joint infrastructure mechanisms. The
building of mobile telephony masts has been an issue of several
proceedings in the past since claimants were arguing that mobile
telephony in the neighbourhood would be detrimental to their
health.
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3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
As explained (questions 3.1 and 3.3 above) the LTC knows rules
Switzerland
requiring network operators to share their infrastructure in order to
minimise negative impacts on the rights of land owners and on
specific planning or zoning regimes.
In connection with ongoing discussions regarding the regulatory
framework of Next Generation Access Networks (in particular
FTTH-infrastructure) a more intensive regulation of ‘passive
access’ is still a political scenario. However, currently there are no
proposals to mandate ‘passive access’ in addition to the existing
rules which are requiring network operators to share i.e. ducts under
specific conditions. But local utility companies are offering so-
called ‘Open Access’-business models, which are based on the idea
that only one network company builds up a passive access
infrastructure.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Services providers with a market dominant position are obliged to
offer unbundled interconnection to other services providers at cost-
based prices on a transparent and non-discriminating basis (Art. 11
LTC). With regard to the fast bit-stream-access, the interconnection
obligation is limited until 31 March 2011 to safeguard incentives for
competitors of the incumbent doing investments in their own
network infrastructure. Access regulation is restricted to the copper
wire network of the incumbent (Swisscom), and therefore, such
unbundling obligations do not apply to i.e. cable TV-network
operators. Also, any dominant provider (including cable TV-
network operators) has to grant access to its ducts, subject to
sufficient capacity being available in the relevant duct.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
If the services providers are unable to agree on the prices and terms
of an interconnection within three months after request of the
entitled services provider, each party or the OFCOM may bring the
matter before the ComCom for decision (Art. 11a LTC). The
decision of the ComCom may be appealed (see question 1.6 above).
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Services providers with a market dominant position (and therefore
obliged to grant access to its services and equipments) have to
disclose technical and commercial conditions for its
interconnection basic offer to other services providers.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
The charges for interconnection between a market dominant
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services provider and its counterparty have to be cost-based. As a
result of this obligation a dominant services provider has to ensure
that its accounting practice permits a transparent and objective
illustration of such a cost-based pricing.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
The Swiss regulatory framework for telecommunication services
neither knows currently an accounting separation nor a functional
or legal separation. At best there is a kind of accounting separation
in practice, as a result the obligation of a market dominant services
provider to offer cost-based charges for interconnection services.
Nevertheless, there are ongoing political discussions with regard to
mandating functional separation in case of serious competition
problems.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
The interconnection and access regulation scheme is not worded in
a completely independent manner from technology. Access
regulation is currently restricted to the copper wire network of the
incumbent (Swisscom). However, the general interconnection
obligation for market dominant services providers is also applicable
on next generation networks or IP-based networks.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Access regulation is restricted to the copper wire network of the
incumbent (Swisscom), and therefore, such unbundling obligations
do not apply to cable TV-network operators.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
Currently, there are ongoing political discussions about a revision
of the Telecommunication Act regarding a more intensive
regulation of the access to Next Generation Networks. As a result
of this political debate the incumbent (Swisscom) started to
negotiate cooperation-agreements (financial or construction
cooperation) with regard to the enrolment of its multi-fibre FTTH-
network. Actually there is no proposal for the regulation of
‘regulation holidays’ for NGA-Networks, but the question, how to
protect FTTH-investments in the future, is part of the current debate
in the national council.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
For providers of the universal service, the Federal Government
determines maximum prices (Art. 17 LTC). Otherwise, the services
providers are only subject to the general Swiss competition law and
regulations against abusive prices, in particular the Swiss Price
Supervision Act (Preisüberwachungsgesetz).
Bratschi Wiederkehr & Buob
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The provision of electronic communications services to consumers
is subject to the general consumer protection regulation. However,
the scope of consumer protection in Switzerland is quite limited.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
Telephone numbers and network identifying codes are
administrated by the OFCOM (Art. 28 LTC). The OFCOM can
make certain base allocations to providers of electronic
communications services, and then assign the further allocation to
the holder of such base allocations.
6.2 Are there any special rules which govern the use of
telephone numbers?
The OFCOM has established a scheme providing for a particular
order of the telephone numbers which shall ensure that sufficient
telephone numbers are available for allocation at any time. The
numbers are allocated by the OFCOM and the service providers and
have to be used according to such scheme.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
The telephone numbers are made available and allocated by the
OFCOM for network use. The numbers are activated by the
services provider who provides the respective services to the holder
of the number.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
In principle, the services providers have to enable their customers
to keep their telephone number if the customer changes its services
provider, but remains in the same service category.
7 Submarine Cables
7.1 What are the main rules governing the bringing into
Switzerland’s territorial waters, and the landing, of
submarine cables? Are there any special authorisations
required or fees to be paid with respect to submarine
cables?
Not applicable to Switzerland.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Depending upon the kind of use of radio frequencies, in particular
in most cases of commercial use, a licence by the ComCom is
required. The use of the radio frequency spectrum is regulated by
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Switzerland
the OFCOM which is responsible for the assignment of the
frequencies.
8.2 How is the use of radio frequency spectrum authorised in
Switzerland? What procedures are used to allocated
Switzerland
spectrum between candidates - i.e. spectrum auctions,
comparative ‘beauty parades’, etc.?
The OFCOM is responsible for the management of the frequency
spectrum. The frequencies for broadcasting and GSM were
allocated through a best quality criteria procedure; the UMTS and
WLL licences were granted on the basis of an auction process (see
question 2.1 above). The OFCOM decides if the tender is judged
by a criteria competition or by an auction.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
The licence does not only regulate the frequency spectrum, but also
the technical and operational elements of the transmission equipment
thereby restricting the use of the frequency to a defined use.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The installation of satellite earth stations is subject to the regular
process for the establishment of buildings if the station exceeds a
certain size. Otherwise, no particular permits are required for earth
stations which are only receiving signals. Up-linking is subject to
the regular application process for the obtaining of a licence to use
a frequency spectrum.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
There are certain uses which are exempt from a licence
requirement, such as (but not limited to) the use of certain low
power transmission equipment, of transmission equipment only
used in connection with public communication services (mobiles)
or of equipment which can only receive transmissions.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
In the UMTS auction, market prices were paid; otherwise, only
administrative charges are to be paid.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Spectrum licences cannot be traded or sub-licenced (see question
2.3 above); a transfer needs to be approved.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there data
protection (privacy rules) applicable specifically to
telecommunications?
According to the Post and Telecommunication Interception Act all
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operators are obliged to retain any call data, which are required for
the identification of a user, as well as the traffic and invoice data.
Such data has to be retained by any operator during six months.
Service operators as well as network operators are bound to the
secrecy of telecommunications and to general Swiss rules for data
Switzerland
protection.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Operators are obliged to maintain capabilities (staff and equipment)
to fulfil their obligations based on the Post and Telecommunication
Interception Act, but receive an adequate compensation for the
related activities.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
For obtaining access to retained call data and/or interception calls,
several conditions have to be met: firstly, there must be a strong
suspicion that the person, who should be intercepted, has committed
a criminal offence, which is listed in Art. 3 of the Post and
Telecommunication Interception Act. Secondly, the gravity of the
criminal offense has to legitimate the interception. Thirdly, other
measures conducted have failed or the investigations would not be
effective or disproportional without the interception. Only state
authorities are able to obtain access to retained data, i.e. such of
criminal proceedings and any decision with regard to interception
measures has to be confirmed by a judicial authority.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Internet services are not regulated differently than other electronic
communications services.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
According to current regulations (including Copyright Act)
operators and/or ISP are not liable for content carried over their
networks (in spite of several attempts to implement such provisions
into the Copyright Act or the Code of Obligations and in spite of a
decision of the Federal court, which stated a criminal liability of the
manager of an ISP, because he had knowledge of an illegal content
carried over the network). Therefore there is a factual ‘mere
conduit’ regime in force. Nevertheless discussions regarding piracy
and theft avoidance are ongoing not only on state level, but also in
the industry for granting content providers access to safe
distribution environments.
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10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Lacking an order based on the Post and Telecommunication
Interception Act telecommunications network operators and/or ISP
are not under any obligation to assist content owners, if there is a
suspicion that a user is infringing copyright law by using file-
sharing platforms. In contrast to such obligations they are not
allowed to cooperate with intellectual property owners avoiding a
risk to infringe the secrecy of telecommunications.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Currently there are no ‘net neutrality’ requirements; to that effect
telecommunications operators and/or ISP are - generally - able to
regulate traffic over their network (if technically possible), but
differentiation attempts did not happen so far.
10.5 How are ‘voice over IP’ services regulated?
The Telecommunication Act does not contain any specific
regulation for VOIP-Services. The regulations that apply to all
telecommunications services (e.g. the registration obligation,
charging obligation, interconnection authorisation and obligation,
access to directories, ensuring site identification, right to addressing
resources, ensuring number portability, compliance with
confidentiality of telecommunications, ensuring the monitoring of
telecommunications traffic, assistance with handling extraordinary
situations, obligation to provide information, etc.), also apply in
relation to VOIP-Services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The sending of unsolicited mass sending of advertising material is
forbidden and violation of such prohibition may lead to criminal
sanctions. Further, internet use or use of email communication is
subject to the general restrictions (for example prohibitions of
distribution of material with certain explicit content).
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
An electronic communications services provider may apply for a
licence to provide universal service. The services provider is then
obliged to offer certain (as defined in the licence) or all
communications services to all consumers within a certain territory
(as defined in the licence) at costs lower than the maximum costs
set by the Federal Government.
Bratschi Wiederkehr & Buob Switzerland

12 Foreign Ownership Rules 13 Future Plans

12.1 Are there any rules restricting direct or indirect foreign 13.1 Are there any imminent and significant changes to the
ownership interests in electronic communications legal and regulatory regime for electronic communications?
companies whether in fixed, mobile, satellite or other

wireless operations?
No such rules apply in case of foreign ownership in electronic (tele-)
communications companies; restrictions only apply in broadcasting.
Switzerland
Since the Telecommunications Law and the Broadcasting Law have
been substantially revised in 2006, no imminent and significant
changes are to be expected soon.

Prof. Dr. Rolf H. Weber Dr. Simon Osterwalder

Bratschi Wiederkehr & Buob Bratschi Wiederkehr & Buob
Bahnhofstrasse 46 Bahnhofstrasse 46
8021 Zurich 8021 Zurich
Switzerland Switzerland

Tel: +41 58 258 1000 Tel: +41 58 258 1000

Fax: +41 58 258 1099 Fax: +41 58 258 1099
Email: rolf.weber@bratschi-law.ch Email: simon.osterwalder@bratschi-law.ch
URL: www.bratschi-law.ch URL: www.bratschi-law.ch

Rolf H. Weber is chair professor for international business law at the
University of Zurich and counsel in Bratschi Wiederkehr & Buob. He
is specialised in communications, media and IT law and author of
numerous books and contributions in legal periodicals. Rolf H.
Weber earned a doctoral degree of the University of Zurich, was
Visiting Scholar at Harvard Law School and teaches regularly as
Visiting Professor at the University of Hong Kong.
Simon Osterwalder has joined Bratschi Wiederkehr & Buob in spring
2009. His focus is on the telecommunication and cable TV industry
as well as the media, entertainment and sport industry. Before
joining Bratschi Wiederkehr & Buob he worked for the biggest cable
TV-network operator in Switzerland (a subsidiary of the worldwide
greatest cable TV group), finally as head of the legal and regulatory
services. He provided in particular advice in several acquisition,
divestment and financing transactions in the cable TV-sector as well
as in several regulatory matters in the telecommunication industry.
Simon Osterwalder earned a doctor degree of the University of
Zurich. He regularly participates in publications on sports and
corporate law as well as on regulatory matters.

Bratschi Wiederkehr & Buob is one of the known large law firms in Switzerland. With its five offices in Zurich, Basle,
Berne, St.Gallen and Zug, the company is well represented in all economically relevant regions of the German-speaking
part of Switzerland. Bratschi Wiederkehr & Buob is able to assist its clients as full service law firm in all areas of
business law with competence and authority.
The IT & telecommunication law practice team of Bratschi Wiederkehr & Buob assists electronic communications
services providers in connection with all their activities - fixed, mobile, internet, radio and TV programme transmissions,
respectively. Team members have advised electronic communications services providers since the 1990ties, i.e. the
liberalisation of the Swiss telecommunication market, and continue to advise them in today’s still hotly contested
market, both in regulatory proceedings as well as in commercial projects including acquisitions and divestments.

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 Chapter 37
United Kingdom
Olswang LLP
1 Framework
1.1 When did the UK first liberalise telecommunications
networks and/or services?
The UK was one of the first countries to liberalise its
telecommunications market in the 1980s, and the market has been
completely liberalised since the early 1990s.
1.2 Has the UK fully implemented the EU 2003 regulatory
framework? If the UK has not fully implemented the new
regulatory framework, have proceedings been brought
against the UK by the European Commission and if so, for
which contraventions?
The UK has fully implemented the EU 2003 regulatory framework
through the Communications Act 2003 (“2003 Act”), the General
Conditions of Entitlement (the “General Conditions”), the
significant market power (“SMP”) review process and a number of
other specific regulations.
In April 2009 the European Commission opened infringement
proceedings against the UK in relation to its implementation of
aspects of the Privacy and Electronic Communications Directive
(Directive 2002/58/EC) and the Data Protection Directive
(Directive 95/46/EC) (specifically concerning the controversial
“Phorm” behavioural advertising technology).
1.3 Please give an overview of the different laws and
regulations governing the operation of electronic
communications networks and the provision of electronic
communication services.
The 2003 Act governs electronic communications networks and
services and sets out the duties and powers of the Office of
Communications (“Ofcom”).
The day-to-day obligations imposed on electronic communications
network and service providers (“Communications Providers”) are
set out in the General Conditions, adopted by Oftel in July 2003
(and which have been subsequently modified). Additional
obligations apply to operators with SMP, and designated universal
service providers (see further below).
The Wireless Telegraphy Act 2006 (“WTA”) provides the
authorisation and regulatory framework for services and networks
using radio spectrum. A licence is required for the establishment or
operation of a wireless telegraphy station unless exemption
regulations have been adopted (see question 8.5 below). In
addition, regulations enabling the limitation of the number of
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Rob Bratby
Tomos Jones
wireless telegraphy licences have also been adopted: the Wireless
Telegraphy (Limitation of Number of Licences) Order 2003.
In relation to privacy and related matters, the Data Protection Act
1998 (“DPA”), the Regulation of Investigatory Powers Act 2000
(“RIPA”), the Telecommunications (Lawful Business Practices)
(Interception of Communications) Regulations 2000, the Privacy
and Electronic Communications (EC Directive) Regulations 2003
(“Privacy Regulations”) and the Data Retention (EC Directive)
Regulations 2009 implement various aspects of the privacy and data
protection requirements relating to electronic communications.
The Radio Equipment and Telecommunications Terminal
Equipment Regulations 2000 set out requirements for telecoms and
radio equipment (including compliance with essential requirements
on e.g. electro-magnetic compatibility and CE marking, which are
included in other implementing regulations).
In addition, competition and consumer protection legislation
applies to electronic communications networks and services,
notably the Competition Act 1998 and the Enterprise Act 2002.
1.4 Please describe the regulatory framework, in terms of
regulatory authorities and associated agencies, e.g.
national competition authority (where different).
Electronic communications networks and services are regulated by
Ofcom. Ofcom also has concurrent jurisdiction for competition law
with the Office of Fair Trading (“OFT”) regarding electronic
communications matters and is a national competition authority for
electronic communications. The majority of regulatory matters can be
appealed from the first instance decision-maker to the Competition
Appeal Tribunal (“CAT”), with price control matters and market
investigations being dealt with by the Competition Commission.
PhonepayPlus regulates the content and marketing of premium rate
services, including directory enquiry services.
The Information Commissioner is responsible for data protection
and freedom of information.
1.5 Which principal aspects of electronic communications
regulation fall under the supervision of the national
regulatory authority for electronic communications?
Ofcom is responsible for electronic communications regulation in
general:
setting and enforcing general conditions;
undertaking market reviews, setting and enforcing SMP
conditions (i.e. access and interconnection);
setting universal service obligations in accordance with the
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Secretary of State’s specification of services;
setting consumer protection requirements and dealing with
complaints;
managing numbering;
issuing and enforcing spectrum licences;
regulating conditional access and electronic programme
guides; and
resolving disputes.
1.6 In order to be properly authorised to provide electronic
communications networks and services, is a registration,
declaration or notification required and if so to whom and
for which purposes? What rules or conditions, if any, may
be attached to a registration, declaration or notification?
No registration, declaration or notification is needed to provide
electronic communications networks or services, unless the service
involves the use of radio spectrum. However, any Communications
Provider providing electronic networks or services must comply
with applicable General Conditions, which depend on the type of
service being provided.
1.7 Are any network operators or service providers subject to
rules governing their operations over and above rules and
conditions governing authorisations and imposing SMP
obligations, for example under competition law?
BT and Kingston Communications (in the Hull area) are designated
universal service providers, and are subject to additional universal
service obligations (see question 11.1 below).
In addition, BT must comply with the undertakings which it gave to
Ofcom in 2005 in place of a reference to the Competition
Commission under the Enterprise Act 2002 (the “Undertakings”).
Pursuant to the Undertakings (see also question 4.5 below), BT:
created a functionally separate “access services” division
(“Openreach”);
agreed that Openreach will supply BT’s competitors with
products on an exactly equivalent (“Equivalence of Inputs”)
basis to its supply to other parts of BT;
agreed to erect and police a number of internal information
barriers;
supplies certain co-location products;
will deploy its next-generation network in a non-
exclusionary manner; and
set up an internal compliance committee.
1.8 Which (SMP) markets have been notified to the European
Commission under Article 7 of the Framework Directive?
The UK has notified the following SMP markets to the European
Commission (note that slightly different notifications have been
made in respect of the Hull area):
the following fixed narrowband retail markets:
analogue exchange line services (residential and
business);
ISDN2 exchange line services (residential and
business);
ISDN30 exchange line services (business only);
local calls (residential and business);
national calls (residential and business);
calls to mobiles (residential and business);
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operator assisted calls (residential and business); and
IDD category A calls, and IDD category B calls
(residential only);
the fixed geographic call termination market, each fixed
United Kingdom
network operator having SMP in the provision of call
termination on its own network;
the wholesale local access market;
the following fixed narrowband wholesale services markets:
wholesale analogue exchange line services
(residential and business);
wholesale ISDN2 exchange line services (residential
and business);
wholesale ISDN30 exchange line services;
call origination on fixed public narrowband networks;
local-tandem conveyance and transit on fixed public
narrowband networks;
inter-tandem conveyance and transit on fixed public
narrowband networks; and
single transit on fixed public narrowband networks;
the wholesale broadband access market, albeit only in certain
geographic areas amounting to 31% of UK premises (other
areas recently having been found to be effectively competitive);
the wholesale mobile voice call termination market, each
mobile network operator having SMP in the provision of call
termination on its own network; and
the following retail leased lines, symmetric broadband
origination and wholesale trunk segment markets:
retail market for low bandwidth leased lines;
wholesale market for low bandwidth traditional
interface symmetric broadband origination (“TISBO”);
wholesale market for high bandwidth TISBOs;
wholesale market for very high bandwidth 155Mbit/s
TISBOs;
wholesale market for low bandwidth alternative
interface symmetric broadband origination; and
wholesale traditional interface trunk segments.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
No licence or other authorisation is required to install or operate
electronic communications networks or services unless the use of
radio frequency spectrum is involved (see question 1.6 above, and
below under Radio Frequency Spectrum) or access to public or
private land is required (see section 3 below).
Administrative fees of roughly 0.06% of turnover are levied by
Ofcom on Communications Providers with turnover of £5 million
or more from relevant activities (e.g. operating an electronic
communications network or service).
Fees are also levied on those Communications Providers who have
the benefit of rights, and are subject to obligations under, the
Electronic Communications Code. Communications Providers are
subject to a one-off application charge of £10,000, annual charges
of approximately £1,000, and an obligation to put in place
arrangements (typically via a bond) to meet the network-related
costs should the Communications Provider become insolvent.
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2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
United Kingdom
As explained above, in order to use radio frequency spectrum, a
Communications Provider must have a licence under the WTA. In
addition, with respect to radio frequency, Ofcom has the power to
authorise its use on a licence-exempt basis (see below under Radio
Frequency Spectrum).
Numbers are managed and allocated by Ofcom pursuant to the
relevant general condition of entitlement and the National Number
Plan.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
The only licences capable of transfer are certain of those granted
under the WTA, i.e. for radiocommunications (see question 8.7
below).
The UK also uses “recognised spectrum access” grants to convert
public sector spectrum holdings into licence-type rights capable of
transfer.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
Whilst there are no hard and fast rules concerning duration of
licences, typically they are granted for an initial fixed period of 5,
10 or 15 years, with an option to renew on payment of additional
licence fees. Exceptionally, the 3G mobile licences granted in 2000
continue in force until 31 December 2021, recognising the
considerable period required to recover the significant investments.
At the time of writing the Digital Britain report was canvassing the
possibility of extending the 3G licences indefinitely (see further
question 13.1 below).
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
The general principles of common law, property law and planning
law apply in the usual way, but additional rights of access to public
and private land may be granted under the 2003 Act, specifically the
Electronic Communications Code (“Code”), an instrument of
statute.
This Code enables providers of electronic communications
networks to construct infrastructure on public land (streets), to take
rights over private land, either with the agreement of the land owner
or by applying to court. In addition, there are also certain
exceptions to planning legislation available to Communications
Providers (see question 3.2 below).
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
Under planning regulations (The Town & Country Planning
(General Permitted Development) Order 1995, as amended), land
may be developed by Communications Providers to whom the Code
applies for the purposes of their networks, in particular the
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installation, alteration or replacement of apparatus. There are
limitations to this permitted development, in particular with respect
to the height of the apparatus or its proximity to a place where
people live. Erection of apparatus on homes etc. is the subject of
separate rules, e.g. regulating the height of antenna above the
building on which it is erected. Note also that there is also a
separate Code of Best Practice relating to the sitting of mobile
phone network infrastructure.
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
The Code requires Communications Providers to consider
cooperating to share their physical infrastructure; however, the
obligation is weak and has not been used to mandate network sharing.
Ofcom is consulting on how passive duct access should be regulated
as part of its policy development on next generation access.
As a commercial matter various network sharing arrangements have
been entered into between mobile network operators.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
General Condition 1 requires all Communications Providers to
negotiate interconnection on request.
SMP conditions also require various UK Communications
Providers (most notably BT and, for call termination, mobile
operators) to provide various interconnection and/or access services
and to publish the reference terms and conditions.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
Disputes between different Communications Providers concerning
network access and the relevant terms and conditions for such
access may be referred for resolution to Ofcom pursuant to sections
185 to 191 of the 2003 Act).
Ofcom must, other than in exceptional circumstances, make a
binding determination resolving the dispute within four months of
the date of their decision to handle the dispute, although this
timescale has proved challenging in practice.
Ofcom’s dispute resolution function has recently been considered
by the relevant appeal court, which has clarified that this is a
distinct regulatory function and power not dependent on a finding
of SMP and that Ofcom should resolve disputes in a way that is fair
(as between the parties) and reasonable in the context of Ofcom’s
statutory duties.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Yes.
Following market reviews such obligations have been imposed on
Communications Providers including BT and Kingston
Communications for various products, and on O2, Orange, T-
Mobile and Vodafone for voice call termination.
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4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
Yes.
Interconnection and network access is subject to price regulation in
a number of different markets, in particular fixed narrowband, retail
leased lines, symmetric broadband origination and trunk segments,
wholesale local access and wholesale mobile voice call termination.
In general, where wholesale pricing obligations have been imposed,
prices are required to be based on forward-looking long-run
incremental costs plus a mark-up for common costs including return
on capital employed and in certain markets RPI-X price caps have
been imposed.
4.5 Are any Communications Providers subject to: (a)
accounting separation; (b) functional separation; and/or (c)
legal separation?
(a) Both BT and Kingston Communications are subject to
accounting requirements pursuant to their SMP on certain
markets, including cost accounting rules and accounting
separation obligations.
(b) As set out at question 1.7 above, in 2005 BT gave the
Undertakings to Ofcom in order to avoid a reference to the
Competition Commission under the Enterprise Act 2002.
Among these obligations was the undertaking to set up
Openreach as a functionally separate business unit of BT to
operate BT’s local access network. Openreach must give
access to its network on a so-called “Equivalence of Inputs”
basis, including wholesale line rental, local loop unbundling
and Ethernet services, on an identical basis to the internal BT
customer and external customers. Openreach is monitored
by an independent Equality of Access Board.
(c) No operator has been required to separate parts of its
business into separate legal entities.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
In the Undertakings, BT committed to supplying other
Communications Providers with network access using its next
generation network (i.e. IP-based electronic communications
network) in network access markets where BT has SMP. The
supply of such network access under the undertakings is to be on
terms allowing other Communications Providers to compete
effectively with BT’s end-to-end services over its NGN. In
addition, in constructing its next generation network, BT must not
make any network design decisions which might prevent the
provision of network access to other Communications Providers,
without first consulting them.
BT must also build its NGN and associated systems in a way to
ensure that other Communications Providers can purchase network
access from BT on the basis of Equivalence of Inputs, which, as
above, requires equal treatment by BT of all Communications
Providers (including BT itself).
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
BT, which is the incumbent owner of access infrastructure and has
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been found to have SMP in the wholesale local access market, is
required to provided metallic path facilities on the basis of fully
unbundled local loops or shared access, together with associated
cabling, site access and ancillary services. Charges are required to
United Kingdom
be cost-oriented and have been fixed by Ofcom through various
decisions and determinations.
Virgin Media (the cable TV operator) is not subject to any similar
unbundling obligation.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
This area is subject to policy debate by both the Government and
Ofcom. In June 2009, Ofcom agreed a variation to the
Undertakings, which allows Openreach to control and operate
electronic equipment necessary to provide super-fast broadband
services using fibre to the street cabinet (previously Openreach was
not allowed to control and operate electronic equipment in BT’s
access network). However, in general Ofcom’s current position on
next generation access is to keep matters under review (see in
particular http://www.ofcom.org.uk/consult/condocs/nga_future_
broadband/statement/statement.pdf).
The Government, in its Digital Britain Report, has proposed a fund
to finance next generation access (see question 13.1 below), in areas
where otherwise there would be no commercial justification for
doing so. The proposal is that this would be financed by a
£0.50/month surcharge on fixed line subscriptions.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
No, apart from mobile operators who are subject to the European-
level Mobile Roaming Regulation (Regulation 717/2007/EC),
which imposes caps on wholesale and retail charges for mobile
calls, SMS and data services while roaming between EU Member
States.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
The General Conditions include a number of consumer protection
obligations and requirements which apply over and above general
consumer protection law. These obligations apply to specific
categories of Communications Provider, including providing
operator services and directory enquiries, publication of terms and
conditions and pricing information, requirements for accurate
billing, restrictions on sales and marketing (including measures
intended to prevent mis-selling and slamming), dispute resolution
and details of any limitations on the services being provided,
special measures for users with disabilities and quality of service
measures.
Consumer protection has been an area of focus for Ofcom in recent
years. Ofcom have proactively undertaken a number of ‘own
initiative’ compliance investigations.
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6 Numbering
6.1 How are telephone numbers and network identifying codes
United Kingdom
allocated and by whom?
Telephone numbers and network identifying codes are allocated by
Ofcom, following a successful application by a qualifying
Communications Provider. Ofcom has in place standard
application forms for number ranges. Mobile network short codes,
however, such as those used for SMS-based services, are not
allocated by Ofcom. These codes are allocated by the mobile
network operators themselves, between whom there is a code of
practice dealing with how such codes should be used.
6.2 Are there any special rules which govern the use of
telephone numbers?
Ofcom has established the National Numbering Plan in accordance
with its duties under the Communications Act 2003.
Communications Providers are required by General Condition 17
(Allocation, Adoption and Use of Telephone Numbers) to comply
with the National Numbering Plan. Failure to comply with General
Condition 17 may lead to enforcement action by Ofcom. In
addition, the services offered behind particular number ranges may
be subject to regulation by PhonepayPlus (see question 1.4 above),
for example, premium rate or 09 numbers, and the most expensive
08 numbers (0871, 0872 and 0873). PhonepayPlus also regulate
directory enquiry services and premium rate SMS.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Numbers allocated to a Communications Provider need to be data-
filled across other Communications Providers’ networks and
activated. This process is dealt with in interconnection agreements.
BT is (for SMP interconnect products) required to have in place
provisions for the activation of numbers by means of the “data
management amendment” process set out at Annex A, Appendix C
of its standard interconnection agreement.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
All Communications Providers are required by General Condition
18 (Number Portability) to facilitate the porting of numbers,
including mobile numbers. This means that numbers must be
ported on a customer request, subject to a reasonableness
requirement, and Communications Providers must enter into
porting arrangements when requested by another operator. The
cross-industry porting procedure has been defined in detail.
7 Submarine Cables
7.1 What are the main rules governing the bringing into the
UK’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
The laying of cables on or under the sea bed (or elsewhere in tidal
waters) will normally require consent under the UK Coast
Protection Act 1949. Consent is also required from the Secretary of
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State for Environment, Food and Rural Affairs for any proposal to
install telecommunications cables at sea and in other tidal waters
below the level of Mean High Water Springs. Where the applicant
is a Communication Provider granted Code powers under the 2003
Act, a specific procedure applies under the Code; otherwise
applications are governed by the Coast Protection Act 1949. The
Secretary of State’s powers normally extend only to the 12 mile
limit of UK territorial waters. Cable protection activities, such as
rock dumping, are likely to require a licence under the Food and
Environment Protection Act 1985.
For landing of cables a wayleave or right of way will be required
from the land owner, typically the Crown Estates or the Duchy of
Cornwall depending upon the location of the landfall.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Yes. Use of radio spectrum is regulated by Ofcom.
8.2 How is the use of radio frequency spectrum authorised in
the UK? What procedures are used to allocate spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
Unless licence exempt (see below), a licence is required from
Ofcom under the Wireless Telegraphy Act 2006.
Ofcom’s commitment to market-driven spectrum use informs its
preference for auctions as the primary means of distributing
spectrum, and a number of spectrum auctions are scheduled for the
next two years including 800 MHz and 2.6 GHz. Auctions are
provided for under specific regulations, and a number of major
spectrum auctions have already taken place on different terms,
beginning with the auction of 3G spectrum for a combined total of
£22.5 billion.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Distinctions are made between different types of wireless
telegraphy licence, mobile, fixed, broadcasting, business radio,
aeronautical, maritime, programme making and special events and
satellite services. Details are available at www.ofcom.org.uk/
radiocomms/ifi/wtf. Licence conditions are set out in the specific
licence document and in a General Licence Conditions Booklet
published by Ofcom.
Ofcom has a policy objective to liberalise the use of spectrum
where possible, subject to constraints such as international and
regional spectrum co-ordination requirements.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite earth stations are specifically subject to licensing
administered by Ofcom. Different types of earth station are
licensable under different terms. Some satellite television or radio
broadcasting services also require licences under the Broadcasting
Act 1990, whilst some may also require local authority planning
approval.
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8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Yes.
Certain types of telecommunication apparatus, e.g. mobile phone
handsets, WiFi and UWB equipment, are exempted from licensing
pursuant to the Wireless Telegraphy (Exemption) Regulations 2003,
as amended.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
For commercially exploitable wireless telegraphy licences, fees will
normally be payable, either pursuant to prices bid at auction or
under administrative incentive pricing (“AIP”) set under specific
regulations according to the type of service involved. AIP seeks to
set fees to mimic the market value of the spectrum.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
Yes.
Certain classes of licence, for fixed-wireless access, business radio
and fixed-links, are transferable pursuant to spectrum trading
regulations. The UK Plan for Frequency Authorisation has
information regarding the frequencies available for transfer and the
purposes for which such frequencies have been allocated. The
Wireless Telegraphy Act Register provides basic information
regarding individual licences such as contact names and address
details, class of licence, band(s) of frequencies and, where
appropriate, geographic area of operation.
The Trade Notification Register displays details of proposed trades
notified to Ofcom, trades in progress and completed trades.
Further, in 2009 new secondary legislation was introduced to create
rights of recognised spectrum access (see question 2.3 above),
which are also tradable.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there are
data protection (privacy rules) applicable specifically to
telecommunications?
Communication Providers who receive a notice from the Secretary
of State are obliged to retain logs of telephone calls and content
communication pursuant to the Data Retention (EC Directive)
Regulations 2009, which implement the EU Data Detention
Directive (Directive 2006/24/EC). The types of data required to be
held are set out in the Schedule to the 2009 Regulations, and differ
depending whether the Communications Provider is a fixed or
mobile telephony provider, or ISP.
The Privacy Regulations apply specifically to electronic
communications, and govern many aspects such as electronic
marketing (see question 10.6 below), security and confidentiality of
electronic communications, restrictions on processing and storing
traffic data, itemised billing, CLI, location data and tracing nuisance
calls.
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9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Public telecommunications service providers (defined generically)
United Kingdom
who provide a public telecommunications service to more than
10,000 persons are normally subject to a statutory obligation under
the Regulation of Investigatory Powers (Maintenance of
Interception Capacity) Order 2002) to maintain a capability to
enable the provider to assist with interceptions where a warrant or
notice is served.
9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
The Regulation of Investigatory Powers Act 2000 (“RIPA”) sets out
the procedures that defined authorities need to follow to issue a
warrant for interception of the contents of a communication. This
authorises and requires a person to intercept communications and/or to
disclose (in any described manner) the contents of any
communications so intercepted as well as any related traffic data.
Such warrants may only be issued by the Secretary of State where it is
considered necessary for the purposes of preventing or detecting crime
or in the interests of national security or for the purposes of
safeguarding the economic well-being of the UK and is proportionate.
The Interception of Communications Code of Practice issued by the
Home Office gives guidance on the duties of providers of
telecommunications service with regard to assisting in the interception
of communications and sets out the criteria and procedures by which
the police, intelligence and defence authorities (and Customs &
Excise) may apply for warrants to intercept communications. The
code provides best practice guidance for “public authorities”
(essentially the police, intelligence services and certain other bodies)
which have the power under RIPA to acquire communications data for
national security, law and order, and certain other purposes. The code
also clarifies the circumstances in which Communications Providers
will be obliged to respond to such disclosure requests.
RIPA also governs notices for the disclosure of communications (i.e.
traffic, subscriber and general service) data. A prescribed notice may
be issued by a wider group of authorised persons to require
disclosure of communications data. Such disclosure must still be
necessary for various listed purposes including those listed above as
well as tax, public safety, public health and emergency reasons.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
In addition to the electronic communications regulatory rules which
apply to the networks making up the Internet and the electronic
communications services provided over these networks, websites and
services provided over the Internet are also subject to the Electronic
Commerce (EC Directive) Regulations 2002 (“E-Commerce
Regulations”) which apply to information society services.
Ofcom has not imposed any SMP regulation at the wholesale or
retail level on internet access. In general, internet service providers
are subject to the same rules as other Communications Providers, in
particular those General Conditions applicable to providers of
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public electronic communications services and the data retention
requirements described above.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
United Kingdom
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
The UK Electronic Commerce (EC Directive) Regulations 2002 (as
amended) implements the Electronic Commerce Directive
(00/31/EC) requirement that service providers are not liable for the
content of communications where they play only a passive role as a
“mere conduit” of information to and from third parties or
innocently cache or host otherwise infringing material. However,
ISPS are subject to self-regulatory rules known as the “notice and
take-down” regime regarding unlawful content.
Communications Providers and ISPs are also protected from
liability for defamatory statements under section 1 of the
Defamation Act 1996 provided: (i) they were not the author, editor
or publisher of the statement complained of; (ii) they took
reasonable care in relation to its publication; and (iii) they did not
know, and had no reason to believe that what they did caused or
contributed to the publication of a defamatory statement.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Service providers are not under a general obligation to monitor or
actively police material hosted or transmitted by them, subject to
the carve-out in the Electronic Commerce Directive that service
providers may be obliged to inform the authorities of illegal
activities.
However, the Copyright Directive gives the power to copyright
owners to obtain an injunction against intermediaries, if their
services are used for piracy. Content owners may require a
telecommunications Communications Provider or ISP to provide
details of the identity of users that have infringed their rights (to the
extent the Communications Provider holds this information) by
obtaining a so-called “Norwich Pharmacal order”. A Norwich
Pharmacal order is a Court order (i.e. necessitating an application
to the Court, and the satisfaction of certain evidential thresholds)
requiring a respondent such as a third party to disclose certain
documents or information to the applicant.
As noted below at question 13.1, at the time of writing the Digital
Britain report was proposing the introduction of certain new
measures to combat illegal file-sharing.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
Yes, subject to general competition law, Communication Providers
are able to differentially charge. There is no requirement for net
neutrality.
However, Communications Providers with SMP (including BT) are
subject to undue discrimination rules, and general competition law
also applies.
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10.5 How are ‘voice over IP’ services regulated?
In 2006 Ofcom departed from its previous policy of forbearing from
regulating VoIP services. VoIP services are now subject, as other
telecommunications services, to the General Conditions, with their
precise regulation dependent on the type of service offered. Particular
requirements on VoIP services include, where they are offered to
domestic and small business customers, compliance with a code of
practice on consumer protection information (including information
on service reliability, whether emergency calls can be made, number
portability etc.). Further, certain types of VoIP services, depending on
their functionality (for example, if they offer the ability to make
outbound calls to normal telephone numbers), may be required to
provide emergency call capabilities, which may have the secondary
effect of making those services subject to greater regulation as
‘publicly available telephony services’ under the General Conditions.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The Privacy Regulations govern direct marketing by email, SMS, fax
and telephone. Importantly, they require an “opt in” consent to email
and SMS marketing to individuals, set out rules on the use of existing
customers’ details for marketing for similar products and services (the
so-called “soft opt-in” provisions) including the requirements to give
recipients the opportunity to opt-out of future marketing and
limitations on the use of website “cookies” to obtain personal data.
In addition, marketers must also be transparent. The combined
effect of the DPA and the Privacy Regulations, as well as the
information and compliance requirements of the E-Commerce
Regulations, impose a number of requirements including that email
marketers identify communications as commercial, identify
themselves and include a simple and free means to opt-out of future
marketing communications (e.g. an email address or a web link).
11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
The Electronic Communications (Universal Service) Order 2003
specifies which services must be provided nationally, implementing
the EU Universal Service Directive. The Order is implemented by
Ofcom, by imposing appropriate universal service conditions on
each of BT and Kingston Communications (regarding Hull), such as
the requirement to have in place a scheme for disadvantaged and
vulnerable users and to provide public call boxes.
The universal service conditions are not financed by a fund or
contributions from industry, as the last review by Ofcom of the costs
indicated that they do not amount to an undue burden on the universal
service providers (but see question 13.1 below on the proposed next
generation access fund, funded by a levy on fixed line subscriptions).
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
There are no rules restricting direct or indirect foreign ownership
interests in electronic communications companies in these sectors.
Olswang LLP
13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Significant changes to the electronic communications regime were
proposed in the Government’s ‘Digital Britain’ report of June 2009.
Implementation of these proposals will in part turn on the outcome
of the next general election, expected in 2010. They include
proposals for:
a universal service commitment to broadband access for all
households of at least 2Mbit/s by 2012;
a “Next Generation Fund” to subsidise next generation
broadband roll-out, funded by a 50p per month levy on retail
fixed line subscriptions;
new measures to combat illegal file-sharing such as
requirements on ISPs to notify illegal file-sharers and make
their information available to rights holders, and “backstop”
proposals to compel ISPs to impose technical measures to
reduce copyright infringement; and
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resolution of the existing disputes between mobile operators
and Ofcom over the regulator’s proposals to re-allocate
existing spectrum to 3G use, caps on overall spectrum
holdings to prevent undue consolidation, and extension of
United Kingdom
the existing 3G licences indefinitely (as opposed to their
current 20 year terms).
Ofcom are also consulting on regulation of fixed narrowband retail
markets in the UK, and propose to find that these retail markets are
now largely competitive, and therefore to remove the final retail
regulations on BT, including allowing BT to freely bundle fixed
narrowband products with broadband and TV services.
In parallel, Ofcom have also been consulting on wholesale fixed
narrowband markets and are proposing to find that BT no longer
has SMP in some markets (local-tandem conveyance and transit,
and inter-tandem conveyance, inter-tandem transit and single transit
products).
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 Olswang LLP United Kingdom

Rob Bratby Tomos Jones

Olswang LLP Olswang LLP
90 High Holborn 90 High Holborn
United Kingdom

London WC1V 6XX London WC1V 6XX

United Kingdom United Kingdom

Tel: +44 20 7067 3566 Tel: +44 20 7067 3637

Fax: +44 20 7067 3999 Fax: +44 20 7067 3999
Email: rob.bratby@olswang.com Email: tomos.jones@olswang.com
URL: www.olswang.com URL: www.olswang.com

Rob is a Partner in the Media, Communications and Technology Tomos is an Associate in the EU & Competition Group at Olswang.
Group at Olswang and leads the Telecoms practice. Tomos specialises in UK and EU competition and regulatory law, in
Rob specialises in advising on corporate, commercial and telecoms particular in the telecommunications/technology sectors. He has
regulatory matters and in particular complex matters requiring the advised clients on some of the most high-profile recent regulatory
co-ordination of all three areas of law. Rob’s corporate practice access and interconnection disputes in the UK, as well as European
includes advising on mergers, acquisitions, disposals, investments spectrum issues.
and joint ventures. Rob’s commercial practice spans IT and BPO
outsourcing transactions, procurement, interconnection, roaming,
broadcast and transmission arrangements, customer, distribution
and partnering. Rob’s regulatory practice includes advising on policy
development, compliance, complaints and disputes before Ofcom
and the European Commission as well as the UK Information
Commissioner and PhonepayPlus.
Rob is described by Chambers & Partners as an “excellent telecoms
practitioner, benefits from his years in the industry to bring a
commercial and pragmatic view that others just don’t possess.” He
is noted for his “tremendous industry knowledge”.

Olswang has a market-leading telecommunications team, acting for many of the best-known UK and international
operators. Our telecoms practice is led by Rob Bratby, Purvi Parekh and Colin Long.
Olswang’s lawyers have played a major part in the development of the telecommunications industry since the 1980s
when it was opened up to competition in the UK and Europe.
Our deep understanding of the industry and market context is a real strength of our telecoms practice and is pivotal to
us providing advice to help clients achieve their objectives. Olswang lawyers have featured prominently in many of the
industry’s landmark cases and projects and have been involved as advisers in all of the industry’s era-defining events,
from industry-wide interconnection, to 2G and 3G mobile, local loop unbundling, functional separation and next
generation access. We have detailed practical experience of dealing with industry-specific issues such as network
sharing, network outsourcing, MVNOs, interconnection and roaming.

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Chapter 38
USA
Arnold & Porter LLP
1 Framework
1.1 What are the overall policies and objectives for the
electronic communications industry and have these been
published in draft or final form? What legislation is
relevant to telecommunications and radio frequencies?
Section 1 of the federal Communications Act of 1934, as amended
(Communications Act), provides that it is the policy of the U.S. “to
make available, so far as possible, to all the people of the United States
. . . a rapid, efficient, Nation-wide, and world-wide wire and radio
communication service with adequate facilities at reasonable charges,
. . .” The U.S. generally looks, at both the federal and state level, to
competitive market forces to ensure the quality and variety of
telecommunications services and regulates where those forces cannot
or have not promoted these objectives of the Communications Act.
1.2 Is the USA a member of the World Trade Organisation?
Has the USA made commitments under the GATS/GATT
regarding telecommunications and has the USA adopted
the WTO Basic Telecommunications Agreement?
The U.S. is a member of the World Trade Organisation (WTO). The
U.S. has made commitments and adopted the WTO Basic
Telecommunications Agreement.
1.3 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in the USA?
The regulation of telecommunications services in the United States
is divided on both a geopolitical and conceptual basis. The Federal
Communications Commission (FCC) regulates the provision of
interstate and international communications. Local exchange and
intrastate long distance services are regulated by the individual
states. In general, the provision of electronic communications
services is open to competition, although entry into some rural areas
may be regulated. Non-dominant telecommunications providers
are not subject to any significant regulation. At least on the national
level, private carriage is unregulated. See also question 4.4.
The provision of “enhanced” or “information” services - services
which include data processing service, including most Internet
services - is basically unregulated, although Voice over Internet
Protocol (VoIP) is subject to some regulations. See question 10.5.
The only companies which remain subject to extensive regulation,
and then only with respect to their local telephone operations over
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Richard M. Firestone
Maureen R. Jeffreys
which the enhanced services ride, are the incumbent local exchange
carriers (ILECs) - generally the Bell Operating Companies (BOCs)
and their successors. While most states have relaxed regulation of
telecommunications, a number have not gone as far as the FCC.
1.4 Which are the regulatory and competition law authorities?
How are their roles differentiated? Are they independent
from the government?
The FCC is the principal regulatory authority with respect to the
provision of telecommunications services. State public utility or
service commissions (PUCs) have regulatory authority over the
provision of local exchange and intrastate long distance services.
Their regulatory authority over entry is very limited, but they have
extensive authority over at least the ILECs’ pricing and terms and
conditions of service. The Antitrust Division of the Department of
Justice (DoJ) and the Federal Trade Commission (FTC) have
jurisdiction under the antitrust laws over competition issues,
including review of mergers and acquisitions among
telecommunications providers.
1.5 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
Decisions of the FCC can be appealed to one of the twelve United
States Courts of Appeal. Decisions of state PUCs can be appealed
to the courts of the relevant state.
2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process,
timescales and costs.
The FCC has different procedures for the issuance of licences to use
the radio spectrum, to provide international and domestic
telecommunications services, and to construct, or acquire an
interest in, a submarine cable. The amount of time required to
obtain a licence varies depending on the service and the procedures
used to award the licence. The FCC is not required to act on an
application in a specified period of time.
With the exception of certain services, such as WiFi and remote
controls, which use unlicensed spectrum, a licence from the FCC is
required to use the radio spectrum. Spectrum licences are awarded
either by auction or through the filing of an application specifying
the precise spectrum and facilities to be used. Due to the many
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details requiring resolution, the auction process - from deciding
how the spectrum will be licensed to the grant of a licence - can take
several years. The actual licensing process, from the date the FCC
issues a notice that an auction will be held to the grant of a licence
can take close to a year or more. Radio spectrum licences not
awarded by auction typically are granted within 75 to 90 days after
the filing of the application, assuming no opposition is filed.
USA
U.S. companies seeking to provide domestic interstate
telecommunications services are not required to obtain a licence.
Companies in which foreign entities hold an indirect 25% interest are
required to seek a ruling from the FCC that the ownership of the entity
comports with the FCC’s foreign ownership rules. See Section 12.
Some state PUCs continue to require authorisations before an entity
can provide local exchange or intrastate long distance service,
although a PUC’s ability to deny the request is severely limited.
The filing requirements, time to act and processing procedures vary
from state to state.
Requests for authority to provide international telecommunications
services, whether resale or facilities-based, require filing a Section 214
application with the FCC and are subject to public comment. Section
214 applications are entitled to streamlined processing, and applicants
may commence service 15 days after the FCC releases a public notice
of the filing, unless (a) the applicant is affiliated with a dominant
landline provider in the destination country and cannot satisfy one of
six specified conditions, (b) the applicant is proposing service to a
non-WTO country and the applicant is affiliated with a foreign carrier,
or (c) the FCC decides to review the application more carefully.
Applications not entitled to streamlined treatment or removed from
the expedited treatment line take substantially longer to process.
Applications for submarine cable landing licences are filed with the
FCC and are subject to public comment. The FCC consults with the
Department of State, the Department of Defense, and the National
Telecommunications and Information Administration (NTIA).
Submarine cable applications which meet certain criteria -
principally related to whether they are not affiliated with dominant
carriers at the foreign terminating points - are granted 45 days after
the FCC releases a public notice seeking comment on the
application. Applications not entitled to this streamlined process
take several months and may take a year, or longer, to be acted on.
Unlicensed services that employ radio-frequency emitting
equipment, either intentionally or unintentionally, are subject to
technical requirements and, in some cases, filings with the FCC
assuring compliance with those requirements.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
Companies proposing to provide facilities-based
telecommunications service must obtain authority to use rights of
way (ROW) from local or state governments and to construct radio
towers. Securing ROW or zoning approval for towers can be
difficult and time-consuming. Capacity can be leased from existing
holders of ROW or towers and is less burdensome as it generally
does not require governmental approval. Facilities-based providers
also must comply with local building codes, environmental
regulations, and other rules of general applicability.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
Prior FCC consent is required to transfer control of any entity
holding or controlling, directly or indirectly, an FCC spectrum
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licence, a Section 214 authorisation to provide interstate or
international telecommunications services, or a submarine cable
licence. Prior FCC consent is also required to assign any spectrum
licence or any authorisation to provide interstate or international
telecommunications services or to assign customers or lines. The
FCC will review applications for transfer of control or assignment
of a licence or authorisation to determine whether the transaction is
consistent with its rules and policies and whether conditions should
be imposed to ensure that the transfer or assignment serves the
public interest - the touchstone of its regulatory authority. Mergers
or acquisitions of companies with assets in excess of a specified
amount, which is adjusted for inflation, are required to file
information with the DoJ and the FTC to permit either agency to
determine whether the transaction complies with the antitrust laws.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
The duration of radio spectrum licences varies depending on the
nature of the service. Radio spectrum licences used for
telecommunications services are typically granted for a term of ten
years and are renewable, although, in some cases, showings as to
usage or build-out are required. Satellite authorisations are for a
period of fifteen years and permission to continue operating
thereafter can be obtained if the satellite is still functional.
Authorisations to provide landline telecommunications services,
whether domestic or international, are perpetual. Submarine cable
landing licences are for the duration of the life of the cable system.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access and/or securing or enforcing rights to public
and private land in order to install telecommunications
infrastructure?
Regulation of land use is generally a matter for local or state
governments. Local or state governments control the use of land
they themselves own. Most local governments have zoning laws
which restrict the manner in which private property may be used,
and those laws apply to telecommunications infrastructure. Subject
to limited exceptions, local or state environmental rules and other
requirements applicable to business in general may apply to network
infrastructure. Access to federal lands is subject to regulation by the
Department of the Interior or by the government department owning
the property; these regulations vary by department.
The Communications Act limits the ability of local municipalities to
restrict the placement of towers for commercial wireless service.
However, the limits are vague and often require litigation to
enforce. Local governments are precluded from considering the
effect of RF radiation, which is subject to FCC regulation, in
resolving zoning questions. There are also limits on the ability of
local governments and building owners to preclude the installation
of small satellite receive/transmit antennas. Some states may have
additional provisions that telecommunications providers may use to
gain such access, but they are scattered and unique in each situation.
3.2 Is there a specific planning or zoning regime that applies
to the installation of telecommunications infrastructure?
There is no national planning or zoning regime applicable to
network infrastructure. Some states or municipalities may have
such regimes.
Arnold & Porter LLP
3.3 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or cables
(i.e. dark fibre)? Are there any proposals to mandate
‘passive access’ to such basic infrastructure?
There are no requirements that carriers share radio towers, although
local zoning officials encourage wireless carriers to share tower
space. Owners of conduits, rights of way and utility poles are
required to give telecommunications providers access to the
conduits, space on the poles and rights of way at reasonable rates,
assuming there is capacity. ILECs are required to allow competitors
to collocate in their central offices, subject to nondiscriminatory
rates, terms and conditions. Wireless carriers are required to enter
into automatic “roaming” agreements which permit customers to
use their wireless devices for voice ? but not data ? service in areas
in which the customer’s carrier does not have a spectrum licence.
This obligation to offer roaming does not apply where the two
carriers are both licensed to provide service in the same geographic
area. The FCC is examining whether to extend the roaming rules to
apply to data services.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
All telecommunications carriers are required to interconnect with
each other under reasonable terms and conditions and may not
discriminate between and among carriers. ILECs are required to
provide long distance, international and wireless carriers with
access to the local exchange at regulated rates.
4.2 How are interconnection or access disputes resolved? Does
the national regulatory authority have jurisdiction to
adjudicate and impose a legally binding solution?
The FCC has jurisdiction to resolve disputes over interconnection
and collocation. However, principal responsibility for facilitating
these agreements has been delegated to the state PUCs.
Interconnection agreements must be approved by state PUCs,
subject to review in federal district court.
4.3 Are any operators required to publish their standard
interconnection contracts and/or prices?
Certain operators must publish interconnection contracts with the
appropriate state PUC and/or the FCC.
4.4 Looking at fixed, mobile and other services, are charges
for interconnection (e.g. switched services) and/or network
access (e.g. wholesale leased lines) subject to price or cost
regulation and, if so, how?
ILECs are required to provide interconnection and network access
to competitors on rates, terms and conditions that are just,
reasonable and nondiscriminatory. Dominant carriers are subject to
price regulation and the advance filing of tariffs for certain
interstate telecommunications services. The larger ILECs have
been granted forbearance from price-cap regulations for certain
elements of their networks and in certain places. Other elements of
the ILECs’ networks have been granted pricing flexibility in a
number of areas. For still other elements or places, ILECs face
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either price-cap or rate-of-return regulation. The regulation of
special access services is the subject of an ongoing FCC rulemaking
proceeding, in which the FCC is examining, among other things,
whether to adopt pricing rules for such services.
4.5 Are any operators subject to: (a) accounting separation;
(b) functional separation; and/or (c) legal separation?
USA
Section 272 of the Telecommunications Act of 1996 required the
BOCs to provide in-region, interstate, long-distance services through
structural, transactional and accounting separations. The majority of
these restrictions sunset at the end of 2006. The FCC recently
adopted a new regulatory framework to replace the structural
separation requirements with certain targeted safeguards to enable the
FCC to monitor BOC provisioning of these services. ILECs are
subject to accounting rules at both the federal and state levels,
including requirements for allocating costs between interstate and
intrastate services, which bear on interconnection charges.
4.6 How are existing interconnection and access regulatory
conditions to be applied to next generation (IP-based)
networks?
Providers of IP-based services are not required to interconnect or to
provide access to their networks. ILECs must offer certain network
elements, unbundled and priced at substantially reduced costs, in
certain circumstances.
4.7 Are owners of existing copper local loop access
infrastructure required to unbundle their facilities and if
so, on what terms and subject to what regulatory controls?
Are cable TV operators also so required?
Upon request from a telecommunications carrier, an ILEC is
required to provide access to the copper local loop on just,
reasonable, and nondiscriminatory terms. Cable TV operators are
not required to provide access to their infrastructure.
4.8 Are there any regulations or proposals for regulations
relating to next-generation access (fibre to the home, or
fibre to the cabinet)? Are any ‘regulatory holidays’ or
other incentives to build fibre access networks proposed?
ILECs building out a fibre to the home (FTTH) or fibre to the curb
(FTTC) in previously unserved areas are not required to provide
access to such networks on an unbundled basis. In areas previously
served, if an ILEC retires the copper loop and replaces it with FTTH
or FTTC, it must provide nondiscriminatory access to the next-
generation network for voice grade service on an unbundled basis.
If an ILEC maintains the copper loop along with the new fibre, the
ILEC must keep the copper loop connected to the customer
premises and make available access to the copper loop on an
unbundled, nondiscriminatory basis.
5 Price and Consumer Regulation
5.1 Are retail price controls imposed on any operator in
relation to fixed, mobile, or other services?
Retail rates for mobile services are not regulated.
Rates charged by ILECs for residential service and some small
businesses are generally regulated. Some state PUCs regulate the
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rates ILECs charge to residential and small business customers for
intrastate long distance service. Retail rates for larger businesses
typically are not regulated or, if regulated, are subject to a more
flexible regulatory regime than rates for residential and small
business customers. Rates charged by Competitive Local Exchange
Carriers (CLECs) typically are not regulated, nor are the interstate
rates of long distance carriers, although all these carriers may be
USA
required to file tariffs with the state PUC or provide customers with
information on their websites.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
Telecommunications providers are prohibited from changing a
customer’s service provider without the customer’s specific
authorisation (“slamming”). There are detailed rules concerning the
manner in which a carrier may obtain a new customer from an existing
carrier. Similarly, carriers are prohibited from adding new services to
an existing customer - such as voice mail or caller identification -
without the customer’s express approval (“cramming”). Both the
FCC and state PUCs have procedures for enforcing these prohibitions.
The FCC has truth in billing rules regulating some billing practices.
Many states have consumer protection rules which apply to
telecommunications providers. In some states, these rules are
enforced by the state PUC; in others, they are enforced by the state
attorney general’s office or a consumer protection agency.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
The FCC has plenary jurisdiction over the allocation and
assignment of telephone numbers. Telephone numbers are assigned
pursuant to the North American Numbering Plan (NANP). NANP
numbers consist of ten digits, NXX-NXX-XXXX. The FCC has
delegated administration of the NANP to an independent contractor
pursuant to a competitively bid five-year contract. The NANP
Administrator assigns local exchange area codes and the central
office codes - the two sets of three numbers in the NANP - to
specific geographic areas and central offices in accordance with
FCC rules and policies. Telephone numbers are assigned to carriers
by the local ILEC in blocks of 1,000 numbers. Each carrier assigns
telephone numbers to its customers.
6.2 Are there any special rules which govern the use of
telephone numbers?
Telephone numbers must comply with the NANP. Certain Numbering
Plan Areas (NPAs), such as 800, 866, etc., are allocated for toll-free
calling, i.e., the receiving party pays, and some three digit calling
numbers are assigned for other specific purposes, such as 911, which
is reserved for emergency public safety, 711, which is reserved for
Telephone Relay Services for the hearing- and speech-impaired and
411, which is dedicated to directory assistance.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
Carriers may request numbers from the NANP Administrator or the
local ILEC, as appropriate. Toll-free numbers are assigned by
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entities designated by the FCC, typically providers of toll-free
service.
6.4 What are the basic rules applicable to the ‘porting’ (i.e.
transfer) of telephone numbers (fixed and mobile).
Telephone numbers are portable without regard to service type.
Landline and mobile numbers, including interconnected VoIP
numbers, can be ported from one carrier to another; mobile
numbers can be ported to a landline carrier and vice versa. Carriers
are not required to port numbers where a customer moves from one
geographic area to another. Carriers may impose reasonable fees to
port a number but may not refuse to port because the customer has
not paid the porting fee. The FCC recently adopted new rules to
require processing of porting requests within one business day.
These time limits will not take effect until 2010.
7 Submarine Cables
7.1 What are the main rules governing the bringing into the
USA’s territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
Companies proposing to construct submarine cables between the
U.S. and other countries must obtain a cable landing licence from
the FCC. The application is coordinated with the Department of
State, which must approve any grant, Departments of Homeland
Security and Defense and NTIA. There are no limits on foreign
ownership of the underwater or “wet” portion of the cable, but a
U.S.-owned and controlled entity must own and control the cable
segment from the beach joint to the cable landing station.
Applicants for cable licences must agree to maintain certain records
in the U.S. and permit the Department of Homeland Security and
DoJ to gain access, pursuant to lawful process, to those records and
to the cable for national security purposes. The U.S. portion of the
cable must comply with the Communications Assistance for Law
Enforcement Act (CALEA). A filing fee is required in connection
with any application for a cable landing licence.
8 Radio Frequency Spectrum
8.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
The use of the radio frequency spectrum by entities other than the
U.S. government is regulated by the FCC. Most uses of that
spectrum require a licence, but some devices may operate on
unlicensed frequencies subject to technical rules.
8.2 How is the use of radio frequency spectrum authorised in
the USA? What procedures are used to allocate spectrum
between candidates - i.e. spectrum auctions, comparative
‘beauty parades’, etc.?
The FCC awards most newly licensed spectrum through an auction
process. The FCC decides in advance of an auction the technical
rules for the spectrum, any limitations on the use of the spectrum,
the amount of spectrum to be awarded with each licence, the
geographic area covered by each licence, the rules governing the
bidding process, and similar matters. Auctions often involve
multiple different licences for several different geographic areas.
Arnold & Porter LLP
Auctions typically are conducted electronically over a period ranging
from a few days to more than a month. Entities interested in
participating in an auction are required to file an application in
advance of the auction. Once the auction is completed, the
“provisional” winner for a licence files another application providing
information concerning the entity and, where required, the proposed
service. After opportunity for public comment, the FCC will award
a licence upon concluding that the applicant is qualified.
8.3 Are distinctions made between mobile, fixed and satellite
usage in the grant of spectrum rights?
Historically, the permissible uses of the spectrum were specified by
the FCC, and certain spectrum bands could be used only for
specified uses. Those rules distinguished among mobile, fixed and
satellite uses. Recently, the FCC basically has allowed licencees to
decide how to use newly licensed spectrum for terrestrial services,
although it has adopted rules to avoid interference between adjacent
spectrum bands and between satellite and terrestrial uses.
Historical limitations on the use of spectrum bands have been
retained, unless the spectrum has been reallocated for other
purposes.
8.4 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
Satellite uplink earth stations are licensed facilities. C-band uplink
stations must be licensed for specific locations since the band is
shared with terrestrial users. Very small aperture earth stations
(VSATs) operating in the Ku and Ka bands can be licensed in bulk,
i.e. a licence can authorise the use of a number of uplink stations.
Uplink stations can be authorised to communicate with one or
multiple satellites, and a licencee may request authority to
communicate with additional satellites after its initial authorisation.
Receive-only earth stations are not licensed, except C-band receive-
only stations may be registered with the FCC to protect them from
terrestrial interference. See question 3.1.
8.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
Certain spectrum has been set aside for unlicensed use. This
spectrum is subject to technical rules concerning the permissible
power, the emission characteristics, and similar matters. It is also
permissible, subject to technical parameters, for unlicensed devices
to operate in some licensed spectrum. These devices must not cause
interference to licensed services and must accept interference from
licencees operating in the band, as long as the licencees are
complying with the technical rules.
8.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
Licence fees are not imposed specifically on the use of the radio
spectrum, but are imposed on spectrum applications and entities
regulated by the FCC regardless of whether they use the spectrum.
8.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
With limited exceptions, spectrum licences can be transferred or
assigned upon obtaining prior FCC consent. The parties to the
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transaction are required to file an application and demonstrate that
the transfer or assignment is consistent with the public interest,
which generally requires them to show that (a) the purchaser is
qualified to hold the licence and (b) the acquisition will not have an
adverse effect on competition. Transactions that do not raise public
interest concerns may be granted on the day after they are filed with
the FCC.
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Spectrum also can be leased by the licencee to entities that would
qualify to hold the licence. Leases can be for all or part of the
spectrum covered by the licence. Except for spectrum management
leases, where the FCC must only be notified, FCC consent must be
obtained for a spectrum lease. Leases that do not raise public
interest concerns may be granted on the day after they are filed with
the FCC. In general, the leased spectrum is subject to the same
rules as apply to the licencee and the licencee retains some
responsibility, depending on the nature of the lease, to ensure that
the spectrum is used in accordance with those rules. The term of the
lease cannot extend beyond the licence term.
9 Data Retention and Interception
9.1 Are operators obliged to retain any call data? If so who is
obliged to retain what and for how long? Are there data
protections (privacy rules) applicable specifically to
telecommunications?
Telecommunications service providers must retain certain data to
aid law enforcement. See question 9.2.
Certain information that telecommunications service providers and
VoIP providers collect from customers, Customer Proprietary
Network Information (CPNI), may only be used or disclosed by the
provider in limited circumstances, including: (1) in supplying the
service from which the customer information was obtained; (2) as
required by law; or (3) with the customer’s approval. The provider
must keep records regarding disclosure of customer information to
third parties and whether the customer has allowed use of CPNI for
marketing purposes. Providers must certify annually that they
comply with these rules.
9.2 Are operators obliged to maintain call interception (wire-
tap) capabilities?
Telecommunications service providers, interconnected VoIP
providers and facilities-based broadband Internet access service
providers are subject to CALEA, which requires that
telecommunications networks take technical measures that would
permit interception of the content of communications and the
provisioning of other information by authorised law enforcement
personnel. CALEA excludes “information” services, although the
FCC has interpreted this exclusion more narrowly than it has the
definition of “information” services under the Communications
Act. Thus, CALEA obligations only apply to the switching and
transmission components of facilities-based broadband Internet
access service providers, while such providers have no CALEA
obligations for Internet service provider (ISP) functionalities (e.g.
email storage, web hosting) of its Internet access service. The
Wiretap Act, the Criminal Trap and Trace Statute, and the Foreign
Intelligence Surveillance Act (FISA) also authorise the government
to obtain the assistance of telecommunications carriers and
electronic communications service providers to intercept
communications and provide pen register/trap and trace
information under certain circumstances.
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9.3 What is the process for authorities obtaining access to
retained call data and/or intercepting calls? Who can
obtain access and what controls are in place?
In order to obtain call data, authorities may obtain a court order,
trial subpoena, administrative subpoena, consent from the customer,
or a search warrant. State law may provide other requirements for
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access to call data.
A law enforcement officer seeking a wiretap for criminal
investigative purposes must obtain federal court approval based on
the showing of probable cause that the wiretap may provide
evidence of a felony violation of federal law. The judge must
continue to monitor the implementation of the wiretap. FISA
provides a separate process for obtaining access to the content of
communications and to call data for intelligence purposes.
10 The Internet
10.1 Are conveyance services over the internet regulated in any
different way to other electronic communications services?
Which rules, if any, govern access to the internet at a
wholesale (i.e. peering or transit) and/or retail (i.e.
broadband access) level? Are internet service providers
subject to telecommunications regulation?
Although the FCC has jurisdiction over Internet services, it has
refrained from imposing any significant regulation, preferring the
Internet to develop in a deregulated environment. The extent of
state PUC regulatory authority over Internet services has not been
determined, although the FCC has pre-empted state regulation of
VoIP services and broadband Internet access service. ISPs are
subject to the antitrust laws and to consumer protection laws at both
the state and federal levels. However, ISPs are exempt from state
and local taxation in connection with the provision of Internet
access, although entities selling products or services may be subject
to taxation on those transactions.
10.2 Is there any immunity (e.g. ‘mere conduit’ or ‘common
carrier’) defence available to protect telecommunications
operators and/or internet service providers from liability for
content carried over their networks?
Under Section 230 of the federal Communications Decency Act,
providers of an interactive computer service are not treated as the
publisher or speaker of content provided by a third party. This law
generally protects such providers from liability for claims arising out
of the publication of information generated by a third-party user.
However, federal courts disagree on the scope of this protection.
The Digital Millennium Copyright Act (DMCA) includes safe
harbour provisions that protect online service providers in certain
circumstances. If providers meet the DMCA’s requirements, the
providers will be exempt from liability for copyright infringement
when the provider is involved in transitory digital network
communications, system caching, and storage of a third party’s
material, among other things.
10.3 Are telecommunications operators and/or internet service
providers under any obligations (i.e. provide information,
inform customers, disconnect customers) to assist content
owners whose rights may be infringed by means of file-
sharing or other activities?
Even if the provider meets the threshold requirements of the
DMCA, the provider still must take certain steps to be entitled to
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statutory immunity. These steps vary depending on what conduct is
at issue. For example, to qualify for protection under the DMCA
for infringement based on third-party content residing on the
provider’s system or network, the provider must implement a
specific notice and takedown procedure.
10.4 Are telecommunications operators and/or internet service
providers able to differentially charge and/or block different
types of traffic over their networks? Are there any ‘net
neutrality’ requirements?
ISPs and the telecommunications carriers providing the underlying
transport are subject to the FCC’s Internet Policy Statement, which
establishes a requirement of “network neutrality.” The Policy
provides that consumers are entitled to (a) access lawful Internet
content of their choice, (b) run applications and use services of their
choice, (c) connect devices of their choice that do not harm the
network and (d) competition among network, application and
service, and content providers. This policy precludes
telecommunications and Internet service providers from blocking, or
impairing the ability of, Internet service customers to access lawful
content of their choice but permits reasonable network management
practices. It is unclear what additional restraints, if any, this policy
might impose. The matter is under review by the FCC and the U.S.
Congress. A recent FCC decision is on appeal to the courts.
10.5 How are ‘voice over IP’ services regulated?
The FCC has not determined whether VoIP should be treated as a
telecommunications service or an information service for
regulatory purposes under the Communications Act. However, the
Commission has imposed certain public interest obligations on
interconnected VoIP providers. Interconnected VoIP providers must
comply with E-911 requirements, contribute to the Universal
Service Fund, comply with CALEA and CPNI regulations, support
the Telecommunications Relay Service fund, comply with
discontinuance of service requirements and allow customers to port
their numbers to a new carrier in the same geographic area. The
FCC has pre-empted much state regulation of VoIP services.
10.6 Are there any rules to prevent, restrict or otherwise govern
internet or email communications, in particular, marketing
and advertising communications?
The federal CAN-SPAM Act regulates commercial emails - emails
that contain advertisements or promote a commercial product or
service - and precludes materially misleading header information,
obscuring the identity of the sender, or sending the commercial
email from an email account obtained through false or fraudulent
pretences. A commercial email must: (i) identify itself as an
advertisement or solicitation; (ii) notify the recipient of his or her
right to opt out of receiving future commercial emails from the
sender; and (iii) provide the physical postal address of the sender.
Additionally, it must contain an Internet-based mechanism (such as
reply email or a link to a web “unsubscribe” page) that the recipient
can use to submit an opt-out request. The sender must stop sending
commercial emails to the recipient within ten days and is prohibited
from providing the recipient’s personal information (including
email address) to third parties. Violations may be aggravated if the
sender obtained the address by automated harvesting or generated
the address by combining names, letters, or numbers into numerous
permutations. These provisions apply to all senders who send
commercial email to U.S. recipients, not just to senders located in
the United States.
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11 USO
11.1 Is there a concept of universal service obligation; if so how
is this defined, regulated and funded?
Universal service is a fundamental premise of U.S.
telecommunications policy, and the FCC has established an
elaborate funding mechanism designed to ensure that (i) the rates
charged in rural and other high-cost areas for voice and related
services, e.g., directory assistance, remain affordable (high-cost
funds) and (ii) low-income families can afford basic telephone
service. This support is provided through the payment to certified
eligible telecommunications carriers from the Universal Service
Fund, which is funded by charges assessed on the retail revenue of
all interstate service and international service originating or
terminating in the U.S., including VoIP service. The availability of
high-cost funds and the amount of the subsidy is a function of the
ratio of the carrier’s average costs of service to generally averaged
costs of providing wireline voice service. All wireless carriers
receive subsidies in the same amount as the wireline carrier it
overlaps. Internet services used by medical service providers
located in rural areas and by educational institutions are subsidised
through Universal Service Fund payments made to the
telecommunications provider providing the Internet service. The
FCC is reviewing both the manner in which the universal service
system is funded and provides support.
12 Foreign Ownership Rules
12.1 Are there any rules restricting direct or indirect foreign
ownership interests in electronic communications
companies whether in fixed, mobile, satellite or other
wireless operations?
There are restrictions on foreign ownership of telecommunications
carriers, although the FCC has adopted policies which facilitate the
ability of entities chartered in WTO countries to acquire controlling
interests, including 100%, of telecommunications service providers
in the U.S. The federal Communications Act prohibits a foreign
person or entity from holding more than a 20% direct interest or
more than a 20% noncontrolling, indirect interest in a
telecommunications service provider or more than 25% of an entity
that controls such a provider. The FCC can waive the latter
limitation where the public interest will be served, and it has
adopted as policy a presumption that the public interest will be
served where the holder on the indirect interest is an entity
chartered in a WTO country. These applicants are typically
required to reach an agreement with the DoJ, the FBI and the
Department of Homeland Security concerning the ability of those
agencies to gain access to calling data. Foreign governments and
their representatives may not own a telecommunications carrier
operating in the U.S.
There are no restrictions on non-U.S. entities holding spectrum
licences for other services, such as two-way private radio services,
dispatch, aeronautical services, and other private wireless services.
There are also no restrictions on non-U.S. entities providing
Internet services.
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13 Future Plans
13.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
Telecommunications policy continues to be debated extensively as
USA
technology alters the marketplace and renders aspects of the current
regulatory environment inapposite. Among the significant issues
under review by the FCC and/or the U.S. Congress are:
improving emergency communications systems, including
the interoperability of telecommunications systems used by
public safety entities;
establishing a nationwide broadband policy to ensure
broadband services are made available as widely as possible
across the U.S.;
the practice of wireless carriers and equipment
manufacturers entering into arrangements for wireless
handsets that contain exclusive terms;
the universal service system, including determining whether
universal service subsidies should be made available for
services other than voice telephony, e.g., broadband access;
improving the variety and quality of services available in
rural portions of the country;
the manner in which long distance carriers compensate local
exchange carriers for access to the local network, including
the compensation carriers pay each other for terminating the
other carrier’s traffic;
establishing rules for pricing of special access circuits used
by competitive telecommunications providers;
the manner in which telecommunications and Internet
service providers manage their networks in light of the
increasing demands of Internet traffic;
establishing when wireless carriers should be obligated to
provide service to other wireless carriers where the latter
carrier lack facilities, i.e. roaming obligations;
the regulatory treatment of VoIP;
the availability of additional wireless spectrum;
creating generally a regulatory framework that permits the
growth and development of new services while assuring that
those dependent on historic services and those who cannot
afford expensive new services are served adequately; and
whether the truth in billing rules should be applied more
broadly.
It is unclear how many of these issues will be resolved in the
immediate future, even though there is a general agreement that the
Telecommunications Act of 1996, which made the promotion of
competition a basic tenet of U.S. telecommunications policy, is no
longer adequate and should be modified. It took almost 20 years for
a consensus to develop making the 1996 Act possible; hopefully, the
U.S. can arrive more quickly at a consensus as to how it should be
changed.
Acknowledgment
The authors would like to thank Jesse Jachman for his major
contribution in compiling this chapter.
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Richard M. Firestone Maureen R. Jeffreys

Arnold & Porter LLP Arnold & Porter LLP
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Email: Richard.Firestone@aporter.com Email: Maureen.Jeffreys@aporter.com

URL: www.arnoldporter.com URL: www.arnoldporter.com

Richard Firestone’s practice covers a wide range of telecommunications Maureen Jeffreys provides regulatory, transactional, and litigation
and technology issues, domestic and international, and a broad counseling to wireline, wireless, cable television, media, and
spectrum of clients, including large firms and new entrants, service Internet clients. She represents these clients before the Federal
providers and users and government entities. He has helped clients Communications Commission, the National Telecommunications
adapt to rapidly changing regulatory structures and marketplace and Information Administration and elsewhere. She assists clients in
realities. Whether involved in the strategic planning or implementation all aspects of communications-related transactions. Ms. Jeffreys
of a new venture or a merger or acquisition, advising with respect to advises clients regarding federal and state laws and federal
the impact of a new technology, negotiating contracts, representing regulations applicable to Internet Protocol-based telephone and
clients before regulatory agencies or in court or arbitration proceedings, video services. Her representation of media clients focuses on
Mr. Firestone brings a breadth and depth of experience and judgment federal regulatory compliance, including obtaining approval for
to a client’s issues. mergers, advising public broadcasters on the unique regulatory
Before joining Arnold & Porter LLP, he served as Chief of the Common issues they face and counseling on such issues as indecency, equal
Carrier Bureau of the U.S. Federal Communications Commission (FCC). employment opportunity, political broadcasts and cable carriage
As one of the most senior communications law and policy makers in requirements.
the federal government, Mr. Firestone headed the FCC bureau
responsible for the regulation of all U.S. telephone companies, as well
as for the development and implementation of federal policy with
respect to the full spectrum of issues affecting users, manufacturers,
suppliers and providers of telecommunications and related services and
equipment. Prior to his tenure at the FCC, Mr. Firestone served as Chief
Counsel for the National Telecommunications and Information
Administration at the U.S. Department of Commerce, where he was
responsible for legal, legislative and policy analyses and
recommendations related to the domestic and international
telecommunications and information industries.

Arnold & Porter LLP, founded in 1946, is an international law firm with around 675 attorneys practicing worldwide.
With offices in Washington, DC, New York, London, Brussels, Los Angeles, San Francisco, Northern Virginia, and
Denver, we maintain more than 25 practice areas spanning a broad spectrum of the law, with primary focus on
litigation, transactional matters, and regulatory issues.
Arnold & Porter’s telecommunications, Internet, and media team stands at the forefront of developments in these
dynamic industries. We have guided companies through some of the largest mergers in history, represented cable
television operators in franchise disputes with municipalities, advised wireless carriers (terrestrial and satellite) in novel
spectrum transactions, counseled clients on how to obtain favourable regulatory treatment for their cutting edge
technologies, and advised media clients on First Amendment and related issues. Our team includes attorneys who have
held senior positions at U.S. government agencies such as the Federal Communications Commission, the Department
of Justice, the Central Intelligence Agency, the National Security Agency, the Federal Trade Commission and the
National Telecommunications and Information Administration as well as at Iridium, AT&T Canada and PBS.

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