Brief overview on the New Telecommunications Law

The new Telecommunications Law passed by the Parliament through the Law nr. 4/2016, of 3 June (New Telecommunications Law) entered into force on 3^rd August 2016 and repealed the old Telecommunications Law nr. 8/2004, of 21 July (Former Telecommunications Law).

Notwithstanding the New Telecommunications Law (hereinafter referred to as ” NTL”) remain broadly with the same ideas and content of the former Telecommunications Law (hereinafter referred to as ” FTL”), with the present approach it is intended to make a brief summary of the major and important changes and innovations brought by  NTL, amongst which we may highlight the following:  NTL FTL FTLNTL

• With regards to the scope of application, the  NTL in its Article 2 states that the NTL applies to natural and legal persons licensed for setting, management and operation of telecommunications networks and services, unlike the  FTL which didn’t specifies the scope but made  reference that the same applied to the setting, management and operation of telecommunications networks and services, categorically stating which networks and services that were outside its scope; NTLFTL
• Still with regards the scope of application, the  NTL introduced an innovation in the Article 2 nr. 4 by setting out the conditions under which the diplomatic missions may set up and operate private telecommunications networks and radio  equipment’s.;NTL
• The NTL introduced a new concept when laying down in its Article 9 that the licensees, whenever requested by the Regulatory Authority, shall cooperate and provide all information related to activities which they develop (including financial and regarding future developments in the their networks and services); the telecommunications operators should classify information they consider confidential; and the Communications Regulatory Authority / (INCM) is prohibited to disclose such confidential information;
• With regards the classification of telecommunications services and networks,  the NTL in its Article 10 kept the spirit of the  FTL, by setting that telecommunications are classified as services and networks and telecommunications services and can be classified into public telecommunications services and private telecommunications services, and telecommunications networks can be classified as public telecommunications networks and private telecommunications networks. NTLFTL
• The  NTL provides in Article 12 nr. 3 the possibility of the owner of the private network to resell the existing available capacity of its facilities, to assign or transfer or dispose the rights of use of such facilities in favor of a telecommunications operator provided that: NTL
• Obtain authorization from the Regulatory Authority;
• it does not undermine the privacy and confidentiality of customer information and does not jeopardize the State security.
• The  NTL sets out in the Article 16 that the Regulatory Authority, the operators and public telecommunications service providers whenever requested and when duly substantiated, they have the duty to cooperate with the police authorities and the administration of justice bodies by providing information on the activities which they develop.   NTL
• The Article 19 of the  NTL sets that disputes between operators and between them and the consumers can be settled by the Regulatory Authority without prejudice to their immediate submission to the competent judicial authorities, unlike the  FTL which provided that the dispute resolution was by agreement of the parties and if there were no consensus it would be settled in accordance with the provisions set out in the agreement, thereby making the NTL more fair and equitable; NTLFTLNTL
• The Article 20 of the  NTL sets that the setting, management and operation of networks and provision of telecommunications services is subject to the allocation of a unified license or a license by class and that the use of the radio frequency spectrum is subject to a license, contrary to established in the  FTL which provided for the existence of telecommunications licenses; telecommunications registers; and radio licenses, making the licensing process more complex; NTLFTL
• According to Article 21 of the  NTL the award of telecommunications or radio communications licenses  when entails the use  of radio frequencies, numbering or other scarce resources, is subject to a public tender process or auction under the terms to be set out by the Government; NTL
• The  NTL in Its Article 36 sets out that the sharing of telecommunications infrastructures between operators is mandatory, aiming at fostering competition and decrease the investment required for the building and maintenance of networks, in contrast with the  FTL that only laid down that operators should allow the access to infrastructures, thus the  NTL is clearer in this regard; NTLFTLNTL
• The  NTL in Article 35 reinforces what was already been set out in  FTL by setting that operators of networks or public telecommunications service providers should connect with each other, and the connection is defined as the physical connection and logic of telecommunications networks used by the same or different operators in order to allow access and communications between different consumers of the services provided; NTLFTL
• Regarding the installation of network infrastructures, the NTL envisages that the installation of telecommunications operators’ network infrastructures, including any ancillary infrastructures, must comply with all licensing rules set out in the law, including the rules of municipal and local authorities, and of any other authorities with powers under the law and whenever necessary it requires the agreement of the owners of any rural or urban properties affected;  NTL
• The  NTL has brought as innovation the Article 48 regarding the obligations of telecommunications operators which offer roaming services and international roaming which have to inform customers of the applicable prices and tariffs, provide voice, data and special message tariffs for roaming and international roaming services, to inform about roaming and international roaming services through free message, and provide detailed billing for the roaming and international roaming service whenever requested by the client, a provision which was not provided for in  the FTL;NTLFTL
• The  NTL has brought another innovation in Article 51 regarding the bankruptcy of a telecommunications operator, and set out that the Government ensures the maintenance of the provision of the public telecommunications service in case of bankruptcy or when there is no other telecommunications operator; NTL
• The  NTL as well as the  FTL provides for the crime of unlawful interception of communications, however the  NTL innovates as it does not only set out the penalty of imprisonment and fine but also the term of imprisonment  of (from two to eight years) and the amount of the fine is 30 minimum wages  to 600 minimum wages; NTLFTLNTL
• The NTL provides that every telecommunications operator must have an operational and efficient system for legal interception of communications for the purposes of criminal investigations, however, the Interception may only be authorized by a criminal court judge; NTL
• The  NTL has a new  provision, namely the crime of damage, setting that the one that damages cables, posts, towers, masts, and antennae, as well as any other telecommunications infrastructures, preventing the public utility to which they are meant, must be regarded as the perpetrator of the damage and penalized according to the provisions of the Penal Code, subject to compensation for the ones that suffers the damages; NTL
• The  NTL, in contrast with the  FTL provides for a Gateway system (system or network intermediate node used to convert information flows from different telecommunications networks) and in that sense sets that operators can carry out the setting up, the establishment and operation of networks for their domestic and international telecommunications services and that the Government should put telecommunications traffic control devices; NTLFTL

It should be emphasized that the  NTL lays down, makes reference and brings several issues that need further clarification and development, it leaves many questions on issues that are silent, which undermines the applicability thereof. Therefore, in our view, it becomes – a priority the establishment of a Regulation of the Telecommunications Law, which will regulate issues which are currently not regulated in the existing law and hence are silent. NTL

We are aware that not all the matters related to NTL were addressed and that several issues addressed by itself will be addressed and reviewed in future. NTL

Liliana Chacón

Lawyer