Are there any regulations covering interconnection between operators? If so are these different for operators with market power? What are the principal consumer protection regulations that apply specifically to telecoms services?
The ECRA provides that no restrictions should be imposed or maintained that prevent undertakings in Malta or in other Member States from negotiating between themselves agreements on technical and commercial arrangements for cases and/or interconnection, as long as these are in accordance with EU Law.
The MCA has the power to impose obligations on undertakings that control access to end users to ensure end-to-end connectivity. Such obligations may include the requirement for operators of public communications networks to offer interconnection to other undertakings, subject to the terms and conditions imposed by the MCA.
The ECNSR provides that undertakings designated as having significant market power shall be subject to particular obligations imposed by the MCA which include non-discrimination in relation to interconnection and/or access, accounting separation, transparency, grant of access to the MCA and use of network, price control and cost accounting obligations. Further to this, should the MCA wish to impose additional obligations, it may do so only after it has been granted authorisation from the European Commission to impose such further obligations, after it has made a request for such permission.
Should the MCA be of the opinion that imposing such measures on large market providers have proved to be ineffectual and failed to achieve effective competition, it may impose the exceptional measure for the structural separation of networks. Prior to taking such measures, the MCA must submit a proposal to the European Commission including evidence justifying its conclusions, an impact analysis and a reasoned assessment that there is minimal, or lack of, effective and sustainable infrastructure based competition within a reasonable timeframe.
The main laws which regulate consumer protection specifically in relation to telecoms include the ECNSR, the MCA Act and the Consumer Affairs Act, Chapter 378 of the Laws of Malta (the ‘CCA’). The MCA Act, lays down the powers and the workings of the MCA such as for instance, how it should cooperate with other competent authorities responsible for competitions and consumer affairs issues which may be of common interest.
Further to the above, the ECNSR, in particular part VI, provides the MCA with powers to ensure that end-user interests and rights are upheld by guaranteeing that service providers comply with their duties at law and that end-users are furnished with information on what they are entitled to and their obligations when using their services. The MCA is empowered to take regulatory action should a service provider commit a breach of legislation administered by the MCA.
Although the CCA deals with consumer protection matters in general, it specifically states that the Director General (Consumer Affairs) shall handle a claim which had been originally submitted to the MCA by an aggrieved end-user in relation to a communications service. Such an instance occurs when the complaint falls outside the remit of the MCA, due to the nature of the complaint, such as if the contract concerning the end-user contains unfair contract terms or if there is a case of misleading advertising.
The Electronic Communications Act and the Ecom Regulation governs the interconnection between operators of electronic communication services. Section 4-2 of the Act prescribes that any operator with access to electronic communication networks and services is entitled and obligated to negotiate with other operators on the interconnection of the aforementioned services.
Section 4-1 of the Act prescribes that Nkom may oblige an operator with significant market power to meet any reasonable request from another operator to enter into or amend an agreement regarding access to electronic communication networks and services.
In determining whether a request is considered reasonable, an assessment shall be undertaken inter alia of the operator’s interest in controlling their own infrastructure against the need to provide access to other operators, enabling them to offer competing services.
When necessary to secure all-in-all communication, Nkom may impose interconnectivity obligations on any operator, regardless of market power. Such interconnectivity obligations may include an obligation to enter into an agreement with another operator.
The E-commerce Act, the Ecom Regulation and the Electronic Communications Act provides operators of telecommunication services with certain duties towards their end users, hereunder informational duties and requirements pertaining to an agreement between the aforementioned parties, inter alia.
The Regulation on Access and Interconnectivity covers interconnection between operators. Pursuant to the Regulation all operators are obliged to "negotiate" terms of interconnection with other operators with an aim to reaching an agreement within a reasonable time. The Authority has the right to impose an interconnection obligation on the operators if the operators do not reach an agreement within a reasonable time.
In cases where the operator denies providing interconnection or imposes unreasonable terms and if the Authority decides that the actions of that operator damages competition or damages the interests of end-users, the Authority may oblige such operator to provide interconnection.
For operators with significant market power, Authority may oblige operators to provide interconnection/access on a non-discriminatory basis and with the same conditions and qualities that apply to their subsidiaries or partners.
The Chapter 3 of the Telecommunications Regulations (2016 Revision) and the Provisions on the Management of Interconnection between Public Telecommunication Networks (2014 Revision) are the major regulations governing the interconnection between operators. China adopts the ‘asymmetric regulation’ management mode to dominant telecommunication operators and non-dominant operators. In aligning with the Telecommunications Regulations, the Provisions on the Management of Interconnection between Public Telecommunication Networks specifically provide obligations for dominant operators, such as the dominant operator shall provide the non-dominant operator with the information of network functions and equipment allocations which are related to the interconnection, and shall facilitate the non-dominant operator to use its facilities and shall not attach any unreasonable conditions, to facilitate non-dominant operators in the interconnection.
What are the principal consumer protection regulations that apply specifically to telecoms services?
The Telecommunication Regulation (2016 Revision) is the principal consumer protection regulation for the telecoms services. Chapter 3 of the regulation provides standards in providing telecommunication services. Users of telecommunication services referred by the regulation may include both individual consumers and enterprises.
Concessionaires operating a public telecommunications network have the obligation to adopt open network architecture designs, in order to ensure interconnection and interoperability of their networks. For such purpose, concessionaries operating public telecommunications networks are obliged to interconnect their networks with other concessionaires’ networks on a non-discriminatory basis, transparently, based on objective criteria and in compliance with the regulations of IFT.
In addition, there is an Interconnection Electronic System (Sistema Electrónico de Interconexión) through which the concessionaires interested in interconnecting their networks, may process among each other subscription requests of the corresponding agreements.
Asymmetric obligations to the economic agents declared preponderant (different from economic agents with market power) are established in regard to access and interconnection. One of such obligations establishes that the preponderant agent shall not charge to the other concessionaires for the ending traffic in its network, and their interconnection agreements are considered Public Offers.
Regarding preponderant agents, the IFT has the authority to determine such economic agents that are preponderant in the sectors of telecommunications and broadcasting. The determination of the preponderant economic agents is based on having directly or indirectly more than fifty percent of national participation in the provision of broadcasting and telecommunications services. This percentage is measured by the number of users, subscribers, audience, traffic in their network or by the capacity used therein, based on the data and information that the IFT has.
The obligations of the preponderant economic agents, shall cease by an official declaration of the IFT, once there are conditions of effective competition in the relevant sector.
Telecommunications users and consumers, in addition to the general consumer protection rights provided in the Federal Consumer Protection Law (Ley Federal de Protección al Consumidor) are entitled to the consumer rights established in the Telecommunications and Broadcasting Law.
The followings rights, are the most important under the Telecommunications and Broadcasting Law: (i) to check at no charge mobile balance and without conditional purchases; (ii) protection of personal data; (iii) number portability; (iv) execute a standard-type agreement approved by the IFT and the consumer protection agency for the provision of the telecommunications services and receive communications related to its amendments; (v) non-discrimination in Internet access services; (vi) receive telecommunications services within the parameters of quality subscribed or established by the IFT; (vii) request the unlocking of the terminal equipment at the end of the term of the agreement or when the terminal equipment has been paid; (viii) reimbursement or discount in the event of service failures; (ix) roll over of credit balance; and (x) not to receive calls from the concessionaire or authorized entity regarding promotion of services and packages unless consent was expressly given through electronic means.
It is important to mention that all consumer rights arising from the provision of telecommunications services shall be communicated by the relevant service provider to the consumer, not only in the relevant agreement but in a separate document in which the consumer rights are clearly established.
Yes – the rules on interconnection are governed by a mixture of communications- and competition-related laws.
The General Conditions require that a provider of public electronic communication networks negotiates with another public electronic communication networks provider based in the EC with a view to concluding an agreement (or an amendment to an existing agreement) for interconnection within a reasonable period. This is a general obligation which applies to providers of public electronic communication networks.
In addition, Ofcom has the power to impose access-related conditions on providers of electronic communication networks for the purposes of securing:
- efficiency (e.g. by making associated facilities available);
- sustainable competition;
- efficient investment and innovation; and
- the greatest possible benefit for the end-users of public electronic communications services.
These access-related conditions may include obligations to share the use of electronic communications apparatus (and apportioning and contributing towards the costs of this sharing) where there are no viable alternative arrangements that may be made. Hence these are more likely to be applied on electronic communication networks providers with significant market power.
Moreover, general European competition law applies in respect of anti-competitive agreements and the abuse of dominant positions.
Various consumer-specific provisions are set out in the General Conditions of Entitlement. A 'consumer' is defined as someone who uses or requests a service for purposes which are outside his or her trade, business or profession.
Specific obligations relating to consumers include:
- the requirement to include certain minimum terms in consumer contracts;
- certain parameters regarding the term and termination rights under the consumer contract (e.g. so that the procedures for contract termination do not act as disincentives for consumers against changing their communications provider);
- a requirement to make certain information available to the consumer (e.g. any access charges, the payment terms, the existence of any termination rights and any termination procedures);
- number portability; and
- various restrictions on sales and marketing activities.
Yes. ANCOM takes all necessary measures to ensure and encourage adequate access and interconnection as well as the interoperability of services in a way that promotes efficiency, sustainable competition, investment and innovation for the benefit of end-users. To accomplish this, ANCOM may impose certain obligations on undertakings, as follows:
- in order to ensure end-to end connectivity, the authority may impose obligations on undertakings that control access to end-users to interconnect their networks;
- in justified cases and if it is necessary, the authority may also impose obligations on undertakings that control access to end-users to make their services interoperable;
- to the extent that this is necessary to ensure accessibility for end-users to digital radio and television broadcasting services to provide access to application programming interfaces or electronic program guides on fair, reasonable and non-discriminatory terms.
The obligations and conditions imposed as per the above must be transparent, objective, proportionate and non-discriminatory and must follow a certain procedure provided in the law. Also, such measures that may be imposed by the regulatory authority are without prejudice to the measures that may be taken regarding undertakings with significant market power.
One of the tasks of ANCOM is to promote competition on the market. To achieve this, the authority identifies the relevant market and the undertakings with significant market power. In the sector of electronic communications an undertaking is considered 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.
After conducting the market analysis and to the extent that it is necessary to promote competition on that market, ANCOM may impose, maintain, amend or withdraw, as the case may be, certain obligations on undertakings with significant market power. According to GEO 111/2011 and in line with the EU provisions (Access Directive) the authority may, in addition to the above impose, maintain, amend or withdraw the following in order to facilitate access to and interconnection of electronic communications networks and associated facilities:
- obligations of transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use;
- obligations of non-discrimination in relation to interconnection and/or access that ensure in particular, that the operator applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services, or those of it subsidiaries or partners;
- obligations of accounting separation in relation to specified activities related to interconnection and/or access;
- obligations of access to, and use of specific network facilities in situations where ANCOM considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest;
- obligations of price control and cost accounting obligations; and
- obligations of functional separations; this obligation may be imposed when the authority considers that the above listed obligations have failed to achieve effective competition and that there are important and persisting competition problems and/or market failures identified in relation to the wholesale provision of certain access product markets; this obligation requires vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in an independently operating business entity.
What are the principal consumer protection regulations that apply specifically to telecoms services?
GEO 111/2011 lays down the consumer protection regulations applicable for the sector of electronic communications.
Contracts concluded by consumers for the provision of access and interconnection to public electronic communications networks and services may be made on an initial period of up to 24 months. The offers and contracts designed for consumers must be transparent and offer the consumer sufficient information. For this reason, contracts concluded with consumers must contain the following minimum information:
- the identification data of the provider;
- the services provided, including in particular, if access to emergency services and caller location is provided, information with regard to the procedures for measuring traffic, the service quality levels offered, as well as the term for the initial connection;
- the prices and tariffs for each product or service covered by the contract, the way in which they are applied, as well as the means by which updated information on the tariffs for the provision of the electronic communications services and of the maintenance and repair services may be obtained;
- the duration of the contract, the conditions for renewal and termination of the contract, as well as the conditions under which service suspension operates;
- the applicable compensations and procedures in case the contracted service quality levels or other contractual clauses are not fulfilled;
- the means of initiating procedures for the settlement of disputes;
- the type of action that may be taken in reaction to security or integrity incidents or threats and vulnerabilities.
In addition, GEO 111/2011 contains certain provisions with regard to the conclusion of distance contracts. These provisions offer the consumers a favourable position in the sector of electronic communications.
Under the Electronic Communications Code, all operators holding a general authorisation to provide publicly available electronic communications networks and services have the right and - if requested by other authorised operators - the obligation, to negotiate with each other interconnection agreements, in order to allow the provision and interoperability of the services in the entire European Union. The access and interconnection must be offered in compliance with the obligations imposed by AGCOM pursuant to the Electronic Communications Code. The operators with significant market power are subject to additional obligations imposed by the AGCOM, which exercises also control on the termination rates and other terms and conditions applied by them in connection with interconnection arrangements.
In addition to the protection granted by Italian law to all consumers under the Italian Consumer Code (Legislative Decree N° 206 of 6 September 2005), users of electronic communications services are granted a set of further rights and safeguards.
The obligations imposed to operators by the Electronic Communications Code in order to grant such additional protection (in particular sections 70 – 81 and the relevant implementing AGCOM’s regulations) depend on the specific nature of the services supplied. They include, for example, the duty to publish and render available to their customers - before entering into the relevant contract - a “Carta dei Servizi” (Services Chart), indicating the minimum quality requirements to be fulfilled by the services and the connected key quality indicators, which must be regularly measured. Moreover, operators shall establish a procedure allowing users to submit claims and complaints, by telephone, in writing, by fax or electronically at no additional costs, for malfunctions or inefficiencies of the services, and/or failures to comply with contractual clauses or agreed service levels. Operators are required to notify in advance and by appropriate means the relevant customers about scheduled maintenance interventions involving a complete outage of the service, with specific indication of the estimated duration of the interruption, and of a contact point, easily accessible, in order to obtain assistance and more detailed information. There are a number of pieces of information which must be mandatorily included in the clauses of each agreement with users, such as provisions relating to the indemnification due in case the service does not reach the agreed service levels and the right of withdrawal of the user. Additional rights of users relate, inter alia, to number portability, the user’s right to change the operator and the operators’ obligations to ensure access for disabled end users.
There is a general obligation for all providers of public electronic communications networks or services who control the connectivity to end users, to negotiate in good faith with other communication providers in order to ensure interoperability and end-to-end connectivity. Subjects on which agreement may need to be reached include technical aspects of the connection to networks, tariffs and quality of services. Providers are to enter into these negotiations proactively. Although the underlying principle for these negotiations is the freedom of contract, ACM may be requested to intervene if a dispute arises that stands in the way of reaching an agreement. In such case, ACM will review whether the requests of either party can be considered objective, transparent, reasonable, proportional and non-discriminatory. ACM may impose obligations on providers to instate the requested end-to-end connectivity and it may, if necessary, impose the commercial conditions, including maximum tariffs, to be applied by the providers.
In addition, ACM has a duty to periodically review the structure of the telecoms markets recommended for review by the European Commission, and where it finds that one (or more) operators have significant market power (aanmerkelijke marktmacht), ACM may impose obligations on such operator. These obligations should be aimed at resolving (potential) problems resulting from the lack of effective competition on such market, and may relate to providing access, tariff setting and charging reasonable tariffs, accounting standards and separate bookkeeping for separate services, preventing discrimination or providing information (transparency). Measures imposed by ACM should be proportionate.
In addition to these specific powers provided to ACM by the Dutch Telecommunications Act, also the general Dutch and EU competition rules apply in respect of anti-competitive agreements and the abuse of dominant positions.
The Dutch Telecommunications Act provides a number of specific obligations relating to consumers, including the following:
- conditions relating to term, renewal and termination of consumer contracts;
- requirements to include certain terms in consumer contracts;
- requirements to make certain information available to customers, such as a description of the services offered, the quality of services and standard tariffs;
- access to certain information numbers and the national alarm number;
- providing number portability;
- restrictions on specific sales and marketing activities.
In addition to specific telecoms regulations, provisions of general consumer law also apply such as rules concerning unfair contract terms.
Yes. The Telecommunications Act establishes that interconnection shall be carried out in a non-discriminatory manner, under adequate technical conditions, with the practice of fair and isonomic prices.
Additionally, the General Interconnection Regulation, approved by ANATEL Resolution No. 410/2005, provides the applicable rules to interconnection requests, interconnection public offers, the time limits that must be observed for the implementation of interconnections, and the procedure for disputes resolution.
There are specific obligations for operators holding significant market power as established by the General Competition Plan (“PGMC”) enacted by Anatel. The PGMC provides rules to determine whether an economic group holds the so-called significant market power (“SMP”) to influence economic conditions in certain telecommunications markets. According to PGMC, operators found to hold SMP may be subject to asymmetric regulatory obligations regarding transparency, resources access, products offer and equality, as well as wholesale price control. In order to determine whether an economic group holds significant market power in a relevant market, Anatel undertakes an assessment with regard to the group’s (i) market share; (ii) ability to benefit from economies of scale and scope in the relevant market; (iii) control over an essential infrastructure; and (iv) presence in both wholesale and retail segments.
For groups that hold SMP, the offer of wholesale network capacity (dedicated circuits) is mandatory, and shall be provided within deadlines established in the regulation, so as to avoid procrastinations or other anti-competitive behaviors.
The Telecom Consumer Protection Regulation, approved by ANATEL Resolution No. 632/2014, is the specific regulation that applies to users of telecom services. Such regulation is enforced in addition to the Consumer Protection Code (Law No. 8,078/1990), which is the general law concerning the consumer protection in Brazil.
The main rights afforded to all telecommunication service users are: (i) enjoyment of the service, in accordance with quality standards established by regulation and the services agreements; (ii) choice of the provider and the service plan; (iii) non-discriminatory treatment with respect to the access and service use conditions; (iv) previous knowledge about all charges and material conditions or limitations of the service offering; (v) inviolability and secrecy of communication; (vi) non-suspension of the service, except in circumstances allowed by the regulations; (vii) confidentiality of invoices and on the use of users’ data; (viii) efficient and prompt responses to complaints; (ix) compensation for the damages caused by the violation of rights; (x) re-establishment of all the rights relating to the provision of the services, upon payment of outstanding debts; (xi) not to be subject to tie-in sales; (xii) termination of the services agreement, at any time; and (xiii) not be charged for any values unrelated to the provision of the telecommunications service without previous and express authorization.
Interconnection between operators is regulated under MOCI Regulation No. 09/Per/M.KOMINF/02/2006 regarding Interconnection (February 8, 2006). There are no other regulations specifically regulating operators with market power.
Aside from Law No. 8 of 1999 regarding Consumer Protection (April 20, 1999), which provides the general framework for consumer protection, there are no consumer protection regulations that apply specifically to telecoms services.
As part of its regulatory functions, the TRAI is tasked with regulating interconnection between telecommunications services providers, including provision of a basic framework for interconnection and ensuring fair charges are imposed on service providers for interconnection. Service providers for telephony, internet and related services, as well as service providers for broadcasting/television related services are required to enter into interconnection agreements with other providers for the same services, and such agreements must be based on a standard model contract published by the TRAI. Further, all such interconnection agreements are required to be registered with the TRAI. The TRAI has issued the Telecommunication Interconnection (Reference Interconnect Offer) Regulations, 2002, along with the Model Reference Interconnect Offer which forms the basis of a Reference Interconnect Offer (RIO) to be published by all telecommunication service providers with “significant market presence”. Further, the Telecommunications Interconnection Usage Charges Regulations, 2003 stipulates a framework for interconnection charges that may be levied by one service provider on another service provider. These Regulations, and various directives issued thereto, specify minimum and maximum charges that may be levied by a service provider. These Regulations also define a service provider as having a ‘significant market presence’ as one who has at least 30% of market share measured by any parameter among subscriber base, revenue, switching capacity and volume of traffic. The Consumer Protection Act, 1986 provides for redressal of complaints by individual consumers of various services, including telecom services, before local, state-level and national-level Consumer Disputes Redressal tribunals. Any complaints relating to service quality and delivery of telecom services may be filed before such tribunals. In addition, the TRAI has issued several Regulations to address specific forms of consumer complaints such as call quality, quality of internet bandwidth, telemarketing, and charges for telecommunications services. Such consumer complaints will be addressed specifically by the “Call Centres” set up by the various service providers. Further, the TDSAT has also been empowered to handle complaints against licensors of telecom resources and telecom service providers relating to quality, metering, interconnection and telecom services. Additionally, every “telemarketer” registered with the TRAI has to adhere to: (i) Telecom Commercial Communications Customer Preference Regulations, 2010; and (ii) the standard agreement entered into telemarketer and access provider. For the sake of clarity, “telemarketer” means a person or legal entity engaged in the activity of transmission of commercial communications and “access providers” include basic telephone service providers, cellular mobile telephone service providers and unified access service providers. Telemarketers have an obligation to not send: (i) any unsolicited commercial communications to a subscriber (consumer) whose telephone number has been registered under the “fully blocked category” (earlier called the “National Do Not Call Register”) of the National Customer Preference Register; and (ii) unsolicited commercial communication relating to categories/topics specifically blocked by a subscriber (consumer) under the “partially blocked” category of the National Customer Preference Register. Under the said Regulations, an “access provider” is required to set up a facility for registration of consumer complaints regarding receipt of unsolicited commercial communications, and such facility can be accessed by the consumer via voice call or SMS.
The Bezeq Law provides the framework regarding interconnection between operators (including specifying interconnection payments). For example, each of the cellular portable radio-telephone operators' licenses granted pursuant to Bezeq Law includes specific obligations with regards to interconnection between operators. The regulator may treat operators with market power differently and is actively encouraging competition in the telecommunications sector. A recent example is the regulator`s requirement from Bezeq, the Israeli Telecommunications Corp. Ltd, a leader in the telecommunication sector, to allow a secondary market of its infrastructure and allow other providers to provide their customers with services on Bezeq`s infrastructure.
Among such regulations are the Bezeq Law, Consumer Protection Act of 5742-1981 together with its stemming regulations and the Contract Law of 1973. Such legislations regulate the engagement of service provides with consumers in general and also the telecom industry with some specific provisions for this industry, with regulations varying from restrictions on minimum service periods to account termination provisions and include provisions relating to after-sale service and call-center service. In addition, consumer protection regulations are specified in each telecommunications license which are specific for each telecommunication sector. For example, a cellular portable radio-telephone operator’s license includes, among others, a minimum service availability requirement and notification to the consumer upon exhaustion of subscribed services.
The Code of Practice for the Provision of Telecommunication Services ("Telecom Competition Code") mandates interconnection between operators.
Where a licensee is considered to be a "dominant licensee" it is subject to further requirements regarding interconnection. The IMDA requires dominant licensees maintain and to provide interconnection services in accordance with, a reference interconnection offer ("ROI"). The ROI sets out prices, terms and conditions that have been pre-approved by the IMDA.
A licensee will be considered to be a "dominant licensee" if:
(a) it is licensed to operate facilities that are sufficiently costly or difficult to replicate such that requiring new entrants to do so would create a significant barrier to rapid and successful entry into the telecommunication market in Singapore by an efficient competitor; or
(b) it has the ability to exercise significant market power in any market in Singapore in which it provides telecommunication services.
The principal consumer protection regulations specific to telecom services are set out in the Telecom Competition Code. Some examples are set out below:
(a) licensee must disclose to end users the price, terms and conditions of the service (including a free-trial service);
(b) licensee must provide procedures to contest charges in a service agreement;
(c) licensee must not charge for disproportionate early termination fees;
(d) where the licensee seeks to terminate the service agreement due a breach by an end user, the licensee must provide the end user with advance notice and reasonable opportunity to remedy the breach; and
(e) at the end of a free trial service the licensee must not charge for such services unless the licensee has notified the end user the date on which the free trial ends and the end user has agreed to continue the services.
Interconnection between operators is regulated pursuant to the EU ‘Telecom Package’ and the French CPCE (see Question 1). For instance, an operator’s decision to refuse interconnection with another one (including a foreign one) must be substantiated. The ARCEP may control any interconnection agreement and may impose specific requirements on the parties in an ‘objective, transparent, non-discriminatory and proportionate manner’ (CPCE, art.L34-8).
As such, interconnection obligations of operators which have a significant market power are systematically controlled. Furthermore, such operators may be required to issue a public interconnection tariff and proposal and to offer such services to other operators under non-discriminatory terms.
Significantly, the legislator recently broadened the scope of entities that may be required to provide interconnection or access to infrastructures. This concerns for instance operators which exercise control on access to end users, and entities which run certain infrastructures such as the power grid or railways.
What are the principal consumer protection regulations that apply specifically to telecoms services?
Beyond the general provisions of the Consumer Code, an electronic communications operator is subject to specific requirements, in particular in terms of:
- information in real time on its offering and tariff, on the consequences of unlawful use of its services by the customer (e.g. in respect of copyright infringement), on the ways to protect individual security and personal data, on number portability - to list a few;
- insertion in consumer agreements of certain provisions, such as on indemnification in case of failure to maintain the proposed quality of service; and limitations to the possibility to require a minimum term of service;
- performance of its service agreements, for instance with the prohibition of additional access charges for communications to an after-sale service or a helpdesk.
Specific regulations on interconnection between telecommunication operators are stipulated in Section 19 TKG (e.g. non-discrimination, transparency), according to which each operator of a public telecommunications network is obliged upon request to submit an offer on interconnection to other operators of public telecommunications networks to ensure the communication of the users, the provision of telecommunication services and their interoperability throughout the European Union.
Further general regulations covering interconnection between operators are located in the Treaty on the Functioning of the European Union (AEUV) and the Restriction of Competition Act (GWB).
With view to telecommunication operators with market powers, special obligations and prohibitions are regulated in Section. 19 et seq. TKG. In addition the general regulations pursuant Article 102 AEUV and Sections 19 to 21 GWB need to be taken into account. These regulations prohibit the exploitation of a dominating position.
Specific consumer protection regulations with regard to telecom services are stipulated in Section 43a et seq. TKG. The scope of protection ranges from special information requirements, claims for damages, the equivalence in disabled end-users' access to services, fault clearance service and itemized billing.
What are the principal consumer protection regulations that apply specifically to telecom services?
Section 43a TKG determines which information operators have to make available to the consumers in the contract in an explicit, comprehensive and easily accessible form. The minimum contractual information shall include, inter alia, information on all restrictions on the access and use of services and applications, the minimum level of service quality offered, as well as information on all procedures set up by the company for the measurement and control of data traffic. Moreover already at the conclusion of contract, the operator is obliged to inform about the necessary steps for a possible change of supplier according to section 46 TKG. The maximum contract term is limited to 24 months pursuant to section 43b TKG. Additionally section 44 TKG provides for customers friendly regulations in case of damage or cease and desist claim of the customer. The interests of disabled end-users are considered in section 45 TKG. The availability of an error correction service is required pursuant to section 45b TKG and the entitlement of the customer for an itemized bill in section 45e TKG.
As regards fixed line services, TSPs with a dominant position in the market must give other providers access to their facilities (technical co-use of locations related to network access) and services. They must provide access in a transparent and non-discriminatory manner and at reasonable prices including, among other things, as regards fully unbundled access to the local loop, rebilling for fixed network local loops, interconnection, access to leased lines and cable ducts (provided they have sufficient capacity). If two providers do not agree on the access conditions, one party can request that ComCom decides. Providers of services forming part of the universal service (such as mobile and fixed line services) must ensure that communication is possible between all users of these services and networks (interoperability). The provisions for fixed line services also apply to mobile services providers. However, in practice only interconnection is relevant to mobile services, meaning that mobile services providers must ensure interoperability between each other and with providers of fixed line networks.
Dominant providers are subject to the Federal Act on Cartels and other Restraints of Competition (LCart) and the Federal Act on Price Surveillance, and may have limits imposed on their freedom to determine prices.
The TCA aims to ensure pricing transparency and the protection of users of communications services from abuse associated with value-added services. Hence, providers of telecommunications services must guarantee the transparency of prices for subscribers. Services of TSPs are also within the scope of the Price Notification Ordinance of 11 December 1978, as amended, meaning that the overall price of a telecommunication service must be given in Swiss francs and that price lists and catalogues must be readily accessible. The TCA also aims to protect users of communications services from unfair mass advertising: Spamming is prohibited under the Unfair Competition Act of 1 April 2007, as amended. The sender of mass advertisements submitted by means of telecommunications (such as e-mail, SMS, fax or automated telephone systems, but not physical mail) must seek the data subject’s prior consent to such advertisement. TSPs must take measures against unfair mass advertisement and protect their customers from receiving it. For this purpose, they may intervene in user traffic and disconnect customers from the telecommunication network who send or forward mass advertising.
4.1. Laws that regulate interconnection:
Interconnection between operators is regulated by the Organic Telecommunications Law and its General Rules, legislation that establishes that interconnection is the connection or union of two or more public telecommunications networks, through physical or radio means, via equipment or installations the provide telecommunications lines or links for the exchange, transit or termination of transit between two telecommunications services providers, which allows communication between users of different providers in an ongoing and discrete manner. Interconnection and access must be performed in accordance with the equality, non-discrimination, neutrality, good faith, transparency and publicity principles, and taking into account the application of market prices.
Access refers to network elements and resources, as well as, to the use and sharing of infrastructure without any impediments of any kind. As a general rule, the use of interconnection and of access will be carried-out in exchange for monetary compensation.
Furthermore, the telecommunications services providers that operate or control public telecommunications networks are under the obligation to interconnect with other public telecommunications networks and allow access to other service providers. In order to exercise control, the Telecommunications Regulatory and Control Agency, at any time, can intervene in the interconnection and access relationships, at the request of any of the parties involved or ex officio, for the purpose of fostering interconnection and access of the different providers.
Moreover, through the publishing of Resolution 602-29 CONATEL issued on March 14, 2007 and last amended on June 26, 2012, the Interconnection Regulation was enacted, whose purpose was to develop general interconnection rules and principles enshrined in the General Rules to the Telecommunications Law.
It is important to not that said resolution was issued under legislation no longer in force; nonetheless, in spite of this, said resolution remains in force.
In addition, Resolution 432 dated February 14, 2001, issued by the General Secretariat of the Andean Community of Nations, published in Official Register No. 2266, contains the common rules on interconnection, defining basic concepts and obligations based on which the interconnection that takes place in each of the Member States of the Andean Community must be developed.
4.2. Dominant Operator in Ecuador and its effects:
The legislation refers to an operator with market power as that provider of telecommunications services and services by subscription that has the capacity to have a significant influence in the market. Said capacity can be reached individually or collectively, when through any means the operator has the ability to behave independently of its competitors, buyers, customers, suppliers, users, distributors or any player in the market; when in can effectively control, directly or indirectly, the prices in the market, in a segment of the market or in a determined geographical zone. It is understood that an operator has market power when the provider of telecommunications services or services by subscription holds more that 50% of the subscribers, customers, active lines, traffic or others within a determined market or service.
Operators with market power or preponderant operators have the obligation to set interconnection charges that promote the eradication of anticompetitive practices.
Resolution 347-13-CONATEL-201 of July 30, 2010, issued by the National Telecommunications Council (currently ARCOTEL) concluded that the company Consorcio Ecuatoriano de Telecomunicaciones S.A. CONECEL (part of the America Móvil Group) was the dominant mobile operator for voice services in the Ecuadorian territory, which was determined through calculations based on the gross income of the company within the relevant market.
The Telecommunications Regulatory and Control Agency can impose on the operator with market power or preponderant operator the following obligations:
- Provide information related to accounting, technical specifications, network characteristics, delivery and use conditions, including, conditions that could limit access or use of the services or applications, as well as, prices.
- Provide the information requested by the Telecommunications Regulatory and Control Agency in a timely and complete manner, in accordance with the forms and periodicity determined by the agency.
- Keep cost or regulatory accounting, if it provides several services, in the format and methodology determined by the Telecommunications Regulatory and Control Agency.
- Set prices and rates that allows for the promotion and fostering of effective competition and benefits for users in terms of price and quality of the services, as well as, favor investment by the service provider, especially in next-generation networks. It includes tariff mechanism for on-net and off-net services.
- Set interconnection charges that promote the eradication of anticompetitive practices.
- Limit commercialization of services and use of terminal equipment.
- Prohibit the signing of leasing contracts for the installation of infrastructure.
- Set symmetric interconnection charges.
- Set asymmetric interconnection charges.
- Regulation of symmetric rates.
- Regulation of asymmetric rates.
- Obligations of infrastructure sharing.
- Regulation on the uses of trademarks and trade names.
4.3. Consumer rights applicable to telecommunications services:
Fundamental consumer rights are those set forth in the Constitution of the Republic of Ecuador, in addition to those stipulated in the Organic Consumer Protection Law. The consumer rights listed below are those that have a direct relation to telecommunications:
- The right to protection of life, health and security in the consumption of goods and services, as well as, the satisfaction of basic needs and access to basic services.
- The right to have private and public providers/suppliers offer competitive and quality goods and services, and to choose them freely.
- The right to a transparent, fair and non-discriminatory or abusive treatment by providers of goods and services.
- The right to have access to effective mechanisms for administrative and judicial protection of their rights and legitimate interests.
- The right to pursue administrative and/or judicial actions as the case may apply.
- The right to have access to a complaint book, which must be keep in the premises of the company, where the corresponding complaint can be written down.
In accordance with the legislation referred to above, the Organic Telecommunications Law establishes that the following user rights are inalienable:
- Have available to them and receive the contracted telecommunications services in a continued, regular, efficient, quality and effective manner.
- To choose freely the service provider, the service plan, as well as, the contracting modality and the terminal equipment through which it will receive the contracted services.
- To secrecy and the inviolability of the content of its communications, with the exceptions provided for in the Law.
- To privacy and protection of personal data by the service provider with whom it contracted its services, subject to the legislation in force.
- To obtain accurate, free and non-misleading information on the characteristics of the service and its rates.
- Have available free of charge emergency call services and information on plans, rates, prices and balance.
- To obtain, in unit of seconds, the measurement of the contracted service, when it comes to telephone services in all its forms.
- To an accurate, timely, clear and precise billing and valuation, according to the applicable regulations. It is not permitted any rounding method.
- To pay rates in accordance with the corresponding regulations and contracted plans, as applicable.
- To have its provider inform in a timely manner on the interruption, suspension or breakdowns of the contracted services and its causes.
- To obtain form its provider compensation for the services contracted and not received due to deficiencies in the services or the refund of the amounts wrongly charged.
- To have the constitutional, legal, and statutory rights of subscribers, customers, and users upheld in the contracting of the services.
- To have their requests and complaints related to the provision of the contracted services processed and resolved in a timely-manner, in accordance with the applicable regulations.
- To demand to the providers of the contracted services, the compliance with the applicable quality parameters.
- To number portability and to keep its number in the case of telecommunications services that use numeric resources.
- To receive yearly, free of charge and by electronic means, an updated subscriber directory of landline telephone services, issued by the hired service provider.
- To be provided with an adequate and timely protection by the competent bodies, against the legal, contractual or statutory breaches of the telecommunications services providers.
- To have access to any authorized application or service available on the Internet. The providers cannot limit, block, interfere, discriminate, hinder or restrict the right of its users or subscribers to use, send, receive or offer any content, application, development or legal service through the internet or in general through its networks or other information and communications technologies.
- That the conditions for the provision of the contracted services are maintained; any unilateral change in the contracts for the provision of services will be considered null and void.
- To unilaterally terminate a standard contract signed with the service provider ate any time, with previous notice of at least fifteen (15) days.
- To file a complaint before the competent authorities in relation to breaches and infringements of its rights by the providers.
- To the accumulation and use of balances in the provision of telecommunications services.
- To have information on the health risks that could result as a consequence of the installation and operation of networks.
- To not receive mass or individual messages or calls for the purpose of direct sale, marketing, advertising or proselytizing that has not been previously and expressly authorized by the customer, subscriber or user.
Likewise, the General Rules to the Organic Telecommunications Law states that to ensure the rights of the users, the following is enshrined:
- The right to choose the service provider.
- The right that creates an obligation on the part of the telecommunications providers to deliver information.
- The right to free access to emergency calls.
- The right to obtain free of charge information, including allowances, sale promotions, discounts, balances an other information services established by the ARCOTEL.