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.