2013 challenges for the communications sector:: Bird & Bird

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Extract: The Communications sector will face a number of legal and regulatory challenges throughout 2013. Several members of the international team at Bird & Bird have identified the key issues of particular significance to the Communications sector in their respective jurisdictions, which are summarised below.

The 4G spectrum auctions dominate across the featured countries while developments relating to cookie regulation and net neutrality feature throughout. These issues require careful consideration in doing business and developing new propositions.

China
The Ministry of Industry and Information Technology (MIIT) has issued a draft Proposal for Mobile Virtual Network Operator (MVNO) Business Trail for public comment on 8 January 2013. The Proposal relates to the “Implementation Opinions on Encouraging and Guiding Private Capitals to Further Invest in the Telecommunications Industry” (Opinions) issued by MIIT in June 2012. The Proposal opens the door for domestic non-state-owned companies. MIIT is soliciting public opinions until 6 February 2013.

Based on the provisions listed in the PRC Telecommunications Regulation and the Measures on the Administration of Telecommunications Business Operation and applicable to VATS, the draft Proposal sets forth the detailed requirements and requested documents for government approval. However, neither the draft Proposal nor other PRC regulations provides a definition of “domestic non-state-owned company”. Thus, the draft Proposal does not introduce any changes to market entry thresholds for foreign investors. The trial period is initially set for 2 years, and the intended domestic non-state-owned companies can submit applications for the mobile telecommunication resale business within the first year after the trial begins. For a more in-depth summary of this development please click here.

Spain
A revised Telecommunications Act will be passed in 2013, updating the current legislation, dating from 2003. This will resolve certain issues that have negatively affected the competitiveness of telecom operators, penalizing the deployment of new networks, investment and service provision. Deep structural reform will be carried out, since the modification of the current regulations will result in greater ease of network deployment by operators and facilitate the spread of broadband, fostering a faster internet service. This will boost the digital economy and create new business models and economic growth. Moreover, users will see improvements in coverage, increased internet speed and cost reductions. User protection will be also improved.

A Digital Agenda for Spain will be adopted in the first half of the year. This policy document will focus on the following key points: removing barriers to deployment and investment in ultrafast networks; transforming the manufacturing sector through a more intensive and efficient use of digital technologies; putting the citizen at the centre of public administration through digital channels; ensuring privacy, trust and security in the digital realm; promoting R+D+I (Research, Development and Innovation) as an element linked to the development of talent and future opportunities in new sectors; promoting training for digital inclusion and the formation of new ICT profiles.

Setting up a single authority merging regulators from different economic sectors. A new regulatory agency merging the national competition authority and the sector-specific bodies governing telecoms, energy, postal services, broadcasting, rail transport and the airport sector will be operational before summer. This initiative forms part of the legislative package envisaged/adopted by the government in order to overcome the serious economic crisis Spain is going through. According to the Spanish authorities, the measure will be beneficial in terms of cost saving (approximately €30 million), legal certainty and efficiency by public administrations. The issue is controversial both a national and EU level (Brussels has recently called into question the compatibility of this initiative with the relevant Community directives, specially in the telecoms and energy sectors).

Review of the MVNOs market. According to the 2013 Action Plan of the Telecoms Regulator (CMT), the review process related to the MVNO market will conclude in the near future. CMT is currently working on a draft proposed measure that was subject to public consultation in 2012 and envisaged the elimination of the specific regulatory obligations imposed on the operators with SMP in the provision of the relevant wholesale services. In its draft proposal, the regulator considered that the wholesale access obligation contained in the new rules on spectrum (RD 458/2011), together with the positive evolution of the mobile market during the past six years, would ensure that MVNOs may continue offering their services. Moreover, if operators fail to reach mutually satisfactory agreements, CMT would continue to be responsible for resolving conflicts, as has been the case already.

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For further information please contact:

Bird & Bird LLP
Van Alkemadelaan 700
2597 AW Den Haag
The Netherlands
Tel: +31 (0)70 353 8800
Fax: +31 (0)70 353 8811
feyo.sickinghe@twobirds.com

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