sou · GQB360d1 · 2003-01-01 00:00:00 — For instance, Internet operators and those providing broadcasting networks are also sub- ject to the new notification duty. In return, the requirements regarding a telecommunications licence are repealed. licence duty applicable today for mobile telephony under the Tele- communications Act and the Act will thereby come to an end. to use radio transmitters and addresses from national address plan The proposed act deals, in broadly the same way, with licences to use a radio transmitter and address from national address plan, which relates to the structure of the Authorisation Directive. With regard to the legal status of the Swedish frequency plan and as it is not practically feasible to confirm the plan by law, it will also continue to be necessary to retain a system with individual licences to permit the use of radio transmitters. However, we pro- pose extended powers for the Government, or the authority appointed by the Government, to allow exceptions from the licence obligation. A double procedure for consideration is retained for broadcast to the public of audio radio and television programmes. Such broadcasts will therefore continue to require a licence under the Radio and Television Act. The principle of positive approach when considering applications for a licence is retained. However, in order to ensure that the radio frequencies are used efficiently, a new basis for consideration will be introduced, whereby a licence will only be granted if the radio use constitutes efficient use of the frequency space. In order to facilitate consideration of licences in conjunction with, for example, new systems for mobile electronic communica- tions services, it is proposed that a licence to use radio transmitters for certain radio use, and a licence to use individual radio transmitters for such use, may be granted at different times. A licence to use a radio transmitter will still relate to a particular radio usage. The catalogue of conditions that can be attached to a licence will also, in all material respects, be linked to that applicable according to the Act. However, one novel feature is that a licence relating to digital broadcasts of radio programmes to the public may be combined with a right to use a radio transmitter for other use, corresponding to at most 20 per cent of the digital capacity in the frequency space. precondition is that this will not have a negative impact on compe- tition. Licences shall be fixed-term. It shall be possible to limit the number of licences that are granted in one frequency space, if this is necessary in order to safe- guard efficient use of radio frequencies. In such cases, a licence should normally be granted following an open invitation to apply. The basis for consideration of the licences should either be a com- parative selection procedure (so-called contest), or a ten- der procedure whereby the price that an applicant is prepared to pay for the licence shall be decisive (auction), or a combination of these procedures. The current rules contained in the Act on the revocation of licences and amendment of licence conditions have been slightly changed. For example, the so-called needs principle within administrative law will be manifested through the revocation of a licence not being allowed if the purpose of the measure can just as well be achieved through the amendment of the licence conditions. The Government, or the authority appointed by the Govern- ment, will be empowered to determine the national address plan for electronic communications. A licence will be required to be allowed to use an address from such an address plan. A licence may be combined with conditions concerning, among other things, the use of addresses. As regards addresses that are of significant economic value, it shall be possible to grant a licence following an open invitation to apply. Licences shall be allocated in accordance with a tender procedure or a procedure with random allocation (lottery). As regards revocation of licences and amendment of licence conditions, the same rules as for a licence to use a radio transmitter will basically apply. A novel feature we propose is that a licence to use a radio trans- mitter or address may be assigned (so-called secondary trading). However, an assignment is only valid subject to the consent of the licensing authority. Consent shall be granted subject to, among other things, the precondition that there is no reason to assume that the transfer will have a negative impact on competition. The ECs new legal framework is founded upon, among other things, the endeavour to create the preconditions for functional competition. The aim is that consumers and other end-users will thereby be offered the networks and services that they demand, and on fair terms. The new system brings these rules closer in line with the general competition law. The prevailing market situation is not such that it is possible to abandon a system with special legislation beside the general com- petition law. On the contrary, the ECs new system of rules should be viewed as a co-existing supplement to the competition legisla- tion. Problems with competition or abuse of competitive advan- tages may often result in the elimination of newly established operators in a market. The aim with the new system of rules is to create an easily managed system to deal properly, and as swiftly as possible, with such problems and avoid the risk of abuse. It should be possible to implement measures to promote competition under the new act with a preventive aim, irrespective of intervention under the competition legislation. However, in those cases where the systems of rules collide, it is expected that the regulatory authorities will conduct a dialogue with each other in order to avoid over-regulation. The authority appointed by the Government shall annually determine product and service markets, special territorial markets, that have such characteristic features that it may be justified to introduce obligations under the act. The recommendation of Commission on relevant product and service markets, together with guidelines on market analysis and the assessment of significant market power, should be taken into account in this connection. Decisions shall be made following a special consultation procedure. The markets that are thus defined shall be continuously ana- lysed. As regards each market, a decision shall be adopted as to whether efficient competition prevails. If efficient competition does not prevail, undertakings with significant market power shall be identified and one or more obligations from a special catalogue shall be imposed. This involves, for example, interconnection obli- gations and obligations to provide other forms of access. An undertaking shall be deemed to have significant power in a particular market if it is, to a significant extent, able to act independently of its competitors, its and ultimately the consumer. The market share that is used as a guideline value when assessing significant market power according to competition law rules, ought generally amount to approximately 40 per cent. This may be compared with the current approximately 25 per cent, which is required in order for an undertaking to be deemed to have dominant market position under the Telecommunications Act. Special obligations that have been imposed upon an undertaking with significant market power shall be revoked if, upon a market analysis, it is concluded that efficient competition prevails. The date for revocation of an obligation shall be determined taking into account the interests of the parties concerned. Interconnection and other forms of access The new Access Directive constitutes a deregulation in relation to what is applicable to interconnection according to the Telecommunications Act. At present, there is a general inter- connection obligation for those who provide telecommunications services that are subject to a notification duty, in particular fixed telephony and mobile telecommunications services. This inter- connection obligation will disappear under the new act and be replaced by a general obligation to negotiate on interconnection. The proposal adopts this approach as the Access Directive anticipates that interconnection and other forms of access will be achieved primarily through voluntary agreements concluded on a commercial basis. However, if this fails, the act provides powers, subject to certain preconditions, to introduce special obligations regarding interconnection and other forms of access. In this way the party controlling the end-users access to a public communications network may be imposed a duty to conduct interconnection or implement other measures that are required to allow end-users to reach each other. Generally, such measures may basically only be implemented in relation to operators with significant power in a particular market. These obligations are generally framed and basically only provide a framework for what an authority can prescribe. Consequently, there is large scope for determining how the obligations should be formulated and satisfied in the circumstances of each individual case. The special obligations to which an operator with significant market power in a particular market may be made subject under according to the proposed act are primarily to meet reasonable demands for access to and use of networks and associated facilities. Such an obligation can, for instance, relate to an obligation for the operator to provide another party with access to specific parts of the network and associated facilities, and also to conduct interconnection. The obligation to provide access currently applicable under the EC regulation on unbundled access to the local loop (LLUB) for operators with significant market power for fixed telephony, may be imposed under the provisions contained in the act. Such an obligation may be combined with an obligation to publish a reference offer containing precise information. The proposal for a new act also provides an opportunity to pre- scribe an obligation to offer co-location or other possibilities for the sharing of use of associated facilities. Besides access to capacity at telephone stations, this may for instance relate to space on masts for base stations for mobile electronic communications services, such as the third-generation mobile telephony (UMTS). In certain circumstances, an operator with significant market power may also be obliged to apply a particular price or observe cost coverage in connection with setting prices for specific kinds of interconnection and other forms of access. Such an obligation may relate to the requirement to apply a particular specified cost- accounting method. also proposes the application of a model for the computation of long-run incremental costs (LRIC). This is also the model recommended by the EC Commission. A party that has been obliged to apply cost orienta- tion in its pricing shall demonstrate that its prices are fair and rea- sonable in relation to costs. Other specific obligations regarding access include the obligation to publish reference offers or certain specific information, apply non-discriminatory terms and conditions for the operation and also to apply accounting separation in relation to specified activities. Besides the requirement to provide co-location that may be imposed upon an operator having significant market power, it is proposed that powers are introduced enabling compulsory co- location when this is necessary in order to protect the environment or to protect certain other public interests, such as public health, public security or objectives for physical planning. should be sufficient to deal with problems that arise, primarily in connection with the of new networks for mobile electronic communications services. As regards services, the new act does not involve any major changes compared with the current regulation of the tele- communications sector. services basically means that services at an affordable price shall be provided to all users irre- spective of where they live. The ambition is that the market will itself satisfy the need of ensuring that the said services are pro- vided. It is only when the market fails with this that an authority is given power to intervene and order a party to provide such a par- ticular service. Therefore, the new act contains a provision prescribing that, if it is necessary to provide the end-user with access to networks or ser- vice at an affordable price, the party that is appropriate for this purpose may be ordered to: satisfy reasonable requirements for connection to the public telephone network in a fixed network termination point, the same extent, provide access to such publicly available telephony services, in an annually up-dated subscriber directory, make data concerning all individuals telephone subscriptions accessible to the extent that they are not subject to secrecy or a duty of confidentiality according to law, provide a complete directory enquiries service regarding telephone subscriptions (with the correspondent provisions as in the previous paragraph), provide payphones to an extent that satisfies public needs, and also provide access for people with disability to publicly available tele- phony services to the same extent and on equal terms as for other end-users and to satisfy the needs of disabled users for such special services. A fixed connection to the public telephone network provided as a service shall, according to the proposed act, enable the end-user to call and receive local, national and international tele- phone calls, telefax and data communication with a specific mini- mum data bit rate that allows functional access to the Internet. Such connection shall be offered to people with disability to the same extent and on the same terms as for other end-users. To specify in the statutory text the lowest data rate would, with regard to the dynamic development that characterises the elec- tronic communications sector, risk to lock the application of law in an inappropriate . We have therefore chosen to refrain from defining in detail in the act what is meant by functional access to the Internet. To allow data rates to be determined by individual decisions by an authority provides significantly better opportunities for flexible adaptation to the circumstances prevailing at each moment. An obligation to provide services may be combined with conditions concerning the achievement of particular perform- ance goals. An obligation to provide a service can also be combined with, for instance, price adjustment in the form of common nationwide tariffs or a particular maximum price. As at present, it shall be possible for the Government to satisfy public and private needs for access to electronic communications services or networks through procurement. This power shall apply where this is particularly appropriate in view of the costs of providing the service or network. However, we refrain from pre- senting proposals for funding of services by undertakings in the market being ordered to pay charges, though this is allowed by the EC regulation. However, we consider that there is cause to deliberate on this issue at a later date. In addition to the requirements that are imposed for those pro- services, the new act contains certain general obli- gations for operators. Particular requirements are imposed as regards parties that provide publicly available telephony services. This applies, for instance, to sustainability and accessibility in the event of disasters and similar situations and an obligation to coop- erate in forwarding emergency calls without interruption and with- out charge for the user. A novel feature in relation to the Tele- communications Act is the obligation to provide, to the extent technically feasible, location data to the party receiving emergency calls. The proposal also contains provisions on number portability in the event of exchange of service provider as regards publicly avail- able telephony services. The requirement for number portability does not apply between fixed and mobile telecommunications ser- vices. There are also territorial limitations. Special compensation rules corresponding to the current rules contained in the Tele- communications Act are proposed. To protect the consumer and other end-users, a rule is proposed concerning what a contract between an end-user and a provider of electronic communications services should contain. In order for consumers to be able to survey their costs, a provision is also introduced whereby an operator that provides publicly available electronic communications services must offer the subscriber a credit facility. When the limit of the facility is reached, the subscriber shall be given notice of this and the service in question suspended. It shall be possible for the suspension to be removed immediately by the subscriber. The proposal also contains rules on information obligations to end-users, for instance regarding the quality of the services. Radio and television issues Today, there are rules concerning retransmission duty, often referred to as must carry in the Radio and Television Act. We do not propose any amendment to these provisions. However, there are a number of issues that should be further investigated in another context. Examples of this are what networks the obliga- tions should apply to. We propose that the Television Signals (Transmission Stan- dards) Act is amended by the scope of the act being extended to cover first radio transmissions, second electronic communications networks. As regards electronic programme guides (EPG), we propose that no regulation of these is introduced now. The same applies to application programmes (API). Our proposal is based in this respect on the prospective adoption of the Directive concerning the processing of personal data and the protection of privacy in the electronic communications sector and a requirement that it shall be implemented in the Member States subject to a maximum delay of a few months in relation to the other legal instruments forming the ECs new system of rules. A party that provides a publicly available electronic communica- tions service shall be responsible for personal data and the integrity of the network being protected. Traffic data concerning subscribers or users shall be erased or made anonymous when it is no longer required in order to transfer electronic messages. Exemptions from this apply, for example, if the information is required for invoicing. Location data other than traffic data (such as data concerning geographic position from satellite, e.g. GPS) that relates to a user or subscriber may only be processed by a party performing an activity that is subject to a notification duty after such data has been made anonymous or if the user or subscriber has consented to the processing. A particular prohibition against surveillance, etc. has been intro- duced in order to ensure protection of secrecy of electronic mes- sages (communication according to the terminology used in the Directive). The regulation basically corresponds to the provisions concerning telecommunications secrecy contained in the Tele- communications Data Protection Directive. The prohibition on processing such information does not involve any impediment against necessary intermediate storage (known as buffering) or such storage that only occurs in order to make onward transfer to other receivers efficient (caching). Cookies are data files where data is stored to enable it to be used, for example, in connection with a later communication to be able to see whether the person who requested data has previously done so. It is for instance possible, using this data, for the content of a website to be adapted according to different user patterns. The use of electronic communications networks to store information or to gain access to information that is stored in a subscribers or users terminal equipment will, according to the proposal, only be allowed on condition that the subscriber or user in question receives clear and complete information about the purpose of the processing and is given an opportunity to prevent such processing. As regards directories of subscribers, subscribers who are natural persons are given, among other things, an opportunity to deter- mine whether, and if so what, personal data shall be included in a public directory of subscribers. No charge shall be imposed for not being listed in a public subscriber directory or to verify, correct or withdraw personal data from them. The authority appointed by the Government shall receive notifica- tions, consider applications, decide on obligations and otherwise consider issues and deal with matters and also exercise supervision in accordance with the new act or in accordance with regulations that are issued under the act. Which authority or authorities should be responsible for these tasks will be deliberated upon during the next phase of the work of the Committee, which is to review the structure of the authorities in the sector for electronic communi- cations. Pending this, we recommend that the and is given the task of undertaking the market analyses, etc. that are required in conjunction with the new system of rules entering into force. The authority shall, in basically the same way as currently applies under the Telecommunications Act and the Act, be empowered to impose charges for the operations of the authority from those having a notification duty or licence duty under the act. In a dynamic market it is important to have swift and simple consideration procedures. For some kinds of consideration of matters, requirements are introduced for a set maximum processing period. We also propose a new model for resolution of disputes. A special board procedure will be established to consider dis- putes emanating from the new Act. The board shall operate as an alternative to consideration by a pub- lic authority. The chair of the board shall be appointed by the par- ties from among persons appointed by the Government. Other members of the board shall also be appointed by the parties, in equal numbers following agreement. The board shall be financed by the parties. It will also be possible for the authority to conduct dispute resolution work in those cases where the authority has made a decision concerning, for example, an obligation to conduct inter- connection. The parties will then be able to refer to the authority in order to have issues related to such a decision considered, for example concerning payment for interconnection. No reconsidera- tion of the decision previously made is involved. In order to establish, as far as possible, a border between dispute resolution operations and mediation, we propose that the author- ity, within the framework of dispute resolution, should be empow- ered to decide on mediation by a specially appointed mediator, in the same way as applies in connection with dispute resolution at a public court. The mediation procedure shall be paid for by the par- ties. We do not propose any special extra-judicial dispute resolution rules for consumer disputes. The current arrangement is that () considers issues relating to telephone and Internet subscriptions respectively. In our assessment, this system satisfies the requirements of EC law for a simple consumer dispute resolution system. However, certain changes to the rules applicable for consideration by are required, for instance the special amount limits for the value of the disputed matters should be removed. One purpose of the new system of rules is to establish rules that facilitate new undertakings entering into the market. can thereby be created.