Legal & Tax Updates

IT and Telecommunications Newsletter No. 1/2012

Legislative News

1. Emergency Ordinance 111/2011 on electronic communications (hereinafter referred to as the “Ordinance”), which sets out the new national legislative framework in the field of electronic communications, was published in the Official Gazette no. 925 dated December 27, 2011. The Ordinance came into force on December 27, 2011, except for some provisions related to the rights of end users, which came into force on February 25, 2012. 

The Ordinance implements the Directives of the European Parliament and of the Council no. 2009/136/EC and no. 2009/140/C respectively, bringing under one umbrella the provisions of several previous normative acts issued in the field of communications, among which Ordinance 34/2002 regarding the access to public electronic communications networks and to the related infrastructure and the interconnection between them, Emergency Ordinance no. 79/2002 regarding the general regulatory communications framework or Law 304/2003 on the universal service and end users’ rights relating to electronic communications networks and services. The right of access to properties continues to be regulated by Emergency Ordinance 79/2002.

The Ordinance regulates mainly:

• the rights and obligations of electronic communications networks and services;
• the regime of limited resources;
• the rights of end users;
• the universal service;
• the obligations of electronic communications networks and services having a significant market power

The Ordinance introduces several amendments to the previous legislation applicable in the field of electronic communications, among which (without limitation):

• amendments to the legal regime of limited resources;
  • ANCOM may decide, as part of a procedure for the award of a spectrum license, to exclude, under certain conditions, specific persons from the selection procedure;
  • ANCOM may directly allocate, under certain conditions, radio frequencies to radio broadcasters providing public services of radio and television broadcasting
• the introduction of more detailed provisions with respect to the providers’ obligations to ensure the security and integrity of electronic communications networks and services;
• amendments to the providers’ obligations towards end users;
  • the initial duration of the agreement concluded by a user – natural person cannot exceed 24 months and, at the same time, providers are under the obligation to also provide services for a maximum duration of 12 months;
  • providers are under the obligation to include in agreements information on: the categories of measures which may be taken in case of incidents, threats and vulnerabilities related to the security or integrity of the network or services; the conditions that limit the access to or use of certain services and applications; traffic assessment and management procedures aimed at avoiding the congestion of network segments or their use at full capacity and the impact of these procedures on the quality of the service;
  • the right of the user – legal person to request the provider to conclude an agreement in line with the minimum conditions set forth in the Ordinance in favor of the user -natural person;
• introduction of new provisions regarding the disabled end users, that set forth and extend their rights so that they may benefit from the same package of services and the same conditions as the majority of end users;
• introduction of a separate section regarding the agreements concluded by means of remote communication, which extends ANCOM’s monitoring and sanctioning responsibilities to this category of agreements as well, rendering inapplicable the provisions of Ordinance 130/2000 on consumer protection and the remote execution of the agreements;
• amendments to the level of the providers’ obligation to communicate specific information requested by ANCOM, referring mainly to the category of persons from whom the authority may request information as well as the categories of information which is to be communicated to ANCOM, upon its request;
• with respect to the realm of ANCOM’s competence to solve disputes between providers and end users, the Ordinance stipulates that ANCOM may also solve disputes regarding the fulfillment of the clauses of the agreement or having as subject matter rights granted by Law;
• elimination of the minimum thirty-day term of the notice of default which ANCOM was under an obligation to grant to the providers in the event it identified any breach by the latter, term during which the providers could justify or remedy the respective breach

2. ANCOM Decision 1816/2011 regarding the granting of the rights to use radio frequencies in the 880-915 MHz/925-960 MHz and 1710-1747.5 MHz/1805-1842.5 MHz bands (hereinafter referred to as the “Decision”), which came into force on December 2011, was published in the Official Gazette no. 930 dated December 28, 2011. 

The Decision has as subject matter the adoption of the necessary measures for the award of the license to use radio frequencies in the 880-915 MHz/925-960 MHz, and 1710-1747.5 MHz/1805-1842.5 MHz bands.

Pursuant to the Decision, the rights to use the radio frequencies in the 880-915 MHz/925-960 MHz and 1710-1747.5 MHz/1805-1842.5 MHz bands are granted by way of a selection procedure that will be organized by ANCOM in 2012, which will:

• grant licenses to use radio frequencies for the period January 1, 2013 – April 5, 2014;
• grant licenses to use radio frequencies valid as of April 6, 2014

The rights of use related to the 880.1-890.1 MHz/925.1-935.1 MHz and 1710.1-1722.7 MHz/1805.1-1817.7 frequency bands may be exerted, after having obtained the authorization documents, starting with April 6, 2014.

The rights of use related to the 890-915 MHz/935-960 MHz and 1722.7-1747.5 MHz/1817.7-1842.5 MHz frequency bands were extended until December 31, 2012, on condition that a license fee is paid to the state budget.