Telecom Industry under the State of Emergency – Measures and Effects
In the current context of COVID-19 epidemic, President of Romania issued Decree No. 195/2020 on the declaration of the state of emergency on the territory of Romania, published in the Official Journal of Romania, Part I, No. 212/16.03.2020 (the “Decree”), with effect for a period of 30 days as of its publication, which can be further extended.
The Decree imposes many emergency measures, either with a direct and immediate effect or that may be further implemented gradually by the authorities, depending on the evolution of the epidemic. The telecom industry is no less impacted by such measures, including as consequence of the fact that people are more and more forced to use distance communications means that will inevitably lead to a significant increase of the voice and data traffic via electronic communications networks.
Telecom players are estimating a traffic increase by up to 50% through communications networks during this period, given the increasing implementation of distance work, the movement of school and university courses in the online environment and the significant growth of the online entertainment activities. Under these conditions, it is also expected that the traffic that is usually running within a private network will rather run over the public networks.
On the other hand, ANCOM already transmitted to the most important telephony and internet operators an alert to prepare to take all the necessary and possible measures to avoid and solve the possible congestions or interruptions of voice and / or voice traffic data.
Obligations to ensure the continuity of the services
Article 13 of the Decree provides that the authorities will take measures aimed to ensure the continuity of all services of public utility. Although one may argue that electronic communications services are not considered services of public utility because they are not included in the exhaustive list of services of public utility provided by Law no. 51/2006 on the community services of public utilities (which is the general legal framework regulating the services of public utility in Romania), given the state of emergency context, electronic communications services can be treated as services of public utility on the grounds of Government Emergency Ordinance No. 1/1999 on the state of emergency and state of siege (“GEO No. 1/1999”).
More particularly, GEO No. 1/1999 provides that the public authorities and the economic operators which provide services of public utility in the fields of energy, health, agriculture and food, water supply, communications and transport shall ensure the continuity of the essential services provision for the population and for the defense forces.
Nevertheless, irrespective of the measures that may be taken by the authorities under the state of emergency, the providers of electronic communications networks and services are bound pursuant to the secondary legislation applicable in the field of electronic communications by specific obligations related to the continuity of the services, such as:
ANCOM Decision No. 512 / 2013 on establishing the minimum security requirements to be taken by the providers of public electronic communications networks or of publicly available electronic communications services and on reporting incidents with significant impact:
- to take all the necessary security measures to manage the risks to the integrity of the electronic communications networks and services, in order to guarantee the integrity of the networks and to ensure the continuity of the provision of services through these networks and, where appropriate, by co-operating with other providers to implement these measures;
- to establish a strategy for ensuring the continuity of the provision of electronic communications networks and services in the event of serious disruption of the network or service operation;
- to establish capabilities for implementing the continuity strategy and establish continuity and recovery plans.
Decision no. 987/2012 regarding the general authorization regime for the provision of electronic communications networks and services:
- during the situations generated by the occurrence of a natural calamity, a disaster or a particularly serious accident, to take all measures to ensure the integrity of the networks and the continuity of the provision of electronic communications services, as well as to enable the communication between the public authorities responsible for organizing the defense against disasters, in accordance with the applicable law in the field.
Potential price control in telecom industry
Article 15 of the Decree establishes that, throughout the duration of the state of emergency, the prices for the services of public utility can be capped within the limit of the average price from the last 3 months before declaring the state of emergency.
In the context of the state of emergency and the extended interpretation of the meaning given to services of public utility as detailed before, one may not exclude a potential direct applicability of such measures on the prices charged by the providers of electronic communications services and networks.
False information and content on COVID-19
Unfortunately, the current crisis situation has also led to the dissemination of false / deceptive information in the mass-media and in the online environment mainly regarding the evolution of COVID-19 or allegedly benefic prevention and remedy measures against the virus. Due to the negative impact of such online behavior, the Decree sets some attributions for ANCOM with the aim to prevent the spread of false information and content.
Thus, the providers of hosting services and the content providers may be compelled by ANCOM to immediately cease the transmission via the electronic communications network or the hosting of the said content, by removing it from the source. Where this is not feasible or such providers are not from Romania, ANCOM may order the providers of public electronic communications networks to immediately block the access to that content of the users from Romania.
While ANCOM does not have competence to identify and establish the false nature of such content, this task rests with the Strategic Communication Group and the Ministry of Internal Affairs.
From a practical perspective, the first option for ANCOM to order the providers of hosting services and the content providers to cease the transmission or the hosting of such content is rather unlikely to be successfully implemented, whereas majority of such providers are not under the jurisdiction of our national law, and, moreover, ANCOM does not keep records of such content providers which would allow an easy identification and monitoring.