GCR. Telecoms and Media. An overview of regulation in 48 jurisdictions worldwide. Contributing editors: Laurent Garzaniti and Natasha Good

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1 GCR GLOBAL COMPETITION REVIEW Telecoms and Media An overview of regulation in 48 jurisdictions worldwide Contributing editors: Laurent Garzaniti and Natasha Good 2011 Published by Getting the Deal Through in association with: Acedo Santamarina SC Al Kamel Law Office Barretto Ferreira, Kujawski e Brancher Sociedade de Advogados (BKBG) BLP Abogados Bowman Gilfillan Inc Carey y Cía Ltda Cocalis & Psarras Coelho Ribeiro e Associados Coulson Harney Drakopoulos Law Firm Drew & Napier LLC Freshfields Bruckhaus Deringer Harris Kyriakides LLC J J Roca & Asociados Lenz & Staehelin Mannheimer Swartling Matheson Ormsby Prentice Mintz Levin Cohn Ferris Glovsky & Popeo PC Moreno Baldivieso Estudio de Abogados Oentoeng Suria & Partners Penev LLP Pradhan & Associates Seth Dua & Associates Stikeman Elliott LLP Sycip Salazar Hernandez & Gatmaitan The National Broadcasting and Telecommunications Commission of Thailand Udo Udoma & Belo-Osagie Webb Henderson Wierzbowski Eversheds Wong Jin Nee & Teo YangMing Partners Yulchon, Attorneys at Law Zang, Bergel & Viñes Abogados

2 contents Telecoms and Media 2011 Contributing editors: Laurent Garzaniti and Natasha Good Freshfields Bruckhaus Deringer Business development managers Alan Lee George Ingledew Robyn Hetherington Dan White Marketing managers Ellie Notley Sarah Walsh Sarah Savage Marketing assistants Alice Hazard William Bentley Subscriptions manager Nadine Radcliffe GettingTheDealThrough.com Assistant editor Adam Myers Editorial assistants Nina Nowak Lydia Gerges Senior production editor Jonathan Cowie Chief subeditor Jonathan Allen Senior subeditor Kathryn Smuland Subeditors Chloe Harries Davet Hyland Editor-in-chief Callum Campbell Publisher Richard Davey Telecoms and Media 2011 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: Fax: Law Business Research Ltd 2011 No photocopying: copyright licences do not apply. ISSN The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of April 2011, be advised that this is a developing area. Printed and distributed by Encompass Print Solutions Tel: Law Business Research Overview Laurent Garzaniti, Natasha Good and Ben Graham Freshfields Bruckhaus Deringer 3 Argentina Pablo Crescimbeni and Maria Laura Barbosa Zang, Bergel & Viñes Abogados 7 Australia Angus Henderson, Jessica Gurevich and Chris Taylor Webb Henderson 16 Austria Bertram Burtscher Freshfields Bruckhaus Deringer 28 Belgium Laurent Garzaniti, Hein Hobbelen, Vincent Mussche and Valérie Lefever Freshfields Bruckhaus Deringer 39 Bolivia Andrés Moreno Gutiérrez and Daniel Arredondo Zelada Moreno Baldivieso Estudio de Abogados 51 Brazil Ricardo Barretto Ferreira and Fabio Ferreira Kujawski Barretto Ferreira, Kujawski e Brancher Sociedade de Advogados (BKBG) 57 Bulgaria Sergey Penev and Svilena Raltcheva Penev LLP 65 Canada David B Elder Stikeman Elliott LLP 75 Chile Alfonso Silva Cubillos and Eduardo Martin Cuadrado Carey y Cía Ltda 85 China Connie Carnabuci and Mark Parsons Freshfields Bruckhaus Deringer 97 Costa Rica Eduardo Calderon, Luis Ortiz, Esteban Alfaro, José Monge and Gloriana Alvarado BLP Abogados 113 Cyprus Michalis Kyriakides and Asrin Daoudi Harris Kyriakides LLC 118 Dominican Republic Sharin Pablo de Roca, Yumari Torres and Deborah Guzmán J J Roca & Asociados 126 Egypt Mohamed Hashish Al Kamel Law Office 133 European Union Laurent Garzaniti, Thomas Janssens and Matthew O Regan Freshfields Bruckhaus Deringer 141 France Jérôme Philippe and Aude-Charlotte Guyon Freshfields Bruckhaus Deringer 168 Germany Norbert Nolte and Annegret König Freshfields Bruckhaus Deringer 182 Greece Alkiviades Psarras and Vassilis Gavrilis Cocalis & Psarras 193 Hong Kong Connie Carnabuci and Mark Parsons Freshfields Bruckhaus Deringer 202 India Atul Dua, Rahul Goel and Anu Monga Seth Dua & Associates 219 Indonesia Noor Meurling, Toby Grainger and Alwin Redfordi Oentoeng Suria & Partners 228 Ireland Helen Kelly, Nina Cummins and Ciara Treacy Matheson Ormsby Prentice 236 Italy Tommaso Salonico and Luca Ulissi Freshfields Bruckhaus Deringer 257 Japan James Wood, Mariko Kobayashi and Takeshi Nakao Freshfields Bruckhaus Deringer 269 Kenya Richard Harney and Kenneth Njuguna Coulson Harney 279 Korea Hee-Woong Yoon, Kum-Ju Son, Seung-Hyuck Han, Kyu-Hyun Kim and Sangwook Daniel Han Yulchon, Attorneys at Law 287 Luxembourg Stéphan Le Goueff, Hervé Wolff and Guillaume Gelle 300 Malaysia Wong Jin Nee and Chong Tze Lin Wong Jin Nee & Teo 307 Mexico Andrés Acedo M and Emmanuel A Cárdenas R Acedo Santamarina SC 318 Nepal Devendra Pradhan Pradhan & Associates 326 Netherlands Onno Brouwer, Winfred Knibbeler and Nima Lorjé Freshfields Bruckhaus Deringer 335 New Zealand Malcolm Webb and Edward Willis Webb Henderson 344 Nigeria Myma Belo-Osagie and Jumoke Lambo Udo Udoma & Belo-Osagie 352 Philippines Rose Marie M King-Dominguez, Ruben P Acebedo II and Franco G Larcina Sycip Salazar Hernandez & Gatmaitan 363 Poland Arwid Mednis, Bożena Marciniak and Artur Salbert Wierzbowski Eversheds 370 Portugal Jaime Medeiros and Mónica Oliveira Costa Coelho Ribeiro e Associados 381 Romania Adrian Roseti and Marina Dranga Drakopoulos Law Firm 391 Russia Igor Gerber, Roman Churakov and Maxim Osadchiy Freshfields Bruckhaus Deringer 398 Saudi Arabia Gerald Steinke Freshfields Bruckhaus Deringer 416 Singapore Chong Kin Lim and Wei Hao Loh Drew & Napier LLC 425 South Africa Daniel Pretorius, Livia Dyer and Claire Franklyn Bowman Gilfillan Inc 444 Spain Francisco Cantos, Soledad Gómez and Alejandro Milá Freshfields Bruckhaus Deringer 454 Sweden Biörn Riese, Martin Gynnerstedt and Mikael Moreira Mannheimer Swartling 466 Switzerland Marcel Meinhardt, Astrid Waser and Judith Bischof Lenz & Staehelin 475 Taiwan Robert C Lee and Lisa Lin YangMing Partners 484 Thailand Sudharma Yoonaidharma The National Broadcasting and Telecommunications Commission of Thailand 492 United Kingdom Rod Carlton, Mark Sansom, Manish Das and Olivia Cook Freshfields Bruckhaus Deringer 500 United States Bruce D Sokler and Robert G Kidwell Mintz Levin Cohn Ferris Glovsky & Popeo PC 517 Quick Reference Tables 526

3 Zang Bergel & Viñes Abogados argentina Argentina Pablo Crescimbeni and Maria Laura Barbosa Zang, Bergel & Viñes Abogados Communications policy 1 Policy Summarise the regulatory framework for the telecoms and media sector. What is the policymaking procedure? The Argentine Telecoms Market is mainly open and flexible. Private investment is fostered; equality and free trade in telecommunications industry are granted. The opening of telecommunications market to competition has resulted in a wide variety of services available to consumers, an increase in productivity due to greater access to information and technology, and promotion of economic development for the benefit of the community in general. Telecoms policy is regulated by the federal government through laws of Congress. These laws are then regulated and applied through Executive Orders issued by the administration. The regulatory agencies (see question 44) are in charge of the detailed application and control of the compliance with telecoms policy. The Audiovisual Communications Services Act # 26,522 (ACSA) was enacted on October 2009, which modified the policy for the telecoms and media. Such enactment was subject to a regulation process during the first semester of 2010 and derived in the enactment of the Decree 1225/2010 which regulated the ACSA and defined the telecoms and media framework. 2 Convergence Has the telecoms-specific regulation been amended to take account of the convergence of telecoms, media and IT? Are there different legal definitions of telecoms and media? With regard to the convergence of telecoms, media and IT ( Triple Play, as known in Argentina), there are currently several companies around the country that offer these services in the market and there are many companies that are trying to obtain the authorisation from the control entity with the aim of performing this kind of service and expanding their activities. The two major telephone companies in Argentina (Telefónica and Telecom) are not allowed to grant these services because of the bidding specifications by which the telephone market was privatised (among others, section 7.1.1, chapter VII, Decree 62/90 sets forth that the only corporate purpose of these companies is the provision of public telecommunication services, except for broadcasting services). Therefore, although these companies have invested in the technical and physical elements necessary to provide Triple Play services, they are waiting for a change in the legislation to compete in this new industry. Telecoms and broadcasting are regulated separately by the Telecommunications Law 19,798, its Regulatory Decree 764/2000, and by the ACSA, which derogated the previous Broadcasting Act 22,285 (BA), respectively, and its Regulatory Decree 1225/2010. The bill of the ACSA did include the telephone companies into those which were entitled to provide Triple Play services. However, after a long lasting debate, it was decided to exclude these companies from the ACSA. Therefore, the ACSA, not only exclude the telephone companies as public service providers but also sets forth in section 25, d, that: a shareholder of over 10 per cent of the stock of a company which has a licence, concession, or permit to provide a municipal, provincial or national public service can not be the licensee of audio-visual services. Furthermore, the licences of direct satellite broadcast and the licences of mobile broadcast have as a granting and continuance condition to not be accumulated with licences of other services of different nature or class, such as telecommunications licences (section 46, ACSA). Therefore, it could be said that although the ACSA has incorporated several features related to convergence and new technologies, it does not fully take into account the convergence of telecoms, media and IT. According to Decree 764/2000, telecommunications means: Every transmission, emission or reception of signs, signals, written material, images, sounds or information of any nature whatsoever through wire, radio electricity, optical means or other electromagnetic systems. As defined in section 4 of the ACSA, Audio-visual Communication means the cultural activity whose editorial responsibility corresponds to a provider of audio-visual services, or producer of signals or content whose main objective is to provide programs or content with the aim to inform, entertain or educate the audience through electronic communication nets. It also defines broadcast as the emission of radio communications to be directly received by the general public. The definition also includes certain complementary services (ie, MSO, DTH). The ACSA incorporates in its new definition all new media platforms, the public interest that this activity entails and the incorporation of new technologies that were not mentioned in the previous BA to promote digital literacy and reduce the technological gap. 3 Broadcasting sector Is broadcasting regulated separately from telecoms? If so, how? The broadcasting sector had been regulated separately from telecoms. Telecoms are regulated by Law 19,798 from Since 1980, the broadcasting sector had been governed by the BA, Decree 286/81 and the corresponding regulations issued thereby. However, on 10 October 2009 the Congress enacted the ACSA which derogated the BA, and aimed to broaden the reach of the law by including new technologies. This Act has been regulated by Decree 1225 enacted on August, 2010 and before that, by certain decrees which were issued regarding the constitution of a new control authority: Autoridad Federal de Servicios de Comunicación Audio-visual (AFSCA), which replaces the Comité Federal de Radiodifusión (COMFER), and regulations aimed at achieving an inventory of current licences. Notwithstanding the foregoing, when matters are related to strict compliance with technical matters, the National Communications

4 argentina Zang Bergel & Viñes Abogados Commission (Comisión Nacional de Comunicaciones, the CNC) has jurisdiction over the broadcasting sector. In addition, as per Decree 1225/2010, the ACSA and the CNC will have to create a Joint Permanent Regulatory Commitee with the aim of drawing up and updating the technical standards that regulate the activities as well as approving the technical projects of the broadcasting stations. Nevertheless, there is a subsidiary application of the Telecommunications Law in certain matters, such as the reference for definitions. Telecoms regulation general 4 WTO Basic Telecommunications Agreement Has your jurisdiction committed to the WTO Basic Telecommunications Agreement and, if so, with what exceptions? On 23 December 1994, Argentina enacted Law 24,425, approving the Final Law of the results of the Uruguay Round of the Marrakech Agreement. On 1 July 1998, Argentina enacted Law 25,000 approving the incorporation of the Fourth Annexed Protocol to the General Agreement on Trade in Services (GATS). Argentina exempted section II of the GATS (Concessions on a Most-Favoured-Nation Basis) for the Telecommunications Services, aiming to foster the development of domestic satellite systems. In accordance with the wording of this exception, the provision of satellite facilities from the geostationary satellites that operate in the fixed satellite service shall be authorised provided reciprocity exists. 5 Public/private ownership What proportion of any telecoms operator is owned by the state or private enterprise? Telefónica and Telecom Argentina are the telecommunications incumbents. Both companies were publicly traded companies, listing their stocks both in the New York Stock Exchange (NYSE) and the Buenos Aires Stock Exchange (BSE) and their capital was 100 per cent privately owned. This situation changed due to the nationalisation of pension funds in Argentina, promoted by the Argentine government in As a consequence, the Anses (a public entity) became a shareholder of different companies (formerly in the pension funds portfolios) including those in this industry. However, in Telefónica s case, after the acquisition of the 100 per cent of the capital stock by its parent company on January 2010, the stocks of Telefónica were delisted from the NYSE and BSE and, consequently, it became a private company. In Telecom s case, the Integrated Social Security System in Argentina owns approximately 21 per cent of TELECOM stock (according to the latest financial statements published by Telecom in the Securities Commission) and the Anses has appointed its own directors on the company board according to its holdings. 6 Foreign ownership Do foreign ownership restrictions apply to authorisation to provide telecoms services? There are no foreign ownership restrictions applicable to the authorisation to provide any telecoms services. Pursuant to section 4, subsection 7 of annexe I of Decree 764/2000, no restriction whatsoever is set forth for the participation of foreign capitals in the provision of telecommunication services. Decree 764/2000 also provides that foreign companies shall evidence compliance with the provisions of section 118 of the Companies Law 19,550 and with the corresponding regulations issued thereby. Thus, foreign companies must comply with certain registration requirements, but there is no obligation to form a local company specifically for the provision of the services or to establish Argentina as the principal place of business of the foreign company. Aside from the authorisation required by the AFSCA or SC, as the case may be, some transactions must be authorised by the antitrust authority. (see also section 52). 7 Fixed, mobile and satellite services Comparatively, how are fixed, mobile and satellite services regulated? Under what conditions may public telephone services be provided? All kinds of telecommunications services (including fixed, mobile and satellite services) are governed by the telecoms regulatory framework in accordance with the Telecommunications Law 19,798, as well as all the corresponding regulations issued thereby. Specific regulations issued by the CNC and by the Communications Secretariat (SC) are also applicable to these services. In Argentina, telephone services are considered a public utility. As a consequence, every provider that offers fixed or mobile telephone services, or internet services, shall comply with the provisions set forth in connection with the development of the Universal Service (as defined in Decree 764/2000). However, there are some exceptions to this general principle. Universal services comprise a group of telecommunications services that shall be provided with a given quality and at affordable prices, regardless of the geographic location. Pursuant to Decree 764/2000, amended by Decree 558/2008 (substituting the General Regulations for the Universal Service Scheme), universal service is defined as a dynamic concept. Therefore, its meaning and content shall be periodically reviewed. At present, the definition of universal service only includes the fulfilment of basic telephone needs to be performed by the providers. The Resolution 9/2011 issued by the Communications Secretariat (SC) sets forth that the telecommunications companies could assign or allocate the outstanding debt (accrued from 2000 to 2008) derived from the Universal Services contribution (pursuant to Decree 558/2008 that it is equal to 1% of the net incomes to be paid to a trustee fund) to the development of new investment projects for uncovered services areas. 8 Satellite facilities and submarine cables In addition to the requirements under question 7, do other rules apply to the establishment and operation of satellite earth station facilities and the landing of submarine cables? The establishment and operation of a satellite earth station facility must be previously authorised by the CNC. Any person who wishes to establish a satellite earth station facility shall inform the CNC on the specific use to be given to such facility as well as on the kind of licence that person holds (eg, telecommunications licence, broadcasting licence). The establishment of satellite earth station facilities is regulated by Resolution 1913/95 issued by the former National Commission of Telecommunications (currently the CNC). The authorisation for the operation of satellite earth station facilities is ruled by the Resolution 3,609/99 issued by the SC. No specific rules and regulations exist concerning the landing of submarine cables, except for the general scope given by the United Nations Convention on the Law of the Sea (ratified by the Argentinian Congress on 17 October 1995 by Act 24,543, which displays, among other things, the right of each state to set their submarine cables beyond their continental shelf (section 112), always taking into consideration the respect towards already set cables or tubes (section 79)). However, pursuant to section 7, annexe I of Decree 764/2000, in the event that a company establishes landing infrastructure and rents it to third parties, the lessor must hold a telecommunications service licence. Finally, any company that establishes submarine cable landing infrastructure shall comply with administrative, municipal and general rules and regulations in connection with all the necessary authorisations. Environmental impact regulations must also be complied with. Getting the Deal Through Telecoms and Media 2011

5 Zang Bergel & Viñes Abogados argentina 9 Universal service obligations and financing Are there any universal service obligations? How is provision of these services financed? Annexe III of Decree 764/00, amended by Decree 558/08, regulates the universal service obligations. The provisions of these services are financed by the telecommunication services providers by paying 1 per cent of their total income after taxes and contributions, plus any donations. These amounts are administered by a fiduciary fund created to this effect. (see question7) 10 Operator exclusivity and limits on licence numbers Are there any services granted exclusively to one operator or for which there are only a limited number of licences? If so, how long do such entitlements last? At present, there is no exclusivity for any telecoms operator in Argentina. Up to 1989, the Argentine state was the sole provider of telecoms services through the State Company of Telecommunications (ENTel). In 1989, ENTel was privatised, and divided into two providers: Telecom Argentina SA and Telefónica de Argentina SA. These two companies were granted a period of temporary exclusivity (of up to 10 years). At the end of 2000, Decree 764/2000 was passed and market deregulation was finally achieved. Therefore, Argentina was able to comply with its commitments pursuant to the Fourth Annexeed Protocol of the GATS. On the other hand, the audio-visual services are not granted exclusively to one operator either. However, the ACSA sets forth a more restrictive number of licences and a shorter duration for such licences for instance, the duration of the broadcasting licences is for 10 years, subject to one-time renewal for the same term. Moreover, the AFSCA has the obligation to revise the requirements of the licences every two years with the authority to take those licences away in case of non-compliance. 11 Structural or functional separation Is there a legal basis for requiring structural or functional separation between an operator s network and service activities? Has structural or functional separation been introduced or is it being contemplated? Structural separation has not been regulated in Argentina so far. However, pursuant to Decree 764/2000, the SC was empowered to revise and eventually void this kind of agreement every time it violates principles of free competition or it is detrimental to users. Although there are precedents that allow this behaviour, this type of agreement could be considered anti-competitive behaviour in accordance with Law 25,156, enabling users to file complaints with the Antitrust National Commission. 12 Number portability Is number portability across networks possible? If so, is it obligatory? In accordance with section 30.2 of the Regulatory Decree 764/00, number portability is a right to the user and telecommunications providers are obliged to grant number portability whenever the user: changes from a fixed telephone provider; changes from a mobile phone provider; changes the provider for intelligent net services; and plus other services that may be added by the control authority. The SC enacted Resolution 98/2010 on 18 August This Resolution sets forth the implementation of number portability over the telecom services and the provider s obligation to grant the foregoing right to their clients. Resolution 98/2010 was complemented by Joint Resolution 3-8/2011 issued by the SC and the Secretariat of Internal Commerce which established a schedule to perform and develop number portability with a due date in December Authorisation timescale Are licences or other authorisations required? How long does the licensing authority take to grant such licences or authorisations? Pursuant to Decree 764/2000, the SC shall grant licences within a period that shall never exceed 60 days. In the event that the petitioner is required to provide further information or documentation, such term may be extended. The extended period shall count as of the date of effective submission of the required information or documentation. In practice, the process of obtaining a licence lasts approximately four to six months. 14 Licence duration What is the normal duration of licences? Licences are granted on an open-regime basis, subject to no discrimination whatsoever and on demand (subject to availability). Pursuant to section 4 of Decree 764/2000, licences are granted without a time limit. 15 Fees What fees are payable for each type of authorisation? The ULTS is a single licence that authorises the provision to the general public of any kind of telecommunications service (fixed or mobile, wired or wireless, domestic or international), regardless of the possession of infrastructure. Licences are valid in all the national territory. Pursuant to section 15 of annexe I of Decree 764/2000, in the event a licence is requested, an application fee of 5,000 pesos shall be paid. The licensee shall also pay a control and verification fee that amounts to 0.5 per cent of the total annual revenue derived from the provision of services, free of taxes and fees. In the event that the provision of the telecommunications service requires the use of RF frequencies, the corresponding authorisation or permit for the use of such frequencies shall be required. Pursuant to Resolution 10/95 (issued by the former Secretariat of Energy, Transport and Communications), certain fees shall be paid to use the radio electrical spectrum. These fees vary depending on the spectrum width used by each provider. Those fees are expressed in radio electrical appraisal units (RAU), a rate that is used to update amounts. At present, one RAU amounts to $ Modification and assignment of licence How may licences be modified? Are licences assignable or able to be pledged as security for financing purposes? Once a licence has been granted, if the provider wishes to make any change in the original service to be provided, such change shall be notified to the SC for its registration. This notification shall be made within a period of 30 days before commencement of the provision of the new service. Pursuant to Decree 764/2000, the provider may assign or transfer the licence, prior to the corresponding authorisation given by the SC. This authorisation cannot be denied if the assignor: does not have any debt with the Argentine state in connection with rates, fees and tariffs; has made the provided investments; has fulfilled the commitments made with the Argentine state and the requirements or conditions (or both) that its original licence imposes for the assignment or transfer of such licence, when appropriate; and has obtained, when appropriate, the authorisation for the assignment of the permit for the use of radio frequencies.

6 argentina Zang Bergel & Viñes Abogados The assignee shall submit the information required to obtain a licence and shall state and accept, under sworn statement, that it is informed of and shall comply with all of the assignor s obligations, as regards the licence being assigned. In the event that the SC does not previously authorise the assignment of the licence, it may declare the licence terminated. Regarding the pledging of the licence as a source of financing, in practice shares of the capital stock of corporations that own licences of telecommunications services may be pledged (ie, the licence itself is not pledged but the shares of the licensee are pledged). 17 Retail tariffs Are national retail tariffs regulated? If so, which operators tariffs are regulated and how? Incumbent providers are subject to maximum tariffs with respect to fixed telecoms services. For all other services, either the incumbent or any other provider is free to fix prices according to the services they provide. 18 Customer terms and conditions Must customer terms and conditions be filed with, or approved by, the regulator or other body? Are customer terms and conditions subject to specific rules? The CNC is entitled to revise the terms and conditions of the contracts executed by and between clients and providers. Pursuant to SC Resolution 490/97 (section 26), mobile service providers shall submit before the CNC the sample contracts to be executed with their clients. Terms and provisions that do not comply with such resolution shall be deemed null and void. 19 Next-generation networks How are next-generation networks (NGN) regulated? Next generation networks have not been regulated per se. However, these networks must comply with the regulations applicable to each of the services that the NGN provides (fixed and mobile telephone services and the internet). The ACSA delegates the conditions for the services of mobile television in the Executive Branch (section 65, Act 26,522). 20 Changes to telecoms law Are any major changes planned to the telecoms laws? There is no plan to dramatically change the telecoms framework at present. Telecoms regulation mobile 21 Radio frequency (RF) requirements For wireless services, are radio frequency (RF) licences required in addition to telecoms services authorisations and are they available on a competitive or non-competitive basis? How are RF licences allocated? Do RF licences restrict the use of the licensed spectrum? Both the Unique Licence for Telecommunications Services (ULTS) and the corresponding permit granted by the CNC are needed in order to make use of the radio spectrum. Decree 764/2000 (annexe IV) includes the Regulations on Radio Spectrum (RS) Administration, Management and Control. Pursuant to such regulations, RS is an intangible, scarce and limited resource, the administration of which is a responsibility of the Argentine state that cannot be delegated. Pursuant to section 7, subsection 3 of the Regulations, the demand for RS shall be met through competitive bidding or on demand, equitable distribution criteria being applied and the general interest being preserved. In accordance with the ACSA, the administration of the RS shall be governed by this act through the AFSCA (section 7, Act ). Frequencies shall be assigned within each band, according to the allocations registered in the Table of Frequency Allocations in force. Upon receiving the request for the use of a frequency band, if the necessary requirements have been met, the frequency band that has been requested shall be published in the official gazette. A 15-day period shall be established in order for third parties to be informed of the request and, when appropriate, file a complaint with the applicable authority. The authorisation for the use of a frequency band shall be granted through public auctions in the event that there are more registered parties than frequency bands available for authorisation. If the former provision does not apply, authorisations shall be granted on demand. The authorisations and permits granted for the installation and operation of radio stations, means or systems, as well as the authorisations or permits granted for the use of radio spectrum frequencies, shall not be transferred, assigned or leased, totally or partially, without prior approval of the CNC. In case of a lease, both lesser and lessee must have been granted an authorisation to provide telecommunications services (ie, both parties shall hold the ULTS). 22 Radio spectrum Is there a regulatory framework for the assignment of unused radio spectrum (refarming)? Do RF licences generally specify the permitted use of the licensed spectrum or can RF licences for some spectrum leave the permitted use unrestricted? Radio spectrum is mainly regulated by the Regulations on Radio Spectrum Administration, Management and Control (Decree 764/2000, annexe IV). Because the radio spectrum is an intangible, scarce and limited resource, its use is restrictive. Therefore, RF licences specify the permitted use of the licenced spectrum and its administration is an indelegable task of the state. If this is not respected, the Decree sets forth sanctions, one of them being the cancellation of the authorisation. 23 Spectrum trading Is licensed RF spectrum tradable? In accordance with sections 7 and 41 of the ACSA and section 11 of the Decree 764/2000, a licensed spectrum cannot be traded without the authorisation of the AFSCA or the SC, both entities in charge of administering, allocating, controlling and managing the segments of RS destined for broadcasting and telecoms services, respectively. 24 Mobile virtual network operator (MVNO) and national roaming traffic Are any mobile network operators expressly obliged to carry MVNO or national roaming traffic? In Argentina this type of service does not exist yet. Today, it would be considered as an infrastructure rental in conformity with sections 7 and 8 of annexe 1 of EO 764/ Mobile call termination Does the originating calling party or the receiving party pay for the charges to terminate a call on mobile networks? Is call termination regulated, and, if so, how? Relationships between providers of mobile services and their clients are ruled by the contracts entered by and between them. Subsidiarily, Resolution 490/97 issued by the SC applies. Pursuant to section 1 of Resolution 263/97, issued by the SC, mobile service providers shall offer their clients the options of Mobile Party Pays (MPP) or Calling Party Pays (CPP). In practice, providers mainly offer the latter. 10 Getting the Deal Through Telecoms and Media 2011

7 Zang Bergel & Viñes Abogados argentina 26 International mobile roaming Are wholesale and retail charges for international mobile roaming regulated? No, they are not regulated. Mobile service providers, however, shall file monthly reports of their service plans and charges with the Competition and Consumer Defence Sub-Secretariat (SsDC). 27 Next-generation mobile services Is there any regulation for the roll-out of 3G, 3.5G or 4G mobile services? The specific roll-out of third-generation mobile services has not been regulated yet. Telecoms regulation fixed infrastructure 28 Cable networks Is ownership of cable networks, in particular by telecoms operators, restricted? Pursuant to the ACSA, the following restrictions are applicable to cable networks: paid TV licences shall be limited in number and in the percentage of market shares; the maximum number of licences owned by one person will be 24; the suitability and the experience in the industry will be taken into consideration for the granting of a licence. Those who have been part of a military government will be excluded from the possibility of owning a licence; and there is an obligation to reserve 33 per cent of the radio spectrum for non-profit entities; and telecoms are not allowed to hold audio-visual licences in accordance with section 25(d) of the ACSA, given that it is a requirement in order to be eligible for a licence not to be the holder of 10 per cent of the shares of any company which has a licence, concession or permit to grant a public service. 29 Local loop Is there any specific rule regarding access to the local loop or local loop unbundling? What type of local loop is covered? Pursuant to Decree 764/2000, providers shall provide other providers with an access identical to that offered to clients and users. Pursuant to the regulatory framework in force, providers shall share access infrastructure (if technically viable) in order to guarantee compliance with the free-access principle. 30 Interconnection and access How is interconnection regulated? Can the regulator intervene to resolve disputes between operators? Are wholesale (interconnect) prices controlled and, if so, how? Are wholesale access services regulated, and, if so, how? Interconnection is regulated by the National Interconnection Regulations (NIR) (Decree 764/2000, annexe II). Principles, rules and regulations of Interconnection Agreements between providers are set forth in the NIR. Interconnection shall, in general, be governed by the principles, procedures and provisions of the NIR, and in particular by the Interconnection Agreements executed by and between the parties. The terms and provisions of such agreements shall never be discriminatory and shall never violate the rules and regulations set forth in the NIR. The SC shall have authority to resolve and interpret all matters concerning application of the NIR. The SC has jurisdiction on the conflicts between providers. General principles of the NIR are set forth in section 6. Among other things, providers are free to agree on interconnection prices, terms and conditions. Prices shall be fair, reasonable and non-discriminatory. Agreements shall not state technical conditions impeding or delaying interconnection or making it difficult. Pursuant to the NIR, all providers shall be interconnected; entitled to ask for interconnection, and requested providers shall grant it; entitled to obtain technical or economic conditions equal to those offered to providers requiring similar facilities, regardless of the service they provide; and entitled to establish reciprocal compensations for the origination, transport and termination of communications. Interconnection agreements cannot include provisions that impose on providers discriminatory conditions or prevent providers from freely offering and marketing to other providers the services allowed by interconnection. Interconnection agreements shall be submitted and filed with the SC within 10 days of their execution. Agreements shall also be published in the Official Gazette. As of the date of publication, agreements may be observed by providers or by third parties that can demonstrate their interest. If the 30-day period has expired and observations have not been made, agreements are deemed to have been approved. If agreements have been observed, the dispute shall be solved within a 30-day period once prior notification to the parties concerned has been given. Notwithstanding the foregoing, the SC may require an amendment in the interconnection agreement in the event that its terms and provisions do not comply with the rules and regulations in force. Telecoms regulation internet services 31 Internet services How are internet services, including voice over the internet, regulated? Decree 764/2000 regarding telecommunications regulation applies to the provision of internet services. However, the government neither controls nor regulates the information available on the internet. Some specific issues regarding the subject are regulated separately by Decree 1279/97, which seeks to ensure that internet content is not subject to control that would make it discordant with the freedom of speech principle enshrined in the Argentine Constitution. In addition, software is protected under the Intellectual Property Law 11,723. The Consumer Protection Law 26,361 is applicable to goods and services offered through the internet. The Personal Data Protection Law 25,326 is also applicable to the internet. There is no regulation regarding voice over the internet so far. 32 Internet service provision Are there limits on an internet service provider s freedom to control or prioritise the type or source of data that it delivers? As mentioned above, the internet service providers have a generic limit related to the Personal Data Protection Law 25,326, but this matter has not been specifically legislated on yet. 33 Financing of broadband and NGA networks Is there a government financial scheme to promote broadband penetration? The EO enacted Decree 512/2009 on 5 May 2009 to start up the Strategy of Digital Agenda for the Republic of Argentina. The purpose of such a decree was for the improvement, development and coordination of the Information and Communication Technologies and their incorporation and expansion in society as a whole. As part of this project, the EO issued Decree 1552/2010 creating the National Telecommunications Plan Argentina Connected, having as its main objectives the digital inclusion, the radio spectrum optimization, the development of Universal Service, the research in communications technologies and the promotion of competition. 11

8 argentina Zang Bergel & Viñes Abogados Media regulation 34 Ownership restrictions Is the ownership or control of broadcasters restricted? May foreign investors participate in broadcasting activities in your jurisdiction? Pursuant to section 25 of the ACSA, broadcast licences shall be granted to individuals (Argentine citizens) or companies duly incorporated in Argentina. Likewise, the broadcasting licensee s stock shall not have any corporate affiliation or relationship with, or be under control of, any foreign broadcasting or media companies; they can not issue stock or bonds that grants the participation of third parties in the corporate will; and the companies must be able to evidence where the funds have come from. Moreover, pursuant to section 29 of the ACSA and the Preservation and Conservation of Cultural Goods Law, 25,750, enacted in June 2003, the participation of foreign investors in communication media companies in Argentina, (including among other media companies as defined in Law 25,750 the broadcasting licensees), is limited to 30 per cent of the media company voting stock. Nevertheless, pursuant to section 2 of Law 25,750, this percentage may be higher if the investors in media companies come from countries that have executed reciprocal investment protection treaties with the Republic of Argentina. 35 Cross-ownership Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers? Is there any suggestion of change to regulation of such cross-ownership given the emergence of new media platforms? No restrictions exist in connection with cross-ownership of newspapers, and with radio and television companies. On the other hand, pursuant to section 45 of the ACSA, a company may hold multiple broadcast licences, as follows. Nationally, one company may hold up to: one licence of services on satellite support; ten licences of audio-visual services (radio, air TV, subscription with the use of the spectrum) plus the registration of one content signal; 24 radio or television subscription with physical links licences in different coverage areas provided, however, that the number of licences held does not imply the granting of services to 35 per cent of the population or clients that subscribe to this service. Locally, one company may hold up to: one radio licence; one television licence, as long as the licensee does not hold a complementary service licence; and one complementary service licence (eg, cable or satellite licences), as long as the licensee does not hold a television licence. At all times, the amount of licences held locally can not be more than three. The licences are granted by the AFSCA on the grounds of suitability and compliance with the specifications of the public bidding. The whole process of being granted a broadcast licence may take from eight to 18 months with the prior proceeding from the previous control authority. 37 Foreign programmes and local content requirements Are there any regulations concerning the broadcasting of foreignproduced programmes? Do the rules require a minimum amount of local content? What types of media are outside of this regime? The ACSA sets forth in its section 65, that air television must broadcast at least 60 per cent of the local content and at least 30 per cent self produced including local news shows; also, 50 per cent of children programmes aired must be nationally produced. Paid television must include a minimum of one signal of local production for each licence held. Furthermore, section 67 of the ASCA establishes that air television must broadcast at least eight national movies per year in order to encourage national film production. In practice, broadcast channels exhibit all their programming in Spanish (as its original language) or dubbed into Spanish. Cable and satellite operators air their programming in their original language, dubbed into Spanish or subtitled, as the case may be. 38 Advertising How is broadcast media advertising regulated? Is online advertising subject to the same regulation? The ACSA sets forth, as a general principle, that television licensees may exhibit up to 12 minutes of advertising per hour of transmission, and paid television licensees up to eight minutes. In addition, although the broadcast legal framework tends to be open, certain restrictions exist such as public health, advertisements for children, the protection of the language and avoidance of subliminal messages, among others. The ACSA has created a new register for advertisement companies. All the companies that are not registered may not be hired by broadcasting companies for the production of advertisements. Pursuant to Decree 1225/2010, section 82, the advertisement s contracting shall be subject to the provisions of Law (Consumers Act) and Law (Antitrust Law). 39 Must-carry obligations Are there regulations specifying a basic package of programmes that must be carried by operators broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations? Complementary service licensees shall include in their programming free-to-air television signals of the primary area of service. Pursuant to section 74/76 of the ACSA, licensees shall broadcast certain announcements that may be deemed relevant to the community in general. Such announcements shall be determined by the executive branch on a restrictive basis (eg, emergency situations). 36 Licensing requirements What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations? Pursuant to section 32 of ACSA, in order to be granted a licence a company must: be legally constituted inside the country; not be linked to, or be a subsidiary or branch of, any foreign broadcasting company; not hold 10 per cent or more of the stock of a company that provides any public service. 40 Changes to the broadcasting laws Are there any changes planned to the broadcasting laws? In particular, do the regulations relating to traditional broadcast activities also apply to broadcasting to mobile devices or are there specific rules for those services? The ACSA was enacted in 2009 and introduced certain modifications to the broadcasting market that were detailed in this report. As a consequence of the enactment of the ACSA, further regulations may be issued in the short term. In accordance with section 65 of the ACSA broadcasting through mobile devices will be regulated by the executive branch opportunely. At present, such regulation has not been issued. 12 Getting the Deal Through Telecoms and Media 2011

9 Zang Bergel & Viñes Abogados argentina 41 Regulation of new media content Is new media content and its delivery regulated differently from traditional broadcast media? How? The online content is not yet regulated by a specific law, and is not clearly developed in the ACSA. 42 Digital switchover When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated? The EO 1148/2009 creates the Argentinian Digital System (SATVD- T) based on the ISDB-T system, after signing several agreements with Brazil and Japan. There is a 10-year period foreseen for this system to be implemented and analogue TV to be abandoned, which started in the city of Buenos Aires last year. 43 Digital formats Does regulation restrict how broadcasters can use their spectrum (multichannelling, high definition, data services)? Pursuant to section 93 of the ACSA, the broadcasters shall maintain their rights and obligations granted by their licence during the transition period between the analogical and digital system, as long as the content that they broadcast remains the same. According to Decree 1148/2009, which created the Argentinian Digital Terrestrial Television System and Decree 364/2010, which established the procedure and technical support to implement the digital terrestrial television system, the transition period from analogical to digital formats was established as ten years as of September As a consequence of the foregoing, the Republic of Argentina has been going through a migration system process during which the licensees and authorised providers that operate non-satellite digital services, fixed or mobile should keep a portion of the transport capacity of the assigned radio frequency or radio channel, for the broadcasting defined as universal scope by the EO. Considering that the aforesaid regulations tend to the incorporation of new technologies and the expansion of new segments in the radio spectrum, it should allow the incorporation of new broadcasters providers. Regulatory agencies 44 Regulatory agencies Which body or bodies regulate the communications sector? Is the telecoms regulator separate from the broadcasting regulator? Telecoms and Broadcasting services are supervised and regulated by separate agencies. The SC, CNC and Technical Coordination Secretariat (SCT; currently the Secretariat for Internal Commerce (SCI)), reporting to the Ministry of Economy and Finance, are the three basic institutions in charge of the application of telecommunications policies. The SC, reporting to the Ministry of Federal Planning, Public Investment and Services, assists the executive branch in the development, proposal and execution of policies in telecoms matters, supervising its performance and proposing regulations; enacts regulations concerning telecoms users rights and obligations; grants licences to the providers; and coordinates the execution of policies in telecoms matters set by the executive branch. The CNC -which replaced the former National Telecommunications Commission- was created by Decree 660/1996 and controls telecoms, operates as a decentralised governmental agency under the supervision of the SC and manages compliance with the obligations undertaken by each provider. On the other hand, the SCI is in charge of, among other matters, overseeing the operations of telecoms providers to ensure that antitrust law is effectively complied with. In addition, telecoms users complaints shall be filed with the SsDC but are sent to the CNC, which has jurisdiction to solve them. The broadcasting sector is supervised by the AFSCA, an independent agency reporting directly to the executive branch. Notwithstanding this, some technical proceedings shall be filed with the CNC. AFSCA issues television and radio operating licences to providers and monitors and enforces the broadcast contents. 45 Establishment of regulatory agencies How is each regulator established and to what extent is it independent of network operators, service providers and government? Telecoms regulatory agencies were established by Decree 245/96 (SC) and Decree 1185/90 (CNC). The SC is currently under the scope of the Federal Planning, Public Investments and Services Ministry. Broadcasting regulatory agency -ACSCA- was established by Law and Decree 1525/2009. The ACSCA is currently under the scope of the Executive Office. Regulatory agencies are independent from network operators and service providers. 46 Appeal procedure How can decisions of the regulators be challenged and on what bases? Decisions of the AFSCA, the CNC and the SC can be challenged or appealed by several administrative proceedings set forth mainly in the Administrative Proceedings Law 19,549 and its regulatory Decree 1759/72, as well as by judicial proceedings. As a general principle, the appellant may choose to file the appeal through administrative or judicial proceedings depending on the circumstances; however, resolutions of the SC must be appealed before the minister of federal planning, public investments and services in order to exhaust the administrative proceedings before filing a judicial claim. 47 Interception and data protection Do any special rules require operators to assist government in certain conditions to intercept telecommunications messages? Explain the interaction between interception and data protection and privacy laws. Pursuant to section 18 of the Telecommunications Law 19,798, the telecommunications correspondence is private and such privacy shall not be violated. The interception shall only be ordered by a competent judge. Law 25,873 was regulated by EO 1563/04 until the issuance of EO 357/05, which suspended the application of such EO, which sets forth that the personal data of the users must be available to the secretary of intelligence of the state and the provider of the services must obtain the respective resources and keep them confidential. In the leading case Halabi, Ernesto c/pen, the Supreme Court settled that these provisions were infringing sections 18 and 19 of the Argentine constitution, which preserves the citizen s right to intimacy and privacy when authorising the interception of internet and telephone communications without any given cause. Pursuant to the National Intelligence Law 25,520, in the event that interception of private calls is needed, the corresponding judicial authorisation shall be requested. Section 45 bis of Law 19,798 (as amended) sets forth the obligations of providers regarding the interception of communications. Thus, providers shall have all the necessary resources (including specific hardware and software) in order to intercept and derive the broadcasted communications in the event that either the judicial branch or the prosecutors requires them. All the expenses incurred in the fulfilment of these obligations shall be exclusively borne by providers. Providers shall also record the communications made by clients, as well as clients personal information. This information may be 13

10 argentina Zang Bergel & Viñes Abogados consulted by either the judicial branch or the prosecutors, and shall be kept for 10 years. Recent precedents have declared the unconstitutionality of the aforementioned obligation. In the event a conflict of jurisdiction among authorities arises, governmental bodies often seek the advice of the National Attorney General s Office, pursuant to Law 12,954, section Data retention and disclosure obligations What are the obligations for operators and service providers to retain customer data? What are the corresponding disclosure obligations? Will they be compensated for their efforts? See question Unsolicited communications Does regulation prohibit unsolicited communications? Are there exceptions to the prohibition? The matter has not been regulated nationally yet. Pursuant to Resolution 338/2001, the SC has adopted a proceeding in order to draft a Bill in connection with the Regulatory Framework of Advertising Communications by . In addition, certain institutions and entities have been invited to collaborate with the draft, such as lawyer s associations, software companies and universities, among others. However, the Bill has not been enacted yet. In addition, a judgment (dated April 2006) by a first instance court has held spam as illegal. The cause of this judgment was a habeas data case brought by two lawyers in These lawyers petitioned that their personal data be removed from a company s database. This judicial decision became a precedent in spam matters in Argentina. Furthermore, the City of Buenos Aires has enacted Law 2014, which enables the inscription of telephone (either fixed or mobile) owners to register their number in order to avoid being offered goods or services by companies by phone. Competition and merger control 50 Competition and telecoms and broadcasting regulation What is the scope of the general competition authority and the sectoral regulators in the telecoms, broadcasting and new media sectors? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation? Are there special rules for this sector and how do competition regulators handle the interaction of old and new media? See question 44 for the respective scope of jurisdiction of each of the governmental agencies mentioned. There is no specific mechanism to ensure the consistent application of competition and sector-specific regulations. 51 Competition law in the telecoms and broadcasting sectors Are anti-competitive practices in these sectors controlled by regulation or general competition law? Which regulator controls these practices? Antitrust practices in telecoms and broadcasting sectors are regulated by the Antitrust Law 25,156, but also by the resolutions of the SC that include provisions on antitrust issues. Antitrust Law is applicable to any public or private company, to individuals, to profit-pursuing organisations and to non-profit pursuing organisations developing economic activities throughout the Argentine territory. The Antitrust Law is also applicable to the same persons when they perform such economic activities abroad, insofar as their acts, activities or agreements may produce an effect on the national market. The SCI controls antitrust practices, and the CNDC carries on the proceedings. 52 Jurisdictional thresholds for review What are the jurisdictional thresholds and substantive tests for regulatory or competition law review of telecoms sector mergers, acquisitions and joint ventures? Do these differ for transactions in the broadcasting and new media sectors? In addition to rules and regulations set forth in Decree 764/2000, the Antitrust Law is applicable. Pursuant to section 1 of the Antitrust Law, acts and behaviours that are related to the manufacture or interchange of services and goods shall be forbidden if such acts or behaviours are intended to limit, restrict, simulate or distort either competition or access to the market; or constitute an abuse of a dominant position. According to the Antitrust Law, section 6, economic concentration means: company mergers; transfer of ongoing concerns; acquisition of ownership of capital stock or bonds that may allow the purchaser to influence the issuer s decisions; or any law whatsoever that transfers to a person or to a holding the assets of a company, or that grants any strategic influence on the financial decision-making processes of a company. Pursuant to section 7 of the Antitrust Law, economic concentrations intended to restrict or distort competition, resulting in harm to the general interest, are forbidden. Section 8 of the Antitrust Law sets forth that all acts mentioned in section 6 shall be notified to the Court of Competition Defence(TDC) for their analysis and authorisation, if necessary when the total Pablo Crescimbeni Maria Laura Barbosa Florida 537, 18th Floor Tel: C1005AAK Buenos Aires Fax: Argentina 14 Getting the Deal Through Telecoms and Media 2011

11 Zang Bergel & Viñes Abogados argentina amount of the volume of business of the affected holding exceeds 200 million pesos. Although the Antitrust Law has provided for the formation of the TDC, it has not been constituted yet. Until the formal creation of the TDC, the National Antitrust Commission (CNDC) has temporary jurisdiction on these matters. The CNDC reports to the SCI and comprises one president and four voting members. This lack of constitution has created many conflicts of competence. 53 Merger control authorities Which regulatory or competition authorities are responsible for the review of mergers, acquisitions and joint ventures in the telecoms, broadcasting and new media sectors? See question Procedure and timescale What are the procedures and associated timescales for review and approval of telecoms and broadcasting mergers, acquisitions and joint ventures? As explained in question 51, anti-competitive practices in telecoms and broadcasting sectors are regulated by the Antitrust Law. This law sets forth special proceedings for mergers and acquisitions. As a general principle, mergers and acquisitions shall be notified to the TDC or CNDC (until the TDC is created) when the total business volume exceeds a certain threshold. The TDC or CNDC shall resolve within 45 days of the filing of the notification and respective documentation. If this term expires and the TDC or CNDC has not notified its decision, the merger or acquisition shall be considered as tacitly approved. If a merger or acquisition implies regulated economic activities by a regulatory agency, the TDC or CNDC is compelled to request an opinion from the regulatory agency before a decision is made. The regulatory agency shall issue its opinion within 90 days. 15

12 Annual volumes published on: Air Transport Anti-Corruption Regulation Arbitration Banking Regulation Cartel Regulation Climate Regulation Construction Copyright Corporate Governance Dispute Resolution Dominance e-commerce Electricity Regulation Environment Franchise Gas Regulation Insurance & Reinsurance Intellectual Property & Antitrust Labour & Employment Licensing Life Sciences Merger Control Mergers & Acquisitions Mining Oil Regulation Patents Pharmaceutical Antitrust Private Antitrust Litigation Private Equity Product Liability Product Recall Project Finance Public Procurement Real Estate Restructuring & Insolvency Right of Publicity Securities Finance Shipping Tax on Inbound Investment Telecoms and Media Trademarks Vertical Agreements For more information or to purchase books, please visit: The Official Research Partner of the International Bar Association Strategic research partners of the ABA International section Telecoms and Media 2011 issn

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