Lex Mundi Telecommunications Regulation Multi-Jurisdictional Survey

Transcription

1 Lex Mundi Telecommunications Regulation Multi-Jurisdictional Survey CONTACT INFORMATION Mr. J.F.A. Doeleman Houthoff Buruma N.V. P.O. Box AM AMSTERDAM NETHERLANDS 1. What is the name and nature of the regulatory body(ies) in your jurisdiction? To which bodies (if any) are decisions appealed? The Dutch regulator for the telecommunications industry is the Dutch Telecom and Post Authority (Onafhankelijke Post en Telecomunicatie Autoriteit, OPTA). The specific regulator for frequency matters is the Radio Communications Agency Netherlands (Agentschap Telecom, AT) and for privacy matters the specific regulator is the Dutch Data Protection Authority (College Bescherming Persoonsgegevens, CPB). 2. Has your jurisdiction adopted the WTO Basic Telecommunications Agreement? If yes, with what exceptions, if any? Yes, as a Member State of the European Community and therefore without exceptions. 3. Are operators in your jurisdiction privately or publicly/state owned? All operators in the Netherlands are privately owned.

2 4. What are the primary differences between the regulation of wire line, wireless, satellite, cable and VoIP providers? The Dutch Telecommunications Act (Telecommunicatiewet, Tw) applies to wireline, wireless, cable and voip providers. In principle the same rules apply to all providers, however the obligations imposed on operators may differ per sector and per operator. Extra rules apply for operators that make use of frequencies (including satellites). 5. Are broadcasters regulated separately from telecoms? Besides the general telecommunication rules, extra regulation concerning (mandatory) content apllies to broadcasters of television. 6. How are satellite earth stations and submarine cable landings regulated? For the use of satellites and submarine cable landings licenses from the Ministry of Economic Affairs are required. 7. How is the radio spectrum generally regulated? The Minister of Economic Affairs can restrict the amount of spectrum that he assigns to an operator, can set rules for the way in which he assigns the spectrum (auction, beauty contest etc.) and can impose restrictions on the conditions of the use of frequencies. 8. Are any operators granted exclusivity? No, except for operators that have been granted frequencies for the provision of a specfic service (e.g. DTT). 9. Are anti-competitive practices subject to regulation or general competition (e.g., antitrust) laws? Both. Telecommunications regulation provides for sector specific ex ante regulation. However, the ex post general competition laws always apply. 10. What services have been liberalized or designated as competitive services? All Telecommunications services have been liberalized.

3 11. Are there regulated tariffs or price lists? If so, for what types of services? Yes. OPTA may impose maximum tariffs for universal services (article Tw). Furthermore OPTA can impose tariff regulation on operators with a significant market power (article 6a.2 Tw). 12. Are there restrictions on foreign investment in any types of communications companies? If so, what are the restrictions? No. 13. What are the approval processes for mergers and acquisitions? Do these vary by type of operator? With regard to mergers and acquisitions the general competition law rules apply. If - in the preceding year - at least of two of the companies concerned had a turnover of 30 million Euros each, and their cumulated turnover was at least million Euros, an ex ante approval of the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, NMa) is required. If the transaction has a Community dimension, this approval has to be given by the European Commission. No specific rules apply for telecommunications operators. However, if one or more of the concerned companies hold frequency-licenses additional rules may apply. 14. Is interconnection between carriers mandatory? No, except for the general obligation for providers to enter into negotiations regarding interconnection between end-users upon request (article 6.1 Tw). However, with regard to operators with significant market power OPTA may impose an interconnection obligation. 15. Are interconnection fees/rates regulated? Some interconnection fees are regulated by OPTA, for instance mobile and fixed termination rates. Regulation of interconnection fees is only possible for companies that have significant market power. 16. Must carriers make available network components to competitors? If so, what are fees/prices based on cost, or market rates? Obligations are imposed on the incumbent, KPN. Fees are based on costs.

4 17. Is there an obligation to serve all customers? If yes, is there a fund to subsidize eligible carriers? Which carriers contribute to the fund? Which carriers are eligible to receive these funds? Are broadband services subsidized or otherwise promoted through tax or other incentives? There is only an obligation for the incumbent, KPN, to serve all households with fixed line telephony. There are no funds to subsidize KPN for this. Broadband services are not subsidized. However, recentely an amendment to the Tw has been proposed to allow municipalities to invest - based on the market investor principles - in fiber to the home networks. 18. Are there mandatory requirements to customer agreements (subscriptions, etc.)? Yes. Chapter 7 of the Tw concerns with the interests of end-users. Obligations are imposed on (i) the information provided in the general terms and conditions and (ii) the provisions regarding the termination of customer contracts. 19. Are there any general or telecommunication specific requirements as to data retention? Following general data protection rules personal data may not be stored for a longer period than is necessary for achieving the purposes for which the personal data were collected or subsequently processed. The CBP has rendered some guidelines for certain categories of personal data. With regard to telecommunications law, specific rules apply. As per 1 September 2009 providers are obliged to store traffic data for one year. It is expected that this period will be reduced to half a year in the near future. 20. Is number portability mandatory? If so, for which types of carriers (e.g., wireline, wireless, voice over internet protocol)? Yes. See chapter 4 of the Tw. This obligation applies to all carriers, including Voice over IP, if numbers from the National Numbering Plan are being used. 21. Is equal access dialing selection mandatory? If yes, for which types of carriers? Yes, but only for fixed lines. 22. Is access or other contributions ( ADCs ) required of new entrants? No, however, OPTA may impose obligations on operators with significant market power. Furthermore new entrants have to notify with OPTA.

5 23. Is VoIP regulated? If yes, to what extent? The Tw applies to all public electronic communications networks and services, including VoIP. Only PC to PC VoIP services are excluded. 24. Are any major changes to telecommunications laws expected in the near future? Adjustments of the rules concerning the use of frequencies are expected in the next years (net neutrality etc). 25. Is resale of telecom services permitted? If yes, is this activity regulated? What is the process to become a reseller? Are foreign companies permitted to be resellers? Yes. If resellers hold their own network elements (and e.g. provide their own termination services) obligations may be imposed if the service provider of virtual operator holds significant market power.