Information Communications Technologies (‘ICTs’), offer major transformational opportunities but also give rise to serious threats. Electronic communications law establishes the regulatory framework within which ICTs and actions related to ICTs can be undertaken with legal certainty. Electronic communications can contribute to enhanced productivity, competitiveness, growth, wealth creation, poverty reduction and can spur the knowledge-based economy. ICTs provide the means by which knowledge is developed, stored, aggregated, manipulated and diffused. They also enable participation in, and integration with, the global economy, as well as having a greatly beneficial impact on individuals’ everyday lives. However, these opportunities only materialise fully to the extent that the regulatory framework in place, as implemented within any given country, supports both investment in, and widespread diffusion of, ICTs generally. In the Absence of these conditions, the full promise of ICTs remains unrealised. Thus, ICTs can bring about rapid development, but the opposite is also true: without the appropriate conditions, a rapid slide down the digital divide invariably results.
The foremost requirement for effective ICTs is an efficient and effective electronic communications infrastructure within the country, and apart from the physical infrastructure, electronic communications law frameworks can be crucial in determining the level of competition and the level of investment in a country. Traditionally, government-owned fixed telecommunications infrastructure often needs to be privatised for any real advancement to be achieved, unless there is a firm government commitment to invest in infrastructure maintenance and upgrades and a mechanism that ensures efficiency in a way that replicates the efficiency that comes as a result of competition. Many would agree that these are both very difficult to plan for and implement, so competition remains the easiest way of attaining the socially-beneficial outcomes that privatisation is intended to achieve in the first place. Nonetheless, and in spite of privatisation, a market failure will remain within the market as the operator’s dominant position will persist unless regulation intervenes to save the day.
The principal purpose of regulation is to bring about competition within the electronic communications market. Competition has been demonstrated to bring about improved accessibility and quality of products and services, reduced costs for consumers and innovation. Service-based competition, however, is unlikely to exist without significant infrastructure-based competition. Due to the hefty costs of network roll-out, it was necessary to create regulation which would, inter alia, allow multiple virtual networks to be built on existing physical networks.Reliance on conventional competition (antitrust) laws have been deemed insufficient for this purpose; thus a body of ex ante rules have been conceived in order to induce competition within the electronic communications markets, particularly within the infrastructural markets. Such ex ante regulation, as its name implies, does not wait for an abuse of a market player’s dominant position before intervening – it places obligations on any operator which has Significant Market Power (‘SMP’) within a given, pre-defined market. This kind of regulation mandates access to an SMP operator’s network. Such access could range from interconnection of another operator’s network, to duct/mast access and even full blown use of the SMP operator’s network for the provision of a virtual network by the other (prospective) operator. In addition to access obligations, ex-ante rules can also mandate the application of cost accounting principles and price controls which an SMP operator must observe both from a retail (downstream; to end users) and from a wholesale (upstream; to other operators) perspective. The SMP operator must conduct itself in a transparent and non-discriminatory manner and may be obliged to keep the accounts of various arms of its business separate. Functional and/or structural separation of SMP operators, where part of their offering is the infrastructure, also forms part of the regulatory frameworks of various countries.Regulation of electronic communications is, to some extent global. The International Telecommunication Union (‘ITU’), an agency of the United Nations tasked with ICT matters, manages global spectrum management, assists developing countries to improve telecommunication infrastructure, and contributes in the development and coordination of worldwide technical standards. It is also active in areas including broadband internet, fixed-mobile convergence and next-generation networks.
The ITU electronic communications law instruments (mostly regulations) are generally reflected within regional and national legislation. One example of this is the European Union which regulates the sector through a package of five directives: the Framework Directive (Directive 2002/21/EC), the Authorisation Directive (Directive 2002/20/EC), the Access Directive (Directive 2002/21/EC), the Universal Service Directive (Directive 2002/22/EC) and the Directive on Privacy and Electronic Communications (Directive 2002/58/EC). A new proposal for amendments to the current directives, entitled ‘Connected Continent’, is currently being discussed at EU level. Please see this section for updates in this respect.
In Malta, these directives have been transposed mainly through the Electronic Communications Act (Chapter 399 of the Laws of Malta) and its subsidiary legislation, the Electronic Communications Networks and Services (General) Regulations (Chapter 399.28 of the Laws of Malta).
It is commonplace for countries to require some form of authorization by the State before a person is able provide electronic communications services or to operate electronic communications networks. Traditionally, this form of authorization has been done through individual licensing procedures, where an application is evaluated by the State or a regulatory authority on its behalf, and the main rights, obligations and conditions imposed upon a specific licensee are contained in the license document. This convention, however, began to change on a global level within the electronic communications sector, being widely replaced by general authorization regimes. In general authorization regimes, regulatory conditions apply equally to all service providers of the same class (for example, operators of mobile telecommunications networks). The rationale behind such regimes is that they ensure greater freedom for the provision of electronic communications networks and services as lengthy and/or discretionary procedures are done away with, thus making for a speedier authorization process with limited regulator discretion and more certainty for prospective service providers. The issuing of individual authorizations, however remains a standard principle for authorizing the use of radio spectrum, where the demand for the use of a particular frequency band exceeds availability.
Spectrum management is a fundamental aspect of electronic communications law and policy. There are four main areas of work in spectrum management: planning, engineering, authorization and monitoring. Spectrum planning relates to the allocation of frequencies to specified uses in accordance with international agreements, technical characteristics, potential uses of different parts of the spectrum, and national priorities and policies. Spectrum authorization means the granting of rights of use to a spectrum band in accordance with definite conditions. Spectrum engineering involves the development of standards for equipment that makes use of or emits radio frequencies. Last but not least, spectrum monitoring and compliance relates to the monitoring of the use of the radio spectrum and regulations to constrain unauthorized use.
Electronic communications law also tends to provide rules for ensuring the full participation of all citizens in ICTs. The goal of such legislation is the availability, accessibility and affordability of telephony and the Internet, with increasing consideration of the inclusion of broadband and broadcasting. Methodologies to achieve this aim range from mandatory provision of these services by one or more operators at a prescribed basic level, to obligatory payments into a universal service fund to be used for this specific reason.
The Equinox team is highly specialised and experienced in electronic communications law and the regulation of electronic communications, and has assisted both governments and private operators in their difficulties within this sector.
Equinox offers the following services:
- Advising and assisting governments and authorities to create policies and strategies in line with the country’s specific needs and in accordance with international best practice;
- Assisting with privatisation of government-owned incumbents;
- Drafting of the relevant legislation to bring the said policies and strategies into effect;
- Assisting in the setting up of national regulatory authorities;
- Drafting of guidelines and consultation documents;
- Legal assistance with spectrum management issues, including spectrum auctions and beauty contests;
- Advising private operators of electronic communications networks and services in both ex ante and ex post (antitrust) matters;
- Drafting of agreements, including interconnection, access, co-location and licence agreements, as well as reference interconnection and reference access offers;
- Drafting of terms and conditions for consumers, ensuring these are compliant with relevant law.