The new Telecommunications Act: a selection of new developments

The Official Journal of Spain of 29 June 2022 publishes the Telecommunications Act 11/2022 of 28 June and the Supplementary Telecommunications and Judiciary Amendment Act 5/2022 of 28 June.

The following is a summary of the main developments:

1. Extension of the scope of application to new services. The main new development in this regard is the inclusion of interpersonal communications services independent of numbering (services such as whatsapp or telegram that allow messages to be sent and calls to be made without directly using public telephone numbering resources, without prejudice to the use of these numbers to identify the user). However, the obligations of the providers of these services are not identical to those of others. In particular, they are only required to notify the Register of Operators of their activity for purely statistical and census purposes.

Correlatively, they are not subject to the payment of the operator general fee (Annex I.1). On a transitional basis, operators that are already providing this type of services independent of the numbering available to the public have a period of two months from the entry into force of the law (30 June 2022) to notify the Register of Operators (21st Additional Provision).

2. Elimination of restrictions on network and infrastructure deployment. The new law raises the force of the provisions on new generation networks. Thus, it maintains the main aspects already contained in Royal Decree 330/2016, of 9 September, on measures to reduce the cost of deploying high-speed electronic communications networks, transposing Directive 2014/61/EU, of 15 May 2014, which also remains in force as an implementing regulation. Furthermore, in order to promote the efficient deployment of networks, devices such as geographic studies (Art. 48) or co-investment (Arts. 19 and 20) are introduced, which may be taken into account in the scope of market analyses and which involve the assumption of binding commitments for operators, non-compliance with which may be sanctioned by the competent general government.

In this line of promoting the deployment of new networks, the general government is obliged to ensure that local planning provides for the necessary provision of telecommunications infrastructure and to enable a rapid procedure for resolving requests for occupation, which may not exceed four months from the date of submission of the application, except in the case of expropriation.

For their part, the general government shall grant or refuse permits, authorisations or licences relating to the civil work necessary to deploy elements of high or very high-capacity public electronic communications networks within three months from the date of receipt of the complete application (cf. Art. 49).

3. Information obligations in relation to networks. In line with the objective of facilitating the deployment of networks, the Ministry of Economic Affairs and Digital Transformation shall set up and manage a single point of information on existing infrastructure capable of hosting high and very high-capacity electronic communications networks (Art. 52(13)).

On the other hand, owners and managers of internet exchange points (IXP) are required to notify the Ministry of Economic Affairs and Digital Transformation of the installation or operation of such internet exchange points located in Spanish territory, in order to be able to know and analyse the global management and transmission capacity of all electronic communications traffic originating, transiting or arriving in Spain. Similarly, owners and managers of submarine cables whose connection, access or interconnection to electronic communications networks takes place in Spanish territory are required to notify the aforementioned ministry of the installation or operation of such submarine cables. In both cases, the notification must be made within two months of the entry into force of the law (30 June 2022) (Arts. 6(8) and 6(9) and Additional Provisions 22 and 23).

4. Extension of the terms of concessions of the right to use the publicly-owned radioelectric spectrum. The minimum and maximum terms of concessions of the non-shared use of the publicly-owned radioelectric spectrum with a limitation on the number of licences are extended, whereby these concessions will have a minimum term of twenty years and may have a maximum term, if the maximum extension term is granted, of up to forty years (Art. 94(2)). Licences of use of the publicly-owned radioelectric spectrum granted prior to the entry into force of the law are automatically adapted to the legal regime under the law, with the exception of their term, which will be that set out in the original licences or their amendments. However, licences of non-shared use of the publicly-owned radioelectric spectrum with a limitation on the number of licences granted by means of tendering procedures and which continue to be granted with a limitation on the number of licences may have their duration extended up to a total period of forty years, including extensions and amendments (2nd Transitional Provision).

5. Introduction of the concept of "dynamic markets" for the purposes of market analysis and the imposition of ex ante obligations. As in the past, the Spanish Markets and Competition Authority (“CNMC”) will periodically analyse the relevant markets defined in the law and, where appropriate, impose specific obligations on operators classified as having significant market power (Arts. 15 to 17). In general, this analysis will take place every five years, although the concept of "dynamic markets" is introduced (those in which technological advances and end-user demand patterns may evolve more rapidly), which must in any case be reviewed by the CNMC every three years.

6. Reduction of the scope of application of the operators' general fee. Only operators with annual gross revenues equal to or greater than one million euros as a result of the provision of networks or electronic communications services will be subject to this fee. For this purpose, operators must report annual gross revenues by 30 June of the following year.

After the controversy that arose in the passage of the law, finally, those engaged in the provision of interpersonal electronic communications services independent of numbering are not taxable persons for the operators' general fee.

7. Reduction of universal service provisions. Universal service provisions are reduced to fixed telephony service and Internet connection from a fixed location at 10 Mbit per second downstream, with a possible extension to 30 Mbit per second, allowing, among others, access to e-mail services, search, e-government, e-mail, social networks or standard-quality video calls. In addition, there is an obligation to ensure that all operators offer these services at affordable prices to the most vulnerable users, and the obligation to offer these options or rate packages may be exceptionally imposed on the operator or operators obliged to provide a universal service.

On this point, it should be noted that the thirtieth additional provision obliges the government to develop appropriate measures in order to achieve, within one year of the entry into force of the law, the universalisation of broadband internet access at a minimum speed of 100 Mbit per second downstream.

8. Recognition of new user rights and regulation of "packaged contracts". Among the list of rights, the following changes stand out:

- The right for bills for electronic communications services not to include third-party services (Art. 65(1)(n)).

- The right to be informed about the best offers at least once a year; the right to a concise and easy-to-read contract summary and the right to have cost control mechanisms.

- The right to the provision of means to monitor and control the use of services.

- New right to keep a number for one month; to portability within one working day and to loss of service as a result of portability within one working day.

- The right not to receive unwanted commercial calls, unless there is prior consent from the user to receive this type of commercial communications. However, the entry into force of this provision is postponed until 30 June 2023 (6th Final Provision).