ElectronicCommunicationsDirectives

19 December 2003

Heidi Ström and Per Franke

The Swedish Electronic Communications Act 2003 entered into force on the required implementation date, 25th July 2003. This article summarises comprehensively the new rules on authorisations, significant market power, interconnection and network access, spectrum licensing and trading, universal service provision and privacy and data protection in the electronic communications field.

The Electronic Communications Act

The Directives of the new regulatory framework were implemented in Sweden through the adoption of the Electronic Communications Act (2003:389) (“The e-Com Act”), which entered into force on 25th July 2003. The e-Com Act replaced the Telecommunications Act and the Radio Communications Act.

The e-Com Act applies to electronic communications networks and services as well as to associated facilities, services and other radio use. However, the e-Com Act is not applicable to content transmitted in electronic communications networks through electronic communications services.

The Regulatory Authority for electronic communications is, as before, the Swedish National Post and Telecom Agency (“PTS”). An operator who conducts electronic communications activities covered by the e-Com Act is obliged, upon PTS’ request, to provide PTS with information for PTS’ assessment of applications for licences to use radio transmitters or numbers, and for comparative overviews of quality and price for the benefit of consumers, statistical purposes, market analyses and decisions on special obligations.

Notification Obligation

There is a general obligation under the e-Com Act to notify PTS of the commercial supply of (i) public communications networks; and (ii) publicly available electronic communications services. Operators that have already submitted a notification under the rules of the Telecommunications Act do not have to make a new notification.

Operations that merely consist of the conveyance of signals by wire for transmission to the general public of sound, radio, television programmes or other similar transmissions, are exempted from the notification obligation.

PTS has the power to lay down regulations on further exemptions from the obligation to notify.

Notification Fee

The notification fee under the e-Com Act is related to the annual turnover of the operator. If the operator has an annual turnover of less than SEK 5,000,000 for the operations covered by the notification, the operator is obliged to pay a one-time notification fee of SEK 1,000. If the operator has an annual turnover of more than SEK 5,000,000 for the operations covered by the notification, the annual fee will be 0.157 per cent of such annual turnover.

Licence Requirement

Under the e-Com Act, the use of (i) radio transmitters; and (ii) numbers from a national numbering plan require an individual licence. Double licence applications apply to transmissions of sound, radio and TV programmes to the general public since such transmissions also require a licence under the Radio and Television Act (1996:844).

A coherent frequency plan for the country shall be available. PTS shall approve applications for a radio licence if the radio use constitutes efficient use of the frequency spectrum. PTS may limit the number of licences awarded in a frequency spectrum if this is necessary to guarantee efficient use of radio frequencies. If the frequency spectrum is limited, licences shall be awarded following a public invitation to tender, unless the radio use mainly concerns the transmission of radio programmes or the like to the general public, concerns private use, or shall exclusively be operated to safeguard public order and safety. Licences shall be awarded either subsequent to a comparative selection process (“beauty contest”), a competitive bidding process, whereby the price the applicant is prepared to pay for the licence shall be the deciding factor (“auction”), or a combination of these.

A licence to use a radio transmitter shall refer to a specific radio use. PTS may combine the licence with conditions relating to frequency spectrum, type of service or network, antenna-type, geographical areas for mobile transmissions, or the obligation to share spectrum etc.

PTS shall announce a decision on a licence to use radio transmitters within six weeks of having received a complete application. Decisions on a licence to use numbers shall normally be announced within three weeks. However, if the licence is to be awarded subsequent to a public tendering process, this period may be extended by a maximum of eight months.

The e-Com Act allows for transfers of licences or parts thereof. However, the transfer of a licence is only valid following PTS’ permission, which shall be granted provided that there is no reason to assume that the transfer will impede competition and no other substantial reason against it.

Licence Fee

There is an application fee to apply for a radio or number licence that shall be awarded after a public invitation to tender.

The licence fees for radio licences are calculated individually. Among the factors that decide the licensing fee for radio transmitters are the facilities concerned.

There is at present no licence fee for a licence to use numbers from the national numbering plan.

Data Protection

-General

Unless otherwise stipulated in the e-Com Act, the Personal Data Act (1998:204) applies to the processing of personal data in communications networks and to the provision of subscription data. The general rule of Personal Data Act provides that personal data may only be processed following the consent of the individual concerned. However, the e-Com Act contains some exceptions to this general rule, e.g. as regards storage effected with the sole purpose of improving the efficiency of further conveyance to other recipients (“caching”).

“Cookies”

The e-Com Act has adopted an opt-in approach as regards “cookies”. Electronic communication networks may be used to store or gain access to information that is stored in the subscriber’s or user’s terminal equipment only if the subscriber or user receives information from the controller of personal data about the purpose of the processing and is given an opportunity to impede such processing. This shall, however, not prevent such storage or access which is required to perform and facilitate the transfer of electronic messages via an electronic communications network or which is necessary to provide a service that the user or subscriber has expressly requested.

Public Directories

Individuals shall be provided with the opportunity of deciding whether, and which, personal data shall be included in a public directory, or a directory from which data can be obtained via a subscriber information service. The individual shall have the right, free of charge, to check the data, have incorrect data rectified and have data removed from a directory.

Location Data

Location data which is not traffic data, e.g. position data from satellites, which concerns individuals or subscribers, may be processed only if (i) the location data has been made anonymous; or (ii) the individual/subscriber has consented to the processing.

Significant Market Power

Location data which is not traffic data, e.g. position data from satellites, which concerns individuals or subscribers, may be processed only if (i) the location data has been made anonymous; or (ii) the individual/subscriber has consented to the processing.

Interconnection and Other Forms of Access

The general interconnection obligation of the Telecommunications Act, particularly for fixed telephony and mobile telecommunications services, has ceased.

The e-Com Act contains a general obligation to negotiate. Thus, an operator of a public communications network shall be obliged to negotiate on interconnection with an operator who supplies or intends to supply publicly available electronic communications services. If however, the parties fail to agree, PTS has the authority, subject to certain preconditions, to create obligations regarding interconnection and other forms of access.

Local Loop Access

PTS may oblige an operator to allow others access to his local loop. An instruction by PTS referring to access to that part of a public network between a main distribution frame, or equivalent facility, and the subscriber’s fixed network connection point shall, if the network consist of twisted metallic pairs, be combined with an obligation to publish a reference offer.

Remuneration Issues

Under the e-Com Act, PTS may oblige operators that control access to interconnect and to take other actions required to ensure that end-users can connect to each other. PTS may further oblige operators to provide co-location or access to infrastructure if this is required to protect the environment, public health, public safety, or to achieve objectives for physical planning. All of the above shall be made for a remuneration at market rates.

Operators with SMP status may be obliged to provide interconnection or other forms of access on cost-oriented conditions.

Universal Services

The e-Com Act provides for the following services as universal services: (i) supply of a connection to the publicly available telephone network and access to telephony services to a fixed location (which allows access to the internet); (ii) a public directory; (iii) directory enquiry services; (iv) the supply of public payphones; and (v) special measures for end-users with disabilities.

PTS may oblige an appropriate operator to supply a universal service if the market does not in itself satisfy the need for such a service. The services shall be provided at affordable prices.

Dispute Resolution

If a dispute arises between providers of electronic communication networks or electronic communication services concerning obligations under the Electronic Communications Act, PTS shall, at the request of a party, settle the dispute. PTS shall under normal circumstances issue a ruling on the dispute within four months. PTS may, if deemed appropriate, refer the dispute to a mediator paid for by the parties.

Most decisions taken by PTS in accordance with the e-Com Act may be appealed by the concerned party in an administrative district court, effectively the Stockholm Administrative Court.


Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.