25 July 2003

Fredrik Malm

The Electronic Communications Act replaces the old Telecommunications Act and the old Radio Communications Act. The transition from the old provisions to the new Electronic Communications Act is being effected by special transitional provisions – so that some injunctions, prohibitions and other decisions on obligations under the Telecommunications Act will continue to be in force for a transitional period. Notifications made under the Telecommunications Act will be deemed to serve as notifications under the Electronic Communications Act.

The Electronic Communications Act creates a general obligation to provide notification of activities involving the provision of public communications networks and publicly available communications services. The use of radio frequencies and numbers or addresses from the national numbering and addressing plan will require a special licence.

The main objectives underlying the rules are that market based operators satisfy the private and public network needs of consumers and for an effectively competitive marketplace to become established. The new Act therefore only contains a limited number of general obligations for an operator who is active in the communications market, subject to a notification obligation. Generally, the Act specifies a number of duties that a competent authority can decide to impose, based on the circumstances of each individual case. It is also possible, in conjunction with the grant of licences, to prescribe special conditions in order, for example, to protect the needs of the end-user. The rules for universal services have been structured in a corresponding way. The Act also contains new provisions on resolution of disputes between private parties.

The proposal involves an extension of the notification duty in relation to the old Telecommunications Act. For the first time, Internet Service Providers and those providing broadcasting networks are also subject to the new notification duty. In return, the requirements regarding a telecommunications licence are repealed. The double licence duty applicable for mobile telephony under the old Telecommunications Act and the old Radio Communications Act will thereby come to an end.

Further, a double procedure is retained for broadcasting of radio and television programmes to the public. Such broadcasts will therefore continue to require a licence under the Radio and Television Act.

The Electronic Communications Act limits the number of licences that may be granted to use specific radio frequencies, where this is necessary in order to safeguard efficient use of radio frequencies. In such cases, a licence should normally be granted following an open invitation to apply. The basis for consideration of the licences should either be a comparative selection procedure (so-called ‘beauty contest’), or a tender procedure whereby the price that an applicant is prepared to pay for the licence shall be decisive (auction), or a combination of these procedures.

Another new provision in the Electronic Communications Act is the introduction of spectrum trading, albeit in a form which requires the consent of the licensing authority. Consent shall be granted subject to, among other things, the precondition that there is no reason to assume that the transfer will have a negative impact on competition.

The authority appointed by the Government is required to conduct annual market reviews and consider imposition of appropriate obligations based on the findings.

In the Telecommunications Act there was a general interconnection obligation for those who provide telecommunications services which were subject to a notification duty, in particular fixed telephony and mobile telecommunications services. This interconnection obligation will no longer exist under the Electronic Communications Act and is replaced by a general obligation to negotiate on interconnection. The purpose is that other forms of access will be achieved primarily through voluntary agreements concluded on a commercial basis. However, if this fails, the Act provides powers, subject to certain preconditions, to introduce special obligations regarding interconnection and other forms of access.