Dutch parliament votes on implementation of NRF package into Dutch law with numerous amendments

22 June 2011

Feyo Sickinghe

On June 22nd, the Dutch parliament voted on several amendments of the Telecommunications Act to implement the revised European telecom directives. Ten amendments and three resolutions were proposed that will have significant impact on the telecommunications markets. An amendment for a broadband connection with minimum speed as part of the universal service was rejected together with a resolution on deep packet inspection in view of net neutrality. The following is a summary of the amendments of the Parliament.

Enhanced obligation for motivating OPTA decisions removed from the Telecommunications Act (15)
OPTA will be no longer under the legal obligation to motivate the consequences of market analysis decisions through a prospective analysis of the qualitative and quantitative impact. The enhanced obligations provided telecom operators with legal means to aim for annulment of the decision in appeal. Recently, several decisions of OPTA market analysis were annulled. The parliament believes that the enhanced obligation impedes OPTA to adequately perform its role as a regulatory authority. Naturally, OPTA is still under the obligation to motivate its decisions.

Prohibition of interception (16)
There is an explicit prohibition for telecom providers for eavesdropping or interception of traffic unless the subscriber has given explicit consent. The amendment will not have major consequences for the consumer.

Resale Obligation (18)
OPTA can impose an access obligation on providers of broadcasting services. OPTA is obliged to impose resale obligation to providers of broadcasting services with significant market power as a mandatory remedy i.e. to provide wholesale offerings to competitors for resale on the basis cost orientated tariffs. There is an exception to this requirement for small broadcast operators with a limited number of users.

Encouraging newcomers to access mobile markets (23)
In the spectrum auction system 2 x 15 MHz must be set aside for new entrants to the mobile telecom market, instead of 2 x 10 MHz with a maximum of 10 MHz per batch. According to the parliament this will create sufficient room for entry of potential new entrants in order to reduce the risk collective significant market power for existing suppliers.

Resolution on net neutrality (24)
A resolution to postpone the transposition of the EU directives into Dutch law upon further discussions on the impact and net neutrality with the European Commission was withdrawn.

Resolution on deep packet inspection (25)
The parliament rejected a motion requesting an overall vision of the Government on deep packet inspection, profiling and device fingerprinting and cookies..

Resolution on cable interference (27)
Cable operators and prospective 800 MHz licensees are called by the Parliament to provide a solution for interference of 4G networks with cable networks before July 2011 to prevent that consumers have to deal with disruption in services over the cable as a result of using the 800 MHz band for electronic communications. To prevent this, the Minister may impose obligations on 800 MHz licensees to prevent interference.

Access to cable (28)
Cable operators are required to offer the subscriber a choice between providers of analogue TV and radio services. The cable provider is obliged to 'must carry' signal to offer for resale to other providers at a cost-oriented rates. On June 23, OPTA will publish a draft market analysis on cable access.

Net neutrality (29 I)
The Netherlands as the first country in Europe has voted for a heavily debated amendment to ensure the right to free access to the Internet in order to prevent telecoms operators to block or charge for over the top services. Telecom service providers may not delay or block services of third parties on their network. The offerings for Internet access providers may be differentiated in terms of bandwidth and data limits. Free Internet access may only be limited (1) to minimize the effects of congestion, (2) for the security or integrity of the network or end user equipment, (3) to block unsolicited commercial communications, such as spam, and (4) in a formal obligation by law or under a court order. As a result, the freedom of providers to differentiate prices will be curtailed.

Per second charging (33)
The consumer will be legally entitled to subscribe to telephony services with per second charging with each operator. If the calls are not charged on seconds, the rate must be comparable to the rate of other offerings of the operator. The scope of this amendment is unclear and will give rise to multiple interpretations in practice.

Broadband Internet as a universal service (36)
The universal service will not be extended to the broadband internet and minimum internet speeds.

Storing and processing cookies (39)
Users of Internet telephony and should always be in control of their own data to decide who is granted the right to use their personal data. For the use of so-called first-party cookies to recognize users or subscribers when visiting websites of financial transactions by service providers, the user needs to provide permission. To place third party cookies and tracking cookies, the user or subscriber needs to provide unambiguous permission. To process sensitive data suitable for monitoring surfing behavior on the internet for example, behavioral advertising, explicit prior permission must be given by the subscriber or user. This will have major implications for the advertising market as it will be difficult in practice for the industry to verify and register whether end users have given consent. Market players will have to look for new ways for targeted marketing.

Internet (40)
internet services providers may only terminate their services (1) upon request of the subscriber, (2) a breach of the payment obligations by the subscriber, (3) in case proven fraud (the burden of proof lies with the provider); (4) if the contract term of the agreement expires and the agreement with the consent of the subscriber is not extended, and (5) by means of the execution of the law or a court order. As a consequence, the contractual freedom of the provider will be significantly reduced.

Filtering of Internet access for ideological purposes(41)
This amendment provides an exception to the principle of net neutrality since it enables the subscriber to choose an Internet subscription blocking certain services (porn, violence and drugs) as of ideological motives. The Dutch Labour Party accidentally voted for the amendment, which would not be accepted without its support. Through acceptance of an additional amendment of the Labor Party, the original amendment will not enter into force

The revisions of the Telecommunications Act are expected to enter into force on January 1st, 2012.

For further information please contact feyo.sickinghe@twobirds.com

Authors

Image of Feyo Sickinghe

Feyo Sickinghe

Of Counsel
Netherlands

Call me on: +31 (0)70 353 8800