General and individual authorizations under new Law on Electronic Communications - International Law Office

International Law Office

Telecommunications - Albania

General and individual authorizations under new Law on Electronic Communications

February 24 2010

Introduction
General authorization
Individual authorization
Comment


Introduction

The Law on Electronic Communications (9918/2008) aims to promote competition and provide efficient infrastructure and proper and adequate services by upholding the principle of technological neutrality in electronic communications.

Parties can provide e-communication services and construct e-communication networks in accordance with the law, as well as other relevant regulations. From a regulatory perspective, the issuance of the authorizations is principally administered by the Authority for Electronic and Postal Communications,(1) the Ministry of Public Works, Transport and Telecommunications and the National Radio and Television Council.

General authorization

The provision of e-communication networks and services is no longer subject to the licensing regime that existed under the former telecommunications law, but is now subject to an authorization regime.

No authorization is needed in cases where such networks and services are not used for profit-making purposes and are not publicly available, but are for private or internal use by institutions.

General authorization forms part of the legal framework established by the law and authority regulations.(2) It secures the right to provide e-communication networks or services and sets out obligations for the provision of specific types of e-communication network and service.

Authorization to provide e-communication networks and services is granted through notification where the provision does not require the use of restricted natural resources and after notification where the provision requires the use of such resources (Article 13.3).

Under the law, a general authorization holder is entitled to: (i) negotiate for interconnection and where applicable to obtain access to other communication networks and services that are available to the public, in compliance with the provisions of the law; and (ii) provide special services under the universal service scheme for certain areas of Albania.

General authorization regulates, among other things:

  • the financial contribution to the universal service;
  • the interoperability of services and the interconnection of networks;
  • the availability and use of numbers from the Numbering Plan by end users;
  • the protection of personal data and privacy;
  • information submitted during the procedure for granting the right to use restricted resources (eg, frequencies and numbering);
  • the protection of public communication networks from unauthorized access; and
  • the use of frequencies by ensuring effective use of the frequency spectrum and preventing harmful interference.

Hence, parties that intend to offer e-communication networks or services for profit-making purposes must notify the authority before commencing operations, implementing changes(3) or ceasing to provide such services.

Notification must be made in writing and contain:

  • the service and/or network provider's name and address;
  • information on the legal status of the provider's registration;
  • the details of a contact person;
  • a short description of the network or service; and
  • the date of commencement of, changes to or cessation of activities.

Notification must be accompanied by a declaration that the information provided is accurate and that the party will comply with and implement applicable legal requirements.

The authority has a database of operators and service providers, which is available to the public to ensure proper consultation. The authority registers operators or service providers in the database within 15 days of receipt of notification and provides written confirmation of registration.

The authority can revoke rights and amend the terms of authorization and procedures after carrying out a public consultation where such action is justified, in accordance with the principle of proportionality.

Such action is justified in order to:

  • account for changes to the facts upon which the specific rights, conditions and procedures of a general authorization are based;
  • satisfy the commitments of international organizations; and
  • maintain national security.

Individual authorization

Natural persons or legal entities may use radio frequencies only with the authority's authorization, according to the provisions of the law and the Individual Authorization Regulation approved by Decision 510/2008.

Parties that wish to obtain the right to use such frequencies(4) for the purposes of carrying out their activities must expressly indicate this in the relevant notification to the authority.

The authority issues individual authorizations in accordance with the National Frequencies Plan(5) and the Frequencies Allocation and Exploitation Plan.(6)

In order to obtain an individual authorization an interested party must submit an application to the authority, stating, among other things:

  • the applicant's name and address;
  • relevant registration data;
  • the details of a contact person or persons;
  • the reason for the application; and
  • proposed technical solutions, including:
    • data on the proposed geographical area of exploitation of frequencies;
    • the method used to calculate coverage and a definition of the service area;
    • the type of broadcasting equipment; and
    • information on the antenna system and radio equipment.

The authority can issue an individual authorization within 30 days of receipt of a completed application. It can also refuse to issue an individual authorization in cases where: (i) the applicant has had frequencies revoked during the past five years for infringement; or (ii) the granting of frequencies does not guarantee their efficient exploitation, causes interference with other electronic systems or threatens national security or public order.

The law has introduced a public consultation obligation for the granting of frequencies. The authority must now engage in public consultation with interested parties where the number of parties that are interested in a specific frequency band is higher than the number of available frequencies.

Notification of a public consultation must include:

  • information on the frequencies or frequency band in question;
  • information on the rights of use to be granted;
  • the reasons for the restriction of rights to use such frequencies; and
  • a request(7) that interested parties express an opinion on the market value of the frequencies or frequency band in question.

Where the authority concludes that the level of public interest is higher than the number of frequencies available (and in order to ensure the efficient exploitation of such frequencies), the authority must initiate public tender proceedings,(8) with the approval of the minister.

Frequencies must be granted on a non-discriminatory, transparent and objective basis, and only in cases where:

  • the intended purpose is already envisaged in the National Frequencies Plan and the Frequencies Allocation and Exploitation Plan;
  • such frequencies are free to be exploited; and
  • the applicant can guarantee full compliance with the use of other frequencies and efficient and interference-free exploitation of such frequencies.

An individual authorization includes information on the beneficiary, the frequencies granted for use, the location and area of coverage, the period of validity of the authorization and the legal and technical conditions. Operators must notify the authority of any change to this information within 30 days.

Individual authorizations are issued for a maximum of 15 years, but may be extended in cases where the authorization holder has complied with all obligations at the end of the 15-year term.

Individual authorizations cannot be granted to third parties without the authority's approval. The authority may revoke an individual authorization in cases where:

  • the relevant application contains false data;
  • the authorization holder has failed to exploit the frequencies within one year of obtaining the right to do so or has exploited them for purposes other than those specified in the authorization; or
  • the authorization holder fails to pay the relevant fees or breaches provisions of the law or the terms and conditions of the authorization.

Comment

Parties that construct or use e-communication networks and provide services in Albania must comply not only with the conditions of a general or individual authorization, but also with:

  • relevant regulatory provisions and the legal framework on planning and construction;
  • the legal framework on environmental protection; and
  • technical and regulatory standards for the preservation of public order, human life and health, and national security.

For further information on this topic please contact Enkelejda Muçaj or Sajmir Dautaj at Tonucci & Partners Albania Sh.p.k by telephone (+355 4 2250 711/2), fax (+355 4 2250 713) or email (emucai@tonucci.it) or (sdautaj@tonucci.it).

Endnotes

(1) The Authority for Electronic and Postal Communications is a public, independent, non-commercial regulatory body, which is responsible for supervising the regulatory framework established under the law, as well as the enforcement of other policies developed by the Council of Ministers.

(2) As approved by Decision 495/2008.

(3) The authority must be notified of such changes within 30 days.

(4) Under the law, the radio frequency spectrum is considered a restricted natural resource.

(5) The National Frequencies Plan is a document which stipulates frequency bands for different services and sets the basic conditions for frequency allocation and assignment with the aim of achieving effective use of the radio frequency spectrum and avoiding interference. The authority supervises frequency bands that are allocated for civil purposes, the National Radio and Television Council supervises frequency bands that are allocated to radio and television broadcasting and the Ministry of Defence, the Ministry of Internal Affairs and the State Intelligence Service supervise radio frequency bands that are allocated for government purposes and national defence and civil order.

(6) The authority provides for the publication of the National Frequencies Plan, as well as the relevant terms and conditions of use of frequencies.

(7) A request be must made to the authority within 30 days of notification of consultation.

(8) The tender procedure is regulated by the Council of Ministers Regulation on Tender Procedures for Granting the Right to Use Frequencies (1252/2008).


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