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Telecoms and MediaAn overview of regulation in44 jurisdictions worldwide 2013Contributing editors: Laurent Garzaniti and Natasha Good

Published by Getting the Deal Through

in association with:

Barretto Ferreira, Kujawski e Brancher Sociedade de Advogados (BKBG)Bentsi-Enchill, Letsa & Ankomah

BLP AbogadosCarey

Coelho Ribeiro e AssociadosCoulson Harney Advocates

Debarliev, Dameski & Kelesoska Attorneys at LawDjingov, Gouginski, Kyutchukov & Velichkov

Drew & Napier LLCEdward Nathan Sonnenbergs

Freshfields Bruckhaus Deringer LLPGreenberg Traurig SCJJ Roca & Asociados

Lenz & StaehelinMatheson

MJM Barristers & AttorneysNational Regulatory Agency for Electronic

Communications and Information Technology – MoldovaNikolinakos-Lardas Law Firm

Oentoeng Suria & PartnersSchool of Law, University of the

Thai Chamber of CommerceSeth Dua & Associates

Stikeman Elliott LLPStreamsowers & Köhn

SyCip Salazar Hernandez & GatmaitanTelecommunications Regulatory Authority – Bahrain

The Legal CircleWebb Henderson

Wierzbowski EvershedsWiltshire & Grannis LLP

Wong Jin Nee & TeoYangMing Partners

ZBV Abogados

® GCRGLOBAL COMPETITION REVIEW

Contents

www.gettingthedealthrough.com

®

Telecoms and Media 2013Contributing editors Laurent Garzaniti and Natasha Good Freshfields Bruckhaus Deringer LLP

Business development managers Alan Lee George Ingledew Robyn Horsefield Dan White

Marketing assistants Zosia Demkowicz Megan Friedman Cady Atkinson Robin Synnott

Admin assistants Parween Bains Sophie Hickey

Marketing manager (subscriptions)Rachel Nurse [email protected]

Head of editorial production Adam Myers

Production coordinator Lydia Gerges

Senior production editor Jonathan Cowie

Chief subeditor Jonathan Allen

Production editor John Harris

Senior subeditor Caroline Rawson

Subeditor Tim Beaver

Editor-in-chief Callum Campbell

Publisher Richard Davey

Telecoms and Media 2013 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910© Law Business Research Ltd 2013No photocopying: copyright licences do not apply.First published 2000 Fourteenth edition 2013ISSN 1471-0447

The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of March 2013, be advised that this is a developing area.

Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112

LawBusinessResearch

Overview Laurent Garzaniti, Natasha Good and Hein Hobbelen Freshfields Bruckhaus Deringer LLP 3

Acknowledgements for Verifying Content 6

Argentina Pablo Crescimbeni and María Laura Barbosa ZBV Abogados 7

Australia Angus Henderson, Capucine Hague and Tim Quadrio Webb Henderson 16

Austria Bertram Burtscher and Stefan Köck Freshfields Bruckhaus Deringer LLP 30

Bahrain Alexandre Sérot Telecommunications Regulatory Authority – Bahrain 41

Bangladesh Daniah Khandker, Anita Ghazi Rahman, Mohibul Hassan Chowdhury and Sabrina Afroze 49 The Legal Circle

Belgium Laurent Garzaniti, Thomas Janssens, Hein Hobbelen and Anneleen Straetemans 57 Freshfields Bruckhaus Deringer LLP

Bermuda Timothy Frith MJM Barristers & Attorneys 70

Brazil Ricardo Barretto Ferreira and Fabio Ferreira Kujawski 81 Barretto Ferreira, Kujawski e Brancher Sociedade de Advogados (BKBG)

Bulgaria Violetta Kunze and Lilia Kisseva Djingov, Gouginski, Kyutchukov & Velichkov 90

Canada David Elder Stikeman Elliott LLP 101

Chile Alfonso Silva and Eduardo Martin Carey 112

China Mark Parsons, Yang Xun, Victoria White and Longbo Wang Freshfields Bruckhaus Deringer LLP 125

Costa Rica Eduardo Calderón, Luis Ortiz, Esteban Alfaro and Andrea Sittenfeld BLP Abogados 143

Dominican Republic Sharin Pablo de Roca and Yumari Torres JJ Roca & Asociados 148

European Union Laurent Garzaniti, Thomas Janssens, Hein Hobbelen and Alexia Burckett St Laurent 155 Freshfields Bruckhaus Deringer LLP

France Jérôme Philippe and Aude-Charlotte Guyon Freshfields Bruckhaus Deringer LLP 181

Germany Norbert Nolte and Sibylle Gering Freshfields Bruckhaus Deringer LLP 196

Ghana Josiah Kojo Ankomah-Sey and Susan-Barbara Adjorkor Kumapley Bentsi-Enchill, Letsa & Ankomah 207

Greece Dina Th Kouvelou and Nikos Th Nikolinakos Nikolinakos-Lardas Law Firm 215

Hong Kong Mark Parsons, Victoria White and James Chan Freshfields Bruckhaus Deringer 221

India Atul Dua, Rahul Goel and Anu Monga Seth Dua & Associates 239

Indonesia Noor Meurling, Toby Grainger, Dewi Sawitri and Alwin Redfordi Oentoeng Suria & Partners 249

Ireland Helen Kelly and Claire Morgan Matheson 257

Italy Tommaso Salonico and Luca Ulissi Freshfields Bruckhaus Deringer LLP 280

Kenya Richard Harney and Kenneth Njuguna Coulson Harney Advocates 293

Macedonia Dragan Dameski and Elena Miceva Debarliev, Dameski & Kelesoska Attorneys at Law 301

Malaysia Jin Nee Wong and Min Lee Boo Wong Jin Nee & Teo 308

Mexico Bertha Alicia Ordaz Avilés and Octavio Lecona Morales Greenberg Traurig SC 319

Moldova Sergiu Sîtnic National Regulatory Agency for Electronic Communications and Information Technology 328

Netherlands Onno Brouwer, Winfred Knibbeler and Nima Lorjé Freshfields Bruckhaus Deringer LLP 337

New Zealand Malcolm Webb, Edward Willis and Anisa Purbasari Webb Henderson 346

Nigeria Tamuno Atekebo, Otome Okolo and Chukwuyere E Izuogu Streamsowers & Köhn 354

Philippines Rose Marie M King-Dominguez and Ruben P Acebedo II SyCip Salazar Hernandez & Gatmaitan 362

Poland Arwid Mednis and Artur Salbert Wierzbowski Eversheds 370

Portugal Jaime Medeiros and Mónica Oliveira Costa Coelho Ribeiro e Associados 381

Russia Igor Gerber and Andrey Filippenko Freshfields Bruckhaus Deringer LLP 392

Singapore Chong Kin Lim and Charmian Aw Drew & Napier LLC 408

South Africa Zaid Gardner Edward Nathan Sonnenbergs 430

Spain Sergio Miralles Miravet, Alejandro Milá Valle and Carolina Luna Gordo 439 Freshfields Bruckhaus Deringer LLP

Switzerland Marcel Meinhardt, Astrid Waser and Michael Cabalzar Lenz & Staehelin 453

Taiwan Robert C Lee YangMing Partners 462

Thailand Sudharma Yoonaidharma School of Law, University of the Thai Chamber of Commerce 470

United Kingdom Rod Carlton, Mark Sansom and Olivia Hagger Freshfields Bruckhaus Deringer LLP 479

United States John Nakahata, Kent Bressie and Paul Margie Wiltshire & Grannis LLP 497

Quick Reference Tables 507

Poland Wierzbowski Eversheds

370 Getting the Deal Through – Telecoms and Media 2013

PolandArwid Mednis and Artur Salbert

Wierzbowski Eversheds

Communications policy

1 Policy

Summarise the regulatory framework for the telecoms and media

sector. What is the policymaking procedure? Has the EU regulatory

framework (including the market reviews) been fully transposed into

your national law, as far as currently required?

The main aims of government and regulatory policy for the telecoms sector are to:• promotecompetitionintheprovisionoftelecommunications

networks, associated facilities, or the provision of telecommuni-cations services, including by:

• ensuring that users, including disabled users, derive maximum benefit in terms of price, choice and quality of services;

• ensuring that there is no distortion or restriction of competi-tion (in the telecommunications market);

• efficient investments in infrastructure and promoting innova-tive technologies;

• encouraging efficient use and effective management of fre-quencies and numbering resources; and

• providing regulatory predictability,• supportthedevelopmentoftheinternalmarket,includingby: • removing existing market barriers for telecommunications

activities; • encouraging the establishment and development of trans-

European networks and the interoperability of pan-European services;

• ensuring that there is no discrimination in the treatment of telecommunications undertakings; and

• cooperating with other regulatory authorities of member states, BEREC and with the European Commission to ensure consistent implementation and application of regulations;

• promotetheinterestsofthecitizensoftheEuropeanUnion;• implementapolicyaimedatthepromotionofculturalandlin-

guistic diversity, as well as media pluralism; and• ensurethattheadoptedregulationsaretechnologicallyneutral.

TheTelecommunicationsLawgenerallyadjustsPolishlawtotheEUregulations (including market reviews) included in electronic com-municationdirectivesacceptedbytheEuropeanParliamentin2002.Poland has brought its Telecommunications Law in line with Direc-tive2009/140/ECandDirective2009/136/EC.

State policy in the telecoms sector is managed by the minister of administration and digitalisation and the president of the Office of ElectronicCommunications(UKE).ThepresidentoftheUKEperformsduties relating to the regulation of telecoms activities and frequency management, and cooperates with the minister of administration and digitalisation in drafting legislation, as well as with international tel-ecomsorganisationsandrelevantforeignnationalauthorities.

The main features of broadcasting sector policy include the gradual creation of a balanced, competitive market for broadcasting

services, creation of a single market for production and distribu-tion in the audio-visual sector, freedom of television transmission and promotion of Polish culture in Europe and European culture inPoland.StatepolicyinthebroadcastingsectorismanagedbytheNationalBroadcastingCouncil(KRRiT).

The Broadcasting Act generally brings Polish law in line with EUregulations.However,Polandisobligedtoimplementinfulltheprovisions of audio-visual directives regarding on-demand audio-visualmediaservices.

2 Convergence

Has the telecoms-specific regulation been amended to take account

of the convergence of telecoms, media and IT? Are there different

legal definitions of ‘telecoms’ and ‘media’?

Thereisnospecificregulationpertainingtoconvergence.Thereareseparate regulations for telecoms and media (the Telecommunications Law and Broadcasting Law), and the regulatory authorities, the presidentof theUKEand theKRRiT, coverdistinct areas.Theregulations of the Telecommunications Law, however, show thatthelegislatureisconsciousoftheneedtoregulatethisissue.Thepresidentof theUKEhasbeenempowered inanumberofregulatory instruments regarding technical aspects of television and radiobroadcasting.Thepresidentof theUKE isalsoentitled togrant a radio frequency licence required to broadcast TV and radio programmes,inagreementwiththeKRRiT.

3 Broadcasting sector

Is broadcasting regulated separately from telecoms? If so, how?

The broadcasting sector and content of programme transmission are regulated separately from telecoms under Polish law. ThepresidentoftheUKEisthestateauthorityresponsiblefortelecomssectormatters.TheKRRiTistheregulatorforradioandtelevisionmatters.However,thelawprovidesforclosecooperationbetweenthese two authorities in certain areas and some broadcasting issues areregulatedintheTelecommunicationsLaw.Likepublictelephonenetworks, broadcast radio and television programmes disseminated through a data transmission system may only operate after an entry in the registermaintained by theKRRiT.The above obligationdoes not apply to seven programmes listed in the Broadcasting Act (ie, three public programmes, including TVP1, TVP2 and a regionalprogrammeofTelewizjaPolskaSA,andfourcommercialprogrammes,includingTelewizjaPolsatSA,TVNSA,PolskieMediaSAandTelewizjaPulsSpz.o.o.).

With regard to radio frequency (RF) bands intended for the broadcasting of radio or television programmes, the president of the UKEisresponsiblefordraftingandmodifyingfrequencymanage-mentplansinagreementwiththepresidentoftheKRRiTonrequestoronhisorherowninitiative.

Wierzbowski Eversheds Poland

www.gettingthedealthrough.com 371

Telecoms regulation − general

4 WTO Basic Telecommunications Agreement

Has your jurisdiction committed to the WTO Basic Telecommunications

Agreement and, if so, with what exceptions?

Poland joined the WTO Basic Telecommunications Agreement with certain exceptions. However, no exceptions are currentlyapplicable.

5 Public/private ownership

What proportion of any telecoms operator is owned by the state or

private enterprise?

FranceTélécomholds 47.5per cent of the shares in thePolishincumbentTelekomunikacjaPolskaSA(TPSA).ThestatetreasurysolditsremainingshareinTPSAin2010.TPSAshareshavealsobeen floated on the Warsaw Stock Exchange, with global depositary receiptslistedontheLondonStockExchange.

6 Foreign ownership

Do foreign ownership restrictions apply to authorisation to provide

telecoms services?

TheTelecommunicationsLawisharmonisedwithEUregulationswith respect to foreign ownership issues, and provides for full liber-alisationforforeigninvestors.

7 Fixed, mobile and satellite services

Comparatively, how are fixed, mobile and satellite services regulated?

Under what conditions may public telephone services be provided?

Fixed, mobile and satellite services are regulated by the president of theUKE.Provisionsconcerningproperentitlementsforprovidingthese services shall apply to each of these services, such as notifica-tionsandfrequencyreservations.

8 Satellite facilities and submarine cables

In addition to the requirements under question 7, do other rules apply

to the establishment and operation of satellite earth station facilities

and the landing of submarine cables?

The concept of a satellite earth station is encompassed by the defi-nitionofradioequipmentoracombinationthereof.Thegeneralprovisionsregardingrequirementsfortelecomsequipmentapply.Among other things, telecoms equipment, as well as cables used in or connected to telecoms networks, must ensure:• thesafetyoftheuser,employeeandtelecomsnetworks;• compatibilitywithothertelecomsequipmentusedinorconnected

to telecoms networks – in particular, it must not damage equip-ment in telecoms networks or interfere with their operation;

• theefficientuseofradiofrequencyspectrumororbitalresources;and

• compliancewithelectromagneticcompatibilityrequirements.

Additionally, Poland has ratified the International Convention on SubmarineCablesProtectionof14March1884.

9 Universal service obligations and financing

Are there any universal service obligations? How is provision of these

services financed?

With regard to universal services obligations, Polish law is gener-allyharmonisedwiththecurrentEUtelecomslegislationandtheuniversal service is limited to voice services and is independent of the networktype(eg,next-generationnetwork).Theuniversalservicedoesnotcomprisevoiceoverinternetprotocol.

If the provision of universal service is unprofitable, a designated operator is entitled to a subsidy in the amount of the net cost for the provisionofservicescomprisinguniversalservice.

The accounts and other information used as the basis for the calculation of the net cost of universal service provision should be verified by a qualified auditor designated by the president of the UKE.Thenetcostofuniversalserviceobligationsissharedbetweenproviders of electronic communications networks and services which annualrevenueexceeded4millionzlotys.Thepresidentof theUKEshalldetermineauniformrateof

percentage contribution for all telecommunications undertakings obliged to participate in financing the subsidy, but the contribution cannotbehigherthan1percentofitsannualrevenue.

TP SA (the Polish incumbent) was previously designated to provideuniversalservice.However,atpresent(since9May2011),no telecommunications companies are obliged to provide universal service.

10 Operator exclusivity and limits on licence numbers

Are there any services granted exclusively to one operator or for which

there are only a limited number of licences? If so, how long do such

entitlements last?

Noexclusivityappliesatpresent.Limits regarding licence number may refer only to RF spectrum

licences and numbering licences and only when the number of inter-ested operators is higher than frequency or numbering resources respectively.Insuchcase,alicenceisgrantedintenderorcontest.

11 Structural or functional separation

Is there a legal basis for requiring structural or functional separation

between an operator’s network and service activities? Has structural

or functional separation been introduced or is it being contemplated?

Under new regulations implementing a new packet oftelecommunicationsdirectives,thepresidentofUKEisentitledtoimposeanobligationoffunctionalseparation.Suchanobligationmay be imposed on vertically integrated undertakings that have been designated as having significant market power in one or several relevant markets to place activities related to the wholesale provision of relevant access products in one or several independently operating businessentities.Thatbusinessentityorentitiesshallsupplyaccessproducts and services to all undertakings, including to other business entities within the parent company, on the same timescales, terms and conditions, including those relating to price and service levels, andbymeansofthesamesystemsandprocesses.ThepresidentofUKEshallobtainEUCommissionconsenttotheintroductionofanobligationoffunctionalseparation.ThereisnolegalbasisforstructuralseparationinPoland.How-

ever, the vertically integrated telecommunications undertakings that have been designated as having significant market power in one or severalrelevantmarketsshallinformthepresidentofUKEoftheintended transfer of their local access network assets or a substantial part thereof to a separate legal entity under different ownership or toaseparatebusinessentityformedforthisobjective.Theinforma-tion shall be submitted not later than six months before the intended transferofassets.ThepresidentofUKEshallconductacoordinatedanalysis of the different markets related to the access network within six months from the notification date in order to establish the impact oftheintendedtransactiononrelevantmarkets.Theundertakingshall informthepresidentofUKEaboutthetransferof its localaccessnetworkassets.AfterreceivingsuchinformationthepresidentofUKEshallimposemaintain,amendorwithdrawobligations.

For a certain period, before the introduction of new regulations which expressly allow the imposition of an obligation of functional separation,thepresidentoftheUKEwascarryingoutananalysisonwhether the imposition of such an obligation was consistent with law,



but since TP SA (the incumbent) undertook to perform voluntarily all imposedobligations,noofficialprocedurehasbeeninitiated.

12 Number portability

Is number portability across networks possible? If so, is it obligatory?

UnderPolishlaw,asubscriberusingthenumberfromthenumberplan for national public telecommunications networks has a right to retain his or her numbers when changing service provider:• inthecaseofgeographicnumbers,insidethegeographicregion;

and• inthecaseofnon-geographicnumbers,inthewholeofPoland.

The above rule does not apply to porting of numbers between networks providingservicesatafixedlocationandmobilenetworks.

13 Authorisation timescale

Are licences or other authorisations required? How long does the

licensing authority take to grant such licences or authorisations?

The telecommunications activity that constitutes business activity is treated as the regulated activity and is subject to entry in the register oftelecommunicationsundertakings.

In principle, the entry to the register of telecommunications undertakings may be obtained only by telecommunications under-takingshavingaregisteredofficeinPoland.However,fortemporaryprovision of telecommunications services, the entry to the register of telecommunications undertakings may also be obtained by tel-ecommunicationsundertakingshavingaregisteredofficeintheEUmember state or in the member state that is a party to the agreement withtheEuropeanUnionanditsmemberstates,regulatingfreedomofservicesprovision.

It is required to submit a written notification to the president of theUKEinordertoobtaintheentrytotheregisteroftelecommuni-cationsundertakings.Inthecaseofanotification,thepresidentoftheUKEmayenter

the authorised entity in the register within seven days of the close of receiptoftherequireddocuments.WherethepresidentoftheUKEfailstomakeanentryinthe

register within seven days, and 14 days have passed from the day of the receipt of the request, the entity may commence the performance of telecommunications activities having notified the president of the UKEthereofinwriting.

A decision on the general exclusive frequency licence shall be issuedbythepresidentoftheUKEwithinsixweeksfromthedaytherequestissubmitted.

Where granting of a general exclusive frequency licence requires a tender, a contest or international agreements, the president of the UKEshallissueadecisiononageneralexclusivefrequencylicencewithin six weeks from the day the results of a tender or a contest have beenannouncedorinternationalagreementsarecompleted.

A numbering assignment shall be made not later than three weeksfromsubmittingarequest.

14 Licence duration

What is the normal duration of licences?

The telecoms activities that constitute business activities are the regulated activities and are subject to an entry in the telecoms undertakingsregister.Registrationisforanindefiniteperiod.

A general exclusive frequency licence shall be granted for a speci-fiedperiodnotlongerthan15years,takingintoaccountthenatureof the services provided by an entity applying for a general exclusive frequencylicence.

15 Fees

What fees are payable for each type of authorisation?

Forcertaintelecomsauthorisationsthefollowingfeesarerequired.A telecommunications undertaking shall pay the annual telecom-

munications fee related to the performance of tasks in the field of telecommunicationsbytheadministrationauthorities.The amount of this fee cannot exceed 0.05 per cent of the

telecoms undertaking’s annual income from telecoms activities performed, obtained in the financial year two years before the year for whichthisfeeisdue.Thefeeshallbepaidbyatelecommunicationsundertakingthathasobtainedrevenueshigherthan4millionzlotysfrom performing telecommunications activities in the financial year twoyearsbeforetheyearforwhichthisfeeisdue.

Annual fees for use of numbering resources under a numbering allocationThe amount of these fees cannot be higher than:• forasubscribernumber,0.35zlotys;• foranAB telecomsnetwork indicationgranted toan entityperformingtelecomsactivity,180,000zlotys;

• forapublicmobiletelephonenetworkindication,1.8millionzlotys;

• foranetworkaccessnumber,60,000zlotys;• fora118CDUnumber,60,000zlotys;• foratele-informaticnetworkaccessnumber,550zlotys;• for an area number for special subscriber services for each

numbering plan area where this number can be used, 1,600 zlotys(thisfeeisnotchargedforemergencynumbersthatarefree for the subscribers to connect with);

• foranationalintelligentnetworknumber,28zlotys;• foraDNICandPNICnumberinadatatransmissionnetworkwithpacketswitching,36,000zlotys;

• forasignalisationpointnumber,12,000zlotys;• foraclosedusergroupnumber(foreveryeightnumbers)55zlotys;

• foramobilenetworkcode,1,200zlotys;• foranATMnetworkcode,1,200zlotys:and• foraroutingnumber,1,000zlotys.

Annual fees for use of frequencies under a radio permit or the availability of the spectrum under a frequency reservationThe amount of these fees cannot be higher than the following:• inthecaseofpermanentsatelliteservicefortherighttouseoffrequencybyonestation,20,000zlotys;

• inthecaseofsatelliteearthexplorationfortherighttouseoffrequencybyonestation,5,000zlotys;

• inthecaseofsatellitemeteorologicalservicefortherighttouseoffrequencybyonestation,5,000zlotys;

• inthecaseofsatelliteradio-navigationservicefortherighttousefrequencybyonestation,5,000zlotys;

• in the case of space operations services for the right to usefrequencybyonestation,5,000zlotys;

• in thecaseof spaceexplorationservices for theright tousefrequencybyonestation,5,000zlotys;

• inthecaseofsatelliteradio-diffusionservicefortherighttousefrequencybyonestation,40,000zlotys;

• inthecaseofmobilesatelliteservicefortherighttousefrequencybyonestation,80,000zlotys;

• in the case of mobile satellite service for the right to usefrequenciesofthetotalbandof1MHz,usedbycomplementaryground components of mobile satellite systems at the territory of onecommuneorsmaller,500zlotys;

• inthecaseofradio-locationservicefortherighttousefrequencybyoneradarstation,1,000zlotys;

• inthecaseofairservicefortherighttousefrequenciesofthetotalbandof1KHzbyoneairportsystem,100zlotys;



• inthecaseofmaritimeandinlandwaterwaytransport: • fortherighttousefrequenciesofthetotalbandof1KHz

by one coastal station in shore-to-ship communication, 100 zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzby each ground haulage and mobile station in ship-to-shore relation,100zlotys;

• ingroundradio-diffusionservice: • fortherighttousefrequenciesofthetotalbandof1KHz

at the territory of one commune or smaller, for less than 300KHz,0.5zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzattheterritoryofonecommuneorless,for300KHz–3,000KHz,110zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzat the territory of one commune or smaller, for more than 3MHz–30MHz,400zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzatthe territory of one commune or smaller, for more that 30 MHz–174MHz:

– inthecaseofvillagecommune,2.25zlotys; – inthecaseofmunicipal-villagecommune,2.25zlotys; – in the case of municipal commune, except towns with

countyrights,6.5zlotys; – inthecaseoftownwithcountyrights,25zlotys; • for the right to use one TV channel by one analogue television

stationinthebandofmorethan174MHz,99,000zlotys; • fortherighttousefrequenciesofthetotalbandof1MHz,

used by digital system at the territory of one commune or smaller,formorethan174MHz–862MHz:

– inthecaseofvillagecommune,345zlotys; – inthecaseofmunicipal-villagecommune,345zlotys; – in case of municipal commune, except towns with county

rights,990zlotys; – incaseoftownswithcountyrights,5,000zlotys; • fortherighttousefrequenciesofthetotalbandof1MHz,

used by digital system at the territory of one commune or smaller,formorethan862MHz,500zlotys;

• inthecaseofpermanentservice: • fortherighttousefrequenciesofthetotalbandof1KHzat

theterritoryofonecommuneorsmaller,forupto470MHz,100zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzat the territory of one commune or smaller, for more than 470–3,400MHz,10zlotys;

• fortherighttousefrequenciesofthetotalbandof1MHzat the territory of one commune or smaller, for more than 3,400MHz,500zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzforlessthan30MHz,2,000zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHz,inonespanofradioline,for30MHz–1GHz,5zlotys;

• fortherighttousefrequenciesofthetotalbandof1MHz,inonespanofradioline,formorethan1GHz–11.7GHz,5,000zlotys;

• fortherighttousefrequenciesofthetotalbandof1MHz,inonespanofradioline,formorethan11.7GHz,2,000zlotys;

• incaseoflandmobileservice: • fortherighttousefrequenciesofthetotalbandof1KHzat

theterritoryofonecommuneorsmaller,forupto470MHz,used by radio equipment using radio channels of the band of lessthan200KHz,100zlotys;

• fortherighttousefrequenciesofthetotalbandof1MHzattheterritoryofonecommuneorsmaller,forupto470MHz,used by radio equipment using radio channels of the band of 200KHzandmore,400zlotys;

• fortherighttousefrequenciesofthetotalbandof1KHzat the territory of one commune or smaller, for more than 470MHz–3,400MHz,usedbyradioequipmentusingradiochannelsofthebandoflessthan200KHz,10zlotys;

• fortherighttousefrequenciesofthetotalbandof1MHzat the territory of one commune or smaller, for more than 470MHz–3,400MHz,usedbyradioequipmentusingradiochannelsofthebandof200KHzandmore,400zlotys;and

• fortherighttousefrequenciesofthetotalbandof1MHzat the territory of one commune or smaller, for more than 3,400MHz,500zlotys.

A radio frequency licence or numbering licence may be granted on thebasisofthetender.Ifalicenceisgrantedunderthetender,feesareofferedbythetender’sparticipants.Asarule,theofferedfeehasasignificantimpactontheresultsofthetender.

16 Modification and assignment of licence

How may licences be modified? Are licences assignable or able to be

pledged as security for financing purposes?

Telecommunications activities are subject to an entry in the telecoms undertakings’register.Themodificationofanentryinthetelecomsundertakings’ register is based on the same rules as an original entry.

A general frequency licence may be transferred on the basis of an administrativedecisionissuedbythepresidentoftheUKE.Further-more, a general frequency licence may be transferred to other under-takingsundertheleaseagreementorunderothercivilcontract.

Limitations of rights to transfer specified in the frequency licences issuedbefore21January2013arebindinguntil25May2016.How-ever,theundertakingmayrequestthepresidentofUKEtoamendorwithdraw the limitations if the licence was granted for the period beyond25May2016.ThepresidentofUKEshallassesstheneedsoflimitationstakingintoconsiderationthesupportoffaircompetition.If the amendment or withdrawal of limitations leads to the significant increase of the value of the frequency licence the undertaking shall payfeereflectingtheincreaseofthevalue.

The entity that received a numbering assignment shall make assigned numbering available to entities cooperating with its telecommunications network as well as entities providing telecommunicationsservices,attheirrequest.

17 Retail tariffs

Are national retail tariffs regulated? If so, which operators’ tariffs are

regulated and how?

In the event of an increase of tariffs for telecoms services, the opera-tor is obliged to inform its subscribers, at least one settlement cycle in advance, about such increase and the date from which it will become effective.TP SA, as an SMPoperator on, respectively, previous first,

second, third, fourth, fifth, sixth and seventh markets is obliged to settariffsbasedoncosts.

TP SA must submit their draft tariffs or the modifications thereto tothepresidentoftheUKE,accompaniedbyajustificationatleast30 days in advance of the anticipated entry into force of such tariffs ormodifications.

The president of the Office for the Protection of Competition andConsumers(presidentofUOKiK)performsregulatoryfunctionswith respect to retail tariffs under the Act of 16 February 2007 on the Protection of Competition and Consumers both in the telecoms andradioandtelevisionsectors.



18 Customer terms and conditions

Must customer terms and conditions be filed with, or approved by, the

regulator or other body? Are customer terms and conditions subject to

specific rules?

RetailpricesofferedbytheoperatordesignatedasanSMPoperatorin a retail market or obliged to provide universal service are required tobesubmittedtothepresidentoftheUKE.

Any operator intending to terminate the provision of a telecoms universal service is obliged to promptly inform, in writing, its net-worksubscribersandthepresidentoftheUKEofitsintention,andgive information about the measures taken to ensure the uninter-ruptedprovisionofuniversalservice.Theoperatorhastherighttodesignate a public operator that will take over the provision of a universalservice.

The provider of publicly available telecoms services shall submit the telecoms services provision regulations to the president of the UKEupondemandandwithinthetimedefinedbyhimorher,anduponeverychangetotheregulations.

19 Changes to telecoms law

Are any major changes planned to the telecoms laws?

The Polish Telecommunications Law has been generally harmo-nisedwiththeEUdirectives,includingDirectives2009/140/ECand2009/136/EC.Thereforetherearenotofficialplanstointroducesig-nificantchangestothetelecomslaws.

Telecoms regulation – mobile

20 Radio frequency (RF) requirements

For wireless services, are radio frequency (RF) licences required in

addition to telecoms services authorisations and are they available

on a competitive or non-competitive basis? How are RF licences

allocated? Do RF licences restrict the use of the licensed spectrum?

For wireless services, apart from a general authorisation, it is required toobtainaradiofrequencylicence(reservation).However,reserva-tion does not automatically give a right to actual use of the reserved frequency because the use of radio equipment requires a separate radiopermit.

Frequency reservation defines the frequencies and orbital resources that will be available to the company for the period of thereservation.Frequencyreservationismadeforadefiniteperiodoftime.FrequencyreservationsaregrantedbythepresidentoftheUKE.

Frequency reservations for radio or television programmes are made bythepresidentoftheUKEinconsultationwiththeKRRiT.

During the period of the frequency reservation, issuance of the radiopermitmaynotberefused.

Where there are scarce frequency resources, the reservation of frequency is granted to entities selected by way of a competition – if reservation is made for dissemination of radio or television programmes–orofa tender in remainingcases.The frequencyreservationtableispubliclyavailable.

21 Radio spectrum

Is there a regulatory framework for the assignment of unused radio

spectrum (refarming)? Do RF licences generally specify the permitted

use of the licensed spectrum or can RF licences for some spectrum

leave the permitted use unrestricted?

ThepresidentoftheUKE,bymeansofanadministrativedecision,may change or withdraw frequency licences in cases where frequen-cies subject to rights are not used to a significant degree or are used ineffectively, or where use of radio is disturbing the functioning of otherequipmentortelecommunicationsnetworks.

The change of usage conditions of the frequency allocated to spreading and distributing radio and television programmes is made bythepresidentoftheUKEinagreementwiththeKRRiT.

RF licences may specify in particular the conditions for the use of frequencies, requirements concerning the prevention of harmful electromagnetic disturbances and protective duties concerning electromagneticradiation,althoughthisisnotobligatory.

22 Spectrum trading

Is licensed RF spectrum tradable?

RF spectrum can be transferred on the basis of a lease agreement or othercivillegaltitle.ThepresidentofUKEshallbeinformedofsuchtransaction.ThepresidentofUKEmay,intheformofanadminis-trative decision, amend the terms and conditions of spectrum use or prohibit the use of spectrum, in particular if a transfer could lead to competition disturbance as a result of excessive spectrum concentra-tionbyoneentityorcapitalgroup.

23 Mobile virtual network operator (MVNO) and national roaming traffic

Are any mobile network operators expressly obliged to carry MVNO or

national roaming traffic?

The wholesale market relating toMVNO traffic and nationalroamingtrafficisnotcurrentlyregulated.UndertheTelecommunicationsLaw,mobilenetworkoperators

mayentirelyfreelynegotiatewithMVNOsandundertakingsinter-estedinprovidingservicesinthenationalroamingmodel.Mobilenetwork operators are entitled to reject a request for such type of access.

24 Mobile call termination

Does the originating calling party or the receiving party pay for the

charges to terminate a call on mobile networks? Is call termination

regulated, and, if so, how?

UnderPolishregulations,thecallingpartypaysforthechargestoterminateacallinmobilenetworks.Polishmobile operators, PTKCentertel Sp z.o.o. (Orange),

PolkomtelSA(Plus),PTCspz.o.o.(T-Mobile),P4spz.o.o.(Play),Mobylandspz.o.o.,CenterNetSAandAero2aredesignatedasSMPoperatorsontheSeventhMarket(previously,the16thMarket).ThepresidentofUKE,intheformofadministrationdecisions,

imposed on all Polish mobile operators the obligation to use mobile terminationratesintheamountof0.0826zlotysperminutefrom1January2013and0.0429zlotysperminutefrom1July2013.

25 International mobile roaming

Are wholesale and retail charges for international mobile roaming

regulated?

Therearenospecificregulationsinthisrespect.WholesaleandretailtariffsareconsistentwithRegulation (EC)No.717/2007of theEuropean Parliament and of the Council of 27 June 2007 on roam-ing on public mobile telephone networks within the Community and amendingDirective2002/21/EC.

26 Next-generation mobile services

Is there any regulation for the roll-out of 3G, 3.5G or 4G mobile

services?

Therearenospecificregulationsinthisregard.



Telecoms regulation – fixed infrastructure

27 Cable networks

Is ownership of cable networks, in particular by telecoms operators,

restricted?

The operation of public networks intended for the broadcasting of radio or television programmes shall be subject to an entry in theregisterkeptbythepresidentoftheUKE.Moreover,undertheTelecommunications Law, a public telecoms network operator is obliged to enable other operators of public networks access to its infrastructure (inter alia, cable networks) for the establishment and operation of telecommunications equipment if creation of alternative infrastructure is not possible or duplication of existing infrastructure hasnomerit.

The provisions of the Act on the Acquisition of Real Property by Foreignersmayalsoapplyinthisregard.Generally,theacquisitionof real property by a foreign entity or person requires a permit issued bytheministercompetentforinternalaffairs.InvestorsfromtheEuropean Economic Area and Swiss Confederation are, in principle, exemptfromsucharequirement.Inaddition,cableoperatorsthathave foreign shareholders may be granted a broadcasting licence if foreigners do not hold more than 49 per cent of the stock of the company and the agreement or the statutes of the company should specify the following:• personsofPolishnationalitywhopermanentlyresideinPoland

constitute a majority of persons empowered to represent the company or manage its affairs, or of members of the board of management of the said company;

• theshareofvotesexercisedbyforeignpersonsandsubsidiaries,as defined by the Code of Commercial Partnerships and Compa-nies, of foreign persons may not exceed 49 per cent of votes in a meeting of a limited company’s members or the general meeting of shareholders;

• foreignpersonsmaynothold,directlyorindirectly,amajorityinexcess of 49 per cent of votes in a partnership; and

• personsofPolishnationalitywhopermanentlyresideinPolandconstitute a majority of members of the supervisory board of the saidcompany.

However,theabovelimitationsarenotappliedtolicenceswhichmayby awarded to a foreign person or a subsidiary of a foreign person havingaseatorpermanentresidenceinanEEAmemberstate.

28 Local loop

Is there any specific rule regarding access to the local loop or local

loop unbundling? What type of local loop is covered?

AnSMPoperatorisobligedtoensureaccesstoalocalloop,togetherwith collocation, access to cable connections and relevant IT systems, on transparent, fair and non-discriminatory terms, upon request of anotheroperator.

At present, the Telecommunications Law defines in detail obliga-tions related to ensuring access to a local loop, the terms and con-ditions on which such access should be ensured, consequences of a refusal to grant such access and the enforcement powers of the presidentoftheUKEinthisrespect.Localloopunbundling,however,is regulated within the ordinance of the minister of infrastructure of 21July2008,whichdefinesthescopeofaframeworkofferrelatedto telecommunications access to be adopted by the operator having significantmarketpower.ThepresidentoftheUKEintroducedanewreferenceofferon

local loop unbundling to be applied by TP SA, effective 29 September 2011.Atpresent,accesstocopper-cableandfibre-opticcableloopsisregulated.

29 Interconnection and access

How is interconnection regulated? Can the regulator intervene to

resolve disputes between operators? Are wholesale (interconnect)

prices controlled and, if so, how? Are wholesale access services

regulated, and, if so, how?

UndertheTelecommunicationsLaw,interconnectionisatypeoftelecomsaccess.Telecomsaccess isdefinedasauseof telecomsfacilities, associate facilities or services provided by other telecoms undertakings, under defined conditions, for the purpose of providing telecomsservices.Thisincludes,interalia,theconnectionoftelecomsequipment, in particular access to the local loop and to facilities and services necessary to provide services over the local loop, and access totelecomsnetworks,inparticularforroaming.ThepresidentoftheUKEisentitledtoresolvedisputesbetween

operators.ThepresidentoftheUKEmay:• definethetimelimits(nolongerthan90days)forconcluding

the negotiations of a telecoms access agreement, upon request of each party to the negotiations of such agreement or ex officio;

• issue adecisionon the telecommunications accessupon therequest of at least one party, in cases where one of the parties refuses to conclude the agreement or if the telecoms access agree-ment is not concluded on the due date;

• issueadecisiononthetelecommunicationsaccessamendingexofficio the content of the telecommunications access agreement or oblige the parties to the agreement to amend it in cases justi-fied by the need to protect the interests of end-users and the effective competitiveness or interoperability of the services; and

• maychangehisorherpriordecisionontelecomsaccess,upontherequestofeachpartyorexofficio.

TPSA,asanSMPoperatorinthepreviousEighth(calloriginationon the public telephone network provided at a fixed location), Ninth (call termination on individual public telephone networks provided at a fixed location) and also in the new Fourth (wholesale (physical) network infrastructure access (including shared or fully unbundled access) at a fixed location) and Fifth (wholesale broadband access) Market,isobligedto:• acceptjustifiedrequestsfortelecommunicationsaccess;• follownon-discriminationobligations;• runregulatoryaccounting;• useratesbasedoncosts;• submittothepresidentoftheUKEadetailedjustificationofthe

amount of rates based on costs; and• usereferenceofferswhichareacceptedbythepresidentoftheUKEbymeansofadministrativedecisions.

According to the TP SA reference offer, the main rates for calls ter-mination are as follows:• from0.0137to0.0273zlotysperminuteinnumberingzone

depending on the time a call is terminated;• from0.0162to0.0325zlotysperminuteinnumberingzone

depending on the time a call is terminated; and• from0.0239to0.0478zlotysperminuteinnumberingzonedependingonthetimeacallisterminated.

30 Next-generation access (NGA) networks

How are NGA networks regulated?

There is no specific regulation pertaining to next-generation networks.



Telecoms regulation – internet services

31 Internet services

How are internet services, including voice over the internet,

regulated?

According to the Telecommunications Act, internet access services constitutetelecomsservices.Thismeansthatserviceprovidersmustmake an entry in the telecoms undertakings’ register kept by the presidentoftheUKE.TherearecurrentlynospecificregulationsonIPtelephonenetworksorVoIP.

32 Internet service provision

Are there limits on an internet service provider’s freedom to control

or prioritise the type or source of data that it delivers? Are there any

other specific regulations or guidelines on net neutrality?

At present, there are no specific rules expressly restricting internet serviceproviderstocontroldeliveringdata.However,thelegalityofsuch activity is doubtful under legal acts concerning competition and consumerprotection.Furthermore,anydatacontrolorprioritisationwould repeal the general rule that internet service providers, like other telecommunications providers, do not take responsibility for thecontentofthedata.

33 Financing of basic broadband and NGA networks

Is there a government financial scheme to promote basic broadband

or NGA broadband penetration?

The expenses related to network connection services provided in order to ensure broadband internet access service to entitled entities arefinancedfromthenationalbudget.

Assets are transferred:• inrelationtopublicschoolsandinstitutionsandlibraries,to

local government entities as a specific-purpose subsidy;• inrelationtopublicschoolsandinstitutionsandlibrariesrunby

ministers, by increasing the expense projections in the budgets of the ministries; and

• inrelationtouniversities,byincreasingtheexpenseprojectionsoftheministerssupervisinguniversities.

The Law on Promoting the Development of Telecommunications NetworksandServicesenteredintoforceon17July2011.Thenewlaw entitles local authorities to invest or participate in investments in constructing new telecommunications infrastructure especially requiredtoprovidebroadbandservices.ThemainobjectiveofthenewlawisfacilitatingtheuseofEUfundsprovidedforconstructingtheinfrastructureinareaswherebroadbandavailabilityislow.InPoland,therearenoseparaterulesusedfordevelopingNGA

networks.

Media regulation

34 Ownership restrictions

Is the ownership or control of broadcasters restricted? May foreign

investors participate in broadcasting activities in your jurisdiction?

The Broadcasting Act provides for restrictions with respect to grant-ing broadcasting licences to transmit radio and television programme servicestoforeignentities.Abroadcastinglicencemaybegrantedto a Polish company with a participation of foreign entities interest only if:• theequityofforeignpartiesortheforeigninterestintheshare

capital of a company does not exceed 49 per cent; and• the articles of association or the company’s memorandum

stipulate that:

• the majority of the persons authorised to represent the com-pany or conduct the company’s activities or the members of themanagementboardofthecompanyarePolishcitizenspermanently residing in Poland;

• the share of votes of foreign entities and subsidiaries of foreign entities in the shareholders’ meeting or in the general shareholders’ meeting may not exceed 49 per cent;

• foreign entities may not have directly or indirectly a majority of votes exceeding 49 per cent in the non-commercial partnership; and

• persons of Polish nationality who permanently reside in Poland constitute a majority of members of the supervisory boardofthecompany.

Purchase or acquisition by a foreign person of shares or interest, or the acquisition of rights in shares or interest in a company holding a broadcasting licence to transmit a programme service, requires the consentofthepresidentoftheKRRiT.

The above limitations do not apply to a foreign entity or company controlled by a foreign entity when their seat or place of residence is locatedinanEEAmemberstate.

35 Cross-ownership

Are there any regulations in relation to the cross-ownership of media

companies, including radio, television and newspapers? Is there any

suggestion of change to regulation of such cross-ownership given the

emergence of ‘new media’ platforms?

The government planned to introduce a provision into the Broad-casting Act forbidding cross-ownership of a nationwide journal (daily) and a television station; however, that concept has been abandoned.

36 Licensing requirements

What are the licensing requirements for broadcasting, including the

fees payable and the timescale for the necessary authorisations?

A broadcasting licence is generally required to transmit radio and television programmes, but not for programmes in public radio and television.Also,thelicenceisnotrequiredfortransmittingtelevisionprogrammes only in data transmission systems unless such programmes aretransmittedterrestrially,viasatelliteorincablenetworks.

In broadcasting licence proceedings, the following aspects are assessed, inter alia: • theapplicant’sabilitytomakethenecessaryinvestmentsandto

ensure the financing of the programme service; • theestimatedshareofprogrammesproducedorcommissioned

by the broadcaster or produced by the broadcaster jointly with other broadcasters;

• the estimated share of local broadcasts in the televisionprogramme service or local works in the radio or television programme; and

• pastcompliancewithregulationsgoverningradiocommunica-tionsandthemassmedia.

DetailedprovisionsaresetoutintheordinanceoftheKRRiTcon-cerning the contents of the application and the detailed procedure of granting and cancelling a broadcasting licence for transmission of radioortelevisionprogrammes.Theordinanceof theKRRiTconcerning fees forgrantinga

broadcasting licence to transmit radio and television programmes stipulates fees for the broadcasting licence as well as for any changes thereto.Abroadcastinglicenceisgrantedfor10years.Withregardto

thetimelimitswithinwhichtheKRRiTissupposedtoissueabroad-casting licence, the general provisions of the Code of Administrative Procedureapply.



37 Foreign programmes and local content requirements

Are there any regulations concerning the broadcasting of foreign-

produced programmes? Do the rules require a minimum amount of

local content? What types of media are outside of this regime?

Broadcasters of television programmes are under an obligation to reserve at least half of their quarterly transmission time for programmes (excluding news, advertising, teleshopping, sports events, teletext services and games) for programmes produced by European producers.

Likewise, the Broadcasting Act imposes obligations on broad-casters of radio and television programmes regarding transmission ofPolishprogrammes(localcontent).Broadcastersoftelevisionpro-grammes are under an obligation to earmark at least 33 per cent of their quarterly transmission time for programmes (excluding news, advertising, teleshopping, sports events, teletext services and games) toprogrammesoriginallyproducedinPolish.

In turn, broadcasters of radio programmes, excluding pro-grammes created wholly in a national or ethnic minority language, should earmark at least 33 per cent of their quarterly transmission time devoted to vocal musical compositions for compositions per-formed in Polish, within which at least 60 per cent must be between 5amandmidnight.

Furthermore, television broadcasters shall reserve at least 10 per cent of their quarterly transmission time for European works produced by independent producers, excluding news, advertising, teleshopping,sportsevents,teletextservicesandgames.Programmesproduced no later than five years before their transmission in the programmeserviceshallconstituteatleast50percentofthetimereservedforEuropeanworksproducedbyindependentproducers.

The above limitations apply only to broadcasting of radio and televisionprogrammes.

38 Advertising

How is broadcast media advertising regulated? Is online advertising

subject to the same regulation?

In the Polish legal system, advertising-related issues are regulated in severalactsof law.Oneof themost important regulations isthe Broadcasting Act, which regulates the primary principles of advertising transmission. The Law on the Prevention ofUnfairCompetition stipulates civil liability for acts of unfair competition concerningunfairandforbiddenadvertising.Furthermore,criticalregulationsarealsocontainedintheTobaccoControlandHealthProtection Act and in the Education in Sobriety and Suppression ofAlcoholismAct.ThePressLawActprohibitsjournalistsfromcarryingoutcrypto-advertising.Onlineadvertisingissubjecttothesameregulation.

39 Must-carry obligations

Are there regulations specifying a basic package of programmes that

must be carried by operators’ broadcasting distribution networks?

Is there a mechanism for financing the costs of such obligations?

On 10 August 2011, a new legal must-carry regime, as a part of the analogue switch-off strategy, was introduced through the BroadcastingAct.Underthenewregime,abroadcastingoperatoris obliged to broadcast seven programmes listed in the Broadcasting Act (ie, three public programmes, including TVP1, TVP2 and a regionalprogrammeofTelewizjaPolskaSA,andfourcommercialprogrammes, including Telewizja Polsat SA, TVN SA, PolskieMediaSAandTelewizjaPulsspz.o.o.).Theaboveruleappliestoalloperators regardless of the technical mode of distribution (with the exception of broadcasting by digital terrestrial television platform operators).Thebroadcasterscannotrefusetogivetheirconsenttobroadcastingoftheabove-mentionedprogrammes.Also,theycannotdemandfinancialconsiderationforgrantingsuchconsent.

In addition, broadcasters are obliged to make the above programmes available free of charge on request of the operator, within 14daysfromthedatesuchamotionisreceived(must-offerobligation).The operator is obliged to broadcast the above programmes and to inform viewers that these programmes are available free-to-air and freeofchargeindigitalformviaterrestrialdiffusion.

40 Changes to the broadcasting laws

Are there any changes planned to the broadcasting laws? In particular,

do the regulations relating to traditional broadcast activities also apply

to broadcasting to mobile devices or are there specific rules for those

services?

On25May2011amendmentstotheBroadcastingActimplementingthepartoftheprovisionsoftheEUAudiovisualDirectiveenteredintoforce.Themainchangesrelatetoproductplacementandthebroadcastingoftelevisionprogrammesviatheinternetonly.PolandisstillobligedtointroducetheprovisionsoftheEUAudiovisualDirective in relation to on-demand audio-visual media services throughtheBroadcastingAct.

There are no specific rules related to broadcasting to mobile devices.

41 Regulation of new media content

Is new media content and its delivery regulated differently from

traditional broadcast media? How?

In the Polish legal system, new media content and its delivery are regulatedinseveralactsoflaw:theLawonElectronicMeansofOffering Services, the Press Law, the Broadcasting Act and the TelecommunicationsLaw.Ingeneral,theLawonElectronicMeansof Offering Services excludes liability of providers offering services byelectronicmeansforkeptdata(hosting).

42 Digital switchover

When is the switchover from analogue to digital broadcasting required

or when did it occur? How will radio frequencies freed up by the

switchover be reallocated?

On 30 June 2011, the Polish parliament enacted the Act on the IntroductionofTerrestrialDigitalTelevision.MostofitsprovisionsenteredintoforceinAugust2011.Underthisact,31July2013isthefinal date for the termination of analogue broadcasting of terrestrial televisioninthewholeterritoryofPoland.Accordingtothedraftplan for introducing digital television in Poland accepted on 4 June 2010bytheMinisters’Council,radiofrequenciesthatarefreedupfrom the switchover will be designated to digital television (DVB-T), mobiletelevision(DVB-H)andmobileservices.

43 Digital formats

Does regulation restrict how broadcasters can use their spectrum

(multichannelling, high definition, data services)?

According to the Telecommunications Act, the president of the UKEmayspecifyinafrequencylicencetheconditionsfortheuseoffrequencies.Inaddition,theregulatorshouldspecifytheconditionsfortheuseoffrequenciesintheradiopermit.

Regulatory agencies

44 Regulatory agencies

Which body or bodies regulate the communications sector? Is the

telecoms regulator separate from the broadcasting regulator?

The minister of administration and digitalisation plays a supervisory and legislative role in the telecoms servicesmarket. Executive,monitoring and control functions belong to the regulator, the president



oftheUKE.TheKRRiTistheregulatoryandlegislativeauthority(issuingordinances)inthebroadcastingsector.Thetelecomssectorand broadcasting sector are also subject to other provisions such as the Competition Law and Personal Data Protection Law, each with its own regulator: the president of the Office for Protection of CompetitionandConsumers(UOKiK)andtheGeneralInspectorforPersonalDataProtection(GIODO).

45 Establishment of regulatory agencies

How is each regulator established and to what extent is it independent

of network operators, service providers and government?

ThepresidentoftheUKEisappointedbytheSejm(lowerhouseofthe Polish parliament) with the Senate’s (upper house of the Polish parliament)consentattherequestoftheprimeminister.ThetermofofficeoftheUKE’spresidentisfiveyears.ThepresidentoftheUKEmay be removed only in exceptional cases that are strictly stipulated intheact.Underthelaw,thepresidentoftheUKEisorganisationallyand

financially independent from governmental authorities, namely the ministerofadministrationanddigitalisation.TheexpensesoftheUKEarefinancedbythestatebudgetin

an amount fixed each year in the Annual Budget Act adopted by parliament.MembersoftheKRRiTareappointedbytheSejm(twomembers),

theSenate(onemember)andthepresidentofPoland(twomembers).ThetermofofficeofmembersoftheKRRiTissixyearsfromthedatethelastmemberisappointed.MembersoftheKRRiTmayberemoved only in exceptional cases that are strictly stipulated in the act.ThecostsofactivityoftheKRRiTarecoveredfromthestatebudget.TheKRRiTisorganisationallyandfinanciallyindependentfromgovernmentalauthorities.

46 Appeal procedure

How can decisions of the regulators be challenged and on what

bases?

WithregardtodecisionsissuedbythepresidentoftheUKE,adis-satisfied party may apply to the authority for re-examination of the matter.DecisionsissuedbythepresidentoftheUKEmaybeappealedagainsttotheVoivodshipAdministrativeCourt.

A complaint may be filed with the Supreme Administrative Court within 30 days of the decision, or from the day on which the com-plaining party becomes aware or could have become aware of the decision.Thecourtmayissueanorderofstayofenforcementofthefinal decision, particularly when there is a threat of causing signifi-cant damage to the complainant or causing consequences that are difficulttoreverse.

With certain exceptions, a party may appeal against decisions concerning the determination of significant market power, the imposition, abolishment or change of regulation obligations, the imposition of penalties or decisions approving proposals for detailed regulatory conditions, decisions ordering to remove irregularities andagainstdecisionsissuedincontentiouscases.Appealsareheardby the Regional Court in Warsaw – the Court for Competition and ConsumerProtection.ThefollowingdecisionsofthepresidentoftheKRRiTmaybe

appealed to the Regional Court in Warsaw (commercial court):• adecisionorderingthemediaprovidertostopactivityondeliv-

ering media services should they infringe the provisions of the act,resolutionsoftheKRRiTortermsandconditionsofthebroadcasting licence;

• adecisionimposingafineonamediaproviderincasesofthebreaching of its obligations under the Broadcasting Act;

• adecisionimposingafineonamediaproviderthatfailstoimple-ment the decision referred to in the first point above;

• adecision imposinga fineonapersonmanaging themediaprovider’s activity for failure to give information or for giving unreliable information to the extent required for the control and compliance of the media provider’s activity with the provisions of the act, terms and conditions of the broadcasting licence or self-regulated provision binding the provider;

• adecisionimposingafineonapersonmanagingthemediapro-vider’s activity for non-performance of decisions ordering that provider to stop activity on delivering media services should they infringetheprovisionsoftheact,resolutionsoftheKRRiTorterms and conditions of the broadcasting licence;

• adecisionimposingafineonamediaproviderthatbroadcastsatelevision programme in the data transmission system; and

• adecisionimposingafineonamediaproviderthatinfringesmust-carryandmust-offerobligations.

DecisionsofthepresidentoftheKRRiTongrantingthebroadcast-ing licence for retransmission of radio and television programmes services are final within the framework of the administrative proce-dure.TheymaybeappealedtotheVoivodshipAdministrativeCourt,basedonviolationoflaw.

Data retention, interception and use

47 Interception and data protection

Do any special rules require operators to assist government in certain

conditions to intercept telecommunications messages? Explain the

interaction between interception and data protection and privacy laws.

Generally,datasuchasinformationtransmittedintelecomsnetworks,user data, information about the facts, circumstances and the nature of the calls, attempts at accessing particular network termination points, as well as the identification or tracing of the network termina-tion points between which the calls have been made, are protected bytelecomssecrecy.Thedisclosureofsuchdataispermittedonlyincasesspecifiedbylaw.Inparticular,forthesakeofstatedefence,statesecurity and public security and order, operators have to ensure the authorised statutory agencies and bodies, court and prosecutor have accesstotelecommunicationsmessages.Moreover,publicoperatorsmust cooperate with statutory rescue services and with the armed forcesinemergencies.

According to the Internal Security Agency and Foreign Intelli-genceAgencyActof24May2002,theInternalSecurityAgencycould obtain access to the above data if this is necessary to carry out itstasksdefinedinthelaw.

According to the Police Act of 6 April 1990, the above data may be disclosed to the police and processed by the police only in order topreventordetectcriminalacts.Theentityprovidingtelecommu-nications activity makes telecommunications data available free of charge to the police officer pointed out in the written request of the chief commander of police or Voivodship commander of police, at the verbal demand of a police officer duly authorised in writing by the above persons or by means of telecommunications network to thepoliceofficerauthorisedinwritingbytheabovepersons.How-ever, all materials other than the materials pertinent to the criminal proceedings must be promptly destroyed in the presence of a duly constitutedcommissionandconfirmedbyareport.

The Internal Security Agency could also record telecoms mes-sages(includingphonecalls)afterobtainingthecourt’sconsent.

Only the Telecommunications Law and other regulations that relate to the Telecommunications Law (for example: the Police Act) applytotheinterceptionoftelecommunicationsmessages.However,data protection and privacy laws may apply if the scope of the inter-ceptionexceedstelecommunicationsregulation.



48 Data retention and disclosure obligations

What are the obligations for operators and service providers to retain

customer data? What are the corresponding disclosure obligations?

Will they be compensated for their efforts?

The operator of a public telecommunications network or the provider of publicly available telecommunications services is obliged to retain and store customer data for 12 months from the day of call or from thedaytheunsuccessfulattempttocalltakesplace.Afterthistime,the operator or the services provider should delete this data, except for thosedatathataresecuredinaccordancewithseparateregulations.This obligation rests with the operator or services provider also in the eventwhenthisentityceasestocarryoutitsactivity.Thelawdoesnotprovideforanycompensationforfulfilmentofsuchobligation.

The operator is obliged to disclose retained data at the request of authorised organisational units (for example the courts, prosecutors andpolice).

49 Unsolicited communications

Does regulation prohibit unsolicited communications? Are there

exceptions to the prohibition?

According to consumer law, using any means – such as a telephone, videophone, fax, e-mail or automatic calling device – to send such communications may only occur with the prior consent of the receiver.Thelawprovidesnoexceptionstothisprinciple.Accordingto the law concerning electronic means of offering services, it is for-bidden to send unsolicited trade information directed to a specified recipientbyanelectroniccommunicationandespeciallyviae-mail.A trade information message is regarded as a solicited one if the recipient gave his or her consent to receiving it, particularly if he or shetransmittedhisorhere-mailaddressforthispurpose.

Competition and merger control

50 Competition and telecoms and broadcasting regulation

What is the scope of the general competition authority and the

sectoral regulators in the telecoms, broadcasting and new media

sectors? Are there mechanisms to avoid conflicting jurisdiction? Is

there a specific mechanism to ensure the consistent application of

competition and sectoral regulation? Are there special rules for this

sector and how do competition regulators handle the interaction of old

and new media?

The authorities with jurisdiction in the telecoms sector are the presi-dentoftheUKEandthepresidentofUOKiK.AlthoughUOKiKhasbroaderresponsibilitythantheUKEwithregardtocompetitioninthe telecoms market, the responsibilities of the two authorities often overlap.ThescopeofactivityofthepresidentoftheUKEincludescoop-

erationwiththepresidentofUOKiKonissuesconcerningtherightsof entities using postal and telecoms services, the counteracting of competition-limiting practices (restrictions of competition) and anti-competitive concentrations of postal operators, telecoms undertak-ingsandtheirassociations.ThescopeofactivityofthepresidentofUOKiKandtheCompe-

titionCourtiscoveredinquestions51to54.Acting in coordination with the president of UOKiK, the

presidentoftheUKEwilldecidethatapublicoperatorisanSMPoperatorwithregardtotheprovisionofaparticularservice.

The president of the council of ministers settles competence dis-putesbetweenthepresidentoftheUKEandthepresidentofUOKiK.Even though there are certain discrepancies in the jurisdiction of the Supreme Court concerning doubts over which authority can issue a decision, the standpoint that application of anti-monopoly regula-tions is not excluded in cases concerning access to a telecommunica-tionsnetworkisprevailing.

Pursuanttoarticle156oftheCodeofAdministrativeProcedure,non-observance of provisions on jurisdiction constitutes grounds fordemandingthedecisiontobedeclaredinvalid.Proceedingsfordeclaring a decision invalid are instituted at the request of a party orexofficio.

In the broadcasting sector, the main regulatory authority, as far as protection of competition is concerned, is the president of UOKiK.However,thepresidentoftheKRRiTisvestedwitharightto withdraw a broadcasting licence if the applicant gains a dominant positioninthemassmediaofagiventerritory.

In the new media sector, the main regulatory authority, as far as protectionofcompetitionisconcerned,isthepresidentofUOKiK.

51 Competition law in the telecoms and broadcasting sectors

Are anti-competitive practices in these sectors controlled by regulation

or general competition law? Which regulator controls these practices?

The Competition Law regulates prohibited practices in the telecoms sector as well as in the broadcasting sector, such as those distorting competition, abuse of dominant position as well as concentration control(includingmergercontrol).ThepresidentofUOKiKistheauthoritycompetenttocombatanti-competitivepractices.

To the extent stipulated in the Telecommunications Law, the presidentoftheUKEalsohasresponsibilityinthisarea.

52 Jurisdictional thresholds for review

What are the jurisdictional thresholds and substantive tests for

regulatory or competition law review of telecoms sector mergers,

acquisitions and joint ventures? Do these differ for transactions in the

broadcasting and new media sector?

In accordance with the Competition Law, entrepreneurs must submit notification of their concentrations when a combined global turnover of the entrepreneurs involved in the concentration should exceed, in the financial year preceding the year of notification, an equivalent of e1,000 million, or a combined turnover on the territory of the Republic of Poland of the entrepreneurs involved in the concentra-tion should exceed, in the financial year preceding the year of notifi-cation, an equivalent of e50million.

The duty to notify concentration shall apply to any intent to: • mergetwoormoreindependententrepreneurs;• havedirectorindirectcontrolofoneormoreentrepreneurstaken

over – whether by acquisition or by taking up shares, other secu-rities, interests or otherwise – by one or more entrepreneurs;

• haveajointentrepreneurcreatedbyentrepreneurs;or• acquisitionbyanentrepreneurofapartofassetsofanother

entrepreneur (the entirety or part of an enterprise), where a turnover generated by these assets in either of the two financial years preceding the notification exceeded on the territory of the Republic of Poland an equivalent of e10million.

A concentration intent shall not be subject to notification where:• theturnoveroftheentrepreneurbeingacquiredcontrolofdid

not exceed an equivalent of e10 million on the territory of the Republic of Poland in either of the two financial years preceding the notification;

• theconcentrationconsistsinatemporaryacquisitionortakingupof shares by a financial institution for the purpose of their resale, where the economic activity carried on by the said institution cov-ers investing in other entrepreneurs’ shares for its own or for oth-ers’ account, provided the resale is effected before the elapse of one year from the date of acquisition or taking up and provided that:

• the said institution does not exercise rights in the shares other than the right to dividend; or

• it exercises the said rights for no other purpose than prepara-tory to reselling the enterprise in whole or in part, or assets of the enterprise, or these shares;



• theconcentrationconsistsinatemporaryacquisitionortak-ing up of shares by an entrepreneur with the object of securing receivables, provided the entrepreneur does not exercise rights in these shares other than the right to sell the same;

• theconcentrationoccursinthecourseofbankruptcyproceed-ings, save where the entity proposing to take over control is a competitor or a member of a capital group associating competi-tors of the target entrepreneur; or

• theentrepreneursinvolvedbelongtothesamecapitalgroup.

Except for the foreign ownership limits, the Broadcasting Act has no special provisions concerning concentrations in the broadcasting sec-tor; therefore, general principles envisaged in the Competition Law, as described above, and restrictions regarding foreign shareholding asreferredtoinquestions28and34,shallapply.Inaddition,thegeneral principles provided in the Competition Law shall apply to newmediasector.

53 Merger control authorities

Which regulatory or competition authorities are responsible for the

review of mergers, acquisitions and joint ventures in the telecoms,

broadcasting and new media sectors?

ThepresidentofUOKiKistheauthorityresponsibleforcontrollingconcentrationsinallthesesectors.

54 Procedure and timescale

What are the procedures and associated timescales for review and

approval of telecoms and broadcasting mergers, acquisitions and joint

ventures?

NotificationofintendedconcentrationsmustbefiledwithUOKiKbyentrepreneurs directly participating in a concentration (jointly by the undertakings involved in the concentration in the case of the intended

merger of two or more previously independent undertakings, by the undertaking that acquires control and jointly by all undertakings involvedintheestablishmentofajointundertaking).

Procedures set out in the Competition Law apply to mergers andbuyouts inthetelecomssectorandbroadcastingsector.Theprovisions of the Code of Administrative Procedure apply to pending matters.PursuanttotheCompetitionLaw,thepresidentofUOKiKmay

return, within 14 days, a notification of an entrepreneurs’ concen-tration intent if the notification fails to satisfy the requirements pre-scribedintheCompetitionLaw.Thepresidentmayalsosummonthe party notifying the concentration intent to remove indicated insufficiencies of the notification or to supplement the notification byprovidingnecessaryinformation,withinafixedtimelimit.ThepresidentofUOKiKconsentstoorprohibitsaconcentrationbyitsdecision.

Anti-monopoly proceedings on concentration should be concludednolaterthantwomonthsfromtheirstartdate.However,inpractice proceedings in more complicated cases may last significantly longer.

Appeals against decisions prohibiting concentration may be filed with the Court for Protection of Competition and Consumers withintwoweeksofthedecisionbeingserved.JudgmentsoftheCompetition Court may be subject to an appeal to the Appeal Court onprinciplessetoutintheCodeofCivilProcedure.

Arwid Mednis [email protected] Artur Salbert [email protected]

ul Jasna 14/16a Tel: +48 22 50 50 700

00-041 Warsaw Fax: +48 22 50 50 701

Poland www.eversheds.pl

Telecoms and media 2013 issn 1471-0447

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