New Telecoms Law introduced in Spain – Lexology

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A new Spanish telecommunications law has come into force in Spain, implementing one of the key measures set out in the country’s agenda for digital transformation, Spain Digital 2025 . The new law in Spain implements the requirement for the European Union Electronic Communications Code to be adopted into national law, a requirement that suffered delay – with Spain being one of a number of countries referred to the European Court of Justice because of it – but has finally came into force on 30 June 2022.
In what is already a fiercely competitive Spanish market, the new law brings the potential for even more competition, compelling operators to continue focus on investment, migrating from legacy networks to modern infrastructure. It also brings a significant internal time and investment commitment on the part of the operators who will need to implement change across their organisations, from business processes and operational systems to contractual documents and communication change in order to comply.
Promoting investment in high-capacity networks
One of the key objectives of the new law promotes investment, public and private, in very high-capacity networks, including 5G and fibre optic networks. With this, and supporting government programs and initiatives to help expand and improve network roll-out, operators can take advantage of the opportunities offered to further invest and grow.
The new provisions include a requirement for the CNMC to have to take into account investment risk of the operators when considering matters in their remit. This potentially allows the bigger market operators to proactively offer the CNMC commitments related to access or co-investment conditions, including co-investment commitments in the development, deployment and faster roll-out of very high-capacity networks
Enabling fast and effective network roll-out of new infrastructure
In order to promote universal access, the Ministry of Economic Affairs and Digital Transformation (“MINECO”) is tasked with preparing an annual geographic study on the scope and extension of broadband networks (including very high-capacity networks). Operators will be subject to public consultation to enable MINECO to complete the study, one of the outputs being a map that will differentiate 3 types of areas in Spain based on their network speed capacity. This will inform and serve as the basis for the preparation of national broadband plans to be implemented by government. These are anticipated to include the award of public aid for operators who enable the deployment of networks in underdeveloped areas. In order to support MINECO’s work, there is a further 2-month deadline whereby holders of internet exchange points (IXP) located in Spain must communicate these locations to MINECO.
Importantly there are also a number of provisions to help operators deal with the challenges of build, particularly in urban areas. The new law obliges public bodies to provide for the implementation of telecoms infrastructure as part of their urban planning. Operators are also granted a right of access to public infrastructure such as electricity, gas or water for the purposes of managing their installations and builds.
Extending the remit to new services
One of the main changes brought about by the new law is the inclusion of interpersonal communications services into its scope. These services are number-independent services i.e., send and receive without using regulated allocated numbering such as WhatsApp and telegram. Whilst this looks like a significant change, practically the requirement on these operators is to register with the Spanish regulator, the Spanish Markets and Competition Authority (CNMC), within 2 months i.e., by 29 August 2022. However, they remain outside of the scope of many of the requirements imposed on those operators who use more traditional means, including being exempt from the requirement to pay the operator general fee. In parallel, those who are required to pay the operator general fee is also restricted and applicable only to those operators with annual gross revenues equal to or greater than one million euros.
Additional operator obligations
The new law introduces security measures to manage the new risks to which today’s networks and services are exposed. In addition to reinforcing the operational quality of number 112 as an emergency call number functional throughout Europe, it imposes a number of additional obligations on operators, including the obligation to implement a public alert system through which operators can enable the transmission of public alerts in the event of catastrophes or emergencies. End users should be able to easily receive the alerts. The transmission of alerts to the public must be free for end users and for the entity in charge of issuing the alerts.
Consumer and consumer rights
Whilst the ability to lock customers in has been fading for some time, the new law reduces operator ability to tie their users to them as well as bringing a requirement for increased transparency and information provision:
There is an onus on operators to adapt their end user contracts and operations within 2 months and to modify existing contracts within 4 months, with the express option for such users to terminate these arrangements if they do not want to accept the new terms.
SMP Operators
The new law introduces security measures to manage the new risks to which today’s networks and services are exposed. In addition to reinforcing the operational quality of number 112 as an emergency call number functional throughout Europe, it imposes a number of additional obligations on operators, including the obligation to implement a public alert system through which operators can enable the transmission of public alerts in the event of catastrophes or emergencies. End users should be able to easily receive the alerts. The transmission of alerts to the public must be free for end users and for the entity in charge of issuing the alerts.
Radio Spectrum
The new measures facilitate the shared use of radio spectrum, extending the minimum term to 20 years and allowing, where permitted, a maximum duration of up to 40 years, depending in each instance on the specifics of the technology and the licence. Some changes will apply automatically to existing licencees of publicly-owned radioelectric spectrum. The new law also removes other “spectrum” related restrictions, such as the implementation of wireless access points for small areas.
It is worth noting that there is a now an onus for operators to – proactively and in advance – check that where they are granting use of their spectrum for radio broadcasts, that the proposed broadcasters have the appropriate licences to do so.
Universal Service
The requirements for universal service i.e., the requirement that every person is entitled to a baseline level of telecom service, have been amended. Now the minimum speed for internet access is increased from 1 to 10 Mbit/s downstream, with a possible extension to 30 Mbit/s per second. Further, measures for universal service of broadband internet access needs to be implemented at a minimum speed of 100 Mbit/s downstream within one year i.e., by 29 June 2023 (note that Spain already has broadband connectivity infrastructure that covers 88% of the population with an access speed of 100 Mb/s, placing it above the European average, which stands at 34%).
Whilst the new law sets out a more efficient and flexible framework for the sector overall and encourages technology deployment, operators should not underestimate the impact it will have on their future growth and strategic plans. Successful change is not about implementing the changes required by the law, it will be about analysing the opportunities it offers, such that operators can proactively embrace the networks, services and apps of today and of the future.
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