Electronic Communications Networks and Services (General)

L.N. 485 of 2011

ELECTRONIC COMMUNICATIONS

(REGULATION) ACT

(CAP. 399)

Electronic Communications Networks and Services (General)

(Amendment) (No, 2) Regulations, 2011

IN exercise of the powers conferred by article 47 of the

Electronic Communications (Regulation) Act, the Minister for

Infrastructure, Transport and Communications, after consultation

with the Malta Communications Authority, has made the following

regulations

The title of these regulations is the Electronic

Communications Networks and Services (General) (Amendment)

(No. 2) Regulations, 2011 and they shall be read and construed as

one with the Electronic Communications Networks and Services

(General) Regulations, 2011, hereinafter referred to as “the

principal regulations”.

In sub-regulation (1) of regulation 5 of the principal

regulations, for the words “the recommendation and the guidelines”

there shall be substituted the words “the recommendations and

taking the utmost account of the guidelines”.

Regulation 7 of the principal regulations shall be

amended as follows

(a) in sub-regulation (3) thereof, for the words “the

Authority shall adopt the resulting draft measure” there

shall be substituted the words “the Authority shall adopt the

resulting draft measure within six months of the date of the

decision of the European Commission”; and

(b) in sub-regulation (5) thereof, the words “the

Authority shall adopt the resulting draft measure” there

shall be substituted the words “the Authority shall adopt the

resulting draft measure within six months of the date of the

decision of the European Commission”.

For paragraph (f) of sub-regulation (2) of regulation 15 of

the principal regulations there shall be substituted the following

“(f) to provide co-location or other forms of associated

facility sharing without prejudice to article 12 of the Act;”.

Regulation 35 of the principal regulations shall be

amended as follows

(a) in sub-regulation 35(1) thereof –

(i) in paragraph (b) sub-paragraph (iv) thereof, for the

words: -

“(iv) the service quality levels offered, including,

as a minimum, the

(1) maximum time for the initial connection

and disconnection;

(2) maximum repair time for faults or other

service faults;”

there shall be substituted with the words -

“(iv) the service quality levels offered, including, as a

minimum unless determined otherwise by the Authority, the

(1) maximum time for the initial connection and

disconnection;

(2) maximum repair time for faults or other

service faults, except in the event of catastrophic

network breakdown or in cases of force majeure;”; and

(ii) for paragraph (l) thereof shall be substituted

the following

(l) the method of initiating procedures for

settlement of disputes with the undertakings and,

where necessary, with the Authority, in accordance

with article 44 of the Malta Communications

Authority Act;”;

(b) in sub-regulation (4) thereof -

(i) for paragraph (a) there shall be substituted the

following

“(a) draw up contracts in accordance with

subregulation (1) in relation to every retail service

provided;”; and

(ii) for paragraph (b) there shall be substituted the

following

“(b) make available upon request, the complete

version of every contract in all retail outlets and on

any related website operated or controlled by the

undertaking;”.

Regulation 36 of the principal regulations shall be

amended as follows

(a) for sub-regulation (1) there shall be substituted the

following

“(1) Notwithstanding any provisions of a contract

entered into with an undertaking, subscribers shall have

the right at any time, to terminate the said contract

through simple means, acceptable to the Authority,

subject to any prior notice not exceeding one month and

to any applicable termination charges

Provided that such charges shall be reasonable and

justified.”; and

(b) in sub-regulation (5) for the words “Except in

cases of fraud, persistent late payment or non-payment, any

measures taken in accordance with subregulation (4)” there

shall be substituted the words: “Except in cases of fraud,

persistent late payment or non-payment, wilful damage to

the network and illegal use of service, any measures taken in

accordance with subregulation (4)”.

Regulation 37 of the principal regulations shall be

amended as follows

(a) for sub-regulation (2) thereof, there shall be

substituted the following

“(2) Without prejudice to any decisions that the

Authority may take in this regard, the information

referred to in subregulation (1) shall be conveyed in a

clear and comprehensive manner to end-users, at least

(a) in writing at all retail outlets such that

upon request it is readily available for inspection

free of charge by the general public during normal

business hours; and

(b) on any website operated or controlled by

the undertaking, preferably through the same page

where the service is publicised or through a link set

for this purpose, in a form and manner allowing the

easy identification thereof.”; and

(b) sub-regulation (4) thereof shall be amended as

follows

(i) in paragraph (d) thereof, for the words “and on

how those procedures could impact on service quality;

and” there shall be substituted the words “and on how

those procedures could impact on service quality;”;

(ii) paragraph (e) thereof shall be renumbered as

paragraph (f); and

(iii) immediately after paragraph (d) thereof there

shall be added the following new paragraph

(e) inform subscribers of their right to determine whether

or not to include their personal data in a directory and of the

types of data concerned in accordance with regulation 8 of

the Processing of Personal Data (Electronic Communications)

Regulations, 2003; and”.

For sub-regulation (3) of regulation 38 of the principal

regulations there shall be substituted the following

“(3) The Authority may arrange, or require an

undertaking to which this regulation refers to arrange an

independent audit or review to ensure compliance with sub-

regulation (1)

Provided that the Authority shall, before proceeding

to arrange or require such audit, notify the undertaking

concerned, warning it of the measure that may be taken

and the specific reasons therefor, requiring the undertaking

to make its submissions within a period not less than fifteen

days

Provided further that the audit shall be paid by the

undertaking concerned only in cases where the results express

a negative opinion on the billing system.”.

Regulation 48 of the principal regulations shall be

amended as follows

(a) in sub-regulation (2) thereof, for the words “for a

minimum period of twelve (12) months, or any other period as

may be specified by the Authority” there shall be substituted

the words “for a minimum period specified by the Authority”;

and

(b) in regulation (3) for the words “for a minimum

period of five years, or any other period as may be specified

by the Authority” there shall be substituted the words “for a

minimum period specified by the Authority”.

In regulation 52 of the principal regulations, sub-

regulation (3) shall be renumbered as sub-regulation (4) thereof

and immediately after sub-regulation (2) thereof there shall be

added the following new sub-regulation

“(3) Without prejudice to Directive 95/46/EC of the

European Parliament and of the Council of 24 October 1995

on the protection of individuals with regards to the processing

of personal data and on the free movement of such data, the

measures referred to in sub-regulations (1) and (2) shall at

least

(a) ensure that personal data can be accessed only

by authorised personnel for legally authorised purposes;

(b) protect personal data stored or transmitted

against accidental or unlawful destruction, accidental

loss or alteration, and unauthorised or unlawful storage,

processing, access or disclosure; and

(c) ensure the implementation of a security policy

with respect to the processing of personal data

Provided that the Authority may, in collaboration

with the Information and Data Protection Commissioner,

audit the measures taken by the undertakings referred to

in subregulations (1) and (2) and issue recommendations

about best practices concerning the level of security

which such measures should achieve.”.

(1) Parts X, XI and XII of the principal regulations

shall be renumbered as Parts XI, XII and XIII respectively.

(2) Immediately after regulation 71 of the principal

regulations there shall be added the following new Part

“PART X

Trading Rules for Radio Spectrum Licences

71A. In this Part unless indicated otherwise

‘‘licence’’ means a licence for the individual rights

of use of radio frequencies;

‘‘licensee’’ means the undertaking requesting to

make a transfer or lease of a licence.

71B. (1) Subject to the provisions of regulation Transfer of applicable

71D, the transfer by a licensee of the applicable rights and rights

conditions of a licence is authorised, provided that once the

transfer is made, such rights and conditions as relate to all

or part of the range of radio frequencies being transferred,

become the rights and conditions applicable to the transferee

to the exclusion of the licensee making the transfer.

(2) Sub-regulation (1) shall apply only to

those licences in the radio frequency bands identified in the

frequency plan as being transferable.

71C. (1) Subject to the provisions of regulation 71D, Lease of applicable

the lease by a licensee of the applicable rights and conditions rights

of a licence is authorised, provided the requirements in sub-

regulation (2) are met, which requirements are applicable for

the period during which the applicable rights and conditions

are leased.

(2) Once the lease comes into effect the

applicable rights under a licence which relate to all or part of

the range of radio frequencies become the rights of the lessee

Provided that for the part of the range of radio

frequencies being leased

(a) the applicable conditions 1, 5, 6 and 7

specified in Part B of the Seventh Schedule continue to

apply to the licensee;

(b) the applicable conditions 2, 3 and 8 specified

in Part B of the Seventh Schedule apply to both the

licensee and lessee;

(c) the term of the lease cannot exceed beyond

the term of the original licence; and

(d) the rights transferred to the lessee for the

duration of the lease automatically revert back to the

licensee at the end of the term of the lease.

(3) Sub-regulation (1) shall apply only to those

licences in the radio frequency bands which may be leased as

identified in the frequency plan.

71D. A transfer or lease of applicable rights and

conditions under a licence shall not be authorised, where

(a) no written document is available which

confirms that the licensee and the transferee have

consented to the transfer;

(b) no written document is available which

confirms that the licensee and the lessee have consented

to the lease;

(c) any sum payable in respect of that licence is

owing to the Authority because it has not been paid by

the time it became due;

(d) the Authority has served a notice under

regulation 74 on the licensee of a proposal to revoke,

suspend or vary that licence but that revocation,

suspension or variation has not yet been made;

(e) the licensee has requested the Authority to

revoke or vary the licence conditions or has consented to

a revocation or variation proposed by the Authority, but

that revocation or variation has not yet been made; or

(f) the Authority has not given its consent under

regulation 71G to the requested transfer or lease.

71E. (1) The licensee who wishes to make a transfer

or lease of a licence shall in all cases make a written request

to the Authority, providing a description of the type of transfer

or lease and any other such information as the Authority may

reasonably require in order to enable it to process the request

Provided that where a transferee or lessee has been

identified by a licensee, the licensee shall provide the

Authority with the details of the proposed transferee or lessee.

(2) The Authority shall after receipt by it of a

request made in accordance with subregulation (1), publish

a notice on its website stating the name of the licensee and

of the proposed transferee or lessee providing any such

information as it may consider relevant about the requested

transfer or lease.

(3) Interested persons shall be given thirty

running days to express any interest and, or any objections to

the requested transfer or lease.

(4) Where interest in the transfer or lease

is expressed by two or more persons the licensee shall

consider all offers following an open, transparent and non-

discriminatory competitive process.

(5) Without prejudice to the provisions of

subregulation (1), the licensee who wishes to make a transfer

or lease shall provide the Authority with

(a) the reference of the licence under which the

applicable rights and conditions are to be transferred or

leased in whole or in part;

(b) a description of which range of radio

frequencies are to be transferred together with the

applicable rights and conditions;

(c) the name and address of the licensee and of

the transferee or of the lessee;

(d) a description of the type of transfer being

requested;

(e) a document signed by or on behalf of the

licensee and by or on behalf of the transferee or lessee,

under which each of those persons guarantees to the

Authority that they have consented to the requested

transfer or lease; and

(f) any information as the Authority may

reasonably require in order to determine whether or not

it shall consent to the transfer or lease.

(6) The Authority shall, after determining

whether or not the requirements of subregulation (5) have

been met, publish a notice on the website of the Authority

stating

(a) the name of the licensee and of the proposed

transferee or lessee to whom it is being proposed that the

range of radio frequencies together with the applicable

rights and conditions arising under the licence shall be

transferred or leased;

(b) the date when the Authority determined

whether the requirements of sub-regulation (5) were

met;

(c) the licence under which the applicable rights

and conditions are to be transferred or leased; and

(d) the proposed range of radio frequencies being

transferred and, in the case of a lease, the duration of the

lease.

(7) After publishing a notice under subregulation

(6) the Authority shall, within a maximum period of four

months, decide if

(a) it consents to the transfer or lease in

accordance with regulation 71G; and

(b)

it shall give any directives under regulation

71H. (8) The Authority shall notify the persons who

are party to the requested transfer or lease of any decision

made by it in accordance with subregulation (7).

71F. (1) A transfer shall be made by the licensee by Making of a transfer

his surrendering the licence under which the applicable rights or lease.

and conditions for the range of frequencies being transferred

arise, and by the Authority granting a new licence to the

transferee for the range of radio frequencies being transferred

together with the applicable rights and corresponding

conditions

Provided that in the case where the licence is transferred

in part only, a new licence shall be issued to the licensee for

the range of radio frequencies retained by him together with

the applicable rights and conditions

Provided further that in the case of a lease, the lease

shall be made following

(a) an amendment by the Authority of the licence

granted to the licensee of the applicable rights and

conditions for the remaining period of the said licence;

and

(b) the granting of a new licence to the lessee of

the applicable rights and conditions for the duration of

the lease.

(2) The Authority shall publish the information

specified in subregulation (6) of regulation 71E in relation

to transfers and leases that have been made pursuant in

accordance with this regulation.

71G. (1) In determining whether or not to consent

to a requested transfer or lease the Authority shall take into

account whether –

(a) the licensee is in breach of the terms of the

licence under which the rights and conditions are to be

transferred or leased;

(b) the licensee, where applicable, has satisfied

condition 1 specified in Part B of the Seventh Schedule;

(c) in the case where the licensee retains a part

of the range of radio frequencies, the licensee is able to

meet the terms, provisions and limitation of the licence

which is to be granted as a result of the transfer which

may continue to include, where applicable, condition 1

as specified in Part B of the Seventh Schedule;

(d) the transferee is able to meet the terms,

provisions and limitations of the licence to be granted

as a result of the transfer which may include, where

applicable, condition 1 as specified in Part B of the

Seventh Schedule;

(e) where a lease is being made, the lessee is

able to meet the terms, provisions and limitations of the

licence to be granted as a result of the lease;

(f) competition is likely to be distorted as a result

of the transfer or lease; and

(g) it is requisite or expedient to refuse consent to

the transfer or lease

(i)

in the interests of national security; or

(ii) for the purposes of complying with

any European Union obligations or with and

international agreement or arrangements entered

into by the Government of Malta, or by the need to

ensure compliance with the Act or any other law, or

to ensure efficient frequency planning, or to ensure

consistency with established policies.

71H. (1) If the Authority consents to a transfer or

lease it may also issue a directive to the persons party to the

transfer or lease that such transfer or lease shall only be put

into effect in accordance with regulation 71F after compliance

with any conditions which may relate to any matter provided

for under regulation 71G.

(2) A transfer or lease shall not come into force

in accordance with regulation 71F until there is compliance

with the conditions set out in any directive as may be issued

in accordance with this regulation.”.

Paragraph 13 of Section B of Part 2 of the Ninth

Schedule to the principal regulations shall be amended as follows

(a) for paragraph 13.2. thereof, there shall be

substituted the following

“13.2. The authorised undertakings shall comply

with any radiation emission standards adopted and

published by the International Commission for Non-

Ionising Radiation Protection (ICNIRP) or any other

appropriate standards as may be specified by law or by

the competent public health authorities

Provided that in the case of any standards specified

by a competent public health authority, then such a

competent authority shall ensure that

(a) before specifying such standards seek

the views of other public authorities including

those of the Authority, and

(b) such standards are communicated in

writing to the Authority

Provided further that any such standards shall

be made public on the website of the Authority;”;

and

(b) in paragraph 13.3. thereof, for the words “or

as may be prescribed by the Authority or accepted by the

Authority as being adequate to ensure the limitation of

exposure of the general public to electromagnetic fields”

there shall be substituted the words “or as may be prescribed

in accordance with paragraph 13.2. or as may be accepted by

the Authority or by the competent public health authorities

as being adequate to ensure the limitation of exposure of the

general public to electromagnetic fields.”.

€1.17