ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) REGULATIONS

AND SERVICES (GENERAL)

SUBSIDIARY LEGISLATION 399.48

ELECTRONIC COMMUNICATIONS NETWORKS

AND SERVICES (GENERAL) REGULATIONS

1st October, 2021

LEGAL NOTICE 379 of 2021.

PART I

PRELIMINARY

The title of these regulations is the Electronic

Communications Networks and Services (General) Regulations.

(Regulation 7)

LIST OF CONDITIONS WHICH MAY BE ATTACHED TO

GENERAL AUTHORISATIONS, RIGHTS OF USE FOR RADIO

SPECTRUM AND RIGHTS OF USE FOR NUMBERING

RESOURCES

Note: This Schedule provides the maximum list of conditions which

may be attached to general authorisations for electronic

communications networks and services, except number-independent

communications services (Part A); electronic communications

networks (Part B); electronic communications services, except number-

independent interpersonal communications services (Part C); rights of

use for radio spectrum (Part D); and rights of use of numbering

resources (Part E).

Part A. General conditions which may be attached to a general

authorisation

1. Administrative charges in accordance with regulation 12.

2. Personal data and privacy protection specific to the

electronic communications sector in accordance with the Data

Protection Act, the Processing of Personal Data (Electronic

Communications Sector) Regulations and Part XIII of these

regulations.

3. Information to be provided under a notification procedure in

accordance with regulation 5 and for other purposes as specified in

regulation 16.

4. Enabling of legal interception by competent national

authorities in accordance with Regulation (EU) 2016/679, the Data

Protection Act, the Processing of Personal Data (Electronic

Communications Sector) Regulations and Part XIII of these

regulations.

5. Terms of use for communications from public authorities to

the general public for warning the public of imminent threats and for

mitigating the consequences of major catastrophes.

6. Terms of use during major disasters or national emergencies

to ensure communications between emergency services and authorities.

7. Access obligations other than those provided for in

regulations 7 and 8 applying to undertakings providing electronic

communications networks or services.

8. Measures designed to ensure compliance with the standards

or specifications referred to in regulation 26.

AND SERVICES (GENERAL)

9. Transparency obligations on providers of public electronic

communications networks providing publicly available electronic

communications services to ensure end-to-end connectivity, in

conformity with the objectives and principles set out in article 4 of the

Act, and where necessary and proportionate, access by the Authority

to such information needed to verify the accuracy of such disclosure.

Part B. Specific conditions which may be attached to a general

authorisation for the provision of electronic communications

networks

1. Interconnection of networks in accordance with the Act and

these regulations.

2. "Must carry" obligations in conformity with the Act and

these regulations.

3. Measures for the protection of public health against

electromagnetic fields caused by electronic communications networks

in accordance with European Union law, taking utmost consideration

of Recommendation 1999/519/EC.

4. Maintenance of the integrity of public electronic

communications networks in accordance with the Act and these

regulations including conditions to prevent electromagnetic

interference between electronic communications networks and, or

services in accordance with Directive 2014/30/EU.

5. Security of public networks against unauthorised access in

accordance with the Data Protection Act, the Processing of Personal

Data (Electronic Communications Sector) Regulations, and Part XIII

of these regulations.

6. Conditions for use of radio spectrum in accordance with

Article 7(2) of Directive 2014/53/EU where such use is not made

subject to the granting of individual rights of use in accordance with

article 37(1) and (2) of the Act, and regulation 35.

Part C. Specific conditions which may be attached to a general

authorisation for the provision of electronic communications

s e r v i c e s , e x c e p t n u m b e r- i n d e p e n d e n t i n t e r p e r s o n a l

communications services.

1. Interoperability of services in accordance with the Act and

these regulations.

2. Accessibility by end-users of numbers from the national

numbering plan, numbers from the Universal International Free phone

Numbers (UIFN), and, where technically and economically feasible,

from numbering plans of other Member States, and conditions in

accordance with the Act and these regulations.

AND SERVICES (GENERAL)

3. Consumer protection rules specific to the electronic

communications sector.

4. Restrictions in relation to the transmission of illegal content,

in accordance with the Electronic Commerce Act, and restrictions in

relation to the transmission of harmful content in accordance with Parts

IIIB and IIIC of the Broadcasting Act.

Part D. Conditions which may be attached to rights of use for

radio spectrum

1. Obligation to provide a service or to use a type of technology

within the limits of Part V of the Act and regulation 32 including where

appropriate, coverage and quality of service requirements.

2. Effective and efficient use of radio spectrum in accordance

with the Act and these regulations.

3. Technical and operational conditions necessary for the

avoidance of harmful interference and for the protection of public

health against electromagnetic fields, taking utmost account of

Recommendation 1999/519/EC where such conditions are different

from those included in the general authorisation, of the radiation

emission standards adopted and published by ICNIRP or by a public

authority which at law is responsible for the adoption of any such

standards, or with any other appropriate standard as may be specified at

law

4. Maximum duration in conformity with regulation 36, subject

to any changes in the Frequency Plan.

5. Transfer or leasing of rights at the initiative of the rights

holder and conditions for such transfer in accordance with the Act and

these regulations.

6. Fees for rights of use in accordance with regulation 31.

7. Any commitments which the undertaking obtaining the

rights of use has made in the framework of an authorisation or

authorisation renewal process prior to the authorisation being granted

or, where applicable, to the invitation for applications for rights of use.

8. Obligations to pool or share radio spectrum or allow access

to radio spectrum for other users in specific regions or at national level.

9. Obligations under relevant international agreements relating

to the use of radio spectrum bands.

10. Obligations specific to an experimental use of radio

spectrum bands.

AND SERVICES (GENERAL)

Part E. Conditions which may be attached to rights of use for

numbering resources

1. Designation of service for which the number shall be used,

including any requirements linked to the provision of that service and,

for the avoidance of doubt, tariff principles and maximum prices that

can apply in the specific number range for the purposes of ensuring

consumer protection in accordance with article 4(1)(d) of the Act.

2. Effective and efficient use of numbering resources in

accordance with the Act and these regulations.

3. Number portability requirements in accordance with the Act

and these regulations.

4. Obligation to provide public directory end-user information

for the purposes of regulation 99.

5. Maximum duration in accordance with regulation 81,

subject to any changes in the national numbering plan.

6. Transfer of rights at the initiative of the rights holder and

conditions for such transfer in accordance with the Act and these

regulations, including any condition that the right of use for a number

be binding on all undertakings to which the rights are transferred.

7. Fees for rights of use in accordance with regulation 82.

8. Any commitments which the undertaking obtaining the

rights of use has made in the course of a competitive or comparative

selection procedure.

9. Obligations under relevant international agreements relating

to the use of numbers.

10. Obligations concerning the extraterritorial use of numbers,

when permissible by the Authority, to ensure compliance with

consumer protection and other number-related rules in other countries.

AND SERVICES (GENERAL)

In these regulations, unless the context otherwise

requires

""Act" means

the

Electronic

Communications

(Regulation) Act;

"application programming interface" or "API" means the

software interface between applications, made available by

broadcasters or service providers, and the resources in the

enhanced digital television equipment for digital television and

radio services;

"authorised undertaking" means an undertaking deemed

to be authorised to provide electronic communications

networks and, or services in accordance with these regulations;

"call" means a connection established by means of a

publicly available interpersonal communications service

allowing two-way voice communication;

"caller location information" means, in a public mobile

network, the data processed, derived from network

infrastructure or handsets, indicating the geographic position of

an end-user’s mobile terminal equipment, and, in a public fixed

network, the data about the physical address of the network

termination point;

"the Charter" means the Charter of Fundamental Rights

of the European Union;

"competent authority" and, or "competent public body"

means any national or regional authority, and any national or

regional public body or bodies as the Minister may, after

consultation with the Authority and with the Minister

responsible for such public authority or body, designate under

the Fourteenth Schedule in accordance with his powers under

article 47 of the Act, to be responsible or to undertake any of

AND SERVICES (GENERAL)

the functions however so described, as stipulated in these

regulations;

"Decision (EU) 2017/899" means Decision (EU) 2017/

899 of the European Parliament and of the Council of 17 May

2017 on the use of the 470-790 MHz frequency band in the

European Union;

"Decision No 243/2012/EU" means Decision No 243/

2012/EU of the European Parliament and of the Council of 14

March 2012 establishing a multiannual radio spectrum policy

programme;

"Directive 2003/98/EC" means Directive 2003/98/EC of

the European Parliament and of the Council of 17 November

2003 on the re-use of public sector information;

"Directive 2014/30/EU" means Directive 2014/30/EU of

the European Parliament and of the Council of 26 February 2014

on the harmonisation of the laws of the Member States relating

to electromagnetic compatibility;

"Directive 2014/53/EU" means Directive 2014/53/EU of

the European Parliament and of the Council of 16 April 2014 on

the harmonisation of the laws of the Member States relating to

the making available on the market of radio equipment and

repealing Directive 1999/5/EC;

"Directive 2014/61/EU" means Directive 2014/61/EU of

the European Parliament and of the Council of 15 May 2014 on

measures to reduce the cost of deploying high-speed electronic

communications networks;

"Directive (EU) 2015/1535" means Directive (EU) 2015/

1535 of the European Parliament and of the Council of 9

September 2015 laying down a procedure for the provision of

information in the field of technical regulations and of rules on

Information Society services;

"durable medium" means any instrument which enables

the consumer or the trader to store information addressed

personally to him in a way which is accessible for future

reference for a period of time for the purposes of such

information and which allows the unchanged reproduction of the

information stored;

"enhanced digital television equipment" means set-top

boxes intended for connection to television sets or integrated

digital television sets, able to receive digital interactive

television services;

AND SERVICES (GENERAL)

"ENISA" means the European Union Agency for

Network and Information Security;

"gateway operator" means an undertaking providing or

authorised to provide a public electronic communications

network and, or publicly available electronic communications

services which includes a submarine connection between the

Maltese islands and, or includes an international connection

between Malta and other countries;

"geographic number" means a number from the national

numbering plan where part of its digit structure contains

geographic significance used for routing calls to the physical

location of the network termination point;

"ICNIRP" means the International Commission on Non-

Ionising Radiation Protection;

"most appropriate PSAP" means a PSAP established by

responsible authorities to cover emergency communications

from a certain area or for emergency communications of a

certain type;

"number-independent interpersonal communications

service" means an interpersonal communications service

which does not connect with publicly assigned numbering

resources, namely, a number or numbers in national or

international numbering plans, or which does not enable

communication with a number or numbers in national or

international numbering plans;

"non-geographic number" means a number from the

national numbering plan that is not a geographic number, such

as mobile, freephone and premium-rate numbers;

"other electronic communications services" include

(i)

services consisting wholly or mainly in the

conveyance of signals such as transmission services for

the provision of machine-to-machine (M2M) or Internet

of Things (IoT);

(ii)

number-based

interpersonal

non-voice

communications services;

(iii) publicly available telephone directories

and directory enquiry services;

(iv) other

publicly

available

electronic

communications services; and

AND SERVICES (GENERAL)

(v)

non-publicly

available

electronic

communications services.

"provision of an electronic communications network"

means the establishment, operation, control or making available

of such a network;

"radio local area network" or "RLAN" means a low-

power wireless access system, operating within a small range,

with a low risk of interference with other such systems

deployed in close proximity by other users, using, on a non-

exclusive basis, harmonised radio spectrum;

"Recommendation 1999/519/EC" means Council

Recommendation of 12 July 1999 on the limitation of exposure

of the general public to electromagnetic fields (0 Hz to 300

GHz);

"Regulation (EU) No 1315/2013" means Regulation (EU)

No 1315/2013 of the European Parliament and of the Council of

11 December 2013 on European Union guidelines for the

development of the trans-European transport network and

repealing Decision No 661/2010/EU;

"Regulation (EU) 2016/679" means Regulation (EU)

2016/679 of the European Parliament and of the Council of 27

April 2016 on the protection of natural persons with regard to

the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC (General Data

Protection Regulation);

"Regulation (EU) 2018/1971" means Regulation (EU)

2018/1971 of the European Parliament and of the Council of 11

December 2018 establishing the Body of European Regulators

for Electronic Communications (BEREC) and the Agency for

Support for BEREC (BEREC Office), amending Regulation

(EU) 2015/2120 and repealing Regulation (EC) No 1211/2009;

"security incident" means an event having an actual

adverse effect on the security of electronic communications

networks and, or services;

"small-area wireless access point" means low-power

wireless network access equipment of a small size operating

within a small range, using licensed radio spectrum or

licence-exempt radio spectrum or a combination thereof,

which may be used as part of a public electronic

communications network, which may be equipped with one or

more low visual impact antennae, and which allows wireless

access by users to electronic communications networks

AND SERVICES (GENERAL)

regardless of the underlying network topology, be it mobile

or fixed;

"subscriber" means any person who is party to a contract

with the provider of publicly available electronic

communications services for the supply of such services;

"television and radio distribution services" means the

delivery of television and, or radio broadcasts or other

television services to a subscriber through an electronic

communications network;

"total conversation service" means a multimedia real

time conversation service that provides bidirectional

symmetric real time transfer of motion video, real time text

and voice between users in two or more locations;

"transnational markets" means markets identified in

accordance with regulation 53 which cover the European Union

or a substantial part thereof located in more than one Member

State; and

"TFEU" means the Treaty on the Functioning of the

European Union.".

[Regulations 50(1) and 48(2)]

CONDITIONS FOR ACCESS TO DIGITAL TELEVISION AND

RADIO SERVICES BROADCAST TO VIEWERS AND

LISTENERS IN THE EUROPEAN UNION.

Part A. Conditions for conditional access systems to be applied

in accordance with regulation 50(1)

In relation to conditional access to digital television and radio

services broadcast to viewers and listeners in the European Union,

irrespective of the means of transmission, the Authority shall, in

conjunction with other competent authorities, ensure in accordance

with regulation 50 that the following conditions apply

1. All undertakings providing conditional access services,

irrespective of the means of transmission, which provide access

services to digital television and radio services and the access services

of which broadcasters depend on to reach any group of potential

viewers or listeners shall

1.1

offer to all broadcasters, on a fair, reasonable and non-

discriminatory basis compatible with European Union competition law,

technical services enabling the digitally-transmitted services of

broadcasters to be received by viewers or listeners authorised by means

of decoders administered by the service operators, and comply with

European Union competition law; and

1.2

keep separate financial accounts regarding their activity as

conditional access providers.

2. When granting licences to manufacturers of consumer

equipment, holders of industrial property rights to conditional access

products and systems are to ensure that this is done on fair, reasonable

and non-discriminatory terms. Taking into account technical and

commercial factors, holders of rights are not to subject the granting of

licences to conditions prohibiting, deterring or discouraging the

inclusion in the same product of

2.1. a common interface allowing connection with several other

access systems, or

2.2. means specific to another access system, provided that the

licensee complies with the relevant and reasonable conditions ensuring,

as far as that licensee is concerned, the security of transactions of

conditional access system operators.

AND SERVICES (GENERAL)

Part B. Other facilities to which conditions may be applied

under regulation 48(2)(c)

1. Access to application program interfaces (APIs);

2. Access to electronic programme guides (EPGs).

AND SERVICES (GENERAL)

(1)

These regulations shall, unless the context otherwise

requires, apply to

(a)

public electronic communications networks;

(b)

voice communications services;

(c)

internet access services;

(d)

television and radio distribution services; and

(e)

other electronic communications services.

(2)

Any person providing any of the services or operating any

of the networks mentioned in this regulation shall comply with these

regulations.

PART II

COMPETITION

(Regulation 62)

CRITERIA FOR THE DETERMINATION OF WHOLESALE

VOICE TERMINATION RATES

Principles, criteria and parameters for the determination of rates for

wholesale voice termination on fixed and mobile markets referred to in

Article 75(1) of the Electronic Communications Code

(a)

rates shall be based on the recovery of costs

incurred by an efficient operator; the evaluation of efficient

costs shall be based on current cost values; the cost

methodology to calculate efficient costs shall be based on a

bottom-up modelling approach using long-run incremental

traffic-related costs of providing the wholesale voice

termination service to third parties;

(b)

the relevant incremental costs of the wholesale

voice termination service shall be determined by the difference

between the total long-run costs of an operator providing its full

range of services and the total long-run costs of that operator not

providing a wholesale voice termination service to third parties;

(c)

only those traffic-related costs which would be

avoided in the absence of a wholesale voice termination service

being provided shall be allocated to the relevant termination

increment;

(d)

costs related to additional network capacity shall

be included only to the extent that they are driven by the need to

increase capacity for the purpose of carrying additional

wholesale voice termination traffic;

(e)

radio spectrum fees shall be excluded from the

mobile voice termination increment;

(f)

only those wholesale commercial costs shall be

included which are directly related to the provision of the

wholesale voice termination service to third parties;

(g)

all fixed network operators shall be considered to

provide voice termination services at the same unit costs as the

efficient operator, regardless of their size;

(h)

for mobile network operators, the minimum

efficient scale shall be set at a market share not below twenty

per cent;

(i)

the relevant approach for asset depreciation shall

be economic depreciation; and

AND SERVICES (GENERAL)

(j)

the technology choice of the modelled networks

shall be forward looking, based on an IP core network, taking

into account the various technologies likely to be used over the

period of validity of the maximum rate; in the case of fixed

networks, calls shall be considered to be exclusively packet

switched.

AND SERVICES (GENERAL)

(1)

An undertaking shall refrain from doing anything by

an act or omission, which has the effect or the intention of preventing,

restricting or distorting competition.

(2)

The Authority shall, to the extent that it shall be empowered

under the laws that it is entitled to enforce, ensure that the principles of

competition law are fully adhered to in the electronic communications

AND SERVICES (GENERAL)

sector, in particular with regard to

(a)

the

examination

of

any

interconnection

agreements;

(b)

the conditions for market access to undertakings;

(c)

the schemes established for funding universal

service obligations;

(d)

the access to rights of way;

(e)

the cross-ownership of different networks and the

joint provision of networks and, or services; and

(f)

the emergence of any global and regional

partnerships and alliances

Provided that for the purpose of exercising its duties and

functions under the Act, the Authority may seek the advice of the

competent authority responsible for competition.

PART III

GENERAL AUTHORISATION

[Regulation 63(1)]

CRITERIA FOR ASSESSING CO-INVESTMENT OFFERS

When assessing a co-investment offer pursuant to regulation 63(1),

the Authority shall verify whether the following criteria have been met

at a minimum . The Authority may consider additional criteria to the

extent they are necessary to ensure accessibility of potential investors

to the co-investment, in light of specific local conditions and the

market structure

(a)

The co-investment offer shall be open to any

undertaking over the lifetime of the network built under a co-

investment offer on a non-discriminatory basis. The undertaking

designated as having significant market power may include in

the offer reasonable conditions regarding the financial capacity

of any undertaking, so that for instance potential co-investors

need to demonstrate their ability to deliver phased payments on

the basis of which the deployment is planned, the acceptance of

a strategic plan on the basis of which medium-term deployment

plans are prepared, and similar ones.

(b)

The co-investment offer shall be transparent

(i)

the offer shall be available and easily

identified on the website of the undertaking designated as

having significant market power;

(ii)

full detailed terms shall be made available

without undue delay to any potential bidder that has

expressed an interest, including the legal form of the co-

investment agreement and, when relevant, the heads of

term of the governance rules of the co-investment vehicle;

and

(iii) the process, such as the road map for the

establishment and development of the co-investment

project shall be set in advance, shall be clearly explained

in writing to any potential co-investor, and all significant

milestones shall be clearly communicated to all

undertakings without any discrimination.

(c)

The co-investment offer shall include terms to

potential co-investors which favour sustainable competition in

the long term, in particular

(i)

All undertakings shall be offered fair,

reasonable and non-discriminatory terms and conditions

for participation in the co-investment agreement relative

AND SERVICES (GENERAL)

to the time they join, including in terms of financial

consideration required for the acquisition of specific

rights, in terms of the protection awarded to the co-

investors by those rights both during the building phase

and during the exploitation phase, for example by

granting indefeasible rights of use (IRUs) for the

expected lifetime of the co-invested network and in terms

of the conditions for joining and potentially terminating

the co-investment agreement. Non-discriminatory terms

in this context do not entail that all potential co-investors

shall be offered exactly the same terms, including

financial terms, but that all variations of the terms

offered shall be justified on the basis of the same

objective,

transparent,

non-discriminatory

and

predictable criteria such as the number of end-user lines

committed for.

(ii)

The offer shall allow flexibility in terms of

the value and timing of the commitment provided by

each co-investor, for example by means of an agreed and

potentially increasing percentage of the total end-user

lines in a given area, to which co-investors have the

possibility to commit gradually and which is set at a unit

level enabling smaller co-investors with limited

resources to enter the co-investment at a reasonably

minimum scale and to gradually increase their

participation while ensuring adequate levels of initial

commitment. The determination of the financial

consideration to be provided by each co-investor needs to

reflect the fact that early investors accept greater risks

and engage capital sooner.

(iii) A premium increasing over time shall be

considered to be justified for commitments assumed at

later stages and for new co-investors entering the co-

investment after the commencement of the project, to

reflect diminishing risks and to counteract any incentive

to withhold capital in the earlier stages.

(iv) The co-investment agreement shall allow

the assignment of acquired rights by co-investors to other

co-investors, or to third parties willing to enter into the

co-investment agreement subject to the transferee

undertaking being obliged to fulfil all original

obligations of the transferor under the co-investment

agreement.

(v)

Co-investors shall grant each other

reciprocal rights on fair and reasonable terms and

conditions to access the co-invested infrastructure for the

AND SERVICES (GENERAL)

purposes of providing services downstream, including to

end-users, in accordance with transparent conditions

which are to be made transparent in the co-investment

offer and subsequent agreement, in particular where co-

investors are individually and separately responsible for

the deployment of specific parts of the network. If a co-

investment vehicle is created, it shall provide access to

the network to all co-investors, whether directly or

indirectly, on an equivalence of inputs basis and in

accordance with fair and reasonable terms and conditions,

including financial conditions that reflect the different

levels of risk accepted by the individual co-investors.

(d)

The co-investment offer shall ensure a sustainable

investment likely to meet future needs, by deploying new

network elements that contribute significantly to the deployment

of very high capacity networks.

AND SERVICES (GENERAL)

(1)

An undertaking shall be entitled to provide electronic

communications services and, or networks, in accordance with the Act

and with these regulations

Provided that an undertaking shall only be prevented from

providing electronic communications networks or services, where this

is necessary for the reasons set out in Article 52(1) of the TFEU. Any

such limitation to the freedom to provide electronic communications

networks and services shall be duly reasoned and shall be notified to

the European Commission.

(2)

The provision of electronic communications networks or

services, other than number-independent interpersonal communications

services shall, without prejudice to the specific obligations referred to

in regulation 7(2) or rights of use referred to in article 37 of the Act and

regulation 81, be subject only to a general authorisation.

(3)

In accordance with the Act and these regulations, any

undertaking subject to a general authorisation as stated in sub-

regulation (2) shall notify the Authority in writing of its intention to

provide such a network or service before commencing with the

provision of any such network or service.

(4)

An undertaking in submitting a notification for a general

authorisation to the Authority, shall not be required to obtain an explicit

decision or any other administrative act from any public authority

AND SERVICES (GENERAL)

before exercising the rights derived from the general authorisation.

Upon notification to the Authority, an undertaking may start the

activity so notified, where necessary subject to the provisions on the

rights of use under the Act and these regulations.

(5)

The notification submitted in accordance with this

regulation shall not entail more than a declaration by a person to the

Authority of his intention to start the provision of electronic

communications networks and, or services, and the submission of such

minimum information as is required to allow the Authority and

BEREC to keep a register of providers of electronic communications

networks and, or services

Provided that the information shall be limited to

(a)

the name of the provider;

(b)

the legal status of the provider, its form and

registration number;

(c)

the official address for service of notice in Malta,

and the geographical address of the main establishment of the

provider in Malta or any other Member State, as the case may

be;

(d)

the website address of the provider, where

applicable, associated with the provision of electronic

communications networks and, or services;

(e)

a contact person and contact details;

(f)

a short description of the networks and, or

services intended to be provided;

(g)

the Member State or Member States where the

networks and, or services are being provided; and

(h)

an estimated date for starting the activity.

(6)

No additional or separate notification requirements shall be

imposed other than those required under this regulation.

(7)

In line with any guidelines for the notification template and

maintenance of a European Union database of the notifications

transmitted to the competent authorities in all Member States that

BEREC may publish in order to approximate notification

requirements, the Authority shall, by electronic means, forward each

notification received to BEREC without undue delay.

(8)

An undertaking shall notify in writing the Authority of any

changes to the information supplied under sub-regulation (5)(a) to (e)

AND SERVICES (GENERAL)

within fourteen (14) days of such change, and in relation to the

information referred to in sub-regulation (5)(f) to (h) within fourteen

(14) days prior to the commencement of the relevant activity.

(9)

An undertaking shall notify in writing the Authority

immediately when it ceases to provide any electronic communications

networks and, or services under these regulations, and shall remain

responsible for the fulfilment of any obligations as a provider of such

networks and, or services until such notification is received and

acknowledged by the Authority

Provided that the Authority may specify any such additional

requirements onerous on the undertaking concerned as the Authority

considers necessary in order to ensure the protection of end-users and,

or to prevent any disruption to other authorised undertakings.

(10) Any right, interest or entitlement resulting from a general

authorisation is not transferable and shall only be exercised by the

undertaking identified in the notification made to the Authority in

accordance with the provisions of this regulation, and shall apply only

to the electronic communications service and, or network described in

that notification.

[Regulation 71(3)]

MINIMUM SET OF SERVICES WHICH THE ADEQUATE

BROADBAND INTERNET ACCESS SERVICE IN

ACCORDANCE WITH REGULATION 71(3) SHALL BE

CAPABLE OF SUPPORTING

(1)

electronic address;

(2)

search engines enabling search and finding of all type of

information;

(3)

basic training and education online tools;

(4)

online newspapers or news;

(5)

buying or ordering goods or services online;

(6)

job searching and job searching tools;

(7)

professional networking;

(8)

internet banking;

(9)

e-Government service use;

(10)

social media and instant messaging; and

(11)

calls and video calls (standard quality).

AND SERVICES (GENERAL)

(1)

The Authority may decide to specify an electronic

communications network or service of a particular category as being a

network or service in relation to which an undertaking is not subject to

the notification requirements as provided for in regulation 5. Any such

undertaking is deemed to be authorised under these regulations.

(2)

The Authority in making such determination shall give its

reasons therefor.

(Regulations 75, 102 and 94)

SWITCHING AND NUMBER PORTABILITY).

Part A. Facilities and services referred to in regulations 75 and

When applied on the basis of regulation 75, Part A is applicable to

consumers, and such other categories of end-users as the Authority may

determine in accordance with the provisions of regulation 75(2).

When applied on the basis of regulation 102, Part A is applicable to

the categories of end-users established by the Authority except for

points (c), (d) and (g) which are applicable only to consumers.

(a)

Itemised billing

1. The Authority may, subject to the requirements of the

relevant law on the protection of personal data and privacy, lay down

the basic level of itemised bills which are to be offered by providers to

end-users free of charge in order that they can

(i)

allow verification and control of the charges

incurred in using internet access services or voice

communications services, or number-based interpersonal

communications services in the case of regulation 102; and

(ii)

adequately monitor their usage and expenditure

and thereby exercise a reasonable degree of control over their

bills.

2. Where appropriate, the Authority may by decision establish

additional levels of detail that may be offered to end-users at

reasonable tariffs or at no charge.

3. Such itemised bills shall include an explicit mention of the

identity of the supplier and of the duration of the services charged by

any premium numbers unless the end-user has requested that

information not to be mentioned.

4. Calls which are free of charge to the calling end-users,

including calls to helplines, shall not be required to be identified in the

itemised bill of the calling end-user.

5. The Authority may require operators to provide calling-line

identification free of charge.

AND SERVICES (GENERAL)

(b)

Selective barring for outgoing calls or premium SMS or

MMS, or, where technically feasible, other kinds of similar

applications, free of charge

Namely, the facility whereby the end-users can, upon request to the

providers of voice communications services, or number-based

interpersonal communications services in the case of regulation 102,

bar outgoing calls or premium SMS or MMS or other kinds of similar

applications of defined types or to defined types of numbers free of

charge.

(c)

Pre-payment systems.

The Authority may require providers to offer means for consumers

to pay for access to the public electronic communications network and

use of voice communications services, or internet access services, or

number-based interpersonal communications services in the case of

regulation 102, on pre-paid terms.

(d)

Phased payment of connection fees

The Authority may require providers to allow consumers to pay for

connection to the public electronic communications network on the

basis of payments phased over time.

(e)

Non-payment of bills

1. Without prejudice to the provisions under this paragraph,

the Authority shall by decision authorise specified measures, which

are to be proportionate, non-discriminatory and published, to cover

non-payment of bills issued by providers. These measures are to

ensure that due warning of any consequent service interruption or

disconnection is given to the end-users beforehand. Except in cases of

fraud, persistent late payment or non-payment, those measures shall

ensure, as far as is technically feasible, that any service interruption is

confined to the service concerned. Disconnection for non-payment of

bills shall take place only after due warning is given to the end-users.

2. Any measure taken in accordance with paragraph (1) shall

ensure that

2.1

appropriate notice in writing is given to end-users of any

consequent service suspension;

2.2

during the period of suspension, undertakings providing an

electronic communications service for originating national calls to a

number or numbers in a national telephone numbering plan shall,

subject to any decisions that the Authority may issue, ensure that such

measures allow a period of limited service during which only calls that

do not incur a charge to the subscriber are permitted, including

incoming calls, calls to "112" and other emergency call numbers, and

AND SERVICES (GENERAL)

calls to the customer service of the undertaking;

2.3

termination shall take place only after the aforesaid period of

suspension has expired and appropriate notice in writing of any

consequent termination of service has been given to subscribers;

2.4

these measures are to ensure, as far as is technically feasible,

that any suspension or termination of the service is confined to the part

of the service or subscription to which the action or omission leading to

the suspension or termination relates;

2.5

the notice in writing referred to in sub-paragraphs (2.3) and

(2.4) shall specify as a minimum

2.5.1 the reasons for suspension and, or termination;

2.5.2 the notice period;

2.5.3 any available course of action which should be taken by the

subscriber to avoid termination and to have the service restored; and

2.5.4 any charges due on termination.

3. In cases of fraud, wilful damage to the network, illegal use of

a service or persistent late payment or persistent non-payment, the

provisions of paragraph (2) shall not apply

Provided that in the case of persistent late payment or of

persistent non-payment, the undertaking shall, at least three working

days before suspending or terminating the service, in writing notify the

end-user that the service shall be suspended or terminated, giving the

reasons therefor.

(f)

Tariff advice

Namely, the facility whereby end-users may request the provider to

offer information regarding alternative lower-cost tariffs, if available.

(g)

Cost control

Namely, the facility whereby providers offer other means, if

determined to be appropriate by the Authority, to control the costs of

voice communications services or internet access services, or number-

based interpersonal communications services in the case of regulation

102, including free-of-charge alerts to consumers in the case of

abnormal or excessive consumption patterns.

(h)

Facility to deactivate third party billing

Namely, the facility for end-users to deactivate the ability for third

party service providers to use the bill of a provider of an internet access

AND SERVICES (GENERAL)

s e r v i c e o r a p r o v i d e r o f a p u b l i c l y av a i l a b l e i n t er p e r s o n a l

communications service to charge for their products or services.

Part B. Facilities referred to in regulation 102

(a)

Calling-line identification

1. Namely, the number of the calling party is presented to the

called party prior to the call being established.

2. This facility shall be provided in accordance with relevant

law on protection of personal data and privacy, in particular the

Processing of Personal Data (Electronic Communications Sector)

Regulations and Part XIII of these regulations.

3. To the extent that it is technically feasible, operators shall

provide data and signals to facilitate the offering of calling-line

identity and tone dialling across the borders of the Member State.

(b)

E-mail forwarding or access to e-mails after termination

of the contract with a provider of an internet access service

This facility shall, on request and free-of-charge, enable end-users

who terminate their contract with a provider of an internet access

service to either access their e-mails received on the e-mail addresses

based on the commercial name or trade mark of the former provider,

during a period that the Authority may by decision determine to be

necessary and proportionate, or to transfer e-mails sent to those

addresses during that period to a new email address specified by the

end-user.

Part C. Implementation of the number portability provisions

referred to in regulation 94

1. The requirement that all end-users subscribed to voice

communications services with numbers from the national numbering

plan may request that they retain their numbers independently of the

undertaking providing the service shall apply

(a)

in the case of geographic numbers, at a specific

location; and

(b)

in the case of non-geographic numbers, at any

location.

2. This Part does not apply to the porting of numbers between

networks providing services at a fixed location and mobile networks.

AND SERVICES (GENERAL)

(1)

The general authorisation for the provision of

electronic communications networks and, or services, and the rights of

use for radio spectrum and rights of use for numbering resources may

be subject only to the conditions listed in the First Schedule which

conditions shall be non-discriminatory, proportionate and transparent

Provided that in the case of rights of use for radio spectrum,

such conditions shall ensure the effective and efficient use thereof and

shall be in accordance with regulations 32 and 38, and in the case of

rights of use for numbering resources, they shall be in accordance with

regulation 81.

(2)

Specific obligations which may be imposed on undertakings

providing electronic communications networks and, or services under

regulation 48(1) and (8) and regulations 50, 55 and 70, or on those

undertakings designated to provide universal service under these

regulations, shall be legally separate from the rights and obligations

under the general authorisation

AND SERVICES (GENERAL)

Provided that the Authority, in order to achieve

transparency, shall refer to the criteria and procedures for imposing

such specific obligations on individual undertakings in the general

authorisation.

(3)

The general authorisation shall contain only conditions

which are specific for that sector and are set out in Parts A, B and C of

the First Schedule and shall not duplicate conditions which are

applicable to undertakings by virtue of any other national law.

(4)

The conditions of the general authorisation shall not be

duplicated where they grant the right of use for radio spectrum or for

numbering resources.

(Regulations 76 and 77)

CALCULATING THE NET COST, IF ANY, OF UNIVERSAL

ACCORDANCE WITH REGULATIONS 76 AND 77

Part A. Calculation of net cost

Universal service obligations refer to those obligations placed upon

an undertaking in accordance with the Act and these regulations which

concern the provision of universal service as set out in regulations 71 to

74. The Authority shall consider all means to ensure appropriate

incentives for undertakings, whether designated or not, to provide

universal service obligations cost efficiently. In undertaking a

calculation exercise, the net cost of universal service obligations is to

be calculated as the difference between the net cost for any undertaking

operating with the universal service obligations and operating without

the universal service obligations. Due attention is to be given to

correctly assessing the costs that any undertaking would have chosen to

avoid had there been no universal service obligations. The net cost

calculation shall assess the benefits, including intangible benefits, to

the universal service provider.

The calculation is to be based upon the costs attributable to

(i)

elements of the identified services which can only

be provided at a loss or provided under cost conditions falling

outside normal commercial standards. This category may

include service elements such as access to emergency telephone

services, provision of certain public pay telephones, provision of

certain services or equipment for end-users with disabilities, and

so on;

(ii)

specific end-users or groups of end-users who,

taking into account the cost of providing the specified network

and service, the revenue generated and any geographical

averaging of prices imposed, can only be served at a loss or

under cost conditions falling outside normal commercial

standards. This category includes those end-users or groups of

end-users which would not be served by a commercial provider

which did not have an obligation to provide universal service.

The calculation of the net cost of specific aspects of universal

service obligations is to be made separately in order to avoid the double

counting of any direct or indirect benefits and costs. The overall net

cost of universal service obligations to any undertaking is to be

AND SERVICES (GENERAL)

calculated as the sum of the net costs arising from the specific

components of universal service obligations, taking account of any

intangible benefits. The Authority shall be responsible for verifying

the net cost.

Part B. Compensation of net costs of universal service

obligations

The recovery or financing of any net costs of universal service

obligations may require undertakings with universal service

obligations to be compensated for the services they provide under non-

commercial conditions. Because such a compensation involves

financial transfers, the Authority shall ensure that these are undertaken

in an objective, transparent, non-discriminatory and proportionate

manner. This means that the transfers result in the least distortion to

competition and to user demand.

In accordance with regulation 77(2) to (5) a sharing mechanism

based on a fund shall use a transparent and neutral means for

collecting contributions that avoids the danger of a double imposition

of contributions falling on both outputs and inputs of undertakings.

The independent body administering such fund is to be responsible

for collecting contributions from undertakings which are assessed as

liable to contribute to the net cost of universal service obligations and

is to oversee the transfer of amounts due and, or administrative

payments to the undertakings entitled to receive payments from such

fund.

AND SERVICES (GENERAL)

(1)

The conditions applicable to general authorisations

shall be those as stated in the Thirteenth Schedule

Provided that the Authority may in accordance with

regulation 7 amend the Thirteenth Schedule. In doing so the Authority

shall not impose any conditions not listed under Part A of the First

Schedule

Provided further that, the Authority may establish that

certain conditions may not apply to such categories of undertakings as

may be specified by the Authority.

(2)

Any conditions attached to a general authorisation, or non-

application of conditions to such categories of undertakings as may be

specified under sub-regulation (1), shall be objectively justified, non-

discriminatory, proportionate and transparent in relation to the

electronic communications network or service concerned.

(3)

An undertaking shall comply with the conditions attached to

the general authorisation applicable to it.

(4)

The Authority shall not attach as a condition to a general

authorisation, any specific obligations that it may impose on an

undertaking nor any conditions which are applicable to undertakings

by virtue of any other law.

(Regulation 87)

INFORMATION REQUIREMENTS TO BE PROVIDED IN

ACCORDANCE WITH REGULATION 87 (INFORMATION

REQUIREMENTS FOR CONTRACTS)

Part A. Information requirements for providers of publicly

available electronic c ommunica tions ser vices other t han

transmission services used for the provision of machine-to-machine

services.

Providers of publicly available electronic communications services

other than transmission services used for the provision of machine-to-

machine services shall provide the following information

(1)

as part of the main characteristics of each service provided,

any minimum levels of quality of service to the extent that those are

offered and, for services other than internet access services, the specific

quality parameters assured

Provided that where no minimum levels of quality of service

are offered, a statement to this effect shall be made;

(2)

as part of the information on price, where and to the extent

applicable, the respective prices for activating the electronic

communications service and for any recurring or consumption-related

charges;

(3)

as part of the information on the duration of the contract and

the conditions for renewal and termination of the contract, including

possible termination fees, to the extent that such conditions apply

(i)

any minimum use or duration required for a person

to benefit from promotional terms;

(ii)

any charges related to switching and compensation

and refund arrangements for delay or abuse of switching, as well

as information about the respective procedures;

(iii) information on the right of consumers using pre-

paid services to a refund, upon request, of any remaining credit

in the event of switching, as set out in regulation 94(10) to (13);

(iv) any fees due on early termination of the contract,

including information on unlocking the terminal equipment and

any cost recovery with respect to terminal equipment.

(4)

any compensation and refund arrangements,

including, where applicable, explicit reference to rights of

consumers, which apply if contracted levels of quality of service

AND SERVICES (GENERAL)

are not met or if the provider responds inadequately to a

security incident, threat or vulnerability;

(5)

the type of action that might be taken by the provider in

reaction to security incidents or threats or vulnerabilities.

Part B. Information requirements for providers of internet

access services and publicly available interpersonal

communications services

I.

In addition to the requirements set out in Part A, providers

of internet access services and publicly available interpersonal

communications services shall provide the following information

(1)

as part of the main characteristics of each service provided

(i)

any minimum levels of quality of service to the

extent that these are offered, and taking utmost account of the

BEREC guidelines adopted in accordance with Article 104(2)

of Electronic Communications Code regarding

for internet access services: at least latency, jitter, packet

for publicly available interpersonal communications

services; where they exert control over at least some elements of the

network or have a service level agreement to that effect with

undertakings providing access to the network: at least the time for the

initial connection, failure probability, call signalling delays in

accordance with the Tenth Schedule, and

(ii)

without prejudice to the right of end-users to use

terminal equipment of their choice in accordance with Article

3(1) of Regulation (EU) 2015/2120, any conditions, including

fees, imposed by the provider on the use of terminal equipment

supplied;

(2)

as part of the information on the price, where and to the

extent applicable, the respective prices for activating the electronic

communications service and for any recurring or consumption-related

charges

(i)

details of any specific tariff plans under the

contract and, for each such tariff plan the types of services

offered, including where applicable, the volumes of

communications (such as megabytes, minutes, or messages)

included for any billing period, and the price for additional

communication units;

(ii)

in the case of any tariff plans with a pre-set

volume of communications, the possibility for consumers to

AND SERVICES (GENERAL)

defer any unused volume from the preceding billing period to

the following billing period, where this option is included in the

contract;

(iii) facilities to safeguard bill transparency and

monitor the level of consumption;

(iv) tariff information regarding any numbers or

services subject to particular pricing conditions; with respect to

individual categories of services, competent authorities in

coordination, where relevant, with national regulatory

authorities may require in addition such information to be

provided immediately prior to connecting the call or to the

provider of the service;

(v)

for bundled services and bundles including both

services and terminal equipment, the price of the individual

elements of the bundle to the extent they are also marketed

separately;

(vi) details and conditions, including fees, of any after-

sales service, maintenance, and customer assistance; and

(vii) the means by which up-to-date information on all

applicable tariffs and maintenance charges may be obtained;

(3)

as part of the information on the duration of the contract for

bundled services and the conditions for renewal and termination of the

contract, where applicable, the conditions of termination of the bundle

or of elements thereof;

(4)

without prejudice to Article 13 of Regulation (EU) 2016/

679, information on what personal data shall be provided before the

performance of the service or collected in the context of the provision

of the service;

(5)

details on products and services designed for end-users with

disabilities and how updates on this information can be obtained;

(6)

the means of initiating procedures for the resolution of

disputes including national and cross-border disputes in accordance

with article 44 of the Malta Communications Authority Act.

II.

In addition to the requirements set out in Part A and under

Point I, providers of publicly available number-based interpersonal

communications services shall also provide the following information

(1)

any constraints on access to emergency services or caller

location information due to a lack of technical feasibility insofar as the

service allows end-users to originate calls to a number in a national or

international numbering plan;

AND SERVICES (GENERAL)

(2)

the right of the end-user to determine whether to include his

personal data in a directory, and the types of data concerned, in

accordance with regulation 8 of the Processing of Personal Data

(Electronic Communications Sector) Regulations;

III. In addition to the requirements set out in Part A and under

Point I, providers of internet access services shall also provide the

information required pursuant to Article 4(1) of Regulation (EU)

2015/2120.

AND SERVICES (GENERAL)

If the Authority considers that an undertaking which enjoys

a general authorisation is not complying with one or more conditions

of a general authorisation, the Authority may in accordance with the

applicable provisions under Part VI of the Malta Communications

Authority Act, take such measures as it considers appropriate,

including interim measures, to ensure compliance.

(Regulation 88)

INFORMATION TO BE PUBLISHED IN ACCORDANCE

PUBLICATION OF INFORMATION)

The Authority shall ensure that the information stated in this

Schedule is published, in accordance with regulation 88. The Authority

shall decide which information is relevant to be published by the

providers of internet access services or of publicly available

interpersonal communications services, and which information is to be

published by the Authority in order to ensure that all end-users are able

to make informed choices. The Authority may if it considers it to be

appropriate, promote self or co-regulatory measures prior to imposing

any obligation.

1. Contact details of the undertaking

2. Description of the services offered

a.

Scope of the services offered and the main

characteristics of each service provided, including any minimum

levels of quality of service where offered and any restrictions

imposed by the provider on the use of terminal equipment

supplied.

b.

Tariffs of the services offered, including

information on communications volumes (such as restrictions of

data usage, numbers of voice minutes, numbers of messages) of

specific tariff plans and the applicable tariffs for additional

communication units, numbers or services subject to particular

pricing conditions, charges for access and maintenance, all types

of usage charges, special and targeted tariff schemes and any

additional charges, as well as costs with respect to terminal

equipment.

c.

After-sales, maintenance and customer assistance

services offered and their contact details.

d.

Standard contract conditions, including contract

duration, charges due on early termination of the contract, rights

related to the termination of bundled offers or of elements

thereof, and procedures and direct charges related to the

portability of numbers and other identifiers, if relevant.

e.

If the undertaking is a provider of number-based

interpersonal communications services, information on access to

emergency services and caller location, or any limitation on the

latter. If the undertaking is a provider of number-independent

AND SERVICES (GENERAL)

interpersonal communications services, information on the

degree to which access to emergency services may be supported

or otherwise.

f.

Details of products and services, including any

functions, practices, policies and procedures and alterations in

the operation of the service, specifically designed for end-users

with disabilities, in accordance with European Union law

harmonising accessibility requirements for products and

services.

3. Dispute resolution mechanisms, including those developed

by the undertaking.

AND SERVICES (GENERAL)

(1)

The Authority shall, within one week of the receipt

of a request of an undertaking, issue to that undertaking in such form

as the Authority may from time to time determine, a standardised

declaration confirming, where applicable, that the undertaking has

AND SERVICES (GENERAL)

submitted a notification under regulation 5(3).

(2)

When issuing a declaration under this regulation, the

Authority shall detail the circumstances under which an undertaking

providing electronic communications networks and, or services under

the general authorisation has the right to apply for rights to install

facilities, negotiate interconnection, and obtain access or

interconnection, in order to facilitate the exercise of those rights.

(3)

Where the Authority considers it appropriate to do so, it may

issue such a declaration as an automatic reply following the notification

pursuant to regulation 5(3).

(4)

The Authority shall establish and maintain a register of those

undertakings that have notified the Authority of an intention to provide

a network or service pursuant to regulation 5(3) and such information

contained in any such notification as the Authority considers

appropriate, other than information which the Authority reasonably

considers to be confidential, shall be entered in the register established

and maintained under this sub-regulation

Provided that the Authority may, as necessary, amend or

delete an entry in the register.

(5)

A person may inspect the register free of charge at all

reasonable times and may, at a reasonable charge to be determined by

the Authority, make copies of, or take extracts from, entries in the

register.

(Regulation 89)

QUALITY OF SERVICE PARAMETERS

Quality-of-Service Parameters, Definitions and Measurement

Methods referred to in regulation 89

For providers of access to a public electronic communications

network

PARAMETER

DEFINITION

MEASUREMENT METHOD

(Note 1)

Supply time for

ETSI EG 202 057

ETSI EG 202 057

initial connection

Fault rate per

ETSI EG 202 057

ETSI EG 202 057

access line

Fault repair time

ETSI EG 202 057

ETSI EG 202 057

For providers of interpersonal communications services who exert

control over at least some elements of the network or have a service

level agreement to that effect with undertakings providing access to the

network

PARAMETER

DEFINITION

MEASUREMENT METHOD

(Note 2)

Call set up time

ETSI EG 202 057

ETSI EG 202 057

Bill correctness

ETSI EG 202 057

ETSI EG 202 057

complaints

Voice connection

ETSI EG 202 057

ETSI EG 202 057

quality

Dropped call ratio

ETSI EG 202 057

ETSI EG 202 057

Unsuccessful call

ETSI EG 202 057

ETSI EG 202 057

ratio

(Note 2)

Failure

probability

Call signalling

delays

Version number of ETSI EG 202 057-1 is 1.3.1 (July 2008)

For providers of internet access services

AND SERVICES (GENERAL)

Note 1

PARAMETER

DEFINITION

MEASUREMENT METHOD

Latency (delay)

ITU-T Y.2617

ITU-T Y.2617

Jitter

ITU-T Y.2617

ITU-T Y.2617

Packet loss

ITU-T Y.2617

ITU-T Y.2617

Parameters shall allow for performance to be analysed at a regional

level (namely, no less than level 2 in the Nomenclature of Territorial

Units for Statistics (NUTS) established by Eurostat).

Note 2

The Authority may decide not to require up-to-date information

concerning the performance for those two parameters to be kept if

evidence is available to show that performance in those two areas is

satisfactory.

AND SERVICES (GENERAL)

(1)

An undertaking subject to the general authorisation

pursuant to regulation 5 shall have the right to

(a)

provide electronic communications networks and

services;

(b)

have its application for the necessary rights to

install facilities considered in accordance with articles 4 and 4D

of the Utilities and Services (Regulation of Certain Works) Act;

(c)

use, subject to regulations 7 and 42, and article 37

of the Act, radio spectrum in relation to electronic

communications networks and, or services; and

(d)

have its application for the necessary rights of use

for numbering resources considered in accordance with

regulation 81.

(2)

Where such an undertaking is providing electronic

communications networks or services to the public, the general

authorisation shall give it the right to

AND SERVICES (GENERAL)

(a)

negotiate interconnection with and, where

applicable, obtain access to, or interconnection from, other

providers of public electronic communications networks or

publicly available electronic communications services covered

by a general authorisation in the European Union in accordance

with the Act and these regulations; and

(b)

be given an opportunity to be designated to

provide different elements of the universal service or to cover

different parts of Malta in accordance with regulations 73 or 74.

(Regulation 100)

INTEROPERABILITY OF CAR RADIO RECEIVERS AND

REFERRED TO IN REGULATION 100

1. Common scrambling algorithm and free-to-air reception

All consumer equipment intended for the reception of digital

television signals (namely, broadcasting via terrestrial, cable or satellite

transmission), for sale or rent or otherwise made available in Malta,

capable of descrambling digital television signals, is to possess the

capability to

(a)

allow the descrambling of such signals in

accordance with a common European scrambling algorithm as

administered by a recognised European standardisation

organisation (currently ETSI);

(b)

display signals that have been transmitted in the

clear, provided that, in the event that such equipment is rented,

the renter complies with the relevant rental agreement.

2. Interoperability for digital television sets

Any digital television set with an integral screen of visible diagonal

larger than 30 cm which is put on the market for sale or rent in Malta is

to be fitted with at least one open interface socket (either standardised

by, or conforming to a standard adopted by, a recognised European

standardisation organisation, or conforming to an industry-wide

specification) permitting simple connection of peripherals, and able to

pass all relevant elements of a digital television signal, including

information relating to interactive and conditionally accessed services.

3. Interoperability for car radio receivers

Any car radio receiver integrated in a new vehicle of category M

which is placed on the market for sale or rent in Malta from 21

December 2020 shall comprise a receiver capable of receiving and

reproducing at least radio services provided via digital terrestrial radio

broadcasting

Provided that such radio services shall include digital

terrestrial broadcasting services of type DAB+

Provided further that receivers which are in accordance with

harmonised standards the references of which have been published in

the Official Journal of the European Union or with parts thereof shall

be considered to comply with that requirement covered by those

standards or parts thereof.

AND SERVICES (GENERAL)

(1)

Any administrative charges imposed by the

Authority on undertakings providing electronic communications

networks or services under the general authorisation or to which a

right of use has been granted, shall

(a)

cover, in total, only the administrative costs

incurred in the management, control and enforcement of the

general authorisation system and of the rights of use and of

specific obligations as referred to in regulation 7(2) which may

include costs for international cooperation, harmonisation and

standardisation, market analysis, monitoring compliance and

other market control, as well as regulatory work involving

preparation and enforcement of legislation and regulatory

decisions; and

(b)

be imposed upon the individual undertaking in an

objective, transparent and proportionate manner which

minimises additional administrative costs and associated

charges.

(2)

The Authority shall publish an annual overview of its

administrative costs and of the total sum of the charges collected.

Where there is a difference between the total sum of the charges and

the administrative costs, appropriate adjustments shall be made.

(3)

The Authority shall, in the case of charges imposed on an

annual basis, make appropriate repayments or compensation in the

case of overcharging, or impose additional charges in the case of

undercharging of an undertaking to whom a charge is imposed in the

light of any difference between the total sum of administrative charges

collected and the administrative costs incurred.

(4)

An undertaking providing electronic communications

networks and, or services under the general authorisation shall pay to

the Authority such administrative charges as are established under Part

A of the Twelfth Schedule

Provided that in all cases, any such charges shall be

established in accordance with this regulation.

AND SERVICES (GENERAL)

(Regulations 12, 31, 33 and 82)

(Regulation 12)

Part A. Administrative charges to be paid on an annual basis

(a) Public electronic communications networks

€12,000

(b) Voice communications services

€12,000

(c) Internet access services

€2,500

(d) Television and radio distribution services

€12,000

(e) Other electronic communications services

€2,500

Provided that undertakings providing any of the services

under category (b), (c), (d) or (e) shall pay to the Authority 1.1% of the

total gross revenue generated from electronic communications

services. This administrative charge of 1.1% of the total gross revenue

is not applicable in the case of revenues generated from publicly

available telephone directories and, or directory enquiry services by

undertakings authorised under category (e).

(Regulations 31 and 33)

Part B. Usage fees for radio spectrum to be paid on an annual

basis

In this part

"700 MHz band" means the 703-733 MHz and 758-788 MHz

bands;

"800 MHz band" means the 791-821 MHz and 832-862 MHz

bands;

"900 MHz band" means the 880-915 MHz and 925-960 MHz

bands;

"1.5 GHz band" means the 1427-1517 MHz band;

"1800 MHz band" means the 1710-1785 MHz and 1805-1880 MHz

bands;

"2 GHz paired band" means the 1920-1980 MHz and 2110-2170

MHz bands;

"2 GHz unpaired band" means the 1900-1920 MHz band;

"2.6 GHz band" means the 2500-2690 MHz band;

AND SERVICES (GENERAL)

"3.6 GHz band" means the 3400-3800 MHz band;

(a) for each paired 5 MHz channel in any of the following

frequency bands for terrestrial systems capable of providing wireless

broadband electronic communications services

i. 700 MHz band

€224,000

ii. 800 MHz band

€224,000

iii. 900 MHz band

€224,000

iv. 1800 MHz band

€224,000

v. 2.6 GHz band

€24,000

(b) for each unpaired 5 MHz channel in any of the following

frequency bands for terrestrial systems capable of providing wireless

broadband electronic communications services

i. 1.5 GHz band

€8,000

ii. 2.6 GHz band

€5,500

iii. 3.6 GHz band

€9,000

(c) for rights of use for a 5 MHz unpaired channel in the 2 GHz

unpaired band and for 19.8 MHz spectrum in the 2 GHz paired

band, either of the following fees apply

i. issued before 23 December 2019 for a

term of fifteen (15) years, either of the

following fees apply

a. one-time upfront fee

€5,823,433.50 or

b. staggered annual payments as

€8,618,681.57

defined in the rights of use, which in

total amounts to

ii. for extensions to the rights of use

€344,747.26

referred to in (i) above, per annum fee or part

thereof

(d) for each channel for digital terrestrial television services

i. in the 174-230 MHz band

€5,823.43

ii. in the 479-694 MHz band

€5,823.43

(e) for each frequency block of 1.536

€2,329.37

MHz in the 174-230 MHz band for

terrestrial digital audio broadcasting

services

(f) provisional rights of use for radio

spectrum for

i. the testing of wireless technologies

€100

AND SERVICES (GENERAL)

ii. the carriage of trials of wireless

technologies for a period not exceeding two

years

(a) for the first year of the rights of use

€600

(b) for the second year of the rights of use

€800

Provided that the fees under sub-paragraphs (i) and (ii)

shall be charged on a pro rata basis subject to a minimum fee of €100.

During the course of an assignment process leading to the grant of right of

use for radio spectrum, the Authority may by a decision published on its

website, with the written prior consent of the Minister after consultation

with the Minister responsible for finance, change a fee for any of the usage

fees regulated in this Part excluding the provisional rights of spectrum, if the

Authority considers that there are valid reasons to justify such a change

which change reflects the need to ensure the optimal use of these resources.

In doing so, the Authority shall establish the period during which such

revised fees shall apply

Provided that in so doing the Authority shall act in a

transparent manner and give its reasons in writing for such a change which

reasons shall be published on its website.

(Regulation 82)

Part C. Usage fees for numbers to be paid on an annual basis

(a)

Numbers in the ‘2’,

€700 per allocated numbering

‘3’, ‘7’ and ‘9’ number

block of 10,000 numbers or

ranges excluding such

proportionate depending on the

numbers as the Minister

size of the allocated block

may, after consultation

with or on the advice of

the Authority, from time

to time establish by order

in the Gazette

(b)

Carrier select/pre-select

€5,000 for each code.

codes

(a) Numbers in the ‘4’ number

€700 per allocated numbering

range excluding such

block of 100,000 numbers.

numbers as the Minister

may, after consultation

with or on the advice of

the Authority, from time

to time establish by order

in the Gazette.

AND SERVICES (GENERAL)

(1)

An undertaking providing public electronic

communications networks or publicly available electronic

communications services which has special or exclusive rights for the

provision of services in other sectors in Malta or in another Member

State, shall

(a)

keep separate accounts for the activities associated

with the provision of electronic communications networks or

services, to the extent that would be required if those activities

were carried out by legally independent entities, in order to

identify all elements of cost and revenue, with the basis of their

calculation and the detailed attribution methods used, related to

such activities, including an itemised breakdown of fixed assets

and structural costs; or

(b)

have structural separation for the activities

associated with the provision of electronic communications

networks or services

Provided that the Minister may, after consultation with the

Authority, by order in the Gazette establish that the requirements

referred to in this sub-regulation do not apply to undertakings which

have an annual turnover of less than fifty million euro (€50,000,000) or

any such inferior amount as the Minister may, after consultation with

the Authority, establish in the Gazette in activities associated with

electronic communications networks and, or services in the European

Union.

(2)

Where an undertaking providing public electronic

communications networks or publicly available electronic

communications services is not subject to the requirements of national

company law and does not satisfy the small and medium-sized

enterprise criteria of European Union law accounting rules, its financial

reports shall be drawn up and submitted to independent audit and

published. The audit shall be carried out in accordance with the

relevant European Union and national rules

Provided that the provisions of this sub-regulation shall also

apply to the separate accounts required under paragraph (a) of the sub-

regulation (1) of this regulation.

(regulation 8)

GENERAL AUTHORISATION FOR ELECTRONIC

COMMUNICATIONS NETWORKS AND, OR SERVICES

PART 1

Procedures for Imposition, Maintenance, Amendment or

Withdrawal of Specific Obligations

Specific obligations that may be imposed on authorised

undertakings by the Authority in accordance with these regulations are

legally separate from the obligations set out in Part 2.

Such specific obligations shall be imposed in accordance with the

criteria and procedures established in these regulations, and without

prejudice to the generality of the foregoing, in particular with regard to

specific obligations

(a)

regarding access and interconnection, in Part IX

(b)

relating to access remedies on undertakings with

significant market power in so far as these relate to the

imposition, amendment or withdrawal of obligations in

regulations 56 to 61 and 63 to 67;

(c)

regarding retail services in regulation 70; and

(d)

imposed on undertakings designated to provide

universal service.

PART 2 Conditions applicable to authorised undertakings

Section A - Conditions applicable to authorised undertakings

1. Scope of general authorisation

1.1. An authorised undertaking is entitled to provide the

electronic communications network and, or services as described in a

notification made in its name in accordance with regulation 5.

2. No special or exclusive rights

2.1. This general authorisation shall not be construed as granting

any special or exclusive right to any person in relation to the provision

of electronic communications networks and, or services.

3. Applicability of laws, decisions of the Authority, etc.

3.1. The Act, all national laws and regulations, and decisions of

the Authority, and applicable European Union Law, shall form an

AND SERVICES (GENERAL)

integral part of this general authorisation except in those cases where

the undertaking is specifically exempted by the Authority;

3.2. An authorised undertaking shall comply with the terms and

conditions of this general authorisation, as well as any applicable

obligations or requirements, however described, emanating from the

laws and decisions mentioned in paragraph 3.1 above;

3.3. Nothing in this general authorisation shall exempt any

person from the obligation to diligently obtain at his own expense any

permit, licence or other approval or authorisation however so

described, that may be necessary to construct, operate and maintain the

services or any part thereof, or from the obligation of complying with

any condition of any such permit, licence or other approval or

authorisation.

4. Amendment of general authorisation

4.1. The Authority may amend this general authorisation in

objectively justified cases and in a proportionate manner, in

accordance with the provisions of the Act and these regulations. The

authorised undertaking and all other interested parties, including users

and consumers, shall be given notice of the intention of the Authority

to amend the general authorisation, and shall be afforded the

opportunity to make representations on the proposed amendments.

5. Administrative charges

5.1. The authorised undertaking shall pay to the Authority any

charges due in accordance with or under the Act.

6. Legal interception and data retention

a.

The authorised undertaking shall comply with all

requirements related to legal interception and data retention as

may be established under the Act and, or any other law.

7. Transfer of general authorisation

7.1. Any right, interest or entitlement resulting from this

authorisation is not transferable and may only be exercised by the

person identified in a notification made to the Authority in accordance

with regulation 5 in so far as they apply to the electronic

communications network and, or services described in that

notification.

8. Provision of information

8.1. The authorised undertaking shall comply with any request

for information that the Authority may from time to time make, in

accordance with the Act, the Malta Communications Authority Act, or

AND SERVICES (GENERAL)

these regulations in the form and at the time specified by the Authority.

9. Dispute resolution

9.1. The authorised undertaking shall follow the procedures

established under the Act, the Malta Communications Authority Act or

by the Authority in order to resolve disputes in a fair, transparent and

timely manner and shall comply with all requirements or decisions in

relation to disputes, made by the Authority in accordance with the Act.

10. Annual report

10.1. When requested by the Authority the authorised undertaking

shall submit to the Authority a copy of any existing company annual

report.

11. Major disasters or national emergencies

11.1. The authorised undertaking shall comply with any decisions

issued by the Authority and make arrangements for the provision or

rapid restoration of such communication services as are practicable and

may reasonably be required by the Authority in the event of, or during a

major disaster or national emergency in order to ensure

communications between emergency services and the competent

authorities and broadcasts to the general public

Provided that for the purposes of this condition, "major

disaster" or "national emergency" includes any major incident having a

significant effect on the general public.

12. Standards and specified interfaces

12.1. The authorised undertaking shall comply with any relevant

compulsory standards as may be established from time to time for the

provision of services, technical interfaces and, or network functions.

Where no compulsory standards have been issued, the authorised

undertaking shall give due regard to any notices or guidelines that the

Authority may issue with respect to standards, as well as any relevant

voluntary standards and, or specifications published by the European

Commission in accordance with regulation 26, and, or those that may

be adopted by any European standards organisations or internationally

recognised standardisation bodies.

13. Integrity of the network, electro-magnetic radiation and

harmful interference

13.1.

The authorised undertaking shall take all necessary

measures to ensure that the network does not cause harmful

interference with the lawful use or operation of any electronic

communications network and, or services;

AND SERVICES (GENERAL)

13.2.

The authorised undertakings shall comply with any

radi ation emi ssi on stand ards ado pted and pu bli sh ed by t he

International Commission on Non-Ionising Radiation Protection

(ICNIRP) or by a public authority which at law is responsible for the

adoption of any such standards, or with any other appropriate standard

as may be specified at law.

13.3. The undertaking shall comply with any decisions issued by

the Authority in relation to electromagnetic radiation and harmful

interference and ensure that the network and all services at all times

comply with the technical and performance standards generally

accepted by the industry 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.

Section B - Conditions applicable to Television and, or Radio

Distribution Services

In addition to the general conditions stipulated in Part 2, Section A

, authorised undertakings providing television and, or radio

distribution services shall also comply with the following conditions

1. Broadcasting Rules

1.1. An authorised undertaking shall comply with all

broadcasting and radio content regulations and authorisation

requirements as appropriate.

2. "Must Carry" Rules

2.1. An authorised undertaking shall distribute those radio and,

or television broadcasting services as may be established by the

Authority in accordance with its powers at law.

AND SERVICES (GENERAL)

(1)

Without prejudice to regulation 20 and articles 31, 32

and 33 of the Malta Communications Authority Act, the rights to install

facilities or rights of use for radio spectrum or for numbering resources

before the expiry of the period for which they are granted, shall not be

restricted or withdrawn, except where justified pursuant to sub-

regulation (2) of this regulation, and, where applicable, in accordance

with the First Schedule, and to any relevant national provisions

regarding compensation for the withdrawal of rights.

AND SERVICES (GENERAL)

(2)

In line with the need to ensure the effective and efficient use

of radio spectrum, or the implementation of the technical

implementing measures adopted under Article 4 of Decision No 676/

2002/EC, the Authority may restrict or withdraw the rights of use for

radio spectrum, including the rights referred to in regulation 36, based

on pre-established and clearly defined procedures which the Authority

shall from time to time establish, in accordance with the principles of

proportionality and non-discrimination

Provided that in such cases, the holders of the rights may,

where appropriate and in accordance with European Union law and

national law, seek to be compensated appropriately.

(3)

A modification in the use of radio spectrum as a result of the

application of regulation 32(3) and (4) or of regulation 32(5) and (6)

shall not alone constitute grounds to justify the withdrawal of a right of

use for radio spectrum.

(4)

Any intention to restrict or withdraw rights under the

general authorisation or individual rights of use for radio spectrum or

for numbering resources without the consent of the holder of the rights

shall be subject to consultation of the interested parties in accordance

with article 4A of the Malta Communications Authority Act.

PART IV

PROVISION OF INFORMATION, SURVEYS AND

CONSULTATION MECHANISM

List of competent authorities

Competent

Provisions for which

Remarks

authority

the competent

responsible

authority is respon-

sible

Planning

Regulation 44(2)

Authority

Department for

Regulation 45

Health under

the

Superintendent

of Health

(1)

The Authority may require undertakings providing

electronic communications networks and services, associated

facilities, or associated services, to provide all the information,

including financial information, necessary for the Authority and

BEREC to ensure conformity with the provisions of, or decisions or

opinions adopted in accordance with, the Electronic Communications

Code, the Act, these regulations and Regulation (EU) 2018/1971

Provided that the Authority shall have the power to require

such undertakings to submit information concerning future network or

service developments that could have an impact on the wholesale

services that they make available to competitors, as well as any

information on electronic communications networks and associated

facilities, which is disaggregated at local level and sufficiently detailed

to enable the geographical survey and designation of areas in

accordance with regulation 17.

(2)

If the Authority considers that the information collected in

accordance with sub-regulation (1) is insufficient for the Authority

and, or BEREC to carry out their regulatory tasks under European

Union law, the Act or these regulations, such information may be

required from other relevant undertakings active in the electronic

communications or closely related sectors.

AND SERVICES (GENERAL)

(3)

The Authority may require undertakings designated as

having significant market power on wholesale markets to submit

accounting data on the retail markets that are associated with those

wholesale markets.

(4)

The Authority may request information pursuant to any of its

regulatory tasks at law from the single information points established

pursuant to Directive 2014/61/EU.

(5)

Any request for information made in accordance with this

regulation shall be proportionate to the performance of the task being

undertaken by the Authority, or BEREC as the case may be, and shall

be reasoned.

(6)

An undertaking shall provide any information requested in

accordance with this regulation, promptly and in accordance with the

timescales and level of detail required by the Authority.

(7)

The Authority shall provide the European Commission, after

a reasoned request, with the information necessary for the European

Commission to carry out its tasks under the TFEU. The information

requested by the European Commission shall be proportionate to the

performance of those tasks

Provided that where the information provided refers to

information previously provided by undertakings at the request of the

Authority, such undertakings shall be informed accordingly by the

Authority

Provided further to the extent necessary and unless the

Authority has made an explicit and reasoned request to the contrary, the

European Commission shall make the information provided available

to any other such authority in another Member State.

(8)

Subject to the requirements of sub-regulation (9), the

Authority shall ensure that the information submitted to it can be made

available to another such authority in Malta or in another Member State

and to BEREC, after a substantiated request, where necessary to allow

either authority, or BEREC, to fulfil its responsibilities under European

Union law.

(9)

Where information gathered pursuant to sub-regulation (1),

including information gathered in the context of a geographical survey,

is considered to be confidential by the Authority in accordance with

European Union and national rules on commercial confidentiality, the

European Commission, BEREC and any other competent authorities

concerned shall ensure such confidentiality

Provided that such confidentiality shall not prevent the

sharing of information between the Authority, the Commission,

AND SERVICES (GENERAL)

BEREC and any other competent authorities concerned in a timely

manner for the purposes of reviewing, monitoring and supervising the

application of the Electronic Communications Code, the Act and these

regulations.

(10) Acting in accordance with national rules on public access to

information and subject to European Union and national rules on

commercial confidentiality and protection of personal data, the

Authority shall publish information that contributes to an open and

competitive market

Provided that in doing so the Authority shall also publish

the terms of public access to such information including the

procedures for obtaining such access.

(1) Without prejudice to any information requested pursuant

to regulation 15 and to information and reporting obligations under

national law other than the general authorisation, the Authority may

require undertakings to provide information with regard to the general

authorisation, the rights of use or the specific obligations referred to in

regulation 7(2), which is proportionate and objectively justified in

particular for the purposes of

(a)

verifying, on a systematic or case-by-case basis,

compliance with condition 1 of Part A, conditions 2 and 6 of

Part D, and conditions 2 and 7 of Part E of the First Schedule

and of compliance with obligations as referred to in regulation

7(2) and in the Thirteenth Schedule;

(b)

verifying, on a case-by-case basis, compliance

with conditions as set out in the First Schedule and in the

Thirteenth Schedule where a complaint has been received, or

where the Authority has other reasons to believe that a

condition is not complied with, or in the case of an

investigation by the Authority of its own initiative;

(c)

carrying out procedures for and the assessment of

requests for granting rights of use;

(d)

publishing comparative overviews of quality and

(e)

collating clearly defined statistics, reports or

studies;

(f)

carrying out market analyses for the purposes of

the Electronic Communications Code, the Act and these

regulations including data on the downstream or retail markets

associated with or related to the markets which are the subject

of the market analysis;

AND SERVICES (GENERAL)

(g)

safeguarding the efficient use and ensuring the

effective management of radio spectrum and of numbering

resources;

(h)

evaluating future network or service developments

that could have an impact on wholesale services made available

to competitors, on territorial coverage, on connectivity available

to end-users or on the designation of areas pursuant to regulation

17;

(i)

conducting geographical surveys; and

(j)

responding to reasoned requests for information by

BEREC

Provided that the information referred to in paragraphs (a)

and (b), and (d) to (j) shall not be required prior to, or as a condition

for, market access.

(2)

As regards the rights of use for radio spectrum, the

information referred to in sub-regulation (1) shall refer in particular to

the effective and efficient use of radio spectrum as well as to

compliance with any coverage and quality of service obligations

attached to the rights of use for radio spectrum and their verification.

(3)

Where the Authority requires an undertaking to provide

information as referred to in sub-regulation (1) it shall inform that

undertaking of the specific purpose for which this information is to be

used.

(4)

The Authority shall not duplicate requests of information

already made by BEREC pursuant to Article 40 of Regulation (EU)

2018/1971 where BEREC has made the information received available

to the Authority.

(1)

The Authority shall be responsible for the conduct of

a geographical survey of the reach of electronic communications

networks capable of delivering broadband (‘broadband networks’) by

21 December 2023, and shall update it at least every three years

thereafter.

(2)

The geographical survey referred to in sub-regulation (1)

shall include a survey of the current geographic reach of broadband

networks within Malta, as required for the tasks of the Authority and,

or other competent authorities under the Act, these regulations or any

other applicable law, and for the surveys required for the application of

State aid rules.

(3)

In undertaking a geographical survey in accordance with this

regulation, the Authority may also decide to include in the geographical

survey, a forecast for a period determined by it of the reach of

AND SERVICES (GENERAL)

broadband networks, including very high capacity networks, within

Malta

Provided that such forecast shall include all relevant

information, including information on planned deployments by any

undertaking or public authority, of very high capacity networks and

significant upgrades or extensions of networks to at least 100 Mbps

download speeds. For this purpose, the Authority shall request

undertakings and other public authorities to provide such information

to the extent that it is available and can be provided with reasonable

effort.

(4)

The Authority shall decide, with respect to tasks specifically

attributed to it under the Act and these regulations, the extent to which

it is appropriate to rely on all or part of the information gathered in the

context of a forecast undertaken in accordance with this regulation.

(5)

The information collected in the geographical survey shall

be at an appropriate level of detail and shall include sufficient

information on the quality of service and relative parameters and shall

be treated in accordance with regulation 15(9).

(6)

The Authority may designate an area with clear territorial

boundaries where, on the basis of the information gathered and any

forecast prepared pursuant to sub-regulation (3), the Authority

determines that, for the duration of the relevant forecast period, no

undertaking or public authority has deployed or is planning to deploy a

very high capacity network or significantly upgrade or to extend its

network to a performance of at least 100 Mbps download speeds. In so

doing the Authority shall publish the designated areas on its website.

(7)

Within a designated area, the Authority may invite

undertakings and public authorities to declare their intention to deploy

very high capacity networks over the duration of the relevant forecast

period. Where this invitation results in a declaration by an undertaking

or public authority of its intention to do so, the Authority may require

other undertakings and public authorities to declare any intention to

deploy very high capacity networks, or significantly upgrade or extend

its network to a performance of at least 100 Mbps download speeds in

this area

Provided that the Authority shall specify the information to

be included in any such submissions made in accordance with this

regulation, in order to ensure at least a similar level of detail as that

taken into consideration in any forecast pursuant to sub-regulation (3)

Provided further that in so doing, the Authority shall also

inform any undertaking or public authority expressing its interest as to

whether the designated area is covered or likely to be covered by a

next-generation access network offering download speeds below 100

AND SERVICES (GENERAL)

Mbps on the basis of the information gathered pursuant to this

regulation.

(8)

The Authority shall only impose sanctions in the context of

the procedure referred to in sub-regulation (7) where an undertaking or

public authority knowingly or due to gross negligence provides

misleading, erroneous or incomplete information

Provided that when determining the amount of fines

including where applicable of daily fines to be imposed in such

instances, the Authority shall consider inter alia, whether the behaviour

of the undertaking or public authority has had a negative impact on

competition and, in particular, whether, contrary to the information

originally provided or any update thereof, the undertaking or public

authority either has deployed, extended or upgraded a network, or has

not deployed a network and has failed to provide an objective

justification for that change of plan.

(9)

Measures pursuant to this regulation shall be taken in

accordance with an efficient, objective, transparent and non-

discriminatory procedure, whereby no undertaking is excluded a priori.

(10) The Authority in defining coverage obligations attached to

rights of use for radio spectrum and for verifying availability of

services falling within the universal service obligations in Malta, shall

take into account the results of the geographical survey and of any

designated areas pursuant to this regulation.

(11) The competent authorities including where applicable local

or regional authorities with responsibility for the allocation of public

funds for the deployment of electronic communications networks and

for the design of national broadband plans shall take into account the

results of the geographical survey and of any designated areas pursuant

to this regulation.

(12) When conducting the geographical survey the Authority

shall supply those results to other relevant authorities subject to the

receiving authority ensuring the same level of confidentiality and

protection of business secrets as the Authority, and shall inform the

parties which provided the information accordingly. Those results shall

also be made available to BEREC and the European Commission upon

their request and under the same conditions.

(13) If the relevant information is not available on the market, the

Authority shall make the data from the geographical surveys which are

not subject to commercial confidentiality, directly accessible in

accordance with Directive 2003/98/EC to allow for its reuse

Provided that the Authority shall also, where information

tools enabling end-users to determine the availability of connectivity in

AND SERVICES (GENERAL)

different areas are not available on the market, make available such

tools ensuring that these include a level of detail which is useful to

support the choice of operator or service provider of the end-user.

The provisions under article 4A of the Malta

Communications Authority Act shall also apply where the Authority

intends to provide for restrictions in accordance with regulation 32(3),

(4), (5) and (6), which have a significant impact in a market for any

communications networks or services

Provided that for the purposes of regulation 23, the

Authority shall inform the RSPG at the moment of publication about

any such proposed decision which falls within the scope of the

comparative or competitive selection procedure pursuant to regulation

42(2) and (3) and relates to the use of radio spectrum for which

harmonised conditions have been set by technical implementing

measures in accordance with Decision No 676/2002/EC in order to

enable its use for wireless broadband electronic communications

networks and services.

(1)

The Authority shall ensure that the use of radio

spectrum is organised in Malta in a way that no other Member State is

prevented from allowing on the territory of that Member State the use

of harmonised radio spectrum in accordance with European Union law,

especially due to cross-border harmful interference between Malta and

any another Member State or Member States

Provided that the Authority shall take all necessary

measures to this effect without prejudice to the obligations of Malta

under international law and relevant international agreements such as

the ITU Radio Regulations and the ITU Radio Regional Agreements.

(2)

The Authority shall cooperate with other Member States,

and where appropriate through the RSPG, in the cross-border

coordination of the use of radio spectrum in order to

(a)

ensure compliance with sub-regulation (1); or

(b)

resolve any problem or dispute in relation to

cross-border coordination or cross-border harmful interference

between Malta and other Member States, as well as with third

countries, which prevent Malta and, or other Member States

from using the harmonised radio spectrum in their territory.

(3)

In order to ensure compliance with sub-regulation (1), the

Authority, in consultation with the Minister, may request the RSPG to

use its good offices to address any problem or dispute in relation to

cross-border coordination or cross-border harmful interference.

(4)

Where the actions referred to in sub-regulations (2) or (3)

have not resolved the problem or dispute, the Authority, in

AND SERVICES (GENERAL)

consultation with the Minister, may request the European Commission

to adopt decisions to resolve cross-border harmful interference which

prevent Malta from using the harmonised radio spectrum in its territory.

(5)

The Authority, in consultation with the Minister, may request

the European Union to provide legal, political and technical support to

resolve radio spectrum coordination issues with countries neighbouring

the European Union, including candidate and acceding countries, in

such a way that Malta can observe its obligations under European

Union law.

PART V

IMPLEMENTATION

Without prejudice to the generality of its powers under the

Act and under the Malta Communications Authority Act, the

Authority

(a)

shall monitor and supervise compliance with the

conditions of the general authorisation, of the rights of use for

radio spectrum, and for numbering resources, with the specific

obligations referred to in regulation 7(2) and with the obligation

to use radio spectrum effectively and efficiently in accordance

with articles 4A and 38 of the Act and with regulation 33; and

(b)

may require undertakings subject to a general

authorisation or benefiting from rights of use for radio spectrum

or for numbering resources to provide all information necessary

to verify compliance with the conditions of the general

authorisation or of rights of use for radio spectrum and for

numbering resources or with the specific obligations referred to

in regulation 7(2) or regulation 33, in accordance with

regulation 16.

PART VI

INTERNAL MARKET PROCEDURES

(1)

Except where otherwise provided in any

recommendations or guidelines adopted pursuant to article 34 of the

Electronic Communications Code, upon completion of the public

consultation, if required under regulation 18, where the Authority

intends to take a measure which

(a)

falls within the scope of regulations 48, 52, 54, 55

or 70; and

(b)

would affect trade between Malta and other

Member States,

the Authority shall publish the draft measure and

communicate it to the European Commission, to BEREC, and to the

AND SERVICES (GENERAL)

national regulatory authorities in other Member States at the same

time, and in doing so shall state the reasons for the measure in

accordance with regulation 15(9)

Provided that the aforesaid national regulatory authorities,

BEREC and the European Commission may comment on that draft

measure within one month from receipt of the draft measure, which

period shall not be extended.

(2)

The draft measure referred to in sub-regulation (1) shall not

be adopted for a further two months, where that measure aims to

(a)

define a relevant market which is different from

those defined in the recommendation referred to in Article

64(1) of the Electronic Communications Code; or

(b)

decide whether or not to designate an undertaking

as having, either individually or jointly with others, significant

market power, under regulation 54(6) and (7) or (8);

and the draft measure would affect trade between Malta and

other Member States, and the European Commission has indicated to

the Authority that it considers that the draft measure would create a

barrier to the internal market or that it has serious doubts as to its

compatibility with European Union law and in particular with the

objectives referred to in article 4 of the Act

Provided that the two-month period shall not be extended

Provided further that, the European Commission shall

inform BEREC and the Authority of its reservations in such a case and

simultaneously make them public.

(3)

BEREC shall publish an opinion on the reservations of the

European Commission referred to in sub-regulation (2), indicating

whether it considers that the draft measure should be maintained,

amended or withdrawn and shall, where appropriate, provide specific

proposals to that end.

(4)

Within the two month period referred to in sub-regulation

(2), the European Commission may either

(a)

take a decision requiring the Authority to

withdraw the draft measure; or

(b)

take a decision to lift its reservations referred to in

sub-regulation (2)

Provided that the European Commission shall take utmost

account of the opinion of BEREC before taking a decision

AND SERVICES (GENERAL)

Provided further that decisions referred to in paragraph (a)

shall be accompanied by a detailed and objective analysis of why the

European Commission considers that the draft measure is not to be

adopted, together with specific proposals for amending it.

(5)

Where the European Commission has adopted a decision in

accordance with paragraph (a) of sub-regulation (4) requiring the

Authority to withdraw a draft measure, the Authority shall amend or

withdraw the draft measure within six months of the date of the

decision of the European Commission

Provided that where the draft measure is amended, the

Authority shall undertake a public consultation in accordance with

article 4A of the Malta Communications Authority Act, and shall notify

the amended draft measure to the European Commission in accordance

with sub-regulation (1).

(6)

The Authority shall take the utmost account of comments of

the other national regulatory authorities, of BEREC and of the

European Commission and may, except in the cases covered by sub-

regulation (2) and by paragraph (a) of sub-regulation (4), adopt the

resulting draft measure and shall, where it does so, communicate it to

the European Commission.

(7)

The Authority shall communicate to the European

Commission and to BEREC all adopted final measures which fall under

sub-regulation (1).

(8)

In exceptional circumstances, where the Authority considers

that there is an urgent need to act, in order to safeguard competition and

protect the interests of users, by way of derogation from the procedure

set out in sub-regulations (1) and (2), it may immediately adopt

proportionate and provisional measures

Provided that in doing so the Authority shall, without delay,

communicate those measures, with its full reasons therefor, to the

European Commission, to the other national regulatory authorities, and

to BEREC

Provided further that, a decision of the Authority to render

such measures permanent or extend the period for which they are

applicable shall be subject to sub-regulations (1) and (2).

(9)

The Authority may withdraw a draft measure made in

accordance with this regulation at any time.

(1)

Where an intended measure covered by regulation

21(1) aims to impose, amend or withdraw an obligation on an

undertaking according to regulations 48 or 54 in conjunction with

regulations 56 to 63 and regulation 70, the European Commission may,

within the one month period referred to in regulation 21(1), notify the

AND SERVICES (GENERAL)

Authority and BEREC of its reasons for considering that the draft

measure would create a barrier to the internal market or of its serious

doubts as to its compatibility with European Union law. In such a case,

the draft measure shall not be adopted for a further three months

following the notification by the European Commission

Provided that in the absence of such notification, the

Authority may adopt the draft measure, taking utmost account of any

comments made by the European Commission, BEREC or any other

national regulatory authority.

(2)

Within the three month period referred to in sub-regulation

(1), the European Commission, BEREC and the Authority shall

cooperate closely to identify the most appropriate and effective

measure in light of the objectives laid down in article 4 of the Act,

whilst taking due account of the views of market participants and the

need to ensure the development of consistent regulatory practice.

(3)

Within six weeks from the beginning of the three month

period referred to in sub-regulation (1), BEREC shall issue an opinion

on the notification by the European Commission referred to in sub-

regulation (1), indicating whether it considers that the draft measure

should be amended or withdrawn and, where appropriate, provide

specific proposals to that end. In that opinion reasons therefor shall be

provided and shall be made public.

(4)

If in its opinion, BEREC shares the serious doubts of the

European Commission, BEREC shall cooperate closely with the

Authority to identify the most appropriate and effective measure.

Before the end of the three month period referred to in sub-regulation

(1), the Authority may either

(a)

amend or withdraw its draft measure taking

utmost account of the notification by the European Commission

referred to in sub-regulation (1) and of the opinion of BEREC;

or

(b)

maintain its draft measure.

(5) The European Commission may, within one month following

the end of the three month period referred to in sub-regulation (1) and

taking utmost account of the opinion of BEREC, if any

(a)

issue a recommendation requiring the Authority to

amend or withdraw the draft measure, including specific

proposals to that end and providing reasons for its

recommendation, in particular where BEREC does not share the

serious doubts of the Commission;

(b)

take a decision to lift its reservations indicated in

accordance with sub-regulation (1); or

AND SERVICES (GENERAL)

(c)

for draft measures falling under regulations 48(4)

or 63(3), take a decision requiring the Authority to withdraw the

draft measure, where BEREC shares the serious doubts of the

European Commission, accompanied by a detailed and objective

analysis of why the European Commission considers that the

draft measure should not be adopted, together with specific

proposals for amending the draft measure, subject to the

procedure referred to in regulation 21(5), which shall apply

mutatis mutandis.

(6)

Within one month of the European Commission issuing the

recommendation in accordance with paragraph (a) of sub-regulation (5)

or lifting its reservations in accordance with paragraph (b) of sub-

regulation (5), the Authority shall communicate to the European

Commission and to BEREC the adopted final measure

Provided that such period may be extended to allow the

Authority to undertake a public consultation in accordance with article

4A of the Malta Communications Authority Act.

(7)

Where the Authority decides not to amend or withdraw the

draft measure on the basis of the recommendation issued under

paragraph (a) of sub-regulation (5), it shall give its reasons therefor.

(8)

The Authority may withdraw the proposed draft measure at

any stage of the procedure.

(1)

Where the Authority intends to undertake a selection

procedure in accordance with regulation 42(2) and (3) in relation to

radio spectrum for which harmonised conditions have been set by

technical implementing measures in accordance with Decision No 676/

2002/EC in order to enable its use for wireless broadband networks and

services, it shall, pursuant to article 23 of the Electronic

Communications Code, inform the RSPG about any draft measure

which falls within the scope of the comparative or competitive

selection procedure pursuant to regulation 42(2) and (3) and indicate

whether and when it shall request the RSPG to convene a Peer Review

Forum.

(2)

When the RSPG convenes a peer Review Forum, the

Authority shall provide an explanation on how the draft measure

(a)

promotes the development of the internal market,

the cross-border provision of services, as well as competition,

and maximises the benefits for the consumer, and overall

achieves the objectives set in articles 4 and 37 of the Act,

regulations 32 and 33, as well as in Decisions No 676/2002/EC

and No 243/2012/EU;

(b)

ensures effective and efficient use of radio

AND SERVICES (GENERAL)

spectrum; and

(c)

ensures stable and predictable investment

conditions for existing and prospective radio spectrum users

when deploying networks for the provision of electronic

communications services which rely on radio spectrum.

(3)

The Authority may following the Peer Review Forum

(a)

request the RSPG to adopt a report on how the

draft measure achieves the objectives provided in sub-

regulation (2), reflecting the views exchanged in the Peer

Review Forum; and

(b)

request the RSPG to adopt an opinion on this draft

measure.

Where the use of radio spectrum has been harmonised,

access conditions and procedures have been agreed, and undertakings

to which the radio spectrum shall be assigned have been selected in

accordance with international agreements and European Union rules,

then the Authority shall grant the right of use for such radio spectrum

in accordance therewith

Provided that where all national conditions attached to the

right to use the radio spectrum concerned have been satisfied in the

case of a common selection procedure, the Authority shall not impose

any further conditions, additional criteria or procedures which would

restrict, alter or delay the correct implementation of the common

assignment of such radio spectrum.

(1)

The Authority may, where it considers it appropriate,

cooperate with other Member States and with the RSPG, taking into

account any interest expressed by market participants, by jointly

establishing the common aspects of an authorisation process and,

where appropriate, also jointly conducting the selection process to

grant individual rights of use for radio spectrum.

(2)

When designing a joint authorisation process under this

regulation, the Authority and the competent authorities of cooperating

Member States may take into consideration the following criteria,

namely that

(a)

the individual national authorisation processes

shall be initiated and implemented together with the competent

authorities of the other Member States in accordance with a

jointly agreed schedule;

(b)

it shall provide, where appropriate, for common

conditions and procedures for the selection and granting of

individual rights of use for radio spectrum in Malta and the

AND SERVICES (GENERAL)

other Member State or Member States concerned;

(c)

it shall provide, where appropriate, for common or

comparable conditions to be attached to the individual rights of

use for radio spectrum in Malta and the Member State or

Member States concerned, inter alia allowing users to be

assigned similar radio spectrum blocks; and

(d)

it shall be open at any time to Malta and the other

Member State or Member States until the joint authorisation

process has been conducted.

(3)

Where, in spite of the interest expressed by market

participants and such interest impacts Malta, and the Authority does not

act jointly with the other Member State or Member States, the

Authority shall inform those market participants of its reasons

explaining its decision therefor.

(1)

The Authority shall encourage the use of the

standards or specifications referred to in Article 39(1) of the Electronic

Communications Code for the provision of services, technical

interfaces or network functions, to the extent strictly necessary to

ensure interoperability of services, end-to-end connectivity, facilitation

of provider switching and portability of numbers and identifiers, and to

improve freedom of choice for users.

(2)

Where standards or specifications have not been published in

accordance with Article 39(1) of the Electronic Communications Code,

the Authority shall encourage the implementation of standards or

specifications adopted by the European standardisation organisations

Provided that in the absence of such standards or

specifications, the Authority shall encourage the implementation of

i nternati onal st andards or recom m endati ons ad opted by t he

International Telecommunication Union (ITU), the European

Conference of Postal and Telecommunications Administrations

(CEPT), the International Organisation for Standardisation (ISO) and

the International Electrotechnical Commission (IEC).

(3)

Any standards or specifications referred to in Article 39(1)

of the Electronic Communications Code or in this regulation shall not

prevent access as may be required under the Act or these regulations,

where feasible.

(4) This regulation does not apply in respect of any of the essential

requirements, interface specifications or harmonised standards to

which the Radio Equipment and Telecommunications Terminal

Equipment and the Mutual Recognition of their Conformity

Regulations applies.

AND SERVICES (GENERAL)

PART VII

SECURITY

(1)

An undertaking providing publicly available

e l e c t r on i c co m m u n i c a ti o n s s e r v i c e s o v e r p ub l i c el e c t r on i c

communications networks, shall take all necessary measures to ensure

the fullest possible availability of such service in the event of

catastrophic network breakdown or in the case of force majeure.

(2)

The Authority may specify the obligations to be complied

with by such undertakings for the purpose of ensuring compliance with

this regulation. In doing so the Authority shall also factor any

particular characteristics, such as insularity, where the consequences

of catastrophic events or of force majeure are likely to cause severe

and, or prolonged service deterioration and, or disruption

Provided further that the Authority may, after considering

the nature and extent of the services provided and any attendant

relevant circumstances, require such undertakings, in line with the

principles of reasonableness and proportionality, to adopt such

resilient and secure solutions as the Authority may consider

appropriate, in such a manner as to ensure the availability of such

services.

(1)

Providers of public electronic communications

networks or of publicly available electronic communications services,

or gateway operators shall take appropriate and proportionate

technical and organisational measures to appropriately manage the

risks posed to the security of networks and services

Provided that having regard to the state of the art, such

measures shall ensure a level of security appropriate to the risk

presented. In particular, measures, including encryption where

appropriate, shall be taken to prevent and minimise the impact of

security incidents on users and on other networks and services.

(2)

Providers of public electronic communications networks or

of publicly available electronic communications services, or gateway

operators shall notify without undue delay the Authority of

(a)

any security incident that has a significant impact

on the operation of networks or services; or

(b)

failure or serious degradation of connectivity

provided by a gateway operator.

(3)

The measures referred to under sub-regulations (1) and (2)

shall at least

(a)

ensure that personal data can be accessed only by

authorised personnel for legally authorised purposes;

AND SERVICES (GENERAL)

(b)

protect personal data stored or transmitted against

accidental or unlawful destruction, or 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 audit the measures taken by

the providers of public electronic communications networks or of

publicly available electronic communications services, or gateway

operators, and issue recommendations on best practice concerning the

level of security which such measures should achieve.

(4)

In order to determine the significance of the impact of a

security incident, where available the following parameters shall, in

particular, be taken into account

(a)

the number of users affected by the security

incident;

(b)

the duration of the security incident;

(c)

the geographical spread of the area affected by the

security incident;

(d)

the extent to which the functioning of the network

or service is affected; and

(e)

the extent of the impact on economic and societal

activities.

(5)

Where appropriate, the Authority shall inform the competent

authorities in other Member States and ENISA of any security incidents

as may be notified to it in accordance with this regulation. The

Authority may also inform the public and, or may require the providers

of public electronic communications networks or of publicly available

electronic communications services, or gateway operators to inform the

public of any such security incident, where it determines that disclosure

of the security incident is in the public interest.

(6)

Once a year, the Authority shall submit a summary report to

the European Commission and to ENISA on the notifications received

and the action taken in accordance with this Part.

(7)

In the case of a particular and significant threat of a security

incident in public electronic communications networks or publicly

available electronic communications services, providers of such

networks or services and gateway operators shall inform any of their

users who may be potentially affected by such a threat of any possible

protective measures or remedies which they can take. Where

AND SERVICES (GENERAL)

appropriate, such providers and gateway operators shall also inform

their users of the threat itself.

(1)

Without prejudice to any other obligations under this

Part, a gateway operator shall at all times

(a)

adopt appropriate measures to safeguard the

integrity and resiliency of the network elements utilised to

provide connectivity; and

(b)

secure the availability of capacity, or have in place

alternative measures, sufficient to ensure an adequate level of

uninterrupted connectivity.

(2)

A gateway operator shall not unreasonably refuse the

provision of capacity to another gateway operator for the purposes of

meeting the obligations established by sub-regulation (1)

Provided that the Authority shall have the discretion to

determine whether a gateway operator acted unreasonably or

otherwise by taking into account the specific circumstances relating to

the request for the provision of capacity.

(1) In order to ensure compliance with the requirements

of this Part, the Authority may issue binding instructions, however so

described, which may include such measures as it may consider

necessary to remedy a security incident or to prevent one from

occurring when a significant threat has been identified, and may

include time-limits for implementation of such measures by providers

of public electronic communications networks or publicly available

electronic communications services, or by gateway operators.

(2)

The Authority may require a provider of public electronic

communications networks or publicly available electronic

communications services, or gateway operators to

(a)

provide information needed to assess the security

and integrity of its networks and services, including

documented security policies;

(b)

submit to a security audit carried out by a

qualified independent body or by the Authority, as the

Authority may determine, and make the results thereof

available to the Authority in order to assess amongst other

matters the following

(i)

the level of security, integrity and

resiliency of any public electronic communications

network and, or service, or of the network elements

operated by a gateway operator; and

AND SERVICES (GENERAL)

(ii)

compliance with any guidelines or binding

instructions that the Authority may establish in

accordance with the provisions of this Part

Provided that the cost of any such audit shall be paid by the

provider or gateway operator concerned

(c)

establish the necessary contingency plans for the

purpose of complying with the requirements under this Part;

(d)

submit such contingency plans to the Authority as

the Authority may reasonably determine; and

(e)

publish information regarding the measures it has

in place in order to meet the obligations under this Part.

(3)

The Authority shall investigate cases of non-compliance and

the effects thereof on the security of the networks and services.

(4)

The Authority may, where it considers necessary, require the

assistance of the Computer Security Incident Response Team

(‘CSIRT’) designated in accordance with the Measures for High

Common Level of Security of Network and Information Systems

Order.

(5)

The Authority shall, where appropriate and in accordance

with national law, consult and cooperate with the relevant national law

enforcement authorities, the competent authorities within the meaning

of the Measures for High Common Level of Security of Network and

Information Systems Order, and the Information and Data Protection

Commissioner.

PART VIII

MARKET ENTRY AND DEPLOYMENT

An undertaking authorised to use radio spectrum shall pay to

the Authority such fees for rights of use of radio spectrum that are used

for the provision of electronic communications networks or services

and associated facilities which ensure the optimal use of such

resources. Such fees shall be those provided for under Part B of the

Twelfth Schedule. Any such fees shall be objectively justified,

transparent, non-discriminatory and proportionate in relation to their

intended purpose and shall take into account the general objectives

stated in the Act and shall be set at a level which ensures efficient

assignment and use of radio spectrum, including by

(a)

setting reserve prices as minimum fees for rights of

use for radio spectrum by having regard to the value of those

rights in their possible alternative uses;

(b)

taking into account costs entailed by conditions

AND SERVICES (GENERAL)

attached to those rights; and

(c)

applying, to the extent possible, payment

arrangements linked to the actual availability for use of the

radio spectrum.

(1)

In the exercise of its functions under the Act, the

Authority shall promote the harmonisation of use of radio spectrum by

electronic communications networks and services across the European

Union, consistent with the need to ensure effective and efficient use

thereof and in pursuit of benefits for the consumer such as

competition, economies of scale and interoperability of networks and

services. In so doing, the Authority shall act in accordance with article

4A of the Act and with Decision No 676/2002/EC, inter alia, by

(a)

pursuing wireless broadband coverage in Malta at

high quality and speed, as well as coverage of major national

and European transport paths, including trans-European

transport network as referred to in Regulation (EU) No 1315/

2013 of the European Parliament and of the Council;

(b)

facilitating the rapid development in the European

Union of new wireless communications technologies and

applications, including, where appropriate, in a cross-sectoral

approach;

(c)

ensuring predictability and consistency in the

granting, renewal, amendment, restriction and withdrawal of

rights of use for radio spectrum in order to promote long-term

investments;

(d)

ensuring the prevention of cross-border or

national harmful interference in accordance with regulation 19

and article 37 of the Act respectively, and taking appropriate

pre-emptive and remedial measures to that end;

(e)

promoting the shared use of radio spectrum

between similar or different uses of radio spectrum in

accordance with competition law;

(f)

applying the most appropriate and least onerous

authorisation system possible in accordance with article 37 of

the Act in such a way as to maximise flexibility, sharing and

efficiency in the use of radio spectrum;

(g)

applying rules for the granting, transfer, renewal,

modification and withdrawal of rights of use for radio spectrum

that are laid down in a clear and transparent manner in order to

guarantee regulatory certainty, consistency and predictability;

and

AND SERVICES (GENERAL)

(h)

pursuing consistency and predictability throughout

the European Union regarding the way the use of radio spectrum

is authorised in protecting public health taking into account

Recommendation 1999/519/EC, the radiation emission

standards adopted and published by ICNIRP, or by a national

public authority which at law is responsible for the adoption of

any such standards, or with any other appropriate standard as

may be specified at law.

(2)

Where the Authority considers that there is a lack of market

demand for the use of a band in the harmonised radio spectrum, it may

then allow an alternative use of all or part of that band, including the

existing use, in accordance with sub-regulations (5), (6) and (7)

provided that

(a)

the finding of a lack of market demand for the use

of such a band is based on a public consultation in accordance

with article 4A of the Malta Communications Authority Act,

including a forward-looking assessment of market demand;

(b)

such alternative use does not prevent or hinder the

availability or the use of such a band in other Member States;

and

(c)

the Authority takes due account of the long-term

availability or use of such a band in the European Union and the

economies of scale for equipment resulting from using the

harmonised radio spectrum in the European Union

Provided that any decision to allow alternative use on an

exceptional basis shall be subject to a regular review and shall in any

event be reviewed promptly upon a duly justified request by a

prospective user to the Authority for use of the band in accordance with

the technical implementing measure

Provided further that the Authority shall inform the

European Commission and the other Member States of the decision

taken by the Authority, together with the reasons therefor, as well as of

the outcome of any review.

(3)

Without prejudice to sub-regulation (1), the Authority shall

ensure that all types of technology used for the provision of electronic

communications networks or services may be used in the radio

spectrum declared available for electronic communications services in

the Frequency Plan in accordance with European Union law.

(4)

Notwithstanding the provisions of this regulation the

Authority may provide for proportionate and non-discriminatory

restrictions to the types of radio network or wireless access technology

used for electronic communications services where it considers that

AND SERVICES (GENERAL)

this is necessary to

(a)

avoid harmful interference;

(b)

protect public health against electromagnetic

fields, taking utmost account of Recommendation 1999/519/

EC, the radiation emission standards adopted and published by

ICNIRP, or by a national public authority which at law is

responsible for the adoption of any such standards, or with any

other appropriate standard as may be specified at law;

(c)

ensure technical quality of service;

(d)

ensure maximisation of radio spectrum sharing;

(e)

safeguard efficient use of radio spectrum; or

(f)

ensure the fulfilment of a general interest

objective in accordance with sub-regulation (5).

(5)

Without prejudice to the sub-regulation (6) the Authority

shall ensure that all types of electronic communications services may

be provided in the radio spectrum declared available for electronic

communications services in the Frequency Plan in accordance with

European Union law

Provided that the Authority may provide for proportionate

and non-discriminatory restrictions to the types of electronic

communications services to be provided, including, where necessary,

to fulfil a requirement under the ITU Radio Regulations.

(6)

Measures taken by the Authority in accordance with these

regulations that require an electronic communications service to be

provided in a specific band available for electronic communications

services shall be justified in order to ensure the fulfilment of a general

interest objective as laid down by the Minister in accordance with

European Union law, including, but not limited to

(a)

safety of life;

(b)

the promotion of social, regional or territorial

cohesion;

(c)

the avoidance of inefficient use of radio spectrum;

or

(d)

the promotion of cultural and linguistic diversity

and media pluralism, for example the provision of radio and

television broadcasting services

Provided that a measure which prohibits the provision of

any other electronic communications service in a specific band may be

AND SERVICES (GENERAL)

provided for only where necessary to protect the safety of life services.

The Authority in consultation with the Minister may, on an exceptional

basis, also extend such a measure in order to fulfil other general interest

objectives in accordance with national law and European Union law.

(7)

The Authority in consultation with the Minister shall

regularly review the necessity of the restrictions referred to in sub-

regulations (4), (5) and (6), and shall make the results of those reviews

public.

(1)

The Authority shall attach conditions to individual

rights of use for radio spectrum in accordance with regulation 7(1) in

such a way as to ensure optimal and the most effective and efficient use

of radio spectrum.

(2)

The Authority shall, before the assignment or renewal of any

rights under sub-regulation (1) clearly establish any such conditions,

including the level of use required and the possibility to fulfil that

requirement through trading or leasing, in order to ensure the

implementation of those conditions in accordance with regulation 20

Provided that conditions attached to renewals of right of use

for radio spectrum shall not provide undue advantages to existing

holders of those rights

Provided further that the Authority in making such

conditions shall specify the applicable parameters, including any

deadline for exercising the rights of use, the non-fulfilment of which

would entitle the Authority to withdraw the right of use or impose other

measures.

(3)

The Authority shall, in a timely and transparent manner,

consult and inform interested parties regarding conditions attached to

individual rights of use before their imposition. In doing so the

Authority shall determine in advance and inform interested parties, in a

transparent manner, of the criteria for the assessment of the fulfilment

of those conditions.

(4)

The Authority may specify that certain conditions shall not

apply to such categories of undertakings as may be specified by the

Authority.

(5)

The Authority shall ensure that where a requirement is

specified as a condition of a right of use for radio spectrum, such a

requirement shall not be specified as a condition of the general

authorisation.

(6)

Any person authorised to use radio spectrum, shall pay to the

Authority such fees for rights of use of radio spectrum as may be

established under Part B of the Twelfth Schedule

AND SERVICES (GENERAL)

Provided that in all cases, any such fees shall be established

in accordance with regulation 31.

(7)

When attaching conditions to individual rights of use for

radio spectrum, the Authority may, in particular with a view to

ensuring effective and efficient use of radio spectrum or promoting

coverage, provide for the following possibilities

(a)

sharing of radio spectrum or sharing of passive or

active infrastructure which relies on radio spectrum;

(b)

commercial roaming access agreements; or

(c)

joint roll-out of infrastructures for the provision of

networks or services which rely on the use of radio spectrum.

(8)

The Authority shall not prevent the sharing of radio

spectrum in the conditions attached to the rights of use for radio

spectrum.

(9)

Implementation by undertakings of conditions attached

pursuant to sub-regulation (7) shall remain subject to competition law.

Without prejudice to the provisions of the Act and taking

into account the relevant national circumstances, the Authority may

lay down rules in order to prevent spectrum hoarding, in particular by

setting out strict deadlines for the effective exploitation of the rights of

use by the holder of the rights. These rules shall be established and

applied in a proportionate, non-discriminatory and transparent manner.

(1)

Where it is necessary the Authority shall, upon

request, grant individual rights of use for radio spectrum to any

undertaking for the provision of electronic communications networks

or services under the general authorisation referred to in regulations 5

and 6, subject to regulations 7 and 8, to regulation 16(1)(c) and to

regulation 42 and to any other rules ensuring the efficient use of those

resources in accordance with the Act and these regulations.

(2)

The Authority shall establish open, objective, transparent,

non-discriminatory and proportionate procedures for the grant of

individual rights of use for radio spectrum

Provided that the Authority may establish specific criteria

and procedures for the granting of individual rights of use for radio

spectrum to providers of radio or television broadcast content services

with a view to pursuing general interest objectives in accordance with

European Union law and with regulation 32

Provided further that an exception to the requirement of

open procedures may apply where the granting of individual rights of

use for radio spectrum to the providers of radio or television broadcast

AND SERVICES (GENERAL)

content services is necessary to achieve a general interest objective in

accordance with European Union law.

(3)

The Authority shall consider applications for individual

rights of use for radio spectrum in the context of selection procedures

pursuant to objective, transparent, proportionate and non-

discriminatory eligibility criteria that are set out in advance and reflect

the conditions to be attached to such rights. In doing so the Authority

may request all necessary information from applicants in order to

assess, on the basis of those criteria, their ability to comply with those

conditions. Where the Authority concludes that an applicant does not

possess the required ability, it shall provide a duly reasoned decision to

that effect.

(4)

When granting individual rights of use for radio spectrum,

the Authority shall specify whether those rights can be transferred or

leased by the holder of the rights, and under which conditions. The

provisions of regulations 32 and 38 shall apply in this regard.

(5)

The Authority shall take, communicate and make public the

decisions on the granting of individual rights of use for radio spectrum

as soon as possible after the receipt of the complete application, and

within six weeks after such receipt in the case of radio spectrum

declared available for electronic communications services in the

Frequency Plan.

Provided that such time limit shall be without prejudice to

regulation 42(9) and to any applicable international agreements relating

to the use of radio spectrum or of orbital positions.

(1)

Where the Authority authorises the use of radio

spectrum through individual rights of use for a limited period, it shall

ensure that the right of use is granted for a period that is appropriate in

light of the objectives pursued in accordance with regulation 42(2), (3)

and (4), taking due account of the need to ensure competition, as well

as, in particular the effective and efficient use of radio spectrum, and to

promote innovation and efficient investments, including by allowing

for an appropriate period for investment amortisation.

(2)

Where the Authority grants individual rights of use for radio

spectrum for which harmonised conditions have been set by technical

implementing measures in accordance with Decision No 676/2002/EC

in order to enable its use for wireless broadband electronic

communications services (‘wireless broadband services’) for a limited

period, it shall ensure regulatory predictability for the holders of the

rights over a period of at least twenty years regarding conditions for

investment in infrastructure which relies on the use of such radio

spectrum, taking account of the requirements referred to in sub-

regulation (1)

AND SERVICES (GENERAL)

Provided that the provisions of this regulation are subject,

where relevant, to any modification of the conditions attached to those

rights of use in accordance with article 47(4) of the Act. In this regard

the Authority shall ensure that such rights are valid for a duration of at

least fifteen years and include, where necessary in order to comply

with this sub-regulation, an adequate extension thereof, under the

conditions laid down in this sub-regulation.

(3)

The Authority shall make available the general criteria for

an extension of the duration of rights of use, in a transparent manner,

to all interested parties in advance of granting rights of use, as part of

the conditions laid down under regulation 42(5) and (8). Such general

criteria shall relate to

(a)

the need to ensure the effective and efficient use

of the radio spectrum concerned, the objectives pursued in

regulation 32(1)(a) and (b), or the need to fulfil general interest

objectives related to ensuring safety of life, public order, public

security or defence; and

(b)

the need to ensure undistorted competition.

(4)

By not later than two years before the expiry of the initial

duration of an individual right of use, the Authority shall conduct an

objective and forward-looking assessment of the general criteria laid

down for the extension of the duration of that right of use in light of

regulation 32(1)(c)

Provided that the Authority has not initiated enforcement

action for non-compliance with the conditions of the rights of use

pursuant to regulation 20, it shall grant the extension of the duration of

the right of use unless it concludes that such an extension would not

comply with the general criteria laid down in sub-regulation (3)(a) or

(b). On the basis of that assessment, the Authority shall notify the

holder of the right as to whether the extension of the duration of the

right of use is to be granted

Provided further that if such extension is not to be granted,

the Authority shall apply regulation 35 for granting rights of use for

that specific radio spectrum band.

(5)

Any measure taken under sub-regulations (2), (3) and (4)

shall be proportionate, non-discriminatory, transparent and reasoned.

(6)

By way of derogation from article 4A of the Malta

Communications Authority Act, interested parties shall have the

opportunity to comment on any draft measure pursuant to sub-

regulations (3) and (4) for a period of at least three months.

(7)

This regulation is without prejudice to the application of

regulations 14 and 20.

AND SERVICES (GENERAL)

(8)

When establishing fees for rights of use, the mechanism

provided for under this regulation shall be taken into account.

(9)

Where the Authority considers that there is justification, it

may then derogate from sub-regulations (2) to (6) in the following

cases

(a)

in limited geographical areas, where access to

high-speed networks is severely deficient or absent and this is

necessary to ensure achievement of the objectives of regulation

32(1);

(b)

for specific short-term projects;

(c)

for experimental use;

(d)

for any uses of radio spectrum which, in

accordance with regulation 32(3), (4), (5) and (6), can coexist

with wireless broadband services; or

(e)

for any alternative use of radio spectrum in

accordance with regulation 32(2).

(10) The Authority may adjust the duration of rights of use laid

down in this regulation to ensure the simultaneous expiry of the said

duration of rights in one or several bands.

(1)

The Authority shall take a decision on the renewal of

individual rights of use for harmonised radio spectrum in a timely

manner before the duration of those rights expires, except where, at the

time of assignment, the possibility of renewal has been explicitly

excluded

Provided that for such a purpose, the Authority shall assess

the need for such renewal of its own initiative or upon request by the

holder of the right, in the latter case not earlier than five years prior to

expiry of the duration of the rights concerned. This shall be without

prejudice to renewal clauses applicable to existing rights.

(2)

In taking a decision pursuant to sub-regulation (1), the

Authority shall consider, inter alia

(a)

the fulfilment of the objectives set out in article 4

of the Act, regulation 32(1) and regulation 35(2), as well as

public policy objectives under European Union law or national

law;

(b)

the implementation of a technical implementing

measure adopted in accordance with Article 4 of Decision No

676/ 2002/EC;

AND SERVICES (GENERAL)

(c)

the review of the appropriate implementation of

the conditions attached to the right concerned;

(d)

the need to promote, or avoid any distortion of,

competition in line with regulation 39;

(e)

the need to render the use of radio spectrum more

efficient in light of technological or market evolution; and

(f)

the need to avoid severe service disruption.

(3)

When considering possible renewal of individual rights of

use for harmonised radio spectrum for which the number of rights of

use is limited pursuant to sub-regulation (2), the Authority shall

conduct an open, transparent and non-discriminatory procedure, and

shall, inter alia

(a)

give all interested parties the opportunity to

express their views through a public consultation in accordance

with article 4A of the Malta Communications Authority Act;

and

(b)

clearly state the reasons for such possible renewal.

(4)

The Authority shall take into account any evidence arising

from the consultation pursuant to sub-regulation (3) of market demand

from undertakings other than those holding rights of use for radio

spectrum in the band concerned when deciding whether to renew the

rights of use or to organise a new selection procedure in order to grant

the rights of use pursuant to regulation 42.

(5)

A decision to renew the individual rights of use for

harmonised radio spectrum may be accompanied by a review of the

fees as well as of the other terms and conditions attached thereto.

Where appropriate, the fees for the rights of use may be adjusted as

necessary in accordance with regulation 31.

(1)

An undertaking may transfer or lease individual

rights of use for radio spectrum in the bands identified in the

Frequency Plan to other undertakings in accordance with the

conditions attached to such rights of use of radio spectrum and with

applicable law

Provided that conditions attached to individual rights to use

radio spectrum shall continue to apply after the transfer or lease,

unless otherwise stated by the Authority

Provided further that, the Authority may determine that this

sub-regulation shall not apply where the individual right of use for

radio spectrum of the undertaking was initially granted free of charge

or assigned for broadcasting.

AND SERVICES (GENERAL)

(2)

Without prejudice to any applicable law or any procedures

that the Authority may specify, an undertaking shall notify its intention

to transfer or lease rights of use for radio spectrum, as well as the

effective transfer thereof to the Authority, and the Authority shall

ensure that such intention is made public

Provided that in the case of a harmonised radio spectrum,

any such transfer shall comply with such harmonised use.

(3)

The Authority shall allow the transfer or lease of rights of

use for radio spectrum where the original conditions attached to the

rights of use are maintained.

(4)

Without prejudice to the need to ensure the absence of a

distortion of competition, in particular in accordance with regulation

39, the Authority

(a)

shall submit transfers and leases to the least

onerous procedure possible;

(b)

shall not refuse the lease of rights of use for radio

spectrum where the lessor undertakes to remain liable for

meeting the original conditions attached to the rights of use; and

(c)

shall not refuse the transfer of rights of use for

radio spectrum unless there is a clear risk that the new holder is

unable to meet the original conditions for the right of use.

(5)

Any administrative charge imposed on undertakings in

connection with processing an application for the transfer or lease of

rights of use for radio spectrum, shall comply with regulation 12.

(6)

Sub-regulation (4)(a), (b) and (c) are without prejudice to the

competence of the Authority to enforce compliance with the conditions

attached to the rights of use at any time, both with regard to the lessor

and the lessee, in accordance with applicable national law.

(7)

The Authority shall facilitate the transfer or lease of rights of

use for radio spectrum by considering any request to adapt the

conditions attached to the rights in a timely manner and by ensuring

that those rights or the relevant radio spectrum may to the best extent

be partitioned or disaggregated.

(8)

In light of any transfer or lease of rights of use for radio

spectrum, the Authority shall make relevant details relating to tradable

individual rights publicly available in a standardised electronic format

when the rights are created and keep those details for as long as the

rights exist.

AND SERVICES (GENERAL)

(1)

The Authority shall promote effective competition

and avoid distortions of competition in the internal market when

deciding to grant, amend or renew rights of use for radio spectrum for

electronic communications networks and services in accordance with

the Act, these regulations and the Electronic Communications Code.

(2)

When granting, amending or renewing rights of use for

radio spectrum, the Authority may take those measures as it may

consider to be appropriate in the circumstances, such as

(a)

limiting the amount of radio spectrum bands for

which rights of use are granted to any undertaking, or, in

justified circumstances, attaching conditions to such rights of

use, such as the provision of wholesale access, national or

regional roaming, in certain bands or in certain groups of bands

with similar characteristics;

(b)

reserving, if appropriate and justified with regard

to a specific situation in the national market, a certain part of a

radio spectrum band or group of bands for assignment to new

entrants;

(c)

refusing to grant new rights of use for radio

spectrum or to allow new radio spectrum uses in certain bands,

or attaching conditions to the grant of new rights of use for

radio spectrum or to the authorisation of new uses of radio

spectrum, in order to avoid the distortion of competition by any

assignment, transfer or accumulation of rights of use;

(d)

including conditions prohibiting, or imposing

conditions on, transfers of rights of use for radio spectrum, not

subject to European Union or national merger control, where

such transfers are likely to result in significant harm to

competition; or

(e)

amending the existing rights in accordance with

the Act, these regulations, or the Electronic Communications

Code where this is necessary to remedy ex post a distortion of

competition by any transfer or accumulation of rights of use for

radio spectrum

Provided that the Authority shall, taking into account

market conditions and available benchmarks, base its decisions on an

objective and forward-looking assessment of the market competitive

conditions, of whether such measures are necessary to maintain or

achieve effective competition, and of the likely effects of such

measures on existing and future investments by market participants in

particular for network roll-out. In doing so the Authority shall take

into account the approach to market analysis as set out in regulation

54(5).

AND SERVICES (GENERAL)

(3)

When applying sub-regulation (2), the Authority shall act in

accordance with the procedures provided in article 47(4) of the Act,

article 4A of the Malta Communications Authority Act, and regulations

14 and 23.

(1)

The Authority shall cooperate with the relevant

competent authorities in other Member States in order to coordinate the

use of harmonised radio spectrum for electronic communications

networks and services in the European Union, taking due account of the

different national market situations. This may include identifying one,

or, where appropriate, several common dates by when the use of

specific harmonised radio spectrum shall be authorised.

(2)

Where harmonised conditions have been set by technical

implementing measures in accordance with Decision No 676/2002/EC

in order to enable the radio spectrum use for wireless broadband

networks and services, the Authority shall allow the use of that radio

spectrum, as soon as possible and at the latest thirty months after the

adoption of that measure, or as soon as possible after the lifting of any

decision to allow alternative use on an exceptional basis pursuant to

regulation 32(2). This is without prejudice to Decision (EU) 2017/899

and to the right of initiative of the European Commission to propose

legislative acts.

(3)

The Authority may delay the deadline provided for in sub-

regulation (2) for a specific band under the following circumstances

(a)

to the extent justified by a restriction to the use of

that band based on the general interest objective provided in

regulation 32(6)(a) or (d);

(b)

in the case of unresolved cross-border coordination

issues resulting in harmful interference with third countries,

provided the Authority has, where appropriate, requested

European Union assistance pursuant to regulation 19(5);

(c)

safeguarding national security and defence; or

(d)

force majeure.

Provided that the Authority shall review any such delay at

least every two years.

(4)

The Authority may delay the deadline provided for in sub-

regulation (2) for a specific band to the extent necessary and up to

thirty months in the case of

(a)

of unresolved cross-border coordination issues

resulting in harmful interference between Malta and another

Member State or Member States, provided that the Authority

takes all necessary measures in a timely manner pursuant to

AND SERVICES (GENERAL)

regulation 19(3) and (4);

(b)

of the need to ensure, and the complexity of

ensuring, the technical migration of existing users of that band.

(5)

In the event of a delay under sub-regulation (3) or (4), the

Authority shall inform the other Member States and the European

Commission of such a delay in a timely manner, stating the reasons.

(1)

For terrestrial systems capable of providing wireless

broadband services, the Authority in consultation with the Minister

shall, where necessary in order to facilitate the roll-out of 5G, take all

appropriate measures to

(a)

reorganise and allow the use of sufficiently large

blocks of the 3,4-3,8 GHz band;

(b)

allow the use of at least 1 GHz of the 24,25-27,5

GHz band, provided that there is clear evidence of market

demand and of the absence of significant constraints for

migration of existing users or band clearance.

(2)

Measures taken pursuant to sub-regulation (1) shall comply

with the harmonised conditions set by technical implementing

measures in accordance with Article 4 of Decision No 676/2002/EC.

(1)

Without prejudice to regulation 40, where the

Authority concludes that a right to use radio spectrum cannot be

subject to a general authorisation and where it considers whether to

limit the number of rights of use to be granted for radio spectrum, it

shall, inter alia

(a)

clearly state the reasons for limiting the rights of

use, in particular by giving due weight to the need to maximise

benefits for users and to facilitate the development of

competition, and review, as appropriate, the limitation at

regular intervals or after a reasonable request by the affected

undertakings;

(b)

give all interested parties, including users and

consumers, the opportunity to express their views on any

limitation through a public consultation in accordance with

article 4A of the Malta Communications Authority Act.

(2)

When the Authority concludes that the number of rights of

use is to be limited, it shall clearly establish, and give reasons for, the

objectives pursued by means of a competitive or comparative selection

procedure under this regulation, and where possible quantify them,

giving due weight to the need to fulfil national and EU internal market

objectives.

AND SERVICES (GENERAL)

(3)

The objectives that the Authority may set out with a view to

designing the specific selection procedure shall, in addition to

promoting competition, shall be limited to one or more of the

following

(a)

promoting coverage;

(b)

ensuring the required quality of service;

(c)

promoting efficient use of radio spectrum,

including by taking into account the conditions attached to the

rights of use and the level of fees; and, or

(d)

promoting innovation and business development.

(4)

The Authority shall clearly define and justify the choice of

the selection procedure, including any preliminary phase to access the

selection procedure. The Authority shall also clearly state the outcome

of any related assessment of the competitive, technical and economic

situation of the market and provide reasons for the possible use and

choice of measures pursuant to regulation 23.

(5)

The Authority shall publish any decision on the selection

procedure chosen and the related rules, clearly stating the reasons

therefor. The Authority shall also publish the conditions that are to be

attached to the rights of use.

(6)

After having determined the selection procedure, the

Authority shall invite applications for rights of use.

(7)

Where the Authority concludes that additional rights of use

for radio spectrum or a combination of general authorisation and

individual rights of use can be granted, it shall publish that conclusion

and initiate the process of granting such rights.

(8)

Where the granting of rights of use for radio spectrum needs

to be limited, the Authority shall grant such rights on the basis of

selection criteria and of a selection procedure which are objective,

transparent, non-discriminatory and proportionate. Any such selection

criteria shall give due weight to the achievement of the objectives and

requirements of articles 4 and 4A of the Act, and regulations 19 and 32.

(9)

Where competitive or comparative selection procedures are

to be used, the Authority may extend the maximum period of six weeks

referred to in regulation 35(5) for as long as necessary to ensure that

such procedures are fair, reasonable, open and transparent to all

interested parties, but by no longer than eight months, subject to any

specific timetable established pursuant to regulation 40

Provided that such time limits shall be without prejudice to

any applicable international agreements relating to the use of radio

AND SERVICES (GENERAL)

spectrum and satellite coordination.

(10) This regulation is without prejudice to the transfer of rights

of use for radio spectrum in accordance with regulation 38.

(1)

The Authority shall allow the provision of access

through RLANs to a public electronic communications network, as

well as the use of the harmonised radio spectrum for that provision,

subject only to the applicable general authorisation conditions relating

to radio spectrum use as referred to in article 37(2) of the Act

Provided that where that provision is not part of an

economic activity or is ancillary to an economic activity or a public

service which is not dependent on the conveyance of signals on those

networks, any undertaking, public authority or end-user providing

such access shall not be subject to any general authorisation for the

provision of electronic communications networks or services pursuant

to regulation 5, to obligations regarding end-users rights pursuant

regulations 80, 81, 82 and 83, and to regulation 7 of the Emergency

Communications, the Single European Call service (‘112’ Number)

and the European Harmonised Services of Social Value (‘116’

Numbering Range) Regulations, or to obligations to interconnect their

networks pursuant to regulation 48(1).

(2)

Article 19 of the Electronic Commerce Act shall apply to

the provisions of this regulation.

(3)

The Authority shall not prevent providers of public

electronic communications networks or publicly available electronic

communications services from allowing access to their networks to the

public, through RLANs, which may be located at the premises of an

end-user, subject to compliance with the applicable general

authorisation conditions and the prior informed agreement of the end-

user concerned.

(4)

In accordance in particular with Article 3(1) of Regulation

(EU) 2015/2120, the Authority shall ensure that providers of public

electronic communications networks or publicly available electronic

communications services do not unilaterally restrict or prevent end-

users from

(a)

accessing RLANs of their choice provided by

third parties; or

(b)

allowing reciprocally or, more generally,

accessing the networks of such providers by other end-users

through RLANs, including on the basis of third-party initiatives

which aggregate and make publicly accessible the RLANs of

different end-users.

(5)

The Authority shall not limit or prevent end-users from

AND SERVICES (GENERAL)

allowing access, reciprocally or otherwise, to their RLANs by other

end-users, including on the basis of third-party initiatives which

aggregate and make the RLANs of different end-users publicly

accessible.

(6)

The Authority shall not unduly restrict the provision of

access to RLANs to the public

(a)

by public sector bodies or in public spaces close to

premises occupied by such public sector bodies, when that

provision is ancillary to the public services provided on those

premises; and

(b)

by initiatives of non-governmental organisations

or public sector bodies to aggregate and make reciprocally or

more generally accessible the RLANs of different end-users,

including, where applicable, the RLANs to which public access

is provided in accordance with paragraph (a) of this sub-

regulation.

(1)

The Authority shall not unduly

restrict

the

deployment of small area wireless access points.

(2)

The Authority shall ensure that any rules governing the

deployment of small-area wireless access points are nationally

consistent. In doing so the Authority shall publish such rules in

advance of their application in consultation with any such public

authority as the Authority may consider necessary

Provided that in particular, the competent authority

responsible for town planning shall not subject the deployment of small

area wireless access points complying with the characteristics laid

down pursuant to paragraph 2 of Article 57 of the Electronic

Communications Code to any individual town planning permit or other

individual prior permits. By way of derogation from this proviso the

aforesaid competent authority may require permits for the deployment

of small-area wireless access points on buildings or sites of

architectural, historical or natural value protected in accordance with

national law or where necessary for public safety reasons. Article 18 of

Utilities and Services (Regulation of Certain Works) Act shall apply to

the granting of those permits.

(3)

This regulation is without prejudice to the essential

requirements laid down in the Radio Equipment and

Te l e c o m m u n i c a t i o n s Te r m i n a l E q u i p m e n t a n d t h e M u t u a l

Recognition of their Conformity Regulations and to the authorisation

regime applicable for the use of the relevant radio spectrum.

(4)

In the context of the application of the procedures adopted

under national law, notably those under Parts III and IV of the Utilities

and Services (Regulation of Certain Works) Act, operators shall have

AND SERVICES (GENERAL)

the right to access any physical infrastructure controlled by national,

regional or local public authorities, which is technically suitable to

host small-area wireless access points or which is necessary to connect

such access points to a backbone network, including street furniture,

such as light poles, street signs, traffic lights, billboards and bus stops

and stations

Provided that public authorities shall meet all reasonable

requests for access on fair, reasonable, transparent and non-

discriminatory terms and conditions, which shall be made public at the

single information point established under the Utilities and Services

(Regulation of Certain Works) Act.

(5)

Without prejudice to any commercial agreements, the

deployment of small-area wireless access points shall not be subject to

any fees or charges going beyond the administrative charges in

accordance with regulation 12.

The procedures laid down in Directive (EU) 2015/1535

shall apply with respect to any draft measure by competent national

health authorities taken in accordance with their powers at law, that

would impose on the deployment of small-area wireless access points

different requirements with respect to electromagnetic fields than

those provided for in Recommendation 1999/519/EC.

PART IX

ACCESS

(1)

No restrictions may be imposed or maintained which

prevent undertakings in Malta, or in Malta and other Member States

from negotiating between themselves agreements on technical and

commercial arrangements for access or interconnection, in accordance

with European Union law

Provided that the undertaking requesting access or

interconnection in Malta does not need to be authorised to operate in

Malta if it is not providing services and does not operate a network in

Malta.

(2)

Without prejudice to regulation 101, no legal or

administrative measures shall be maintained which require

undertakings, when granting access or interconnection, to offer

different terms and conditions to different undertakings for equivalent

services or measures imposing obligations that are not related to the

actual access and interconnection services provided, and this without

prejudice to the conditions set out in the First Schedule.

(1)

Operators of public electronic communications

networks shall have a right and, when requested by other undertakings

authorised in accordance with regulation 11, an obligation, to negotiate

with each other interconnection for the purpose of providing publicly

AND SERVICES (GENERAL)

available electronic communications services, in order to ensure

provision and interoperability of services in Malta and throughout the

European Union

Provided that operators shall offer access and

interconnection to other undertakings on terms and conditions

consistent with obligations imposed by the Authority pursuant to

regulations 48, 50 and 55.

(2)

Without prejudice to regulation 16, an undertaking that

acquires information from another undertaking before, during or after

the process of negotiating access or interconnection arrangements, shall

use that information solely for the purpose for which it was supplied

and respect at all times the confidentiality of information transmitted or

stored. Such an undertaking shall not pass on the received information

to any other party, in particular to other departments, subsidiaries or

partners, however so described, for whom such information could

provide a competitive advantage.

(3)

The Authority may provide that negotiations be conducted

through neutral intermediaries if it considers that conditions of

competition so require.

(1)

The Authority shall, acting in pursuit of the

objectives set out in article 4 of the Act, encourage and, where

appropriate, ensure, in accordance with the Act and these regulations,

adequate access and interconnection, and the interoperability of

services

Provided that in doing so the Authority shall exercise its

responsibility in a way that promotes efficiency, sustainable

competition, the deployment of very high capacity networks, efficient

investment and innovation, and gives the maximum benefit to end-

users

Provided further that the Authority shall provide guidance

and make publicly available the procedures applicable to gain access

and interconnection to ensure that small and medium-sized enterprises

and operators with a limited geographical reach can benefit from the

obligations imposed.

(2)

Without prejudice to measures that may be taken regarding

undertakings designated as having significant market power in

accordance with regulation 55, the Authority may impose

(a)

to the extent necessary to ensure end-to-end

connectivity, obligations on undertakings subject to general

authorisation that control access to end-users, including, in

justified cases, the obligation to interconnect their networks

where this is not already the case;

AND SERVICES (GENERAL)

(b)

in justified cases and to the extent necessary,

obligations on undertakings subject to general authorisation

that control access to end-users to make their services

interoperable;

(c)

to the extent necessary to ensure accessibility for

end-users to digital radio and television broadcasting services

and related complementary services specified by the Authority,

obligations on operators to provide access to the other facilities

referred to in Part II of the Second Schedule on fair, reasonable

and non-discriminatory terms;

(d)

in justified cases, where end-to-end connectivity

between end-users is endangered due to a lack of

interoperability between interpersonal communications

services, and to the extent necessary to ensure end-to-end

connectivity between end-users, obligations on relevant

providers

of

number-independent

interpersonal

communications services which reach a significant level of

coverage and user uptake, to make their services interoperable

Provided that the obligations referred to in paragraph (d)

shall be imposed only

(i)

to the extent necessary to ensure

interoperability of interpersonal communications

services and may include proportionate obligations on

providers of those services to publish and allow the use,

modification and redistribution of relevant information

by the Authority and other providers, or to use and

implement standards or specifications listed in

regulation 26 or of any other relevant European or

international standards;

(ii)

where the European Commission, after

consulting BEREC and taking utmost account of its

opinion, has found an appreciable threat to end-to-end

connectivity between end-users throughout the European

Union or in at least three Member States and has adopted

implementing measures specifying the nature and scope

of any obligations that may be imposed, which

implementing measures shall be adopted in accordance

with the examination procedure referred to in Article

118(4) of the Electronic Communications Code.

(3)

Without prejudice to sub-regulations (1) and (2), the

Authority may impose obligations, upon reasonable request, to grant

access to wiring and cables and associated facilities inside any

building or up to the first concentration or distribution point as

determined by the Authority, where that point is located outside the

AND SERVICES (GENERAL)

building

Provided that where the Authority considers that the

replication of such network elements would be economically inefficient

or physically impracticable, the Authority may then impose such

obligations on providers of electronic communications networks or on

the owners of such wiring and cables and associated facilities, where

those owners are not providers of electronic communications networks.

Any access conditions that may be so imposed, may include specific

rules on access to such network elements and to associated facilities

and associated services, on transparency and non-discrimination and on

apportioning the costs of access, which where appropriate, shall be

adjusted to take into account risk factors.

(4)

Where the Authority concludes, having regard, where

applicable, to the obligations resulting from any relevant market

analysis, that the obligations imposed in accordance with the sub-

regulation (1), do not sufficiently address high and non-transitory

economic or physical barriers to replication which underlie an existing

or emerging market situation significantly limiting competitive

outcomes for end-users, the Authority may extend the imposition of

such access obligations, on fair and reasonable terms and conditions,

beyond the first concentration or distribution point, to a point that it

determines to be the closest to end-users, capable of hosting a sufficient

number of end-user connections to be commercially viable for efficient

access seekers

Provided that in determining the extent of the extension

beyond the first concentration or distribution point, the Authority shall

take utmost account of relevant BEREC guidelines. If justified on

technical or economic grounds, the Authority may impose active or

virtual access obligations.

(5)

The Authority shall not impose obligations in accordance

with sub-regulation (4) on providers of electronic communications

networks where the Authority determines that

(a)

the provider has the characteristics listed in

regulation 67(1) and makes available a viable and similar

alternative means of reaching end-users by providing access to a

very high capacity network to any undertaking, on fair, non-

discriminatory and reasonable terms and conditions

Provided that such an exemption may be extended by the

Authority to other providers offering, on fair, non-discriminatory and

reasonable terms and conditions, access to a very high capacity

network;

Provided further by way of derogation the Authority may

impose obligations on providers of electronic communications

AND SERVICES (GENERAL)

networks fulfilling the criteria laid down in this paragraph where the

network concerned is publicly funded;

or

(b)

the imposition of obligations would compromise

the economic or financial viability of a new network

deployment, in particular by small local projects.

(6)

Without prejudice to sub-regulations (1) and (2), the

Authority may impose on undertakings providing or authorised to

provide electronic communications networks, obligations in relation to

the sharing of passive infrastructure or obligations to conclude

localised roaming access agreements, in both cases if it considers that

such obligations are directly necessary for the local provision of

services which rely on the use of radio spectrum, in accordance with

European Union law and provided that no viable and similar

alternative means of access to end-users is made available to any

undertaking on fair and reasonable terms and conditions

Provided that the Authority may impose such obligations

only where this possibility is clearly provided for when granting the

rights of use for radio spectrum and where justified on the grounds

that, in the area subject to such obligations, the market-driven

deployment of infrastructure for the provision of networks or services

which rely on the use of radio spectrum is subject to insurmountable

economic or physical obstacles and therefore access to networks or

services by end-users is severely deficient or absent

Provided further that in those circumstances where the

Authority considers that access and sharing of passive infrastructure

alone does not suffice to address the situation, the Authority may then

impose obligations on sharing of active infrastructure.

(7)

In the exercise of its functions under this regulation the

Authority shall have regard to

(a)

the need to maximise connectivity throughout the

European Union, along major transport paths and in particular

territorial areas, and to the possibility to significantly increase

choice and higher quality of service for end-users;

(b)

the efficient use of radio spectrum;

(c)

the technical feasibility of sharing and associated

conditions;

(d)

the state of infrastructure-based as well as service-

based competition;

(e)

technological innovation; and

AND SERVICES (GENERAL)

(f)

the overriding need to support the incentive of the

host to roll out the infrastructure in the first place.

Provided that in the event of dispute resolution, the

Authority may, inter alia, impose on the beneficiary of the sharing or

access obligation, the obligation to share radio spectrum with the

infrastructure host in the relevant area.

(8)

Obligations and conditions imposed in accordance with sub-

regulations (1) to (7) shall be objective, transparent, proportionate and

non-discriminatory, and shall be implemented in accordance with the

procedures referred to in article 4A of the Malta Communications

Authority Act, and in regulations 21 and 22

Provided that the Authority shall assess the results of any

such obligations and conditions within five years after the adoption of

the previous measure adopted in relation to the same undertakings, and

in doing so assess whether it would be appropriate to withdraw or

amend them in light of evolving conditions. The Authority shall notify

the outcome of its assessment in accordance with the procedures

referred to in article 4A of the Malta Communications Authority Act

and in regulations 21 and 22.

(9)

For the purpose of sub-regulations (1) and (2), the Authority

may intervene on its own initiative where justified in order to secure

the policy objectives of article 4 of the Act and, in particular with the

procedures referred to in article 4A of the Malta Communications

Authority Act, and regulation 21.

(10) The Authority shall take the utmost account of any

guidelines issued by BEREC in accordance with Article 61(7) of the

Electronic Communications Code when defining the location of

network termination points.

(1)

In this regulation the words "rights holder" means the

holder of a right to use an access point or the in-building physical

infrastructure.

(2)

The provisions of article 2 of the Utilities and Services

(Regulation of Certain Works) Act shall, unless provided otherwise,

apply with regard to the provisions of this regulation.

(3)

The rights holder shall meet all reasonable requests for

access from public electronic communications network operators under

fair and non-discriminatory terms and conditions.

(4)

The rights holder shall not, in relation to the use of, and

access to, the access point or in-building physical infrastructure by a

public electronic communications network operator impose any rent or

other charges, however so described, on the public electronic

communications network operator

AND SERVICES (GENERAL)

Provided that where the rights holder incurs any reasonable

cost in providing access to the public electronic communications

network operator to carry out works related to the deployment,

maintenance and repair of its network, the rights holder may recover

such cost from the public electronic communication network operator

on a cost-recovery basis.

(5)

A public electronic communications network operator has

the right

(a)

to roll out its network at its own costs up to the

access point; and

(b)

to access any existing in-building physical

infrastructure with a view to deploying a high-speed electronic

communications network if duplication is technically

impossible or economically inefficient

Provided that if access referred to in paragraphs (a) or (b) is

not achieved within two months from the date of receipt of a formal

written request for access, then an aggrieved party may refer the

dispute to the Dispute Resolution Board in order to assess compliance

with the requirements provided within the aforesaid paragraphs.

(6)

The Dispute Resolution Board shall in determining any

dispute referred to it in accordance with this regulation, take full

account of the principle of proportionality, issue a binding decision to

resolve the dispute raised within the shortest possible time frame and

in any case within two months from the date of the receipt of the

complete request, except in exceptional circumstances in accordance

with article 32 of the Utilities and Services (Regulation of Certain

Works) Act.

(7)

The Authority may, after having consulted with any other

utility regulatoras the case may be and with any such other public

sector body as it may consider necessary in the circumstances, provide

for exemptions from the rights provided for in sub-regulation (5) for

buildings where access to an existing network that terminates at the

location of the end-user and that is suitable for the provision of high-

speed electronic communications services, is ensured on objective,

transparent, proportionate and non-discriminatory terms and

conditions.

(8)

In the absence of available high-speed-ready in-building

infrastructure, a public electronic communications network operator

may terminate its network at the premises of the end-user without

prejudice to the agreement of the end-user, provided that it minimizes

the impact on the private property of third parties, and does so at its

own cost.

(9)

The provisions of this regulation are without prejudice to

AND SERVICES (GENERAL)

the right to property of the owner of the access point or the in-building

physical infrastructure, in cases where the holder of a right to use that

infrastructure or access point is not the owner thereof, and to the right

to property of other third parties such as landowners and building

owners.

(10) A person suffering damages as a result of the exercise of the

rights under this regulation shall be entitled to adequate financial

compensation in accordance with applicable national legislation.

(1)

The conditions laid down in Part I of the Second

Schedule apply in relation to conditional access to digital television and

radio services broadcast to viewers and listeners in the European

Union, irrespective of the means of transmission.

(2)

Where, as a result of a market analysis carried out in

accordance with regulation 54(1), (2), (3) and (4), the Authority finds

that one or more undertakings do not have significant market power on

the relevant market, it may amend or withdraw the conditions with

respect to those undertakings, in accordance with the procedures

referred to in article 4A of the Malta Communications Authority Act

and regulation 21, only to the extent that

(a)

accessibility for end-users to radio and television

broadcasts and broadcasting channels and services specified in

accordance with regulation 101 would not be adversely affected

by such amendment or withdrawal; and

(b)

the prospects for effective competition in the

following markets would not be adversely affected by such

amendment or withdrawal

(i)

retail digital

television

and

radio

broadcasting services; and

(ii)

conditional

access

systems

and

other

associated facilities.

Provided that the Authority shall give an appropriate notice

period to parties affected by such amendment or withdrawal of

conditions.

(3)

Conditions applied in accordance with this regulation are

without prejudice to the faculty of the Authority to impose obligations

in relation to the presentational aspect of EPGs and similar listing and

navigation facilities.

(4)

Notwithstanding sub-regulation (1), the Authority may,

periodically review the conditions applied in accordance with this

regulation, by undertaking a market analysis in accordance with

regulation 54(1), (2), (3) and (4) to determine whether to maintain,

AND SERVICES (GENERAL)

amend or withdraw the conditions applied.

(1)

The provisions of this regulation shall apply where

these regulations require that the Authority determines whether an

undertaking has significant market power in accordance with the

procedure referred to in regulation 54.

(2)

An undertaking shall be deemed to have significant market

power if, either individually or jointly with others, it enjoys a position

equivalent to dominance, namely a position of economic strength

a ff o r d i n g i t t h e p o w e r t o b e h a v e t o a n a p p r e c i a b l e e x t e n t

independently of competitors, customers and ultimately consumers.

(3)

The Authority shall, when assessing whether two or more

undertakings are in a joint dominant position in a market, act in

accordance with European Union law, and shall take into the utmost

account the guidelines on market analysis and the assessment of

significant market power published by the European Commission

pursuant to regulation 52.

(4)

Where an undertaking has significant market power on a

specific market, the Authority may also designate that undertaking as

having significant market power on a closely related market, where the

links between the two markets allow the market power held on the

specific market to be leveraged into the closely related market, thereby

strengthening the market power of the undertaking. In such instances

the Authority may consider remedies aiming to prevent the application

of such leverage in the closely related market pursuant to regulations

56, 57, 58 and 61.

(1)

The Authority shall, taking the utmost account of the

Recommendation on Relevant Product and Service Markets and of the

SMP guidelines published by the European Commission in accordance

with the provisions of Article 64(1) and (2) of the Electronic

Communications Code, define relevant markets appropriate to national

circumstances, in particular relevant geographic markets within Malta

by taking into account, inter alia, the degree of infrastructure

competition in those areas, in accordance with the principles of

competition law

Provided that the Authority shall, where relevant, also take

into account the results of the geographical survey conducted in

accordance with regulation 17(1) to (5). In doing so the Authority shall

follow the procedures referred to in article 4A of the Malta

Communications Authority Act and in regulation 21 before defining

the markets that may differ from those identified in the aforesaid

Recommendation of the European Commission.

(2)

If the European Commission, or the Authority and at least

another national regulatory authority from another Member State

submit a reasoned request, including supporting evidence, BEREC

AND SERVICES (GENERAL)

shall conduct an analysis of a potential transnational market. After

consulting stakeholders and taking utmost account of the analysis

carried out by BEREC, the European Commission may adopt decisions

identifying transnational markets in accordance with the principles of

competition law and taking utmost account of the Recommendation

and SMP guidelines adopted in accordance with Article 64 of the

Electronic Communications Code.

(3)

In the case of transnational markets identified in accordance

with sub-regulation (2), the Authority and the national regulatory

authority or authorities of the other Member State or States concerned

shall jointly conduct the market analysis taking the utmost account of

the SMP guidelines and, in a concerted fashion, shall decide on any

imposition, maintenance, amendment or withdrawal of regulatory

obligations referred to in regulation 54(8) and in Article 67(4) of the

Electronic Communications Code. The Authority together with the

national regulatory authority or authorities of the other Member State

or States concerned shall jointly notify to the European Commission

their draft measures regarding the market analysis and any regulatory

obligations pursuant to regulations 21 and 22 and to Articles 32 and 33

of the Electronic Communications Code

Provided that the Authority and one or more national

regulatory authorities from other Member State or States may also

jointly notify their draft measures regarding the market analysis and

any regulatory obligations in the absence of transnational markets,

where they consider that market conditions in the respective

jurisdictions are sufficiently homogeneous.

The Authority shall take into utmost account any guidelines

that BEREC may issue in accordance with the provisions of Article 66

of the Electronic Communications Code when performing its

regulatory tasks. Such guidelines may provide the basis for

interoperability of wholesale access products across the European

Union and may include guidance for the harmonisation of technical

specifications of wholesale access products capable of meeting such

identified transnational demand.

(1)

The Authority shall determine whether a relevant

market defined in accordance with regulation 52 is such as to justify the

imposition of the regulatory obligations set out under the Act and these

regulations. In doing so the Authority shall carry out an analysis, where

appropriate, in collaboration with the national competition authorities.

(2)

The Authority shall take utmost account of the SMP

guidelines and shall follow the procedures referred to in article 4A of

the Malta Communications Authority Act and in regulation 21 when

conducting such analysis.

(3)

A market may be considered to justify the imposition of

AND SERVICES (GENERAL)

regulatory obligations set out in these regulations if all of the

following criteria are met

(a)

high and non-transitory structural, legal or

regulatory barriers to entry are present;

(b)

there is a market structure which does not tend

towards effective competition within the relevant time horizon,

having regard to the state of infrastructure-based competition

and other sources of competition underlying the barriers to

entry; and

(c)

competition law alone is insufficient to adequately

address any identified market failures.

(4)

Where the Authority conducts an analysis of a market that is

included in the Recommendation on the Relevant Product and Service

Markets, it shall consider that sub-regulation (3)(a), (b) and (c) have

been met, unless the Authority determines that one or more of such

criteria is not met in the specific national circumstances.

(5)

Where the Authority conducts the analysis required by sub-

regulation (1), it shall consider developments from a forward-looking

perspective in the absence of regulation imposed on the basis of this

regulation in that relevant market, taking into account all of the

following

(a)

market developments affecting the likelihood of

the relevant market tending towards effective competition;

(b)

all relevant competitive constraints, at the

wholesale and retail levels, irrespective of whether the sources

of such constraints are considered to be electronic

communications networks, electronic communications services,

or other types of services or applications which are comparable

from the perspective of the end-user, and irrespective of

whether such constraints are part of the relevant market;

(c)

other types of regulation or measures imposed and

affecting the relevant market or related retail market or markets

throughout the relevant period, including, without limitation,

obligations imposed in accordance with article 4A of the

Utilities and Services (Regulation of Certain Works) Act, and

with regulations 47 and 48; and

(d)

regulatory obligations imposed on other relevant

markets on the basis of this regulation.

(6)

Where the Authority concludes that a relevant market does

not justify the imposition of regulatory obligations in accordance with

the procedure in sub-regulations (1) to (5), or where the conditions set

AND SERVICES (GENERAL)

out in sub-regulation (8) are not met, it shall not impose or maintain

any specific regulatory obligations in accordance with regulation 55

Provided that where there already are sector specific

regulatory obligations imposed in accordance with regulation 55, the

Authority shall withdraw such obligations placed on undertakings in

that relevant market.

(7)

The Authority shall ensure that parties affected by a

withdrawal of obligations done in accordance with this regulation,

receive an appropriate notice period, defined by balancing the need to

ensure a sustainable transition for the beneficiaries of those obligations

and end-users, end-user choice, and that regulation does not continue

for longer than necessary

Provided that when setting such a notice period, the

Authority may determine specific conditions and notice periods in

relation to existing access agreements.

(8)

Where the Authority determines that, in a relevant market

the imposition of regulatory obligations in accordance with sub-

regulations (1) to (5) is justified, it shall identify any undertakings

which individually or jointly have a significant market power on that

relevant market in accordance with regulation 51. In doing so the

Authority shall impose on such undertakings appropriate specific

regulatory obligations in accordance with regulation 55 or maintain or

amend such obligations where they already exist if it considers that the

outcome for end-users would not be effectively competitive in the

absence of those obligations.

(9)

The Authority shall act in accordance with the procedures

referred to in article 4A of the Malta Communications Authority Act

and regulation 21, when taking measures in accordance with sub-

regulations (6), (7) and (8). In doing so the Authority shall carry out an

analysis of the relevant market and notify the corresponding draft

measure in accordance with regulation 21

(a)

within five years from the adoption of a previous

measure where the Authority has defined the relevant market

and determined which undertakings have significant market

power

Provided that the aforesaid five year period may, on an

exceptional basis, be extended for up to one year, where the Authority

has notified a reasoned proposal for an extension to the European

Commission no later than four months before the expiry of the five

year period, and the European Commission has not objected within one

month of the notified extension; or

AND SERVICES (GENERAL)

(b)

within three years from the adoption of a revised

Recommendation on relevant markets, for markets not

previously notified to the European Commission.

(10) Where the Authority considers that it may not complete or

has not completed its analysis of a relevant market identified in the

Recommendation within the time limit laid down in sub-regulation (9),

the Authority may request BEREC to provide it with assistance in

completing the analysis of the specific market and the specific

obligations to be imposed. With this assistance, the Authority shall,

within six months of the limit laid down in sub-regulation (9), notify

the draft measure to the European Commission in accordance with

regulation 21.

(1)

Where an undertaking is designated as having

significant market power on a specific market as a result of a market

analysis carried out in accordance with regulation 54, the Authority

shall, as it considers appropriate, impose the obligations set out in

regulations 56 to 61 and 63 to 67.

(2)

In accordance with the principle of proportionality, the

Authority shall choose the least intrusive way of addressing the

problems identified in the market analysis.

(3)

The Authority shall impose the obligations set out in

regulations 56 to 61 and 63 to 67 only on undertakings that have been

designated as having significant market power in accordance with sub-

regulations (1) and (2), without prejudice to

(a)

regulations 48 and 50;

(b)

article 4A of the Utilities and Services

(Regulation of Certain Works) Act, regulation 13, Condition 7

in Part D of the First Schedule as applied by virtue of regulation

7(1), regulations 83 and 94 and the relevant provisions as

contained in Part XIII and in the Processing of Personal Data

(Electronic Communications Sector) Regulations containing

obligations on undertakings other than those designated as

having significant market power; or

(c)

the

need

to

comply

with

international

commitments.

(4)

In exceptional circumstances, where the Authority intends

to impose on undertakings designated as having significant market

power obligations for access or interconnection other than those set

out in regulations 56 to 61 and 63 to 67, the Authority shall submit a

request to the European Commission.

(5)

Any obligations imposed in accordance with this regulation

shall be

AND SERVICES (GENERAL)

(a)

based on the nature of the problem identified by

the Authority in its market analysis, where appropriate taking

into account the identification of transnational demand pursuant

to regulation 53;

(b)

proportionate, having regard, where possible, to

the costs and benefits;

(c)

justified in light of the objectives laid down in

article 4 of the Act; and

(d)

imposed following consultation in accordance with

article 4A of the Malta Communications Authority Act and

regulation 21.

(6)

In relation to the need to comply with international

commitments referred to in sub-regulation (3), the Authority shall

notify decisions to impose, amend or withdraw obligations on

undertakings to the European Commission, in accordance with the

procedure referred to in regulation 21.

(7)

The Authority shall consider the impact of new market

developments, such as in relation to commercial agreements, including

co-investment agreements, influencing competitive dynamics. If such

developments are not sufficiently important to require a new market

analysis in accordance with regulation 54, the Authority shall assess

without delay whether it is necessary to review the obligations imposed

on undertakings designated as having significant market power and

amend any previous decision, including by withdrawing obligations or

imposing new obligations, in order to ensure that such obligations

continue to meet the conditions set out in sub-regulation (5)

Provided that such amendments shall be imposed only after

consultations in accordance with article 4A of the Malta

Communications Authority Act and regulation 21.

(1)

The Authority may, in accordance regulation 55,

impose obligations of transparency in relation to interconnection and,

or access, requiring undertakings to make public specific information,

such as accounting information, prices, technical specifications,

network characteristics and expected developments thereof, as well as

terms and conditions for supply and use, including any conditions

altering access to or use of services and applications, in particular with

regard to migration from legacy infrastructure, where such conditions

are allowed by the Authority in accordance with European Union law.

(2)

The Authority may in particular where an undertaking has

obligations of non-discrimination, require that undertaking to publish a

reference offer, which shall be sufficiently unbundled to ensure that

undertakings are not required to pay for facilities which are not

AND SERVICES (GENERAL)

necessary for the service requested. The offer shall contain a

description of the relevant offerings broken down into components

according to market needs, and the associated terms and conditions,

including prices

Provided that the Authority may, inter alia, impose changes

to reference offers to give effect to obligations imposed under these

regulations.

(3)

The Authority may specify the precise information to be

made available, the level of detail required and the manner of

publication.

(4)

Notwithstanding sub-regulation (3), where an undertaking

has obligations under regulations 59 or 60 concerning wholesale

access to network infrastructure, the Authority shall ensure the

publication of a reference offer taking utmost account of the BEREC

guidelines on the minimum criteria for a reference offer made in

accordance with Article 69(4) of the Electronic Communications

Code, and that key performance indicators are specified, where

relevant, as well as corresponding service levels, and shall closely

monitor and ensure compliance with them

Provided that the Authority may, where necessary,

predetermine the associated financial penalties in accordance with

European Union law and national legislation.

(1)

The Authority may, in accordance with regulation 55,

impose obligations of non-discrimination, in relation to

interconnection and, or access.

(2)

Obligations of non-discrimination shall ensure, in particular,

that the undertaking applies equivalent conditions in equivalent

circumstances to other providers of equivalent services, and provides

services and information to others under the same conditions and of

the same quality as it provides for its own services, or those of its

subsidiaries or partners

Provided that the Authority may impose on any such

undertaking obligations to supply access products and services to all

undertakings, including to itself, on the same timescales, terms and

conditions, including those relating to price and service levels, and by

means of the same systems and processes, in order to ensure

equivalence of access

Provided further that such obligations of non-discrimination

may be based on equivalence of inputs or equivalence of outputs as

may be established by the Authority on a case by case basis.

(1)

The Authority may, in accordance with regulation 55,

impose obligations for accounting separation in relation to specified

AND SERVICES (GENERAL)

activities related to interconnection and, or access.

(2)

Without prejudice to the generality of sub-regulation (1), the

Authority may require a vertically integrated undertaking to make

transparent its wholesale prices and its internal transfer prices, inter

alia to ensure compliance where there is an obligation of non-

discrimination under regulation 57 or, where necessary, to prevent

unfair cross-subsidy. In doing so that Authority may specify the format

and accounting methodology to be used.

(3)

Without prejudice to regulation 15, in order to facilitate the

verification of compliance with obligations of transparency and non-

discrimination, the Authority may require that accounting records,

including data on revenues received from third parties, are provided on

request.

(4)

The Authority may publish information that would

contribute to an open and competitive market. In so doing, the

Authority shall comply with European Union law and national

legislation on commercial confidentiality.

(1)

The Authority may, in accordance with regulation 55,

impose obligations on undertakings to meet reasonable requests for

access to, and use of, civil engineering assets including, but not limited

to, buildings or entries to buildings, building cables, including wiring,

antennae, towers and other supporting constructions, poles, masts,

ducts, conduits, inspection chambers, manholes and cabinets, in

situations where, having considered the market analysis, the Authority

concludes that denial of access, or access given under unreasonable

terms and conditions having a similar effect, would hinder the

emergence of a sustainable competitive market and would not be in the

interest of end-users.

(2)

The Authority may impose obligations on an undertaking to

provide access in accordance with this regulation, irrespective of

whether the assets that are affected by the obligation are part of the

relevant market in accordance with the market analysis, provided that

the obligation is necessary and proportionate to meet the objectives of

article 4 of the Act.

(1)

The Authority may, in accordance with regulation 55,

impose obligations on undertakings to meet reasonable requests for

access to, and use of, specific network elements and associated

facilities, in situations where the Authority considers that denial of

access or unreasonable terms and conditions having a similar effect

would hinder the emergence of a sustainable competitive market at the

retail level, and would not be in the interest of the end-user.

(2)

When undertaking any measures in accordance with this

regulation, the Authority may require undertakings inter alia

AND SERVICES (GENERAL)

(a)

to give third parties access to, and use of, specific

physical network elements and associated facilities, as

appropriate, including unbundled access to the local loop and

sub-loop;

(b)

to give third parties access to specific active or

virtual network elements and services;

(c)

to negotiate in good faith with undertakings

requesting access;

(d)

not to withdraw access to facilities already

granted;

(e)

to provide specific services on a wholesale basis

for resale by third parties;

(f)

to grant open access to technical interfaces,

protocols or other key technologies that are indispensable for

the interoperability of services or virtual network services;

(g)

to provide co-location or other forms of

associated facilities sharing;

(h)

to provide specific services needed to ensure

interoperability of end-to-end services to users, or roaming on

mobile networks;

(i)

to provide access to operational support systems

or similar software systems necessary to ensure fair

competition in the provision of services;

(j)

to interconnect networks or network facilities;

(k)

to provide access to associated services such as

identity, location and presence service.

Provided that the Authority may require that any of these

obligations are subject to conditions covering fairness, reasonableness

and timeliness.

(3)

Where the Authority considers the appropriateness of

imposing any of the possible specific obligations referred to in sub-

regulations (1) and (2), and in particular where the Authority assesses,

in accordance with the principle of proportionality, whether and how

such obligations are to be imposed, the Authority shall analyse

whether other forms of access to wholesale inputs, either on the same

or on a related wholesale market, would be sufficient to address the

identified problem in the interest of end-users.

(4)

An assessment done in accordance with sub-regulation (3)

AND SERVICES (GENERAL)

shall include commercial access offers, regulated access pursuant to

regulation 48, or existing or planned regulated access to other

wholesale inputs pursuant to this regulation. In doing so the Authority

shall take account in particular of the following factors

(a)

the technical and economic viability of using or

installing competing facilities, in light of the rate of market

development, considering the nature and type of interconnection

or access involved, including the viability of other upstream

access products, such as access to ducts;

(b)

the expected technological evolution affecting

network design and management;

(c)

the need to ensure technology neutrality enabling

the parties to design and manage their own networks;

(d)

the feasibility of providing the access offered, in

relation to the capacity available;

(e)

the initial investment by the facility owner, taking

account of any public investment made and the risks involved in

making the investment, with particular regard to investments in,

and risk levels associated with, very high capacity networks;

(f)

the need to safeguard competition in the long term,

with particular attention to economically efficient infrastructure-

based competition and innovative business models that support

sustainable competition, such as those based on co-investment

in networks;

(g)

where appropriate,

any

relevant

intellectual

property rights; and

(h)

the provision of pan-European services.

(5)

Where the Authority considers, in accordance with

regulation 55, imposing obligations on the basis of regulation 59 or of

this regulation, it shall examine whether the imposition of obligations

in accordance with regulation 59 alone would be a proportionate means

by which to promote competition and the interest of end-users.

(6)

When imposing obligations on an undertaking to provide

access in accordance with this regulation, the Authority may lay down

technical or operational conditions to be met by the provider or the

beneficiaries of such access, where it considers necessary to ensure

normal operation of the network

Provided that any obligations to meet specific technical

standards or specifications shall comply with the standards and

specifications laid down in accordance with regulation 26.

AND SERVICES (GENERAL)

(1)

The Authority may, in accordance with regulation 55,

impose obligations relating to cost recovery and price control,

including obligations for cost orientation of prices and obligations

concerning cost-accounting systems, for the provision of specific types

of interconnection and, or access, in situations where a market analysis

indicates that a lack of effective competition means that the

undertaking concerned may sustain prices at an excessively high level,

or may apply a price squeeze, to the detriment of end-users.

(2)

In determining whether price control obligations would be

appropriate, the Authority shall take into account the need to promote

competition and long-term end-user interests related to the deployment

and take-up of next-generation networks, and in particular of very high

capacity networks. In particular, to encourage investments by the

undertaking, including in next-generation networks, the Authority

shall take into account the investment made by the undertaking

Provided that where the Authority considers price control

obligations to be appropriate, it shall allow the undertaking a

reasonable rate of return on adequate capital employed, taking into

account any risks specific to a particular new investment network

project.

(3)

The Authority shall consider not imposing or maintaining

obligations pursuant to this regulation, where the Authority establishes

that a demonstrable retail price constraint is present and that any

obligations imposed in accordance with regulations 56 to 60,

including, in particular, any economic replicability test imposed in

a c c o r d a n c e w i t h r e g u l a t i o n 5 7 , en su r e s eff e c t i v e a n d n o n -

discriminatory access.

(4)

When the Authority considers it appropriate to impose price

control obligations on access to existing network elements, the

Authority shall also take account of the benefits of predictable and

stable wholesale prices in ensuring efficient market entry and

sufficient incentives for all undertakings to deploy new and enhanced

networks.

(5)

The Authority shall ensure that any cost recovery

mechanism or pricing methodology that is mandated serves to promote

the deployment of new and enhanced networks, efficiency and

sustainable competition and maximises sustainable end-user benefits.

In this regard, the Authority may also take account of prices available

in comparable competitive markets.

(6)

Where an undertaking has an obligation regarding the cost

orientation of its prices, the burden of proof that charges are derived

from costs, including a reasonable rate of return on investment, shall

lie with the undertaking concerned. For the purpose of calculating the

cost of efficient provision of services, the Authority may use cost

AND SERVICES (GENERAL)

accounting methods independent of those used by the undertaking

Provided that the Authority may require an undertaking to

provide full justification for its prices, and may, where appropriate,

require prices to be adjusted.

(7)

The Authority shall ensure that, where implementation of a

cost-accounting system is mandated in order to support price control, a

description of the cost-accounting system shall be made publicly

available by the undertaking concerned, showing at least the main

categories under which costs are grouped and the rules used for the

allocation of costs

Provided that a qualified independent body shall verify

compliance with the cost-accounting system and shall publish annually

a statement concerning compliance. The cost of any such verification

shall be borne by the undertaking concerned.

(1)

The Authority shall closely monitor, and ensure

compliance with, the application of the European Union-wide voice

termination rates by providers of voice termination services pursuant to

Article 75 of the Electronic Communications Code

Provided that the Authority may, at any time, require a

provider of voice termination services to amend the rate it charges to

other undertakings if it does not comply with the delegated act referred

to in paragraph 1 of Article 75 of the Electronic Communications Code.

(2)

The Authority shall annually report to the European

Commission and to BEREC with regard to its application of Article 75

of the Electronic Communications Code.

(3)

Where the European Commission decides, following its

review in accordance with paragraph 2 of Article 75 of the Electronic

Communications Code, not to impose a maximum mobile voice

termination rate or a maximum fixed voice termination rate, or to

impose neither one, the Authority may then conduct a market analysis

of voice termination markets in accordance with regulation 54, to

assess whether the imposition of regulatory obligations is necessary.

(4)

If as a result of an analysis undertaken in accordance with

sub-regulation (3), the Authority decides to impose cost-oriented

termination rates in a relevant market, the Authority shall follow the

principles, criteria and parameters set out in the Third Schedule, and its

draft measure shall be subject to the procedures referred to in article 4A

of the Malta Communications Authority Act, and in regulations 21 and

22. AND SERVICES (GENERAL)

(1)

Undertakings which have been designated as having

significant market power in one or several relevant markets in

accordance with regulation 54, may offer commitments, in accordance

with the procedure set out in regulation 66 and without prejudice to

sub-regulation (2), to open the deployment of a new very high capacity

network that consists of optical fibre elements up to the end-user

premises or base station to co-investment, for example by offering co-

ownership or long-term risk sharing through co-financing or through

purchase agreements giving rise to specific rights of a structural

character by other providers of electronic communications networks or

services.

(2)

When the Authority assesses commitments made in

accordance with sub-regulation (1), the Authority shall determine, in

particular, whether the offer to co-invest complies with all of the

following conditions

(a)

that the offer is open at any moment during the

lifetime of the network to any provider of electronic

communications networks or services;

(b)

that the offer would allow other co-investors

which are providers of electronic communications networks or

services to compete effectively and sustainably in the long term

in downstream markets in which the undertaking designated as

having significant market power is active, on terms which

include

(i)

fair, reasonable and non-discriminatory

terms allowing access to the full capacity of the network

to the extent that it is subject to co-investment;

(ii)

flexibility in terms of the value and timing

of the participation of each co-investor;

(iii) the

possibility

to

increase

such

participation in the future; and

(iv) reciprocal rights awarded by the co-

investors after the deployment of the co-invested

infrastructure;

(c)

it is made public by the undertaking in a timely

manner and, if the undertaking does not have the characteristics

listed in regulation 67(1), at least six months before the start of

the deployment of the new network, then that period may be

prolonged by the Authority at its discretion for such reasonable

period as it may consider appropriate. In so doing, the

Authority shall take due account of national circumstances;

(d)

access seekers not participating in the co-

AND SERVICES (GENERAL)

investment can benefit from the outset from the same quality,

speed, conditions and end-user reach as were available before

the deployment, accompanied by a mechanism of adaptation

over time confirmed by the Authority in light of developments

on the related retail markets, that maintains the incentives to

participate in the co-investment

Provided that such mechanism shall ensure that access

seekers have access to the very high capacity elements of the network

at a time, and on the basis of transparent and non-discriminatory terms,

which reflect appropriately the degrees of risk incurred by the

respective co-investors at different stages of the deployment and take

into account the competitive situation in retail markets;

(e)

it complies at a minimum with the criteria set out

in the Fourth Schedule and is made in good faith.

(3)

If the Authority concludes, taking into account the results of

the market test conducted in accordance with regulation 66(2) and (3),

that the co-investment commitment offered complies with the

conditions set out in sub-regulation (2), then the Authority shall make

that commitment binding pursuant to regulation 66(5) to (8) and shall

not impose any additional obligations pursuant to regulation 55 as

regards the elements of the new very high capacity network that are

subject to the commitments, if at least one potential co-investor has

entered into a co-investment agreement with the undertaking

designated as having significant market power

Provided that the provisions of this sub-regulation shall be

without prejudice to the regulatory treatment of circumstances that do

not comply with the conditions set out in sub-regulation (2), taking into

account the results of any market test conducted in accordance with

regulation 66(2) and (3), but that have an impact on competition and

are taken into account for the purposes of regulations 54 and 55

Provided further that by way of derogation from this sub-

regulation the Authority may, in duly justified circumstances, impose,

maintain or adapt remedies in accordance with regulations 55 to 61 as

regards new very high capacity networks in order to address significant

competition problems on specific markets, where the Authority

establishes that, given the specific characteristics of these markets,

those competition problems would not otherwise be addressed.

AND SERVICES (GENERAL)

(4)

The Authority shall, on an ongoing basis, monitor

compliance with the conditions set out in sub-regulation (1) and may

require the undertaking designated as having significant market power

to provide it with annual compliance statements

Provided that this regulation shall be without prejudice to

the power of the Authority to take decisions pursuant to article 43 of

the Malta Communications Authority Act in the event of a dispute

arising between undertakings in connection with a co-investment

agreement considered by the Authority to comply with the conditions

set out in sub-regulation (2).

(1)

Where the Authority concludes that the appropriate

obligations imposed under regulations 56 to 61 have failed to achieve

effective competition and that there are important and persisting

competition problems or market failures identified in relation to the

wholesale provision of certain access product markets, it may, on an

exceptional basis, in accordance with regulation 55(4), impose an

obligation on vertically integrated undertakings to place activities

related to the wholesale provision of relevant access products in a

business entity operating independently

Provided that such business entity shall supply access

products and services to all undertakings, including to other business

entities within the parent company, on the same time scales and terms

and conditions, including those relating to price and service levels, and

by means of the same systems and processes.

(2)

When the Authority intends to impose an obligation of

functional separation, it shall submit a request to the European

Commission that includes

(a)

evidence justifying the conclusions of the

Authority as referred to in sub-regulation (1);

(b)

a reasoned assessment concluding that there is no,

or little prospect of effective and sustainable infrastructure-

based competition within a reasonable time-frame;

(c)

analysis of the expected impact on the Authority,

on the undertaking, in particular on the workforce of the

separated undertaking, and on the electronic communications

sector as a whole, and on incentives to invest therein, in

particular with regard to the need to ensure social and territorial

cohesion, and on other stakeholders including, in particular, the

expected impact on competition and any potential resulting

effects on consumers;

(d)

an analysis of the reasons justifying that this

obligation would be the most efficient means to enforce

remedies aimed at addressing the competition problems or the

AND SERVICES (GENERAL)

markets failures identified.

(3)

The draft measure shall include the following elements

(a)

the precise nature and level of separation,

specifying in particular the legal status of the separate business

entity;

(b)

an identification of the assets of the separate

business entity, and the products or services to be supplied by

that entity;

(c)

the governance arrangements to ensure the

independence of the staff employed by the separate business

entity, and the corresponding incentive structure;

(d)

rules for ensuring compliance with the obligations;

(e)

rules for ensuring transparency of operational

procedures, in particular towards other stakeholders; and

(f)

a monitoring programme to ensure compliance,

including the publication of an annual report.

(4)

Following the decision of the European Commission taken in

accordance with regulation 55(3) on the draft measure referred to

therein, the Authority shall conduct a coordinated analysis of the

different markets related to the access network in accordance with the

procedure set out in regulation 54. On the basis of that analysis, the

Authority shall impose, maintain, amend or withdraw obligations, in

accordance with the procedures set out in article 4A of the Malta

Communications Authority Act and in regulation 21.

(5)

An undertaking on which functional separation has been

imposed may be subject to any of the obligations referred to in

regulations 56 to 61 in any specific market where it has been

designated as having significant market power in accordance with

regulation 54, or any other obligations authorised by the European

Commission pursuant to regulation 55(3).

(1)

Undertakings which have been designated as having

significant market power in one or several relevant markets in

accordance with regulation 54 shall inform the Authority at least three

months before any intended transfer of their local access network assets

or a substantial part thereof to a separate legal entity under different

ownership, or establishment of a separate business entity in order to

provide all retail providers, including its own retail divisions, with fully

equivalent access products

Provided that such undertakings shall also inform the

Authority of any change of that intent, as well as the final outcome of

AND SERVICES (GENERAL)

the process of separation

Provided further that such undertakings may also offer

commitments regarding access conditions that are to apply to their

network during an implementation period after the proposed form of

separation is implemented, with a view to ensuring effective and non-

discriminatory access by third parties. The offer of commitments shall

i n c l u d e s u ff i c i e n t d e t a i l s , i n c l u d i n g i n t e r m s o f t i m i n g o f

implementation and duration, in order to allow the Authority to

conduct its tasks in accordance with sub-regulation (2). Such

commitments may extend beyond the maximum period for market

reviews set out in regulation 54(9).

(2)

The Authority shall assess the effect of the intended

transaction, together with the commitments offered, where applicable,

on existing regulatory obligations under these regulations

Provided that for this purpose, the Authority shall conduct

an analysis of the different markets related to the access network in

accordance with the procedure set out in regulation 54, taking into

account any commitments offered by the undertaking, having regard in

particular to the objectives set out in article 4 of the Act. In so doing,

the Authority shall consult third parties in accordance with article 4A

of the Malta Communications Authority Act, and shall address, in

particular, those third parties which are directly affected by the

intended transaction

Provided further that, on the basis of its analysis, the

Authority shall impose, maintain, amend or withdraw obligations, in

accordance with the procedures set out in article 4A of the Malta

Communications Authority Act and in regulation 21, applying, if

appropriate, regulation 67. In its decision, the Authority may make the

commitments binding, totally or in part. By way of derogation from

regulation 54(9), the Authority may make the commitments binding,

totally or in part, for the entire period for which they are offered.

(3)

Without prejudice to regulation 67, the legally or

operationally separate business entity that has been designated as

having significant market power in any specific market in accordance

with regulation 54 may be subject, as appropriate, to any of the

obligations referred to in regulations 56 to 61 or any other obligations

authorised by the European Commission pursuant to regulation 55(3),

where any commitments offered are insufficient to meet the objectives

set out in article 4 of the Act.

(4)

The Authority shall monitor the implementation of the

commitments offered by the undertakings that the Authority has made

binding in accordance with sub-regulation (2) and shall consider their

extension when the period for which they are initially offered has

expired.

AND SERVICES (GENERAL)

(1)

Undertakings designated as having significant market

power may offer to the Authority commitments regarding conditions

for access, co-investment, or both, applicable to their networks in

relation, inter alia, to

(a)

cooperative arrangements relevant to the

assessment of appropriate and proportionate obligations

pursuant to regulation 55;

(b)

co-investment in very high capacity networks

pursuant to regulation 63; or

(c)

effective and non-discriminatory access by third

parties pursuant to regulation 65, both during an implementation

period of voluntary separation by a vertically integrated

undertaking and after the proposed form of separation is

implemented.

Provided that the offer for commitments shall be sufficiently

detailed including as to the timing and scope of their implementation

and their duration, to allow the Authority to undertake its assessment

pursuant to sub-regulations (2) and (3). Such commitments may extend

beyond the periods for carrying out market analysis provided in

regulation 54(9).

(2)

In order to assess any commitments offered by an

undertaking pursuant to sub-regulation (1), the Authority shall, except

where such commitments clearly do not fulfil one or more relevant

conditions or criteria, perform a market test, in particular on the offered

terms, by conducting a public consultation of interested parties, in

particular of third parties which are directly affected. As part of such a

consultation, potential co-investors or access seekers may provide

views on the compliance of the commitments offered with the

conditions provided, as applicable, in regulations 55, 63 or 65 and may

propose changes.

(3)

As regards the commitments offered under this regulation,

the Authority shall, when assessing obligations pursuant to regulation

55(5), have particular regard to

(a)

evidence regarding the fair and reasonable

character of the commitments offered;

(b)

the openness of the commitments to all market

participants;

(c)

the timely availability of access under fair,

reasonable and non-discriminatory conditions, including to very

high capacity networks, before the launch of related retail

services; and

AND SERVICES (GENERAL)

(d)

the overall adequacy of the commitments offered

to enable sustainable competition on downstream markets and

to facilitate cooperative deployment and take-up of very high

capacity networks in the interest of end-users.

(4)

Taking into account all the views expressed in the

consultation, and the extent to which such views are representative of

different stakeholders, the Authority shall communicate to the

undertaking designated as having significant market power its

preliminary conclusions whether the commitments offered comply

with the objectives, criteria and procedures set out in this regulation

and, as applicable, in regulations 55, 63 or 65, and under which

conditions it may consider making the commitments binding

Provided that the undertaking may revise its initial offer to

take account of the preliminary conclusions of the Authority and with

a view to satisfying the criteria set out in this regulation and, as

applicable, in regulations 55, 63 or 65.

(5)

Without prejudice to the first paragraph of regulation 63(3),

the Authority may issue a decision to make the commitments binding,

totally or in part.

(6)

By way of derogation from regulation 54(9), the Authority

may make some or all commitments binding for a specific period,

which may be the entire period for which they are offered, and in the

case of co-investment commitments made binding pursuant to first

paragraph of regulation 63(3), the Authority shall make them binding

for a period of a minimum of seven years.

(7)

Subject to regulation 63, this regulation is without prejudice

to the application of the market analysis procedure pursuant to

regulation 54 and the imposition of obligations pursuant to regulation

55. (8)

Where the Authority makes commitments binding pursuant

to this regulation, it shall assess under regulation 55 the consequences

of that decision for market development and the appropriateness of

any obligation that it has imposed or would have imposed, in default of

those commitments, have considered imposing pursuant to that

regulation or regulations 56 to 61

Provided that when notifying the relevant draft measure

under regulation 55 in accordance with regulation 21, the Authority

shall attach the notified draft measure with the commitments decision.

AND SERVICES (GENERAL)

(9)

The Authority shall monitor, supervise and ensure

compliance with the commitments that it has made binding in

accordance with sub-regulations (5) to (8) in the same way in which it

monitors, supervises and ensures compliance with obligations imposed

under regulation 55, and shall consider the extension of the period for

which they have been made binding when the initial period expires. If

the Authority concludes that an undertaking has not complied with the

commitments that have been made binding in accordance with sub-

regulations (5) to (8), it may impose penalties on such undertaking in

accordance with articles 31 to 33 of the Malta Communications

Authority Act

Provided that without prejudice to the procedure for ensuring

compliance of specific obligations under regulation 20, the Authority

may reassess the obligations imposed in accordance with regulation

55(7).

(1)

The Authority when determining whether to

designate an undertaking which is absent from any retail markets for

electronic communications services as having significant market power

in one or several wholesale markets in accordance with regulation 54,

shall consider whether that undertaking has the following

characteristics

(a)

all companies and business units within the

undertaking, all companies that are controlled but not

necessarily wholly owned by the same ultimate owner, and any

shareholder capable of exercising control over the undertaking,

only have activities, current and planned for the future, in

wholesale markets for electronic communications services and

therefore do not have activities in any retail market for

electronic communications services provided to end-users in the

European Union; and

(b)

the undertaking is not bound to deal with a single

and separate undertaking operating downstream that is active in

any retail market for electronic communications services

provided to end-users, because of an exclusive agreement, or an

agreement which de facto amounts to an exclusive agreement.

(2)

If the Authority concludes that the conditions laid down in

sub-regulation (1) are fulfilled, it may impose on that undertaking only

obligations pursuant to regulations 57 and 60 or relative to fair and

reasonable pricing if justified on the basis of a market analysis

including a prospective assessment of the likely behaviour of the

undertaking designated as having significant market power.

(3)

The Authority shall review obligations imposed on the

undertaking in accordance with this regulation at any time if it

concludes that the conditions laid down in sub-regulation (1) are no

AND SERVICES (GENERAL)

longer met, and it shall, as appropriate, apply regulations 54 to 61.

(4)

The undertakings shall, without undue delay, inform the

Authority of any change of circumstance relevant to sub-regulation

(1)(a) and (b).

(5)

The Authority shall also review obligations imposed on the

undertaking in accordance with this regulation if on the basis of

evidence of terms and conditions offered by the undertaking to its

downstream customers, the Authority concludes that competition

problems have arisen or are likely to arise to the detriment of end-users

which require the imposition of one or more obligations provided in

regulations 56, 58, 59 or 61, or the amendment of the obligations

imposed in accordance with sub-regulation (2).

(6)

The imposition of obligations and their review in

accordance with this regulation shall be implemented in accordance

with the procedures referred to in article 4A of the Malta

Communications Authority Act and in regulations 21 and 22.

(1)

Undertakings which have been designated as having

significant market power in one or several relevant markets in

accordance with regulation 54 shall notify the Authority in advance

and in a timely manner when they plan to decommission or replace

with a new infrastructure parts of the network, including legacy

infrastructure necessary to operate a copper network, which are subject

to obligations pursuant to regulations 55 to 67.

(2)

The Authority shall ensure that the decommissioning or

replacement process includes a transparent timetable and conditions,

including an appropriate notice period for transition, and establishes

the availability of alternative products of at least comparable quality

providing access to the upgraded network infrastructure substituting

the replaced elements if necessary to safeguard competition and the

rights of end-users.

(3)

With regard to assets which are proposed for

decommissioning or replacement, the Authority may withdraw the

obligations after having ascertained that the access provider

(a)

has established the appropriate conditions for

migration, including making available an alternative access

product of at least comparable quality as was available using

the legacy infrastructure enabling the access seekers to reach

the same end-users; and

(b)

has complied with the conditions and process

notified to the Authority in accordance with this regulation

Provided that such withdrawal shall be implemented in

accordance with the procedures referred to in article 4A of the Malta

AND SERVICES (GENERAL)

Communications Authority Act and in regulations 21 and 22.

(4)

This regulation shall be without prejudice to the availability

of regulated products imposed by the Authority on the upgraded

network infrastructure in accordance with the procedures set out in

regulations 54 and 55.

The Authority shall take into utmost account any guidelines

on very high capacity networks that BEREC may issue in accordance

with Article 82 of the Electronic Communications Code.

(1)

The Authority shall impose any regulatory obligations

as it may consider appropriate on undertakings identified as having

significant market power on a given retail market in accordance with

regulation 51, where

(a)

as a result of a market analysis carried out in

accordance with regulation 54, the Authority determines that a

given retail market identified in accordance with regulation 52 is

not effectively competitive; and

(b)

the Authority concludes that obligations imposed

under regulations 56 to 61 would not result in the achievement

of the objectives set out in article 4 of the Act

Provided that the obligations that the Authority may impose

shall be based on the nature of the problem identified and shall be

proportionate and justified in light of the objectives laid down in article

4 of the Act. Such obligations may include requirements that the

identified undertakings do not charge excessive prices, inhibit market

entry or restrict competition by setting predatory prices, show undue

preference to specific end-users, or unreasonably bundle services

Provided further that the Authority may apply to such

undertakings appropriate retail price cap measures, measures to control

individual tariffs, or measures to orient tariffs towards costs or prices

on comparable markets, in order to protect end-user interests whilst

promoting effective competition.

(2)

The Authority shall ensure that where an undertaking is

subject to retail tariff regulation or other relevant retail controls, the

necessary and appropriate cost-accounting systems are implemented. In

doing so the Authority may specify the format and accounting

methodology to be used

Provided that compliance with the cost-accounting system

shall be verified by a qualified independent body, the cost of which

verification shall be borne by the undertaking concerned

Provided further that the Authority shall ensure that a

statement concerning compliance is published annually.

AND SERVICES (GENERAL)

(3)

Without prejudice to regulations 72 and 75 the Authority

shall not apply retail control mechanisms under sub-regulation (1) to

geographical or retail markets where the Authority is satisfied that

there is effective competition.

PART X

Universal Service Obligations

(1)

The Authority shall ensure that all consumers in

Malta have access at an affordable price, in light of specific national

conditions, to an available adequate broadband internet access service

and to voice communications services at the quality specified,

including the underlying connection, at a fixed location.

(2)

The Authority may also ensure the affordability of the

services referred to in sub-regulation (1) that are not provided at a

fixed location where the Authority considers this to be necessary to

ensure the full social and economic participation of consumers in

society.

(3)

The Authority shall, in the light of national conditions and

the minimum bandwidth enjoyed by the majority of consumers in

Malta, and taking into account the BEREC report on best practices

made in accordance with Article 84(3) of the Electronic

Communications Code, define the adequate broadband internet access

service for the purposes of sub-regulation (1) with a view to ensuring

the bandwidth necessary for social and economic participation in

society. The adequate broadband internet access service shall be

capable of delivering the bandwidth necessary for supporting at least

the minimum set of services set out in the Fifth Schedule.

(4)

When a consumer so requests, the connection referred to in

sub-regulation (1) and, where applicable, in sub-regulation (2), may be

limited to support voice communications services.

(5)

The Authority may extend the scope of application of this

regulation to end-users that are micro-enterprises, small and medium-

sized enterprises, and not-for-profit organisations.

(1)

The Authority shall monitor the evolution and level

of retail prices of the services referred to in regulation 71(1) available

on the market, in particular in relation to national prices and national

consumer income.

(2)

The Authority may, in light of national conditions, establish

that retail prices for the services referred to in regulation 71(1) are not

affordable, because consumers with a low income or special social

needs are prevented from accessing such services. In such instances

the Authority shall take measures to ensure affordability for such

consumers of adequate broadband internet access service and voice

communications services at least at a fixed location

AND SERVICES (GENERAL)

Provided that to this end, the Authority may, where

applicable together with any competent public bodies, take such

measures as it considers appropriate to ensure that support is provided

to such consumers for communication purposes or require providers of

such services to offer to those consumers tariff options or packages

different from those provided under normal commercial conditions, or

both. For this purpose, the Authority may require such providers to

apply common tariffs, including geographic averaging, throughout

Malta.

(3)

In exceptional circumstances, in particular where the

imposition of obligations under the proviso to sub-regulation (2) on all

providers would result in an evident excessive administrative or

financial burden for providers or for Government, the Authority may,

on an exceptional basis, decide to impose the obligation to offer those

specific tariff options or packages only on designated undertakings, in

which case regulation 73 shall apply to such designations mutatis

mutandis.

(4)

Where the Authority designates undertakings in accordance

with sub-regulation (3), it shall ensure that all consumers with a low-

income or special social needs benefit from a choice of undertakings

offering tariff options addressing their needs, unless ensuring such

choice is impossible, or it would create an excessive additional

organisational or financial burden.

(5)

The Authority shall ensure that consumers entitled to such

tariff options or packages referred to in sub-regulation (2) have a right

to conclude a contract either with a provider of the services referred to

in regulation 71(1), or with an undertaking designated in accordance

with this regulation, and that their number remains available to them

for an adequate period and unwarranted disconnection of the service is

avoided.

(6)

The Authority shall ensure that undertakings which provide

tariff options or packages to consumers with a low income or special

social needs pursuant to sub-regulation (2) keep the Authority informed

of the details of such offers.

(7)

The Authority shall ensure that the conditions under which

undertakings provide tariff options or packages pursuant to sub-

regulation (2) are fully transparent, and are published and applied in

accordance with the principle of non-discrimination. The Authority

may require such tariff options or packages to be modified or

withdrawn.

(8)

The Authority shall, together where applicable with the

competent public body or bodies, ensure, in light of national

conditions, that support is provided, as appropriate, to consumers with

disabilities, and that other specific measures are taken, where

AND SERVICES (GENERAL)

appropriate, with a view to ensuring that related terminal equipment,

and specific equipment and specific services that enhance equivalent

access, including where necessary total conversation services and

relay services, are available and affordable.

(9)

When applying this regulation, the Authority shall seek to

minimise market distortions, and may take such measures as it

considers necessary to ensure effective compliance therewith.

(10) The Minister may, after consultation with the Authority, by

order in the Gazette extend the scope of application of this regulation

to end-users that are micro-enterprises, small and medium-sized

enterprises and not-for-profit organisations.

(1)

The Authority may establish, taking into account the

results, where available, of the geographical survey conducted in

accordance with regulation 17(1) to (5) and any additional evidence

where necessary, that the availability at a fixed location of an adequate

broadband internet access service as defined in accordance with

regulation 71(3) and of voice communications services cannot be

ensured under normal commercial circumstances or through other

potential public policy tools in Malta or different parts of Malta. In

doing so the Authority may impose appropriate universal service

obligations to meet all reasonable requests by end-users for accessing

those services in the relevant parts of Malta.

(2)

The Authority shall determine the most efficient and

appropriate approach for ensuring the availability at a fixed location of

an adequate broadband internet access service as defined in

accordance with regulation 71(3) and of voice communications

services, whilst respecting the principles of objectivity, transparency,

non-discrimination and proportionality. In doing so the Authority shall

seek to minimise market distortions, in particular the provision of

services at prices or subject to other terms and conditions which depart

from normal commercial conditions, whilst safeguarding the public

interest.

(3)

The Authority may impose obligations to ensure for end-

users the availability at a fixed location of an adequate broadband

internet access service as defined in accordance with regulation 71(3)

and of voice communications services. In doing so the Authority may

designate one or more undertakings to guarantee such availability

throughout Malta

Provided that the Authority may designate different

undertakings or sets of undertakings to provide an adequate broadband

internet access service and voice communications services at a fixed

location or to cover different parts of Malta.

(4)

When the Authority designates undertakings in any part or

in all of Malta to ensure availability of services in accordance with

AND SERVICES (GENERAL)

sub-regulation (3), it shall use an efficient, objective, transparent and

non-discriminatory designation mechanism, whereby no undertaking is

a priori excluded from being designated. Such designation methods

shall ensure that an adequate broadband internet access service and

voice communications services at a fixed location are provided in a

cost-effective manner and may be used as a means of determining the

net cost of the universal service obligations in accordance with

regulation 76.

(5)

When an undertaking designated in accordance with sub-

regulation (3) intends to dispose of a substantial part or all of its local

access network assets to a separate legal entity under different

ownership, it shall inform the Authority in advance and in a timely

manner, in order to allow the Authority to assess the effect of the

intended transaction on the provision at a fixed location of an adequate

broadband internet access service as defined in accordance with

regulation 71(3), and of voice communications services

Provided that the Authority may impose, amend or withdraw

specific obligations in accordance with regulation 7(2).

(1)

The Authority may continue to ensure the availability

or affordability of other services, except for adequate broadband

internet access service as defined in accordance with regulation 71(3)

and voice communications services at a fixed location, if the Authority

considers that national circumstances justify the need for such services

Provided that if the Authority designates undertakings in any

part or all of Malta for the provision of such services, then regulation

73 shall apply

Provided further that the financing of such obligations shall

comply with regulation 77.

(2)

The Authority shall review the obligations imposed pursuant

to this regulation by 21 December 2021, and every three years

thereafter.

(1)

Providers of an adequate broadband internet access

service and of voice communications services in accordance with

regulations 71 to 74, shall in providing facilities and services additional

to those referred to in regulation 71, establish terms and conditions in

such a way that the end-user is not obliged to pay for facilities or

services which are not necessary or not required for the service

requested.

(2)

Providers of an adequate broadband internet access service

and of voice communications services referred to in regulation 71 that

provide services pursuant to regulation 72, shall offer the specific

facilities and services set out in Part A of the Sixth Schedule as

AND SERVICES (GENERAL)

applicable, in order that consumers can monitor and control

expenditure. Such providers shall put in place a system to avoid

unwarranted disconnection of voice communications services or of an

adequate broadband internet access service with regard to consumers

as referred to in regulation 72, including an appropriate mechanism to

verify continued interest in using the service

Provided that the Authority may extend the scope of

application of this sub-regulation to end-users that are

microenterprises, small and medium-sized enterprises, and not-for-

profit organisations.

(3)

The Authority may waive the requirements of sub-

regulation (2) in all or part of Malta if it is satisfied that the facility is

widely available throughout Malta.

(1)

Where the Authority considers that the provision of

an adequate broadband internet access service as defined in

accordance with regulation 71(3) and of voice communications

services as set out in regulations 71, 72 and 73 or the continuation of

the existing universal service as set out in regulation 74 may represent

an unfair burden on providers of such services that request

compensation, then the Authority shall calculate the net costs of such

provision.

(2)

For the purpose of sub-regulation (1), the Authority shall

(a)

calculate the net cost of the universal service

obligations, taking into account any market benefit which

accrues to a provider of an adequate broadband internet access

service as defined in accordance with regulation 71(3) and

voice communications services as set out in regulations 71, 72

and 73 or the continuation of the existing universal service as

set out in regulation 74, in accordance with the Seventh

Schedule; or

(b)

make use of the net costs of providing universal

service identified by a designation mechanism in accordance

with regulation 73(4).

(3)

Providers requesting compensation shall submit a detailed

written request to the Authority which shall include the accounts and

other information serving as the basis for the calculation of the net cost

of universal service obligations under paragraph (a) of sub-regulation

(2). Such requests with all the information submitted therewith shall

be audited or verified by the Authority or a body independent of the

relevant parties after such body has been approved by the Authority.

The results of the cost calculation and the conclusions of the audit

shall be publicly available.

AND SERVICES (GENERAL)

(1)

Where, on the basis of the net cost calculation

referred to in regulation 76, the Authority finds that a provider is

subject to an unfair burden, the Authority shall, upon request from the

provider concerned, decide to do one or both of the following

(a)

introduce a mechanism to compensate that

provider for the determined net costs under transparent

conditions from public funds;

(b)

share the net cost of universal service obligations

between providers of electronic communications networks and

services

Provided that a mechanism under paragraph (a) may only be

established with the approval of the Minister granted with the

concurrence of the Minister responsible for finance.

(2)

Where the net cost is shared in accordance with paragraph

(b) of sub-regulation (1), the Authority shall establish a sharing

mechanism administered by the Authority or a body independent from

the beneficiaries under the supervision of the Authority.

(3)

Only the net cost, as determined in accordance with

regulation 76 of the obligations laid down in regulations 71 to 74 may

be financed.

(4)

A sharing mechanism established in accordance with this

regulation shall respect the principles of transparency, least market

distortion, non-discrimination and proportionality, in accordance with

the principles set out in Part B of the Seventh Schedule

Provided that the Authority may decide not to require

contributions from undertakings whose national turnover is less than

any such set limit as may, from time to time, be determined by the

Authority.

(5)

Any charges related to the sharing of the cost of universal

service obligations shall be unbundled and identified separately for

each undertaking

Provided that the Authority shall not impose on, or collect

any charges from, undertakings that are not providing services in

Malta.

(1)

Where the net cost of universal service obligations is

to be calculated in accordance with regulation 76, the Authority shall

ensure that the principles for net cost calculation, including the details

of methodology to be used, are publicly available.

(2)

Where a mechanism for sharing the net cost of universal

service obligations as referred to in regulation 77(2) to (5) is

AND SERVICES (GENERAL)

established, the Authority shall ensure that the principles for cost

sharing and compensation of the net cost are publicly available.

(3)

Subject to European Union and national rules on

commercial confidentiality, the Authority shall publish an annual

report providing the details of calculated cost of universal service

obligations, identifying the contributions made by all undertakings

involved, including any market benefits that may have accrued to the

undertakings pursuant to universal service obligations laid down in

regulations 71 to 74.

The Authority may decide to make services additional to

those included in the universal service obligations referred to in

regulations 71 to 74, publicly available in Malta

Provided that in such cases, no compensation mechanism

involving specific undertakings shall be imposed.

PART XI

NUMBERING RESOURCES

(1)

The Authority shall establish and manage the

national numbering plan for electronic communications services and

shall control the granting of rights of use for all national numbering

resources. In doing so the Authority shall ensure that adequate

numbering resources are provided for the provision of publicly

available electronic communications services

Provided that in granting rights of use for national

numbering resources, the Authority shall establish procedures that are

objective, transparent and non-discriminatory.

(2)

No undertaking shall assign to locations, terminals, persons

or functions on public electronic communications networks, right of

use of numbers that have not specifically been allocated to that

undertaking by the Authority for the purpose of providing publicly

available electronic communications services.

(3)

The Authority may also, in exceptional circumstances and at

its discretion, grant rights of use for numbering resources from the

national numbering plan for the provision of specific services to

entities other than providers of electronic communications networks or

services, provided that adequate numbering resources are made

available to satisfy current and foreseeable future demand. In doing so,

such undertakings shall demonstrate to the Authority their ability to

manage the numbering resources and to comply with any relevant

requirements set out pursuant to regulation 81

Provided that the Authority may suspend the further

granting of rights of use for numbering resources to such undertakings

if the Authority considers that there is a risk of exhaustion of

AND SERVICES (GENERAL)

numbering resources.

(4)

The Authority shall ensure that the national numbering plan

and procedures are applied in a manner that gives equal treatment to all

providers of publicly available electronic communications services,

and at its discretion to the entities eligible in accordance with sub-

regulation (3). In particular, the Authority shall ensure that an entity to

which the right of use for numbering resources has been granted does

not discriminate against providers of electronic communications

services as regards the numbering resources used to give access to their

services.

(5)

The Authority shall make available a range of non-

geographic numbers which may be used for the provision of electronic

communications services other than interpersonal communications

services, throughout the European Union, without prejudice to

Regulation (EU) No 531/2012 and to regulation 83(2)

Provided that without prejudice to the requirements of this

regulation, the Authority may allow the use of such numbers in other

non-European Union Member States

Provided further that where rights of use for numbering

resources have been granted in accordance with sub-regulation (3) to

entities other than providers of electronic communications networks or

services, this sub-regulation shall apply to the specific services for the

provision of which the rights of use have been granted.

(6)

The Authority shall ensure that the conditions listed in Part E

of the First Schedule that may be attached to the rights of use for

numbering resources used for the provision of services outside Malta,

and their enforcement, are as stringent as the conditions and

enforcement applicable to services provided within Malta, in

accordance with these regulations.

(7)

The Authority shall also ensure in accordance with

regulation 81(7) that providers using Maltese numbering resources in

other Member States or non-European Union Member States comply

with consumer protection and other national rules related to the use of

numbering resources applicable in those countries where the

numbering resources are used. This obligation is without prejudice to

the enforcement powers of the competent authorities of those countries

Provided that the Authority may, where it considers

necessary, seek the assistance of BEREC in coordinating its activities

and those of competent authorities of other Member States in

coordinating their activities to ensure the efficient management of

numbering resources with a right of extraterritorial use within the

European Union.

AND SERVICES (GENERAL)

(8)

In accordance with Article 93(4) of the Electronic

Communications Code, where BEREC establishes and maintains a

database on the numbering resources with a right of extraterritorial use

within the European Union, the Authority shall as necessary transmit

the relevant information to BEREC.

(9)

The Authority shall ensure that the ‘00’ code is the standard

international access code.

(10) The Authority shall, subject to any limitations that may be

specified by the Minister after consultation with the Minister

responsible for national security, on the grounds of national security,

ensure that the national numbering plans, and all subsequent additions

or amendments thereto, are published on its website and such other

means of public media as it may consider appropriate.

(11) The Authority shall support the harmonisation of specific

numbers or numbering ranges within the European Union where it

promotes both the functioning of the internal market and the

development of pan-European services.

(1)

The Authority may on receipt of a written request in

such form as it may from time to time determine, grant individual

rights of use for numbering resources to any undertaking for the

provision of electronic communications networks or services covered

by a general authorisation referred to in regulation 5, subject to

regulations 7 and 8 and to regulation 16(1)(c) and to any other rules

ensuring the efficient use of those numbering resources in accordance

with these regulations.

(2)

The Authority shall grant rights of use for numbering

resources through open, objective, transparent, non-discriminatory and

proportionate procedures. In doing so the Authority shall, at its

discretion, specify whether those rights can be transferred by the

holder of the rights, and under which conditions.

(3)

Where the Authority grants rights of use for numbering

resources for a limited period, then the duration of that period shall be

appropriate for the service concerned with a view to the objective

pursued, taking due account of the need to allow for an appropriate

period for investment amortisation.

(4)

The Authority shall decide on the granting of rights of use

for numbering resources as soon as possible after receipt of the

complete application, and within three weeks in the case of numbering

resources that have been allocated for specific purposes within the

national numbering plan

Provided that such decisions shall be made publicly

available on the website of the Authority.

AND SERVICES (GENERAL)

(5)

Where the Authority has determined, after consulting

interested parties in accordance with article 4A of the Malta

Communications Authority Act, that rights of use for numbering

resources of exceptional economic value are to be granted through

competitive or comparative selection procedures, then the Authority

may extend the three week period referred to in sub-regulation (4) by

up to a further three weeks.

(6)

The Authority shall not limit the number of individual rights

of use to be granted, except where this is necessary to ensure the

efficient use of numbering resources.

(7)

Where the rights of use for numbering resources include

their extraterritorial use in accordance with regulation 80(5) to (7), the

Authority shall attach to those rights of use specific conditions in order

to ensure compliance with all the relevant national consumer protection

rules and national law related to the use of numbering resources

applicable in those countries where the numbering resources are used.

(8)

Upon request from a national regulatory or other competent

authority of a country where the numbering resources are used,

demonstrating a breach of relevant consumer protection rules or

national laws related to the use of numbering resources of that country,

the Authority shall enforce the conditions attached under the sub-

regulation (7), including, in serious cases, by withdrawing the rights of

extraterritorial use for the numbering resources granted to the

undertaking concerned.

(9)

This regulation shall also apply in those exceptional

circumstances where, at its discretion, the Authority grants rights of use

for numbering resources to entities other than providers of electronic

communications networks or services in accordance with regulation

80(3).

(1)

Authorised undertakings shall pay to the Authority

such fees for the rights of use for numbering resources as provided for

under Part C of the Twelfth Schedule, which fees may be amended by

the Minister, by order in the Gazette in accordance with the

requirements of this regulation.

(2)

Any fees imposed for the rights of use of numbering

resources shall reflect the need to ensure the optimal use of such

resources. Such fees shall be objectively justified, transparent, non-

discriminatory and proportionate in relation to their intended purpose

taking into account the general objectives stated in article 4 of the Act.

(1)

Where economically feasible, except where a called

end-user has chosen for commercial reasons to limit access by calling

parties located in specific geographical areas, the Authority shall take

all necessary steps to ensure that end-users are able to

AND SERVICES (GENERAL)

(a)

access and use services using non-geographic

numbers within the European Union; and

(b)

access all numbers provided in the European

Union, regardless of the technology and devices used by the

operator, including those in the national numbering plans of

Member States and Universal International Freephone Numbers

(UIFN).

(2)

The Authority may require providers of public electronic

communications networks or publicly available electronic

communications services to block, on a case-by-case basis, access to

numbers or services where this is justified by reasons of fraud or

misuse, and to require that in such cases providers of electronic

communications services withhold relevant interconnection or other

service revenues.

PART XII

END-USER RIGHTS

(1)

With the exception of regulations 85 and 86, this

Part shall not apply to microenterprises providing number-independent

interpersonal communications services unless they also provide other

electronic communications services.

(2)

Undertakings shall ensure that end-users are through a

durable medium, informed of an exemption under sub-regulation (1),

before concluding a contract with a micro-enterprise benefiting from

such an exemption.

Providers of electronic communications networks or

services shall not apply any different requirements or general

conditions of access to, or use of, networks or services to end-users,

for reasons related to the nationality, place of residence or place of

establishment of the end-user, unless such different treatment is

objectively justified.

(1)

National measures regarding access to or use of by

end-users to services and applications through electronic

communications networks shall respect the Charter and the general

principles of European Union law.

(2)

Any measure regarding access to, or use of, by end-users to

services and applications through electronic communications networks

liable to limit the exercise of the rights or freedoms recognised by the

Charter shall be imposed only if it is provided for by law and respects

those rights or freedoms, is proportionate, necessary, and genuinely

meets general interest objectives recognised by European Union law or

the need to protect the rights and freedoms of others in line with

Article 52(1) of the Charter and with the general principles of

European Union law, including the right to an effective remedy and to

AND SERVICES (GENERAL)

a fair trial

Provided that such measures shall be taken only with due

respect for the principle of the presumption of innocence and the right

to privacy

Provided further that a prior, fair and impartial procedure

shall be guaranteed, including the right to be heard of the person

concerned, subject to the need for appropriate conditions and

procedural arrangements in duly substantiated cases of urgency in

accordance with the Charter.

(1)

Before a consumer is bound by a contract or any

corresponding offer, providers of publicly available electronic

communications services other than transmission services used for the

provision of machine-to-machine services, shall provide the

information referred to in regulations 4 and 5 of the Consumer Rights

Regulations and, in addition, the information listed in the Eighth

Schedule, to the extent that such information relates to a service they

provide.

(2)

The information referred to in sub-regulation (1) shall be

provided in a clear and comprehensible manner on a durable medium

or, where provision on a durable medium is not feasible, in an easily

downloadable document made available by the provider. The provider

shall expressly draw the attention of the consumer to the availability of

that document and the importance of downloading it for the purposes of

documentation, future reference and unchanged reproduction

Provided that the information shall, upon request, be

provided in an accessible format for end-users with disabilities in

accordance with European Union law harmonising accessibility

requirements for products and services.

(3)

Providers of publicly available electronic communications

services other than transmission services used for the provision of

machine-to-machine services, shall provide consumers with a concise

and easily readable contract summary, which summary shall identify

the main elements of the information requirements in accordance with

sub-regulation (1). Those main elements shall include at least

(a)

the name, address and contact information of the

provider and, if different, the contact information for any

complaint;

(b)

the main characteristics of each service provided;

(c)

the respective prices for activating the electronic

communications service and for any recurring or consumption-

related charges, where the service is provided for direct

AND SERVICES (GENERAL)

monetary payment;

(d)

the duration of the contract and the conditions for

its renewal and termination;

(e)

the extent to which the products and services are

designed for end-users with disabilities; and

(f)

with respect to internet access services, a

summary of the information required pursuant to points (d) and

(e) of Article 4(1) of Regulation (EU) 2015/2120.

(4)

Providers subject to the obligations under sub-regulations

(1) and (2), shall duly complete the contract summary template

established in accordance with Article 102(3) of the Electronic

Communications Code, with the required information and provide the

contract summary free of charge to consumers, prior to the explicit

consent of the consumer to the contract, including distance contracts

Provided that where, for objective technical reasons, it is

impossible to provide the contract summary at that moment, then the

contract summary shall be provided without undue delay thereafter,

and the contract shall become effective when the consumer has

confirmed his agreement after receipt of the contract summary;

Provided further that in accordance with this regulation, the

Authority may determine the manner as to how a consumer gives his

consent to the contract

(5)

The information referred to in sub-regulations (1) to (4),

shall become an integral part of the contract and shall not be altered

unless the contracting parties expressly agree otherwise.

(6) Any term or condition in a contract for the provision of

publicly available electronic communications services other than

transmission services used for the provision of machine-to-machine

services, even if agreed to by the consumer, shall be null and void to

the extent that it is inconsistent with any provisions made by or under

the Act or the terms and conditions of the general authorisation under

which the service is provided.

(7)

Where internet access services or publicly available

interpersonal communications services are billed on the basis of either

time or volume consumption, the providers of such services shall offer

consumers the facility to monitor and control the usage of each of

those services. This facility shall include access to timely information

on the level of consumption of services included in a tariff plan

Provided that providers shall notify consumers before any

consumption limit included in their tariff plan is reached and when a

service included in their tariff plan is fully consumed.

AND SERVICES (GENERAL)

(8)

The Authority may from time to time

(a)

establish rules requiring providers to notify

consumers before any consumption limit included in their tariff

plan is reached, and when a service included in their tariff plan

is fully consumed;

(b)

require providers to furnish such additional

information on the consumption level, and temporarily prevent

further use of the relevant service in excess of a financial or

volume limit as the Authority may determine; and

(c)

establish other information requirements to be

included in contracts not related to aspects regulated under this

regulation, in particular to address newly emerging issues.

(9)

The information referred to in sub-regulations (1) to (4) and

(8), shall also be provided to end-users that are micro-enterprises, small

enterprises or not-for-profit organisations, unless they have explicitly

agreed to waive all or parts of those provisions.

(1)

Where providers of internet access services or

publicly available interpersonal communication services make the

provision of such services subject to terms and conditions, then such

providers shall ensure that the information referred to in the Ninth

Schedule, is published in a clear, comprehensive, machine-readable

manner and in an accessible format for end-users with disabilities in

accordance with European Union legislation harmonising accessibility

requirements for products and services

Provided that such information shall be updated regularly by

such providers

Provided further that the Authority may specify additional

requirements regarding the form in which such information is to be

published, which information shall at the request of the Authority be

supplied to the Authority before its publication. The Authority in

specifying any such requirements concerning end-users with

disabilities, shall consult with the Commission for the Rights of

Persons with Disability and such other national competent authorities

as it considers appropriate in the circumstances.

(2)

The Authority shall ensure that end-users have access free of

charge to at least one independent comparison tool which enables them

to compare and evaluate different internet access services and publicly

available number-based interpersonal communications services, and,

where applicable, publicly available number-independent interpersonal

communications services, with regard to

(a)

prices and tariffs of services provided against

AND SERVICES (GENERAL)

recurring or consumption-based direct monetary payments; and

(b)

the quality of service performance, where

minimum quality of service is offered or the undertaking is

required to publish such information pursuant to regulation 89.

(3)

The comparison tool referred to in sub-regulation (2) shall

(a)

be operationally independent from the providers

of such services, thereby ensuring that those providers are given

equal treatment in search results;

(b)

clearly disclose the owners and operators of the

comparison tool;

(c)

set out clear and objective criteria on which the

comparison is to be based;

(d)

use plain and unambiguous language;

(e)

provide accurate and up-to-date information and

state the time of the last update;

(f)

be open to any provider of internet access

services or publicly available interpersonal communications

services, making available the relevant information, and include

a broad range of offers covering a significant part of the market

and, where the information presented is not a complete

overview of the market, a clear statement to that effect, before

displaying results;

(g)

provide an effective procedure to report incorrect

information; and

(h)

include the possibility to compare prices, tariffs

and quality of service performance between offers available to

consumers and, where the Authority so requires, between those

offers and the standard offers publicly available to other end-

users

Provided that comparison tools fulfilling the requirements

in paragraphs (a) to (h), shall, upon request by the provider of the tool,

be certified by the Authority.

(4)

Third parties shall have the right to use free of charge and in

open data formats, the information published by providers of internet

access services or publicly available interpersonal communications

services, for the purposes of making available such independent

comparison tools referred to in this regulation.

(5)

Providers of internet access services and, or of publicly

AND SERVICES (GENERAL)

available number-based interpersonal communications services, shall

distribute public interest information free of charge to existing and new

end-users, where appropriate, by the means that they ordinarily use in

their communications with end-users. In such a case, that public

interest information shall be provided by the relevant public authorities

in a standardised format and shall, inter alia, cover the following

topics

(a)

the most common uses of internet access services

and

publicly

available

number-based

interpersonal

communications services to engage in unlawful activities or to

disseminate harmful content, in particular where it may

prejudice respect for the rights and freedoms of others, including

infringements of data protection rights, copyright and related

rights, and their legal consequences; and

(b)

the means of protection against risks to personal

security, privacy and personal data when using internet access

services and publicly available number-based interpersonal

communications services.

(6)

Providers of internet access services and, or of publicly

available number-based interpersonal communications services, shall

notify the Authority of any new service offers and, or tariffs plans or

any changes thereto within one working day from their launch in a

format as may be determined by the Authority.

(1)

The Authority may require providers of internet

access services and of publicly available interpersonal communications

services to publish comprehensive, comparable, reliable, user-friendly

and up-to-date information for end-users on the quality of their

services, to the extent that they control at least some elements of the

network either directly or by virtue of a service level agreement to that

effect, and on measures taken to ensure equivalence in access for end-

users with disabilities.

(2)

The Authority may also require providers of publicly

available interpersonal communications services to inform consumers

if the quality of the services they provide depends on any external

factors, such as control of signal transmission or network connectivity.

Such information shall, on request of the Authority, be supplied to the

Authority before its publication.

(3)

The measures to ensure quality of service shall comply with

Regulation (EU) 2015/2120.

(4)

The Authority shall specify, taking utmost account of

BEREC guidelines, the quality of service parameters to be measured,

the applicable measurement methods, and the content, form and

manner of the information to be published, including possible quality

AND SERVICES (GENERAL)

certification mechanisms. Where appropriate, the parameters,

definitions and measurement methods set out in the Tenth Schedule,

shall be used.

(1)

Any significant continued or frequently recurring

discrepancy between the actual performance of an electronic

c o m m u n i c a t i o ns s e r v i c e , o th e r t h a n a n u m b e r- i n d e p e nd e n t

interpersonal communications service, and the performance indicated

in the contract, shall entitle the consumer to seek remedies including

the right to terminate the contract free of cost, and, or receive any

compensation and, or refunds as specified in their contract.

(2)

Providers of publicly available electronic communications

services other than number-independent interpersonal communications

services and other than transmission services used for the provision of

machine-to-machine services, shall establish and operate appropriate

and reasonable compensation and, or refund schemes to allow for the

reimbursement of payments and compensation for any loss incurred by

a consumer where contracted service quality levels or terms and

conditions are not met by any such providers for reasons that are not

attributable to the consumer

Provided that such compensation and,

or

refund

arrangements shall not apply in cases of force majeure

Provided further that the Authority may, having regard to

the nature of services and complaints, provide for any such measures

as it may consider necessary to ensure the effectiveness of such

schemes including minimum criteria to be complied with by any such

providers.

(1)

Notwithstanding any provision of a contract entered

into with a provider of a publicly available electronic communications

service, an end-user shall in accordance with the provisions of this

regulation, have the right at any time, to terminate the said contract

through simple means acceptable to the Authority.

(2)

Where an end-user decides to unilaterally terminate a

contract for the provision of publicly available electronic

communications services other than number-independent interpersonal

communications services and other than transmission services used for

the provision of machine-to-machine services prior to the expiry of the

initial contractual period

(a)

any advance notice period in the contract

requiring the end-user to inform the provider concerned about

his intention to terminate the service shall not exceed one

month; and

(b)

any applicable charges due by the end-user for

terminating the service prior to the expiry of the initial

AND SERVICES (GENERAL)

contractual period shall be proportionate and reasonable

Provided that the Authority shall take such measures as it

considers necessary to ensure the effective application of the provisions

of this sub-regulation.

(3)

The Authority shall take such measures as it considers

necessary to ensure that

(a)

conditions and procedures for contract termination

are simple and do not act as a disincentive to changing a service

provider; and

(b)

contracts concluded between consumers and

providers of publicly available electronic communications

services other than number-independent interpersonal

communications services and other than transmission services

used for the provision of machine-to-machine services, do not

mandate a commitment period longer than twenty four months,

which period may be shortened by the Authority. In doing so the

Authority shall ensure that there is always applicable a

maximum contractual commitment period

Provided that any such requirement shall not apply to the

duration of an instalment contract where the consumer has agreed in a

separate contract to instalment payments exclusively for deployment of

a physical connection, in particular to very high capacity networks

Provided further that an instalment contract for the

deployment of a physical connection shall not include terminal

equipment, such as a router or modem, and shall not preclude

consumers from exercising their rights under this regulation.

(4)

Sub-regulation (3), shall also apply to end-users that are

micro-enterprises, small enterprises or not-for-profit organisations,

unless they have explicitly agreed to waive those provisions.

(5)

Where a contract or national legislation provides for

automatic prolongation of a fixed duration contract for electronic

communications services other than number-independent interpersonal

communications services and other than transmission services used for

the provision of machine-to-machine services, then after such

prolongation, end-users may terminate the contract at any time by

giving thirty days prior notice and without incurring any costs except

the charges for receiving the service during the notice period and any

applicable reasonable and justified charges in connection with

unreturned loaned equipment

Provided that before the contract is automatically extended,

providers shall inform end-users, in a prominent and timely manner and

AND SERVICES (GENERAL)

on a durable medium, of the end of the contractual commitment and of

the means by which to terminate the contract. In doing so providers

shall give end-users best tariff advice relating to their services.

(6)

Providers of publicly available electronic communications

services other than number-independent interpersonal communications

services and other than transmission services used for the provision of

machine-to-machine services shall provide end-users with best tariff

information at least annually

Provided further that the Authority may from time to time

issue guidelines to providers on the provision of best tariff advice and

information related to their services.

(7)

Where an end-user has the right to terminate a contract for a

publicly available electronic communications service, other than a

number-independent interpersonal communications service, pursuant

to this regulation or to other provisions of European Union or national

law, no compensation shall be due by the end-user other than for

retained non-loaned subsidised terminal equipment. Where an end-

user chooses to retain any bundled non-loaned terminal equipment,

any compensation due by the end-user shall not exceed its pro rata

temporis value as agreed at the moment of the conclusion of the

contract or the remaining part of the service fee until the end of the

contract, whichever is less applies

Provided that the provider shall lift any condition on the use

of that terminal equipment on other networks free of charge at the

latest upon payment of compensation or at an earlier stage as may be

specified by the Authority.

(1)

End-users shall have the right to terminate their

contract without incurring any further costs upon notice of changes in

the contractual conditions proposed by the provider of publicly

available electronic communications services other than number-

independent interpersonal communications services, unless the

proposed changes are

(a)

exclusively to the benefit of the end-user;

(b)

are of a purely administrative nature and have no

negative effect on the end-user; or

(c)

are directly imposed by European Union or

national law.

(2)

Providers shall notify end-users at least thirty days in

advance of any change in the contractual conditions in a clear and

comprehensible manner and on a durable medium. Where applicable,

providers shall simultaneously inform end-users of their right to

terminate the contract without incurring any further costs if they do not

AND SERVICES (GENERAL)

accept the new conditions, which right shall be exercisable within

thirty days from notification of the change in contractual conditions by

the provider.

(3)

Providers shall notify the Authority in writing, prior to

notification to its end-users, in a timely manner as may be specified by

the Authority, of any proposed modifications to the contractual

conditions.

(4)

The Authority may, upon a written request by any such

provider, made in accordance with any requirements laid down by the

Authority, in cases where the proposed modifications to the contractual

conditions are manifestly of benefit to all end-users to that service,

exempt that provider from the requirement onerous on it to grant its

end-users the right to terminate the contract in accordance with this

regulation.

(5)

The Authority may determine the format, content and the

manner of the notification required under this regulation and may

increase the aforesaid period of thirty days referred to in sub-regulation

(2) to a period of not more than ninety days.

As far as transmission services used for machine-to-machine

services are concerned, the rights mentioned in regulations 91(7) and

92(2), shall benefit only end-users that are consumers, micro-

enterprises, small enterprises, and not-for-profit organisations.

(1)

In the case of switching between providers of internet

access services, the providers concerned shall provide the end-user

with adequate information before and during the switching process, and

shall ensure continuity of the internet access service, unless this is

technically not feasible.

(2)

The receiving provider shall ensure that the activation of the

internet access service occurs within the shortest possible time on the

date and within the timeframe expressly agreed with the end-user,

whereas the transferring provider shall continue to provide its internet

access service on the same terms until the receiving provider activates

its internet access service.

(3)

Loss of internet access service during the switching process

shall not exceed one working day.

(4)

The Authority shall take such measures as it considers

necessary to ensure the efficiency and simplicity of the switching

process for the end-user. In doing so the Authority may require

undertakings to comply with such measures as the Authority may by

decision establish.

(5)

End-users subscribed to voice communications services with

numbers from the national numbering plan may request that they retain

AND SERVICES (GENERAL)

their numbers, independently of the undertaking providing the service,

in accordance with Part C of the Sixth Schedule.

(6)

Where an end-user subscribed to a voice communications

service terminates a contract, that end-user shall retain the right to

request to port a number from the national numbering plan to another

provider for a minimum of one month after the date of termination,

unless that right is renounced by the aforesaid end-user.

(7)

The pricing among providers related to the provision of

number portability shall be cost-oriented, and no direct charges shall

be applied to end-users.

(8)

Subject to eligibility criteria as may be established by the

Authority in line with sub-regulation (11), the porting of numbers and

their subsequent activation shall be carried out within the shortest

possible time on the date explicitly agreed with the end-user

Provided that an end-user who has concluded an agreement

to port a number to a new provider, shall have that number activated

within one working day from the date agreed with that end-user

Provided further that, in the case of failure of the porting

process, the transferring provider shall reactivate the number and

related services of the end-user until the porting is successful. The

transferring provider shall continue to provide its services on the same

terms and conditions until the services of the receiving provider are

activated. In any event, the loss of service during the process of

provider switching and the porting of numbers shall not exceed one

working day.

(9)

Operators whose access networks or facilities are used by

either the transferring provider or the receiving provider, or both, shall

ensure that there is no loss of service that would delay the switching

and porting process.

(10) The receiving provider shall lead the switching and porting

processes set out in sub-regulations (1) to (4), (8) and (9), and both the

receiving and transferring providers shall cooperate in good faith

Provided that such providers shall not delay or abuse the

switching and porting processes, nor shall they port numbers or switch

end-users without the explicit consent of the end-users concerned

Provided further that the contracts of the end-users with the

transferring provider shall be terminated automatically upon

conclusion of the switching process.

(11) The Authority may establish the details of the switching and

porting processes, taking into account national provisions on contracts,

technical feasibility and the need to maintain continuity of service to

AND SERVICES (GENERAL)

the end-users. In establishing such details the Authority shall include,

where technically feasible, a requirement for the porting to be

completed through over-the-air provisioning, unless an end-user

requests otherwise.

(12) The Authority shall take such appropriate measures as it may

consider necessary to ensure that end-users are adequately informed

and protected throughout the switching and porting processes and are

not switched to another provider without their consent.

(13) A transferring provider shall refund, upon the request of a

consumer using a pre-paid service, any remaining credit to that

consumer. Such refund may be subject to a fee only if provided for in

the contract between the transferring provider and the consumer

Provided that any such fee shall be proportionate and

commensurate with the actual costs incurred by the transferring

provider in offering the refund.

(14) The Authority shall establish such rules as it may consider

appropriate in relation to the sanctions that may be imposed in

accordance with Part VI of the Malta Communications Authority Act in

the case of the failure of a provider to comply with the obligations laid

down in this regulation, including in relation to delays in, or abuses of,

porting by or on behalf of a provider.

(15) The Authority shall establish such rules as it may consider

appropriate on the award of compensation of end-users by their

providers, in an easy and timely manner where such providers fail to

comply with the obligations laid down in this regulation, as well as in

the case of delays in, or abuses of, porting and switching processes, and

missed service and installation appointments.

(16) In addition to the information required under the Eighth

Schedule, the Authority shall take such measures as it considers

necessary to ensure that providers adequately inform their end-users

about their rights to compensation as provided for in sub-regulations

(14) and (15).

(1)

Providers

of

publicly

available

electronic

communications services, shall not issue any bill to an end-user unless

every amount stated in that bill represents and does not exceed the true

extent of any such service actually provided to the end-user in question.

Such providers shall retain any records as may be specified by the

Authority for the purpose of establishing compliance with this

regulation.

(2)

The Authority may by decision establish rules to be

complied with by providers of publicly available electronic

communications services in order to ensure that bills issued are clear,

AND SERVICES (GENERAL)

comprehensive and easily accessible. In doing so the Authority shall

have regard to the need to reconcile the rights of end-users receiving

itemised bills with the right of privacy of calling end-users and called

end-users.

(1)

If a bundle of services, or a bundle of services and

terminal equipment offered to a consumer comprises at least an

internet access service or a publicly available number-based

interpersonal communications service, then regulations 87(3), 88(1),

91, 92 and 94(1) to (4) shall apply to all elements of the bundle

including, mutatis mutandis, those not otherwise covered by those

provisions.

(2)

Where the consumer has, under European Union legislation,

or national legislation, a right to terminate any element of the bundle

as referred to in sub-regulation (1) before the end of the agreed

contract term because of a lack of conformity with the contract or a

failure to supply, then the consumer may terminate the contract with

respect to all elements of the bundle.

(3)

Any subscription to additional services or terminal

equipment provided or distributed by the same provider of internet

access services or of publicly available number-based interpersonal

communications services, shall not extend the original duration of the

contract to which such services or terminal equipment are added,

unless the consumer expressly agrees otherwise when subscribing to

the additional services or terminal equipment.

(4)

Sub-regulations (1) and (3) shall also apply to end-users that

a r e m i c r o - e n t e r p r i s e s , s m a l l e n t e r p r i s e s , o r n o t - f o r- p r o f i t

organisations, unless such end-users have explicitly agreed to waive

all or parts of those provisions.

(5)

Sub-regulation (1) shall also apply to the regulations under

this Part.

(1)

Providers of voice communications services and

internet access services provided over public electronic

communications networks shall take all necessary measures to ensure

the fullest possible availability of such services in the event of

catastrophic network breakdown or in cases of force majeure.

(2)

Providers of voice communications services shall take all

such measures to ensure uninterrupted access to emergency services

and uninterrupted transmission of public warnings.

(3)

The Authority may specify obligations to be complied with

by any such providers referred to in this regulation in ensuring

compliance with this regulation.

AND SERVICES (GENERAL)

(1)

The Authority shall specify requirements to be met

by providers of publicly available electronic communications services

to ensure that end-users with disabilities

(a)

have access to electronic communications

services, including the related contractual information provided

pursuant to regulation 87, equivalent to that enjoyed by the

majority of end-users; and

(b)

benefit from the choice of undertakings and

services available to the majority of end-users.

(2)

In taking the measures referred to in sub-regulation (1), the

Authority shall encourage compliance with the relevant standards or

specifications laid down in accordance with regulation 26.

(1)

All providers of voice communications services

which attribute numbers from a numbering plan, shall comply with all

reasonable requests to make available, for the purposes of the provision

of publicly available directory enquiry services and directories, the

relevant information in an agreed format, on terms which are fair,

objective, cost oriented and non-discriminatory.

(2)

The Authority may impose such obligations and conditions

as it considers necessary on undertakings that control access to end-

users, for the provision of directory enquiry services, in accordance

with regulation 48. Such obligations and conditions shall be objective,

equitable, non-discriminatory and transparent.

(3)

No regulatory restrictions which prevent end-users in one

Member State from accessing directly the directory enquiry service in

another Member State by voice call or SMS, shall be maintained.

Where necessary the Authority shall take appropriate measures to

ensure such access in accordance with regulation 83.

(4)

This regulation shall apply subject to the prior approval of

the end-user and any other requirements of European Union law on the

protection of personal data and privacy.

(1)

The Authority shall ensure the interoperability of car

radio receivers and consumer digital television equipment in

accordance with the Eleventh Schedule.

(2)

The Authority may adopt measures to ensure the

interoperability of other consumer radio receivers, while limiting the

impact on the market for low-value radio broadcast receivers and

ensuring that such measures are not applied to products where a radio

receiver is purely ancillary, such as smart phones, and to equipment

used by radio amateurs.

(3)

The Authority shall encourage providers of digital television

AND SERVICES (GENERAL)

services to ensure, where appropriate, that the digital television

equipment that they provide to their end-users is interoperable in

accordance with the Eleventh Schedule so that, where technically

feasible, the digital television equipment is reusable with other

providers of digital television services

Provided that digital television equipment which complies

with harmonised standards the references of which have been

published in the Official Journal of the European Union, or with parts

thereof, shall be considered to comply with the requirement of

interoperability set out in sub-regulation (4) covered by those

standards or parts thereof.

(4)

Without prejudice to regulation 5(2) of the Waste

Management (Electrical and Electronic Equipment) Regulations, the

Authority shall ensure that, upon termination of their contract, end-

users have the possibility to return the digital television equipment

through a free and easy process, unless the provider demonstrates that

it is fully interoperable with the digital television services of other

providers, including those to which the end-user has switched.

(1)

The Authority may impose reasonable ‘must carry’

obligations for the transmission of specified radio and television

broadcast channels and related complementary services, in particular

accessibility services to enable appropriate access for end-users with

disabilities and data supporting connected television services and

EPGs, on undertakings operating in Malta, providing electronic

communications networks and services used for the distribution of

radio or television broadcast channels to the public, where a

significant number of end-users of such networks and services use

them as their principal means to receive radio and television broadcast

channels

Provided that the Authority shall impose such obligations

where it considers that this is necessary to meet general interest

objectives as are defined in accordance with national legislation and

are proportionate and transparent.

(2)

The Authority shall review ‘must carry’ obligations by not

later than 21 December 2024 and thereafter every five years.

(3)

Neither sub-regulation (1) and nor regulation 46(2) shall

prejudice the ability of the Authority to determine appropriate

remuneration, if any, in respect of measures taken in accordance with

this regulation while ensuring that, in similar circumstances, there is

no discrimination in the treatment of providers of electronic

communications networks and services

Provided that where the Authority provides for any such

remuneration, it shall do so in a proportionate and transparent manner

and shall before doing so, determine and make public the criteria for

AND SERVICES (GENERAL)

calculating such remuneration.

(1)

Without prejudice to regulation 75(2), the Authority

may require all providers of internet access services or publicly

available number-based interpersonal communications services to

make available free of charge all or part of the additional facilities

listed in Part B of the Sixth Schedule, subject to technical feasibility, as

well as all or part of the additional facilities listed in Part A of the Sixth

Schedule.

(2)

When applying sub-regulation (1), the Authority may go

beyond the list of additional facilities in Parts A and B of the Sixth

Schedule in order to ensure a higher level of consumer protection.

(3)

The Authority may waive the application of sub-regulation

(1) in all or part of Malta if it considers, after taking into account the

views of interested parties, that there is sufficient access to those

facilities.

PART XIII

PROTECTION OF PRIVACY

(1)

These regulations shall apply without prejudice to

Regulation (EU) 2016/679, the Data Protection Act and the Processing

of Personal Data (Electronic Communications Sector) Regulations.

(2)

Unless otherwise stated in this Part, the definitions in the Act

and in the Data Protection Act shall apply.

(3)

In this Part unless the context otherwise requires

""the Commissioner" means the Information and Data

Protection Commissioner;

"communication" means any information exchanged or

transmitted between a finite number of parties by means of a

publicly available electronic communications service. This

definition does not include any information conveyed as part of

a broadcasting service to the public over a public electronic

communications network except to the extent that the

information can be related to the identifiable subscriber or user

receiving the information;

"consent" means the consent by a subscriber or user and

corresponds to the consent given by a data subject in accordance

with Articles 7 and 8 of Regulation (EU) 2018/679;

"emergency access numbers" means such numbers as are

established in accordance with the Act or any regulations made

thereunder to ensure the access of all users to emergency

services; and

AND SERVICES (GENERAL)

"location data" means any data processed in a public

electronic communications network or by a public electronic

communications service, indicating the geographic position of

the terminal equipment of a user of a publicly available

electronic communications service.".

An undertaking which provides publicly available electronic

communications services shall inform subscribers and, if possible,

users about the existence of any situations allowing the content of

communications to be unintentionally made known to persons who are

not party to them.

(1)

Where presentation of calling-line identification is

offered, the undertaking which provides publicly available electronic

communications services shall ensure that

(a)

the calling user shall have the possibility, using a

simple means and free of charge, of preventing the presentation

of the calling-line identification on a per call basis. The calling

subscriber shall have this possibility on a per line basis;

(b)

the called subscriber shall have the possibility,

using a simple means and free of charge for reasonable use of

this function, of preventing the presentation of the calling line

identification of incoming calls;

(c)

where the calling line identification is presented

prior to the call being established, the undertaking which

provides publicly available electronic communications services

shall ensure that the called subscriber shall have the possibility,

using a simple means, of rejecting incoming calls where the

presentation of the calling line identification has been

prevented by the calling user or subscriber.

(2)

Where presentation of connected line identification is

offered, the undertaking which provides publicly available electronic

communications services shall ensure that the called subscriber shall

have the possibility, using a simple means and free of charge, of

preventing the presentation of the connected line identification to the

calling user.

(3)

The provisions of sub-regulation (1)(a) shall also apply with

regard to calls to other countries, whereas the provisions of sub-

regulations (1)(b) and (c) and (2) shall apply to incoming calls

originating in other countries.

(4)

Where the presentation of calling or connected line

identification is available, the undertaking which provides publicly

available electronic communications services or the undertaking which

provides a public electronic communications network shall inform

subscribers and users of the existence of such services as well as of the

AND SERVICES (GENERAL)

possibilities referred in sub-regulations (1) and (2).

(5)

Sub-regulations (1) and (3) shall not apply when a law

specifically provides for measures to restrict the scope of such rights

and obligations where such restrictions constitute a necessary,

appropriate and proportionate measure required in the interest of

(a)

national security;

(b)

defence;

(c)

public security;

(d)

the prevention, investigation, detection and

prosecution of criminal or administrative offences, or of breach

of ethics for regulated professions;

(e)

an important economic or financial interest

including monetary, budgetary and taxation matters;

(f)

a monitoring, inspection or regulatory function

connected, even occasionally, with the exercise of official

authority referred to in paragraphs (c), (d) and (e); or

(g)

the protection of the subscriber or user, or of the

rights and freedoms of others.

(1)

An undertaking which provides a public electronic

communications network and, or a publicly available electronic

communications service shall override anything done to prevent the

presentation of the identity of a calling line where

(a)

a subscriber has requested the tracing of malicious

or nuisance calls received on his line, and

(b)

such an undertaking is satisfied that such action is

necessary and expedient for the purposes of tracing such calls

Provided that the data containing the identification of the

calling subscriber shall be stored and made available by the aforesaid

undertaking to the competent authority in accordance with the relevant

legislation

Provided further that the aforesaid undertaking shall abide

with any decision that the Authority may, from time to time, issue

where the Authority considers that the aforesaid undertaking has not

taken adequate measures in accordance with the requirements of this

regulation.

(2)

The overriding reason for the elimination of the presentation

of the calling line identification in accordance with sub-regulation (1)

AND SERVICES (GENERAL)

may only be provided for the duration of the period during which the

malicious or nuisance calls take place.

(3)

A request under this regulation shall be made in writing and

shall include such information as may be necessary for the processing

of the request. In cases of urgency a verbal request may be made,

provided a written request is sent within twenty-four hours of the

request that was made verbally.

(4)

An undertaking which provides publicly available electronic

communications services shall not prevail over the elimination of the

presentation of calling line identification and the temporary denial or

absence of consent of a subscriber or user for the processing of

location data, on a per line basis, for calls made to emergency access

numbers for the purpose of responding to such calls.

(1)

An undertaking which provides a public electronic

communications network and, or publicly available electronic

communications services shall ensure that any subscriber has the

possibility, using a simple means and free of charge, of stopping

automatic call forwarding by a third party to the terminal of that

subscriber without delay.

(2)

For the purpose of this regulation, the undertaking providing

publicly available electronic communications services to the third

party referred to in sub-regulation (1) shall comply with any

reasonable requests made by the undertaking referred to in sub-

regulation (1).

Regulations 105, 106 and 107 shall apply to subscriber lines

connected to digital exchanges, and where technically possible and if it

does not require a disproportionate economic effort, to subscriber lines

connected to analogue exchanges.

(1)

A person who suffers any loss or damage because of

any contravention of any regulations under this Part by any other

person shall be entitled to take action before the competent court or

tribunal, however so described, seeking compensation from that other

person for that loss or damage.

(2)

The period of limitation provided for in article 30(4) of the

Data Protection Act shall apply to an action under sub-regulation (1).

(1)

The Authority may request the advice of and where

appropriate shall consult with the Commissioner in the exercise of any

of its functions under this Part.

(2)

Where it is alleged or proven that any of the provisions

under this Part have been contravened, the Commissioner or any

aggrieved person may request the Authority to investigate and, or

exercise its enforcement functions as it may deem necessary in respect

AND SERVICES (GENERAL)

of that infringement

Provided that nothing in this regulation shall be interpreted

as a limitation on the discretionary powers of the Authority.

PART XIV

MISCELLANEOUS

(1)

The Authority shall ensure that all relevant

information on rights, conditions, procedures, charges, fees and

decisions concerning general authorisations, rights of use and rights to

install facilities is published and kept up to date in an appropriate

manner in order to provide easy access to that information for all

interested parties.

(2)

Where information referred to in sub-regulation (1) is held at

different levels of government, including other public authorities, in

particular information regarding procedures and conditions on rights to

install facilities, the Authority shall make all reasonable efforts, having

regard to the costs involved, to create a user-friendly overview of all

such information, including information on the relevant levels of

government and the responsible public authorities, in order to facilitate

applications for rights to install facilities.

(3)

The Authority shall ensure that the specific obligations

imposed on undertakings under the Act and these regulations are

published and that the specific product and service, and geographical

markets are identified. Subject to the need to protect commercial

confidentiality, the Authority shall ensure that up-to-date information is

made publicly available in a manner that guarantees all interested

parties easy access to that information.

(4)

The Authority shall provide the European Commission with

the information published in accordance with this regulation.

(1)

The Authority shall define the technical and

operational requirements necessary to enable legal interception of

electronic communications by the competent authorities in accordance

with any law allowing and regulating such legal interception

Provided that in doing so the Authority shall give its reasons

for the technical and operational requirements it defines and shall seek

to ensure that any expenses that undertakings may have to incur in

order to meet any requirements it establishes are reasonable and

justified.

(2)

An undertaking shall, at its expense, comply with such

requirements as may be defined by the Authority under sub-regulation

(1)

AND SERVICES (GENERAL)

Provided that the Authority may introduce a mechanism for

the sharing of the cost of interception obligations where the Authority

considers this to be appropriate.

(3)

A cost sharing mechanism and any associated fund

established under sub-regulation (2) may be administered directly by

the Authority or a body independent from the contributors and

beneficiaries, under the supervision of the Authority

Provided that any cost sharing mechanism based on a fund

shall respect the principles of transparency, non-discrimination and

proportionality.

(4)

Undertakings which are required to contribute to any fund

established under sub-regulation (2) shall do so in accordance with any

cost sharing mechanism as may be established by the Authority.

All regulations made under the Act shall be interpreted in

accordance with the provisions of the Act.

(1)

The Authority shall ensure compliance with the

provisions of these regulations and may, for this purpose and for the

carrying into effect of any provisions of these regulations, issue any

decisions it may consider to be necessary in this regard.

(2)

A person shall in all instances comply with any decision of

the Authority issued under these regulations notwithstanding any

dispute, appeal or any legal proceedings however so described,

contemplated or commenced in relation to the said decision.

(3)

A person who fails to comply with any decision issued by

the Authority under these regulations shall be considered to have acted

in breach of these regulations.

Without prejudice to any enforcement action that the

Authority is entitled to take in accordance with the Act and any other

law which it is entitled to enforce, if an undertaking fails to pay to the

Authority any amount due by or under these regulations, interest at the

rate of eight percent per annum shall accrue as from the date when any

such amount falls due.

Unless otherwise prescribed in these regulations, the

Authority may, in accordance with the provisions of Part VI of the

Malta Communications Authority Act, impose such sanctions and take

such enforcement measures, however so described, as it may consider

appropriate in accordance with the aforesaid Act, upon any person

who acts in breach of any provision of these regulations.

AND SERVICES (GENERAL)