Telecoms Law

The telecommunications sector is currently regulated by a number of EU Directives which have been transposed into the Maltese regulatory telecoms framework through various legislative instruments, the main sources being the Electronic Communications (Regulation) Act, Chapter 399 of the Laws of Malta, and its subsidiary legislation, the Electronic Communications Networks and Services (General) Regulations (SL 399.28). In an attempt to cater for the development in the sector, the framework itself pivots on a technology neutral approach to licensing and enforcement. In this respect the framework applies indiscriminately of whether the underlying technology is fixed, wireless telecoms, data transmission or broadcasting.

The recently enacted EU Directive 2018/1972 has established a Code for the regulation of telecoms – the European Electronic Communications Code – and this entered into force in December 2018. Notwithstanding the fact that many provisions are already reflected in the national frameworks of the EU member states, the directive’s aim is to harmonise telecoms regulation across the EU.

This new Code is wider in its application and shall affect the activities of both telecoms network and service providers as well as national regulators. In fact, with respect to national regulators, the Code stipulates how said regulators may intervene in order to address competition concerns with respect to companies which have significant market power within the telecoms sector. Also set out in the directive are rules stipulating what information retail telecoms service providers are to provide within their consumer contracts. Finally, the Code also includes provisions which are meant to assist consumers with making the switch from one internet provider to another, an easy and smooth transition.

All EU member states are expected to implement this directive into their national framework by December 2020.

The national regulatory authority responsible for the electronic communications sector in Malta is the Malta Communications Authority (the “MCA”). The MCA itself is formed and regulated by the Malta Communications Authority Act,  Chapter 418 of the Laws of Malta, and is responsible for the consideration and award of general authorisations to provide electronic communications networks and services, the promotion of competition by conducting market analyses and imposing remedies on operators with significant market power, the enforcement of Universal Service Obligations and the promotion of end user rights and interests.

There are three main categories of authorisations and licences which are envisaged under the Maltese telecoms regulatory framework and these are as follows:

An undertaking wishing to provide electronic communications networks and/or services are required to obtain a general authorisation for the provisions of said networks and/or services from the Malta Communications Authority (the “MCA”).

General authorisations cover the following:

• the establishment and operation of a public communications network;
• publicly available telephone services;
• the provision of television and radio distributions services;
• the provision of other publicly available electronic communications services;
• the provision of non-public electronic communications services;
• publicly available telephone directories and directory enquiry services; and
• private electronic communications networks and/or services.

Prior to providing an electronic communications network and/or service, any person wishing to do so, must first notify the MCA, in writing, of this intention to provide said network and/or services. The notification must contain the information as laid down under Regulation 66(2) of the Electronic Communications Networks and Services (General) Regulation.

Upon receipt of acknowledgement from the MCA, the person concerned is considered to be authorised to provide an electronic communications network and/or service, as the case may be. This authorisation is of course subject to administrative charges and conditions which are found under the Eight Schedule and Ninth Schedule, respectively, of the Regulations.

Of importance is the fact that an authorised undertaking is under an obligation to immediately notify the MCA, in writing, when it ceases to provide the electronic communications networks and/or services since in terms of the Regulations, it shall remain responsible for the fulfilment of any obligations as a provider of such networks and/or services until such notification is affected.

A general authorisation to provide an electronic communications network and/or service is given for an unlimited period of time, subject to ongoing compliance with the conditions which are attached to said general authorisation. It is within the MCA’s complete discretion as to the suitable actions to be taken in the event of a breach of such conditions.

Radio frequencies are only to be used in accordance with a general authorisation issued under the Electronic Communications (Regulation) Act or an explicit authorisation by the MCA.

All types of technology used for electronic communications services may be used in the radio frequency bands, declared available for electronic communications services in the frequency plan in accordance with EU law. However, where necessary, proportionate and non-discriminatory restrictions may be imposed in order to avoid harmful interference, protect public health against electromagnetic fields, ensure technical quality of service, ensure maximisation of radio frequency sharing, safeguard efficient use of spectrum, or ensure the fulfilment of a general interest objective in accordance with Article 41 of the Act.

All types of electronic communications services may be provided in the radio frequency bands, declared available for electronic communications services in the frequency plan in accordance with EU law. Again, where necessary, proportionate and non-discriminatory restrictions may be imposed in order to fulfil a requirement under the ITU Radio Regulations. Measures that require an electronic communications service to be provided in a specific band available for electronic communications services must be justified in order to ensure the fulfilment of a general interest objective, such as: the need to protect safety of life, the promotion of social, regional territorial cohesion, the avoidance of inefficient use of radio frequencies, or the promotion of cultural and linguistic diversity and media pluralism, for example by the provision of radio and television broadcasting services.

The duration of spectrum licenses varies depending on the type of licence.

In order for one to install or make use of radiocommunications equipment, such person needs to obtain a licence, unless the equipment in question is covered by a general authorisation or is otherwise exempt from the requirement of obtaining a licence. The Radiocommunications Apparatus Exemption Order (SL 399.41) lays down these licence exemptions.

Currently there exists: (i) an application for the grant of rights to install or use radiocommunications equipment, such as for instance aeronautical, amateur radio, private mobile radios, radio links and satellite uplink, amongst others; and (ii) a notification form for the installation or use of certain radiocommunications equipment covered by a general authorisation such as for instance, VHF marine and EPIRBs.

Licence fees payable to the MCA are applicable with respect to the grant of individual licenses. Moreover, said licences shall remain in force for the period of time specified in the licence unless of course rescinded or revoked prior to this time period.

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