eer nee: THE JOURNAL OF E-COMMERCE, TECHNOLOGY AND COMMUNICATIONS FEBRUARY 2001 e oe ae eee eT LUtte RoM LC Ne Ree ALAC co Coto Py Sateen J “Hina PME mom e See oper eons Biya ae Nasa Ce ena Ci) eee eee eae aac Bcc eae aierey ee ees Sie SAE By ne enero ae legi 25 Meanates tly eee Reece Corre eerie A Cae EeeCONTENTS: [2001] CLA. i February COMPUTER AND TELECOMMUNICATIONS LAW REVIEW VOLUME 7 : ISSUE 2 : 2001 : ISSN 1357 3128 Opinion TRISTAN GILBERTSON Beginning of the End of “Light Handed” Telecommunications Regulation in New Zealand 19 This article examines why New Zealand's policy of “light handed” regulation in telecommunications has failed and how, based on recent intemational experience, telecommunications regulation should be reformed to ensure the development of a dynamic and competitive telecommunications sector. Articles CONNIE CARNABUC] When is a Property Developer not a Property Developer? When they are an ISP! 27 The rise of “intelligent”, i.e. data enabled, buildings presents a real commercial opportunity for property developers providing them with additional revenue streams by the provision of online to residential and commercial occupants. This article examines some of the legal issues confronting property developers wishing to extend themselves into the realm of an e-commerce operator including: contracting issues, data privacy issues, telecommunica- tions regulations and the formation of online contracts. CAROL LELAND Ireland Passes Electronic Commerce Legislation 30 The recently enacted irish Electronic Commerce Act, is a piece of enabling legislation laying the foundations for electronic trade in Ireland. The Act does not create new laws but recognises a new form of commercial communication. VIVIANNE JABBOUR Disposal of the Spectrum: Auctions or Beauty Parades? 33 Spectrum disposals around the world are causing governments and operators alike to weigh the pros and cons of auctions or comparative selection. The effects of spectrum disposals in Europe are being fit deeply and the Far Eas s preparing to fellow sue, Viviane Jabbour considers the implications. NIKOS NIKOLINAKOS Proposal for a Directive on the Authorisation of Electronic Communications 36 This article comments on the future licensing framework for electronic communications networks and services. Its aim is to assess whether the current situation requires adaptation and, if so, What kind of changes are needed in order to ensure that the Proposed Authorisation Directive can contribute to lighter and more transparent national licensing regimes. News Section an International Review of Cases and Legislation N-I7 E.c, Measures Computing, Telecommunications and Related Measures N-28 ‘able (Pin CL SUE 2 © SWEET & HAXWEL LIMITED (AND CONTRELTORS)EDITORIAL BOARD AND COUNTRY CORRESPONDENTS : [2001] CLR, it Epiror (M, T. MICHELE RENNIE, Cenputalaw ‘aisbuegh and London Eniroriar Apvisorny BoaRD PENRO CARR ‘cits PARKER Darien Digial Eauipmen: Co Lied London eating ROBYN DURIE ELIZABETH-ANN STATON UbNlaters& Atiance resis Breckhaus Deringer Tondon {ender CUVE crincras PAUL TAMLOR ‘Oisweng Ovchacd tendon tendon CountTrRr CoRRESPONDENTS Austraua Garzce ANNE FITZGERALD UEONTDAS KANELLOS Sadens Lawyers Koklas-Kanclos€ Associates Besbane ‘Athens PETER LEONARD Davi STANDEN Hone Kons Giter Tobin COMME cARNABUC Siey alegre Shen fs Gave MIDDLETON Mallesons Stephen gues ToM Hore ashame Linkter & Paines a re ron eves KH PUN Melbourne Deparment of CoauterSence Austua Unversity of Hons Rone ‘MakTiN BRODEY Sas dues TENS 8 Paul Wels, Rikind, Bricium Whaiton & Garson CEERT GLAS ong Kang Lecel Gays Verbeke Brussels Inpia ‘PRAVIN ANAND Braz. ‘Anand & Anand ANTONIO CARLOS c MAzzucO New Del Verano © Advogados Assocs Insano Seo Paulo JARLETH BURKE, CANADA sat Telecom ‘BARRY 8. SOOKMAN is Mccarthy & Tera Toronto snag ne NIVA ELKWW-KOREN NMARK. University of ila PER HARON cusp bad Grasrian TH. ALS Fest & Lanse traty Copenhagen ANDREA VALLI France Gaie, Liberia, Macaluso & valk FREDEUQUE purUS-TouRoL ‘Rome deer tsots Paoto cena ‘Bros Casa e Associa ERIC MORGAN DE RIVERY Milas KATE THACKERAY PASCAL COCHE Sinton & Assocs saan Pats Waseda Ualversty Genmany Pive PETER CHROCZIEL l Bruckhaus Wesvick Steemana LUXEMBOURG sort am Sai iEcutttan one RICHARD LENTERMANN Unemtourg wilkinson, Barer, Krawer aad Quin Frankfurt a Man Netuznianps KARL H.PULNY SIMONE VAN DER HOF Goose Beothers Unley of a Besin tee ‘conor WARD ovel White Durrant Tendon ALAN wreTTRIELD Salcizne Br London ANNENE oTTow “YWONNE SCHERS, Bouchet? Amsterdam New Zeatann KEN MOON ‘AJ Park & Son ‘Auckland Norway gs Adon age Advoksirmaans oa Smvcarore ALBAN KANG ‘Alban Tay Mahtant @ De Siva Singapore Sourn Arca [MARCO VAN DER MERWE Spoor ard Fisher Presora Spain : ‘ALMUDENA ARPON DE MENDIVIL ‘omez-Aesho & Pombo Madre ‘Swepen MAGDALENA BAGG yin @ Carlsen ‘Stockholm ‘Swrrzertand MARTIN LAN? ‘Schellenberg & Hatssly Dacch Tarwan HUBERT RSU uber 15a & Associates ‘alwan THanann DAVID TOOK Counsel Bangkok Unive Kincpom ROBYN DURIE Linklaters @ Palnes Tendon ‘Ti Jounson JACQUELINE WoRT $) Berwin & Co. London (© SHEET LMASCHVELL LMEED [AND CONTRIBUTORS, News Section Epitor ‘SIMON STOKES ‘Tarlo Lyons Landon SIMON JONES DLA. ‘Bimbigharn HEATHER ROWE. ‘CONOR WARD Lovell White Durcane ‘vendor (NIGEL STAMP ‘Baker & Mckenzie London usa RICHARD H. STERN Ablondi, Foster, Sobin & Davidow ‘Washington DC JUSTIN. BOOKEY ‘Wilkinson, Barker, Knaver & Quin Washington DC JOHN. KING Knobbe, Martens, Olson & Bear esi JOHN swiNsoN Mallesons Stephen Jaques Brisbane ru ANDREAS BARTOSCH Geiss Hoots Late & Hicech Brussels SIMON M. TAYLOR. Norton Rose Beasts [ROGER TUCKETT ‘Hermes Europe Ralkel BV Baiseelsfy EDITORIAL BOARD AND COUNTRY CORRESPONDENTS : [2001] C.TLR. ctr@sweetandmaxwell.co.uk This journal should be cited as [2001] C-TLR. 000 ISSN 1357 3128 Published by Swaet & Macwell Led “Typeset by Interactive Sciences Lid, Gloucester Printed and bound in Great Britain by ‘The Headway Press, Reading CONTRIBUTIONS The Euitorial Board welcomes contributions ta che Law Review All material should be submited in "ypescript form, on AA paper in double line spacing, together with a disk if amalable, and sent to: Greg Smith, CLLR. Sweet & Maxell Led 100 Avenue Road London NW3 3PF Uniced Kingdom “Talephone: 020 7393 7000 International: +44 20 7393 7000 Fax: 020 7393 7333 International: +44 20 7393 7333 SUBSCRIPTIONS AND ORDERS ‘Annual subscription £325 (US$578) plus £15 airmail postage outside Europe for 8 issues plus index. Bound Volume: Service is £99 (US$168) extra, Sweet & Maxwell Led Subscriptions Department. FREEPOST Andover Hanes SPIO SBR. United Kingdom DX 120950 Andover § Telephone: 01264 342766 International: +44 1264 342766 Fax: 01264 342723 International: +44 1264 342761 © Sweet & Mascwell Ltd 2001. All rights reserved. UK. statutory material inthis publication is acknowledged at Crown copyright. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nacare ‘without prior writean permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reproduce extracts in other published works shall bbe made to the publishers, Full acknowledgement of author. publisher and source must be given. (© SWEET & HAOEWELL LMITED (AND CONTRILTORS,1 The terms of reference and other relevant doca- ‘ments relating to the Minstedal Inquiry ito Tle- communications canbe found at wun celin uigagor.ne. 2 Kahn, Economic Report of the President, vans ‘mitted to Congiess February 1996, pp. 163-164, teas. access apa govhushudget/tuderhar 3 Ofte, Beyond the Telephone, the Television and ‘the PC, Ofes Second Submission tothe In- quiry into Audiovisual Communications and the ‘Regulation of Broadcasting, London, March 1998, paras 424 and 4344.35, OPINION = (2001) CLR, 19 Beginning of the End of “Light-Handed”’ Telecommunications Regulation in New Zealand Introduction In 1987, New Zealand was the first industrialised country to fully liberalise its telecommunications matket, under a policy of “light-handed” regulation. This policy rejects sector-spectfic regulation and relies principally on genezal competition Jaw to regulate marker conduct and foster the development of competition. Over a decade lates, concemed at the persisient lack of progress towards effective competition in New Zealand's telecommunications markets, the Government has convened a Ministerial Inquiry (“the Inquiry”) into the policy of “light-handed” regulation and has indicated that it will introduce regulatory reform if necessary.‘ ‘This article examines the reasons for the failure of “light-handed” regulation in telecommunicasions and, in light of recent international experience, the reforms needed to ensure the development of workable and effective competition in New Zealand's telecommunications markets. It also considers, and rejects, the argu- ments the incumbent can be expected t advance in opposition to much needed regulatory reform. Problems with “Light-Handed” Regulation Competition problems began in the telecormunications sector when New Zealand ‘moved directly from privatisation of the state-owned monopoly, Telecom Corpora- tion of New Zealand Limulted (“Telecom”), to general competition law, without an intervening period of sector specific regulation. It is now generally acknowledged, everywhere outside New Zealand, that such an approach does not work. Even Professor Kahn, a leading Chicago schoel economist and former economic expert for Telecom, has recanted his view that sector-specific rules are not needed: “It cannot be overemphasised that immediate blanket deregulation is not a panacea. ‘Well designed regulations and anti-trust safeguards are likely to result, ultimately, in ‘More competitive markets with moe innovation than immediate deregulation could provide, Moreover, until competition develops, itis important to maintain safeguards to Protect consumers and to prevent incumbent monopolists from stifling the growth of competion.” Secior-specific rules are required because of the unique economic features of telecommunications markets, such as the incumbent's control of bottleneck facilities and the scope for cross-market leverage, which distinguish them from ‘other sectors of the economys: “inherent. characteristics of elecrronie media and communications mean that some market failures are endemic—ie. a competitive market would net address these failures, ‘Such failures are not necessarily the result of fms’ abusive behaviour and ace therefore: ‘hot caught by [general competition iaw]. They arise out of the nature of the industries in question . . . Some rules beyond general competition law are necessary to prevent the residual powers and advantages of incumbents being exploited in a way which frustrates the development of competition or unfairly exploits the consumer.” ‘These economic features derive from the network charactetistcs of tele- communications markets. Telecommunications is a network industry in which network operators combine their own capablliées with complementary inputs (network services) which must be obtained from each other to produce composite Products or systems (end-user services) to satisfy customer demand, Network operators can compete in the market for composite products or systems but depend upon each other for the complementary network services. In order to be able to provide composite products and services to customers, new entrants require interconnection with the national networkof the dominant incurabent, which is the only network able to reach every customer in the country. ‘The bargaining power the incumbent holds in the negotiation of terms and conditions for complementary neswork services gives it powerful incentives to {include monopoly rents in the price of complementary network services in order to Perpetuate and increase its monopoly profits. itsimilarly has powerful incentives to (Bon) CTL 1S0UE2 © SWEET a HAOXWEL, UNITED IAND CONTRIBUTORS20 OPINION : [2001] CTLR. 4 Panerson, “Light-Handed Regulation in New Zealand Ter. Years On" i (1998) 6 Compeation ‘and Consumer ta Journal 134. See also Fsse and Hardson, Pucemational Trends tn Telecommmuniea= tions Regulation: Moving Av from che New Zealand Medel at wenw gia. com.awpubsinte ‘atonatrends, reduce the ability of its competitors to claim market share. This will delay and hinder the creation of significant customer bases by new entrants and thereby limit the scale and scope of their operations. New entrants will, as a result, face higher costs and be restricted io the services and products they offer. The network characteristics of telecomimunications markets also mean that even “small” acts by the incumbent, such as complicating customer transfer processes and requiring customers of competitors to dial an access code or receive two bills instead of one, quickly escalate into a substantial problem for competition. Economic theory predicts that the dominant incumbent can and will increase its monopoly rents by exploiting its contro! of complementary network services in three ways: 1. when it can capture the rents over the long term through imitating competitors, there is a powerful incentive to delay or negate first mover advantage by an innovative entrant; 2. when delay is not profit maximising, there is a powerful incentive to impose restrictions which severely constrain an innovative entrant and prevent it from exploiting economies of scale and scope: 3. where an innovative enant expands the market or provides sexvices at lower costs in various ways which the dominant incumbent cannot, there is a powerful incentive to capture rents through excessive pricing of complemen- tary network services. The timing of terms and conditions or the price of complementary network services determines which Grmus capnure what economic rents are earned from the supply of composite products or systems to end-users. The dominant incumbent therefore can and wil rationally: «reach agreements for the supply of complementary network services only within its own time frames where delay is to its advantage; © build a slate of tems and conditions and pricing principies for com- plementary network services that are acceptable to it and which it can use to impede competition and innovation; © ifthere are increasing retums to scale, impose restrictions which ensure that competitors remain small, and hence have higher costs; if there are economies of scope, impose restrictions which ensure that competitors cannot exploit them and hence have higher costs and are precluded from entering adjecent markets; «prescribe standards for interconnection that limit the available functionality or which impose higher costs on competing network operators and alter those standards with the same effect; © exploit control of the aumbering plan to limit competition by, for example, Impeding the introduction of number porability or using inferior methods of portability. ‘Telecom has behaved in precisely this way. It is economically rational for the incumbent to exploit any gaps inthe regulatory régime that enable it to respond to entry by attempting to restrict its competitors rather than innovating and compet- ing with them. In fact, the directors of the incunabent have a fiduciary dury to seek to extract the highest rents avaliable to it asa result of ts business position, as does any other proit-maximising fim. ‘The fundamental problem with the “light-handed” régime is that it fails to place any effective constraint on the incumbent's incentive o¢ ability to behave in this way or give it the incentive fo behave in any other way. As one commentator putt’: “The fandamental faw of the ight-handed model adopted in New Zealand i that relies on the incursbent monopulis to ac in 2 fait and reasonable way. As a matter of public policy, a sézime to contol the activites of industries with catural monopoly characteristics which has, asits contol tenet, an assumption that the monopolist will act fairly and reasonably, and not use its monopoly position to beneit itself at che expense of its competitors, is at best naive. It is because economic theory predicts thet a monopolist will actin its ovn self interest in confionting emerging competition, and is likely in that process to misuse its own ronopoly power, that a policy to prevent that possibilty is needed at all” (anor CLR SSL 2 © SWEET a MAXWELL USTED (AND CONTRIBUTORS,{5 Telecom Goporation of New Zealand Limited. CLEAR Communications Lid ({995] 1 NZ1.R, 388. 6 Bxges “Brief Comments on the Discussion Paper fon Regulation of Access to Verticaly-inegtated ‘Namsral Monopolies", speech oninvestiure as Bell- South New Zealand Visiting Professor of Neswork Economics and Communications, Auciland, New Zealand, September 19, 1995. 7 See. in particular, CECD, Teecommunications Daiatiase 1989, OECD Publications Service, Fa, 1099, wwwoced op/dsivsi/tarsctata09, hhsm; OECD, Tlecommunicadions Outlook 1999, (OECD Publications Service, Pais, 1999, www, ed ory/dststt/én/procors-our99 any ‘Ovum, “Inverconnecr@Ovwm, 2000. (including ‘Quanesly Update w apt! 1. 2000), wanwovam, coniegbin/shoupage.asp?dor = 1A0. 28 Paul Budde communication Pry Lid, sew Zea~ ‘and. Telecommuntcations—Harket Overview and Analysis, Sydney, November 19, 1999. OPINION : 001] CTL. 21 The policy of “light-handed” regulation relies on three key elements to constrain the incumbent's ability to manipulate the development of competition. Each of these ciements has proved inadequate for this purpose: 1. Ondercakings given by Telecom to the government at privatisation to separately conduct Telecom's businesses, including Telecom's local. long distance, mobile, and value-added services operations. Telecom was able to overcome the structural protections contained in these undertakings by merging, rather than separating, its business operations, so as t prevent separate monitoring and reperting of its business activities. 2, General provisions of the Commerce Act 1986 to prevent anti-competitive conduct. Section 36 of the Commerce Act 1986 (“the Commerce Act”), New Zealand's principal anti-trust statute, prohibits abuse of market power by dominant undertakings. Telecom was able to citcumvent the general behav- joural protections in section 36 because: {@) to establish a breach of section 36 a competitor must prove: () that the incumbent is “dominant” in a market, (i) that the incumbent has “used” its dominant position; and (ii) that the incumbent acted for an anti-competitive “purpose”. Even if “dominance” and “purpose” can be shown, demonstrating “use” will always be a problem in developing industries. The incumbent will only be deemed to “use” its dominance if it does something which it would not do, or could not do, ina competitive macket.? This enables incumbents to engage in a wide range of conduct that would be permissible in a competitive market but which has an anti-competitive effect in a develop- ing market, Examples of conduct that passes the “use” test, but which is prohibited by foreign regulators because of its anti-competitive effect in developing telecommunications markets, include: () highly-rargeted price discounting: (id) use of the Baumol-Wilig Rule in interconnection pricing; (i) refusal to provide local call resale; and (iv) refusal to allow rebilling. For these reasons, section 36 can be a useful constraint (particularly on retail behaviour) once the market Aas become competitive, but cannot be felied upon to ensure the market becomes competitive. The use of a competitive benchmark in an uncompetitive industry prevents the emer- gence of effective competition; (©) competitors are forced to resort to litigation to enforce the behavioural protections in the Commerce Act. Experience has demonstrated that such litigation is slow, costly, susceptible to manipulation and delay by the incumbent, often fails to produce definite outcomes, and only results in remedies after the conclusion of the proceedings, which can be too late to prevent substantial harm to the developing process of competition; 5. Threat of government intervention if these measures proved inadequate to Secilitate the development of competition. The political capital invested in the policy of “light-handed” regulation by successive governments meant that the threat of goverment intervention was never credible. As one commentator ut it’: “In practice, the threat of re-regulation could not have seemed especially credible. Having staked substantial political capital on the virtues of the [light-handed] régime, governments were hardly likely to walk away from. it... Governments may have had 2 gun pointed at the incumbent's head; unfortunately, they stood between it and the target. Under these circum: stances, incumbents could heavily discount the likelihood of the tigger being pulled... The hand which was meant to be light had all but van- eke ‘The result has been a persistent lack of progress towards effective competition in New Zealand's telecommunications markets. This is demonstrated in a succes- sion of intemational surveys which, irrespective of the methodology they employ, show a conclusive pattem of findings that New Zealand is falling behind the rest of the world and that the gap continues to widen.” Countries which introduced sector specific regulation have experienced far greater gains in a far shorter period of time than New Zealand where the emergence of effective competition has been tortuously slow. “Progress in competion has been faster [in Europe] in ten months", according to one recent report, “than in New Zealand in ten years”.> [Bool] CLA. ISLE 2 © SWEET & MRGWELL LATED [AND CONTREVTORS]22 OPINION = (2001) CLR, 9 of the essential elements ofthe “starter pack” for all new telecommunications regulators specie by Don Cruickshank, Director General of Ofte, ‘Speech co the Financial Tes Word Piecormmu- ‘arions Conference, December 1, 1997, worwlon- donecon.co.uk/pabsmnewslev19982C him. ‘These countries are now in the process of winding back their sector-spectic controls in response to the develooment of effective competition, and ace moving ‘on to deal with “second generation” issues such as convergence, while New Zealand is still grappling with basic regulatory issues resolved in other countries ‘some time ago. Regulatory Reform ‘Aithough the “light-handed” approach has undoubtedly retarded the development cof competition, New Zealand is ina unique position toleara from the experience of segulating incumbents in other countries over the past decade, and design a regulatory model based on world's best practice to fit te particular requirements of the New Zealand environment. Intemational experience suggests that “light- handed” regulation should be replaced by an approach which focuses on the fundamen causes of competion poblemsin eecommunictions martes ands rected ats © controlling matket power; « eliminating incentives to act anti-comapetitively; ‘© enhancing the effectiveness of industry self-regulation and co-regulation; © incorporating flexibility so that regulation can be minimised and matched to ‘market conditions; exploiting opportunities for wans-Tasman “regulatory economies” between Australia and New Zealand. ‘To achieve these objectives, the regulatory structure would need to be revised along the following lines’: 1. Access t0 the incumbent's network is essential, Bective competition in telecommunications is not possible unless entrants are able to secure access to the existing local network, which is the incumbent's main source of market power. The incumbent must be under an obligation to offér interconnection at all feasible points wherever reasonably requested by entrants. 2, Interconnection pricing must also be regulaced. An equitable pricing mode! must be applied to interconnection with the incumbent's network t© prevent the incumbent fron: forestalling competition through high inter- connection prices. This is essential to foster a climate of openness and predictability, to reduce delays and resort to litigation, and to minimise barriers to entry. There is a strong international consensus that a forward-looking pricing mode! is essential and that Total Service Long Run Incremental Costs (*TSLRIC’) is the most equitable approach, 3. The incumbent should be required to offer unbundling. The precise form of unbundling required should be a matter fot negotiation between incumbent. and entrant, but the incumbent must be required to offer any practicable form of unbundling. This is essential to ensure innovation, deployment of advanced high-bandwidth data services, and to avoid inefficient nctwork duplication. ‘Without unbundling, entrantsare limited to the capabilites of the incumbent's network. Unbundled services should also be offered on a TSERIC basis in order to ensure that the “build ot buy” decision is not distorted, and on the basis of the costs of an ellicient operator. 4. Entrants should be able to utilise @ range of access options. Local interconnection, local call resale, and unbundling are not exclusive alter- natives, since a range of commercial, geographic and technical factors make them suitable for different situations and at different stages of an entrant's, development. They are complementary market entry strategies that will censure a maximum level of competition in the market. Local cal resale should +e provided on an avoidable cost basis. 5. The “Riwi Share Obligation” should be replaced with a “Universal Service Fund”. The “Kiwi Share Obligation”, New Zealand's equivalent of a universal service obligation, and the "access levy” that funds it are serious deterrents to ‘competition and innovation. Similar systems have been replaced in most Jurisdictions with universal service funds, since they are the most transparent, non-discriminatory, competitively and technologically neutral, and non-bur- Previously most courts refused to enforce clickwrap agreements on the basis that consumers were thought not to have given mean- ingful assent to the terms. They regarded a contract of sale as, having taken place at the time the consumer tendered payment and the sale was complete. However, in Hoomail Corp. v. Van Money Ple Inc. et al.,* the act of clicking on the “Tagree” button was held to bind the purchaser to the terms ‘which were posted on the website, It is important to note that a clickwrap licence is not in and of itself enforceable. In order for it to be enforceable it must satisfy the ordinary principles of contract formation: 1. ds there an offer or merely an invitation to treat? ‘Whether or not the terms presented on the website are an 2 has become the custom for software industies to use a standard form contact in the form ofa shcinkwrap licensing agreement. The tems ofthe agreement appear on. te plastic wrapping of software ‘andthe customer is hound by the tems ofthe lence atthe poknt of breaking open the plastic wrapper or insalling the software on the computer 13 ProCD Inc. v. Zeidenberg (1996) 86 F(Sd) 1447 at 1449 (7th {ir}. See discussion in Gail Svan and Ban Fizgeralé, “Inforta- tion Tkansactons Under Uct, Aricle 28; The Ascendarcy of free- dom_of Contact in the Digital Milennium” in (1998) 21 UNSW 4 Case C9B-20064 (ND Cal. unreported, April 20, 1998 (Roo! CLR, ISSUE @ SWEET & MAXWELL LMITED AND CONTRBUTORS‘CARNABUCI : WHEN IS A PROPERTY DEVELOPER NOT A PROPERTY DEVELOPER? offer or an invitation to treat depends on the intention of the website operator IF the website operator intends the terms to be binding, and the offers clear and unambigu- ous, the first requirement for the formation of a contract has been satisfied. An offer needs to be clearly distin- guished from an invitation to treat. Invitations to treat may be constiouted by, for example, a request by an auctioneer for bids, advertising goods for sale in a catalogue or invitations to tender. It may perhaps be preferable that the terms on a website be drafted as an invitation to treat, rather than an offer. This protects an ISP from the danger of presenting an offer which is impossible to satisfy and then being found to be in breach of contract, 2. Acceptance, Acceptance must be communicated 10 the offeror and it must be unqualifed. Qualifications in the acceptance will normally amount to a counter offer. In the context of clickowrap licences, clicking on the “7 accept” button can constioite acceptance. Under section 19 of the Electronic Transactions Ordinance, acceptance ‘occurs when the message is received, All terms be made known to the purchaser before the purchaser accepts the offer. The most practical way is to display the contract terms on the website thereby compelling the purchaser to read through the pages of terms and conditions before accepting. This suggestion draws support fiom the recent United States’ decision Ticketmaster Corp. et al, v. Tickets.com inc., in which it was held that itis unlikely that a website with a hyperlink to another website labelled “For terms Click Here” will be sufficent to bind the purchaser to the contract.* Another recent United Staves decision provides useftl exam- ples of the steps that may be required to incorporate terms of online contracts.* The case involved the sale of licensed computer software which was used in the preparation of a construction bid. It was discovered that, due toa fault in the software, the bid was almost $2 million dollars less than it ‘5 Unreported, March 27, 2000, U:S, District Cour, Cental District of California 8 HA Mortenson Company inc. v. Timberline Software Corp. & Softworks Data Systems, unreported, May 4, 2000, Supreme Court of Washington, [2001] CTLA, 29 should have been. The issue before the court was whether a limitation on consequential damages enclosed in a “shrink- ‘wrap license” accompanying the sofware was enforceable, ‘The majority of the court held that because sulicient notice had been given of the terms of the licence, they were incorporated in the contract. The terms ofthe licence were set forth explicitly ot referenced in numerous locations: they were included within the packaging of each copy of the software; they were present in the manvals accompanying the software; and they were included with protection devices for the software, without which the software could not be used, The fact thet the software was licensed was also noted on the introductory screen each time the software was used. The court held that the failure of the purchaser to read the temas of the licence was immaterial as suffcient notice had been given. Conversely, the judgmient of the dissenting judge was consistent with the earlier, more conservative, position, He found that the parties had entered into a binding agreement at the point of sele. As such, the license agreement which appeared on the software packaging constituted a proposal to modify the contract and therefore the express assent, or conduct manifesting assent, to those terms was required. As mentioned above, privacy issues will also be a concem in the context of on-line transactions. The provider must ensure that all practicable steps are taken to maintain the privacy and secutity of any personal data which is disclosed for the pucposes of completing the transaction Under the Ordinance a digital signature wil be sufficient where a rule of law reguires provision of a signature for a particular transaction. For the digital signature to be valid, it rust be supported by a recognised certificate (6.6). Conclusion The rise of the inteligent building represents a massive ‘opportunity for alternative revenue streams for property developers/owners as it creates an additional distibution channel through which a myriad of services can be provided electronically. Once this leap, is taken however, there are a seties of legal issues (a sample of which have been high- lighted in this article) which will need to be considered and resolved. Essentially, the propeny developer/owner has become an e-commetce operator, [Bol CLA SUE SWEET & MAXWELL UMIFED [AND CONTHBUTORS30 CAROL LELAND + IRELAND PASSES ELECTRONIC COMMERCE LEGISLATION : [2001] CTL. IRELAND Passes ELECTRONIC COMMERCE LEGISLATION CAROL LELAND A & L GOODBODY SOLICITORS, DUBLIN Introduction ‘At a recent conference in Dublin, Niall O"Donoghe, one of the civil servants invoived in drafting the Irish Act, succinctly summarised the nature of the Irish Electronic Commerce Act 2000: “The Act is a Grst step in adapting our Statute Book to take account of the realities of the Intemet. There is no reason why the huge body of legislation that curently governs traditional commerce should not apply equally to e-commerce .. This Act Js Intended to remove existing egal impediments and uncertin- ties regarding the development of e-commerce in Ireland . .. In this way, the legislation is not intended to introduce an entirely new legal framework for e-commerce, but rather itis intended to be an enabling piece of legislation." ‘The Irish Electronic Commerce Act ("the Act") was signed into law electronically on July 10, 2000 and came into force on September 19. The legislation followed a period of consultation between Government and commercial interests, on the most effective means of implementing the Digital Signatures Directive in Ireland and laying foundations for a vibrant e-commerce industry. ‘The Act adopts a “light regulatory touch”. It implements the E.U. Dighal Signatures Directive (99/93/E.c.) while giv- ing effect to some of the provisions of the Electronic Com- merce Directive (2000/31/E.C.). The chief characteristic of this new law is that it achieves equivalence of media technol- ogy and maintains technology neutrality, Digital Signatures, Electronic Writing and Information Given Legal Recognition The Act provides for legal recognition of signatures, writing and information imparted in electronic form. Adopting veckutology-neutral stance, the Act gives legal effect to simple signatures in electronic form, as well as sophisticated, technology driven, “advanced electronic signatures". The delinition of advanced electronic signature mirors the one contained in the E.U. Directive. It is here defined as a signature which is: (@) uniquely linked to the signatory; (0) capable of identifying the signatory; (©) created using means that che signatory can maintain under iis sole control; and (2) linked to the data to which itrelates in such a manner that subsequent change of the data is detectable. The Act does not discriminate in favour of any one type of digital signature. However, advanced signatures are required for documents executed under seal? and where a signature is required to be witnessed? 1 Irish Electronic Act 2000, 8.16. 2 wid, 3.14 The legislation recognises the realities ofthe accelerating pace of technological development and adapts a very broad catch-all definition of “electronic”. Section 2 of the Act includes signatures based on “optical, biometric, photonic and any other form of related technology”. In not laying own specific technical specifications, the need for constant amendment 10 reflect advances in technology has been avoided. Endorsement of Strong Encryption One of the most significant features of the Irish Act is the endorsement of secure encryption.® The Act expressly pro- hibits the compulsory disclosure of keys or codes necessary to make electronic information intelligible. The absence of any key escrow is 2 distinctive feature of this legistation and iilustrates the Irish Government's recognition of the impor- tance of privacy and confidentiality in electronic commerce. Provision for Certification Service Providers The Irish provisions relating to centlication service providers ("CSPs") are in line with the outline provisions of the Directive. No prior authorisation is required by persons ot public bodies providing certification services relating to elec- Conic signatures. However, there is provision in the Act for the establishment of a scheme of voluntary accreditation. ‘This scheme, if implemented, would prescribe the rights and obligations of CSPs and participants in the scheme. It would also establish a system of supervision for those issuing qualified certiicates to the public. This would assuage some consumer anxieties in relation to the legal starus of less well- established CSPs. No statutory instrument establishing such a scheme has yetbeen published or announced by the Govern- ‘ment, but iis tikely that such provision will be made in the near future. Section 50 of the Act deals with the vital issue of CSP liability. it would appear that a sirict lability regime is to be imposed on CSPs who issue or generate qualified certificates to users who reasonably rely on them. This goes further than the minimum requirements of the Directive and makes the CSP liable for al! loss or damage that could result from use of a certificate including, for example, loss of control ofa private key used to electronically sign certificates. In line with the Directive, the CSP may limit liability by setling a ceiling on the value of transactions for which the certificate may be used, The CSP must set out the relevant, limits on the certificate, Provided these limits are clear and 3 ibid, 5.28. (Boot) CL. SUE 2 © sweet a raWeLL UMITED (AND CONTRIBUTORS)‘CAROL LELAND readily discernible, the CSP will not be liable for damage that resuits from exceeding these limits.* The Irish Act incorporates both Annexes 1 and Il of the Digital Signatures Directive, setting out the requirements for qualified certificates and the requirements for certification service providers issuing qualified certificates. The latter requirements set out the nature of the statutory duty of CSPs and inchides an obligation to maintain sufficient financial resources to bear the risk of lability for damages. No specific requirements in relation to the sufficiency of resources are provided for in the Act, Public Bodies ‘The Act provides for the use of digital signanures and elec- tronic communications, both by individuals and public bod- jes.* In the case of the latter, where a signamure or information “in writing” is required, the public body must consent to the electronic format. Speciat procedural and technical con- straints may be lald down by the body, but if they do so they must be made public and must be “objective, transparent, proportionate and non-discriminatory”. In dealing with indi- viduals other than public bodies, itis necessary and sufficient, 10 obtain the consent of that party to an electronic commu- nication. Underpinning the voluntary nature of electronic ‘communication, section 2¢ of the Act emphasises that the provisions of the Act cannct be imposed on a party without thelr consent and does not prevent parties agreeing on certain, requirements in relation to their specific communication. Electronic Contracts ‘The Irish Act impiements some of the provisions of the Directive on Electronic Commerce. Section 19 of the Act provides that an electronic contract will have legal equiva- lence to a contract in any other form, Section 19(2) provides that “in the formation of a contract, an offer, acceptance of an. offer or any related communication (including any sub- sequent amendment, cancellation or revocation of the offer ot acceptance of the offer) may, uniess otherwise agreed by the parties, be communicated by means of an electronic commu- nication”. The Irish Act, in line with the B.U. Directive, does not make new law in relation to the timing of the formation of an electronic contract. Common law provisions will con- tinue to apply in this regard in Ireland. It remains to be seen whether an Irish court will apply the pastal rule to contacts formed using electronic methods. ‘The Act does, however, set out some clarification in relation to the time and place of dispatch and receipt of electronic communications and the acknowledgement of receipt of electronic communications. Where a party specifies a particular information system for receipt of information, then the message will be deemed “received” when it enters into that system. On the other hand, where no particular system has been specified, the message will be “received” only when it comes to the attention of the addressee. A communication will be tegarded as “sent” when it leaves the system controlled by the sender and enters into a second information system.* Helpfully, section 21(5) of the Act sets out that an electronic communication will be taken to have been sent from and received at the place where the originator and the 4 Bid, 5.50¢4), 5 id, 8.30. 6 ibid, st IRELAND PASSES ELECTRONIC COMMERCE LEGISLATION : [2001] TLR. 31 atidressee have their places of business. Where either party hhas more than one place of business, the operative place will be that which has the closest relationship to the underlying transaction or if there is no underlying transaction, the principal place of business. If either party does not have a place of business, the “place of business” will be taken to be the place where the party ordinarily resides. Consumer Protection Setting the groundwork for the implementation of the provi sions of the Electronic Commerce Directive, the Irish Act makes it clear that all electronic contracts wil benefit from ‘existing consumer protection law. Further, the Act explicitly provides” that the Consumer Credit Act 1995 and the Unfair ‘Terms in Consumer Contracts Regulations 1995 will apply in full to consumer contracts concluded on-line. Section 23 of the Act clarifies that all existing defamation laws apply to electronic communications within the Republic of ireland and includes retention of information electronically. Carve Outs The Irish Act excludes certain types of documents and wansactions.* The creation and execution of wilis, trusts, powers of attomey and assignments of lands are excluded. Notably contracts for the sale of land are not excluded and therefore are covered by the Act. Practitioners therefore need two take measures to prevent electronic communications such as e-mail becoming a note of terms for the purposes of the Statute of Frauds, The making of affidavits and court proce- dures are also excluded. Early expansion of the Act is envisaged. At the consultation stage preceding the drafting of this Aci, it was strongly argued that the legislation should be all inclusive. However, it was accepted that the lack of technological infiastructure would not make this a viable option. The Govemment have, however, indicated that they intend to prioritise the establishment of advanced techno- logical infrastructure. Moves have already been made in this regard in the cours service and the land registry. Electronic Originals/Retention of Decuments Copper fastening the policy of functional equivalence, the Act provides that where there is a legal requirement to produce an original of a document, an electronic original will suffice subject to certain specified criteria guaranteeing the integrity of the data.® Where there is a legal obligation to retain documents, there is provision for compliance though the retention of documents in electronic form.'? E-business Related Crime New criminal offences are created under the Act. This reduces the uncertainty of the application of criminal statuses to the context of e-business and is a welcome feature. Section 25 of the Act deals with fraud and misuse of electronic signatures and signature creation devices. The essence of the crime is in dealing with signature creation devices without the consent ‘or permission of the lawful owner of that device. It is also unlawful to “access, alter or use” the signacure creation device of @ CSP where that access is in excess of lawful 7 id, 8.11 8 tid, 510. 9 Bid, S17. 10 iid, 8.18. (Deo!) TLR BSLED @ SWEET & NAKWALL UMITED AND CONTRIBUTORS32 CAROL LELAND : IRELAND PASSES ELECTRONIC COMMERCE LEGISLATION [2001] TLR. authorisation, It would appear that mere access is not pro- hibited, it must be access for the “purpose of doing an unlawful act” such as eteating an unauthorised signature. Conclusion The “light regulatory touch” ofthe Irish Electronic Commerce ‘Act 2000 sets frm foundations for e-business in this jurisdic- tion, Although stil in its infancy, it has been greeted with approval by the business community. It does not create new Jaws, but recognises the emergence of a new form of com- munication. ‘The full impact of this legislation is not yer apparent. However, there is no doubt that as a piece of “enabling legislation” the Act has made Ireland attractive as a place where e-commerce will be allowed to develop naturally unfettered by onerous and inappropriate over regulation. (POON) CLA SUE 2 SWEET & MACHEL LMITED [AND CONTRIBUTORS)JABBOUR : THE DISPOSAL OF SPECTRUM: AUCTIONS OR BEAUTY PARADES? oor] CTLR. 33 Tue Disposat oF SPECTRUM: AUCTIONS or Beauty ParaApEs? VIVIANNE JABBOUR LOVELLS, LONDON Introduction ‘There can be few in the telecoms industry who are notaware of the sensational headlines resulting from the auction of licences for spectrum for UMTS (the third generation of mobile phone) around Europe. “What Brown can do with extra £22bn” wrote Liam Halligan in Sunday Business on April 23, 2000 as the auction closed and the enormity of the sum raised sank in. However, it should be remembered, by industry and regulators alike, that there should not be a presurnption that an auction is the best means of disposal of spectrum licences, The cost of licences being auctioned are a cause of great concer in industry. Following the German UMTS auction, share prices fell and the headlines changed tone: “German 36 Auction Price Hits Winners’ Shares Hard” screamed the headlines of The Scotsman on August 18, 2000. In the United Kingdom Sunday Business claimed “Debt-Auction ‘Woes Spark Warning” (August 6, 2000). It is not uncommon for industry to claim that, by continuing to follow the auction route, some governments are not listening to their concems and it may be that the events of the Italian auction are indicative of that, Figure 1: Cross-over Point between Fixed Lines and Mobile Subscribers in Finland (1990-98) 3,500, 3,000. 2,000. 1,500: Subserfbers, thousands 1,000: 0. 1990 1991 1992 1993 1984 1985 1996 1997 1988 Souce: ITU "Worl Teeesramuncation Indicators Databese™ This article considers the phenomenon of the multi- billion pound spectrum licence auction, considers the pros and cons and considers the merits of an alternative way forward. The concerns and considerations raised are not national or regional but, rather, giobal, and are applicable to all countries involved in the disposal of spectrum whether for UMTS or the delivery of other services, both now or in the funure, Statistics published by the ITU reveal the importance of spectrum. In cestain more developed markets, for example, use of mobile phones has exceeded use of fixed lines (see Figure 1, below). These market developments, coupled with ‘the fact that spectrum is a scarce resource, go some way to explaining the astronomical sums that some of these auctions, have raised. These astronomical sums may in tum also be responsible for the apparent failure of some auctions to meet expectations. Mobile telephony does not represent the sole value of wireless communications reliant on spectrum use. The United Kingdom is about to begin auctioning licences for spectrum to be used for the éelivery of Broadband Fixed Wireless Access {BEWA) Services. This is intended to allow the delivery of broadband services, such as always-on Internet access and video conferencing, to a fixed point by means of wireless communications. However, unlike UMTS, BFWA is currently expected only to be targeted at business users. ‘There are two accepted means of disposing of spectrum: ‘by auction, and by beauty parade (or comparative selection). Each has very different financial consequences. While the German UMTS auction raised a total of US$50 billion, the Spanish beauty contest raised US$477 million and the French beauty contest is expected to raise US$16 billion. In addition, however, the example of the Dutch and Italian auctions should not be ignored as both raised far less than their respective goveraments anticipated. Of couse, in deciding which route to follow it would be foolish of government to focus only on the potential revenue that could be raised. Ifthe intention is the long-term benefits of the industry, the primary focus should be the creation of a ‘strong, competitive market. Spectrum Auctions This generally follows a two-stage process. Firstly, there is an application process. This determines whether or not an applicant may participate in the auction, The matters to be considered are quite limited. This process should identify whether any of the applicants are linked in any way that could cause them to have control, of exert any other form of infiuence, over any other applicant. Also, it is important at this stage to consider whether there is any reason to refuse the applicant as being unsuitable, This refusal could be based on a vatiety of factors: a lack of financial stability or a [Root TLR. SUE SWEET R HAXOWEI JIMHTED anh cen TAS34 JABBOUR : THE DISPOSAL OF SPECTRUM: AUCTIONS OR BEAUTY PARADES! : [2001] CTLR. financial inability to meet basic obligations under the licence (such as roll out provisions); unsuitable directors (although that would require some serious problem); legal actions Drought against the applicant in cerzin situations. ‘The second stage is the auction itself. Numerous issues fall to be considered in setting up an auction. Among these are the rules against collusion and association (for example, addressing the Vodaphone/Orange situation which arose in the United Kingdom), financial considerations such as the requirement for a deposit, the level of that deposit and the applicability of any penalty, Also, auction design is now big business as games theorists consider how to build and design an auction system that is beyond technical reproach. ‘The myriad of considerations and coraplications is inf nite and a property designed auction that has a robust legal basis as well as a robust technical design takes time to cre- ate. Spectrum Beauty Parades Similar considerations apply, ie. the need to devise a robust legal basis to identify, insofar as possible, the besis on which the licences will be awarded and the factors that will be ken into consideration. For example, competence, roll-out plans, technical proposals for the use of the spectrum, pricing and end-user pricing all set, of course, in the context of a business plan. ‘The fact that this leaves a significant amount of power with the government or regulatory body is seen by some ‘nore in favour of market forces) as a disadvantage, In any event, it does leave the government and regulatory body more exposed to claims of discrimination and a lack of twansparency. Nonetheless, the sttength and demand of industry for the relevant spectrum for the purposes intended by government may in itself be a determining factor in the choice between auctions and s Surely the headline in the Daily Telegraph (July 25, 2000) is one most governments would seek to avoid: “Dutch mobile phone bids fall short", A Common Starting Point Assessing the size of the market and the level of market interest in the spectrum and the type of service that govern- ‘ment wants provided on this spectrum. Of course, this latter point is one to be resolved by industry and government in tandem, ‘The results of market research and market analysis will be fundamentally important in deciding whether or not any auction would be successful. Of course, for an auction to be successful it is necessary to have a high level of industry interest in the licences. Market analysis is also essential to determine the level of any reserve price that should be applied to any licence and also for determining the size and number of regions to which the licences will apply and the number of licences that will be granted. This would also be time to consider whether or not a licence should be reserved for a new entrant (although this must, in the European Union, be considered carefully so as not to breach the requirement for non-discrimination). Which is Best? Common Arguments ‘* Auctions ensure a transparent and non- Tackling the Problems—Specific Proposed Measures Simplifying the licence application procedure ‘The Commission moves away from the current variable national licensing régimes by proposing the simplification of the licence application process. This is achieved by abolishing individual licenses and making all electronic communications networks and services subject to general authorisations,”* with specific rights of use being limited to the assignment of radio frequency and numbers only. Moreover, the Proposed Authorisation Directive establishes the principle that pro- viders of electronic comumnications nepworks and services 22 Gommunicaon fom dhe Commission, "ith Repor on the implemenzation of the Telecommunications Regulatory Package", COM (1999) 537, November 10, 1999, p. 13. 23 Proposed Authorisation Directive, pp. 2-3 and Amt. 1(1) 24 ibid, An 32). 25 ibid, An. 8 may only be subject to limited procedural requirements. This means that the undertaking concerned may be required simply to notify their intention to enter the market, but cannot be obliged to obtain an explicit decision or any other administrative act by the national regulatory authority before exercising their rights arising from the authorisation, Imme- diately after the submission of the notification, the under- takings will be free to start their commercial acivities.** In addition, it specifies that the notification referred to in paragraph 2 cf Article 3 will comprise merely a deciaration to the national regulatory authority of the intention to begin the provision of electronic communications networks and serv- ices. In addition, the information which NRAS may request under the notification procedure must be kept to what is strictly necessary, ie. entailing only the identification of the undertaking, contact persons, and a short description of the service to be provided 2" This provision will make sure that no excessive amount of information has to be provided as a prior condition for market entry and will eliminate the already identified practice in some Member States where under- takings are obliged to submit detailed business plans covering many years of the term of the license. Disentangling different categories of. conditions—Maximum list of conditions attached to the general authorisation and to the rights of use for radio frequencies and numbers The aim of Aiticle 6 of the Proposed Authorisation Directive is to further limit and harmonise the conditions which may be attached to the general authorisation for the provision of electronic communications services or networks and to the specific rights of use for radio frequencies and numbers. This, 1s achieved by establishing an exhaustive list of such condi- tions laid down in paris A, B, and C of the Annex of the Directive. Furthermore, it stipulates that all conditions must be objectively justified in relation to the service concemed, non-discriminatory, proportionate, and transparent?* In addition, it establishes the principle that specific obliga- tions—such zs obligations of transparency, non- ‘The Commission's commitment to transparent proce- dures when granting individual rights to use radio fre- quencies and numbers is illustrated in paragraph 2, ‘sub-paragraph 2 of Article 5 where it states that “such rights, of use shall be granted through open, non-° Finally, it provides, that reasons and purposes will be given by the NRAS in order ‘to justify their request for information.” However, the Proposed Authortsation Directive requires ‘Member States to publish and keep up to date any informa tion on rights, conditions, procedures, charges, fees and decisions regarding general authorisations, rights of use of radio frequencies and numbers, and rights of way.*® Although it is understandable that the target of this provision is to enhance transparency by ensuring that market Players, consumers and other interested parties have easy acess to the aforementioned information, it makes no cefer- ence to any Kind of protection of commercially confidential information. indeed, undertakings would be reluctant to provide NRAs with important data when they know that NRAs will be reguited to publish such information and, ‘consequently, competitors can get hold of their business secrets. This is particularly tue with regard to Article 11(1)(@), according to which NRAs are allowed to collect information for comparative bidding procedures for frequer- cies, for publication of comparative overviews of quality and price of services. As Vodafone AirTouch has put it: “Quality and price of services are two of the essential elements used by competitors to differentiate themselves in the marketplace. most operators, in particular mobile operators, already have quality of service obligations Forming part of theit licences, breach of which can have serious consequences. The ‘high churn rates in the mobile sector already demonstrate that end-users are aware ofthese factors. Vodafone AirTouch also questions the overall benefit of such publications in fast-moving, ‘competitive and innovative markets, such as the mobile ‘sector."°* 52 Proposed Authorisation Directive, Art. 5(3). 53 ibid, Ax, 11(1), sub-para. 2. 54 ibid, Am 11(1). 35 ibid, Act 11(1)(@). 56 ibid, Art. 11(1)(0), (@) and (@) 57 ibid, Ax. 11,2), 98 ibid, A 15. 159 Response of Vodafone AivTouch to the Working Dacuments of DG Infomation Society, May 2000, pp. 14-15, See also One~ 2-One's comments on the DG information Society Wotking Docu- ‘ments, May 2000, pp. 18-19; GSM Europe comamencs on the DG Informacion Society Woking Doouments, May 19, 2000, p. 8. In any case, even if Articles 11 and 15 do not refer to business secrets and commercially confidential information, a relevant provision shiould be included as a safeguard, in line with Amticle 5 of the Proposed Framework Directive, Reducing fees and charges Ithas been shown so fac that one of the major targets of the Proposed Authorisation Directive isto simplify the procedures and conditions for authorisation of the existing national réginees. Moreover, it has already been identified that the regulatory workioad involved in managing the heavy- handed licensing régimes has as a direct result the imposition of excessive administrative charges on operators. The target therefore is to reduce the administrative costs incurred by limiting the regulatory workload. Predictably enough, NRAS put forward the view that such an approach could lead to under-financed, non-inde- pendent and ineffective national regulators. As the Oftel and DTI response to the Working Document on the authorisation of electronic communications networks and services of April 27, 2000 has put it: “The scope of costs that can be recovered from operators needs to be expanded to cover all those associated with fuliling the objectives placed on NRAS by the new regulatory fiamework, not just the management, control and enforcement of the general-authorisation scheme. Without this, NRAS will continue to face financial short- falls for such activities as international representation and consumer-protection measures and so remain finan- ally dependent of state budgers."«° ‘Whereas the National Post and Telecom Agency in Sweden, (CPTS") states: “Ics of importance for an independent tegulatot that is, not state-financed to also in the future be able to cover its cost from administrative charges in order to ensure its independence. It must therefore be made clear that the administrative costs are not suictly related to the author isation process. The NRAS must be able to cover all costs, such as fees for participating in intemational organisa- tions and groups, and other duties that fall on the authority. In other words, that it can perform allits duties under E.C. (eg. costs incurred due to obligations accord- ing to the R&TTE Directive) and national law, imple- mented according to each Member State's constitution. ‘The [Proposed Authorisation Directive] should allow for this." However, although the Commission recognises the need to finance the activities of the NRAs in managing and enforcing the authorisation schemes and the rights of use, it proposes that the administrative charges should be limited to the minimum necessary, ie. covering only the actual admin- istrative costs for these activities.*? This will contribute 60 DG Information Society Working Documents—An_inidal response from the United Kingdom from the Department of Trade and industry, The Department of Cuture, Media and Spor, the Office of Tecommurications and the Radiocomumunications Agency, May 12000, pp. 20-21. 61 Comments ofthe National Fost and Telecom Agency in Sweden. (PIS) on the DG Information Socieyy Working Documents, May 2000, p. 6. ‘62 Proposed authorisation Direatve, Ar. 12(1)/a}. [Pool] CTL ISSUE 26 SWEET MAXWELL URETED AND CONTRIBLTORS]42 NIKOLINAKOS = PROPOSAL FOR AN AUTHORISATION DIRECTIVE : [2001] G.TLR. towards lighter national licensing régimes. Moreover, the target to increase transparency is satistied by requiring NRAS to publish annual overviews of the total sum of the charges collected and of the administrative costs incurred. In addition, the Proposed Authorisation Directive stipulates that an adjustment of charges has to be made in the following year if the total sum of the charges collected exceedied the expendi- tures of the NRAs.°> Itseems therefore that the aforementioned proposals can facilitate market enury and stimulate the development of competition. Further incentive to market entry is given by the provision that administrative changes sitould be distributed in proportion to the nimover on the relevant services of the ‘undertakings concerned as calculated within the last account- ing yeaz* In addition to that, small and medium sized ‘companies—ie. undertakings with an ansmual turnover for the relevant services referred to in paragraph 1(b) which do not exceed euros 10 million—are exempted from paying administrative charges.** ‘AS an exception to general authorisations, fees for the rights to use radio frequencies, numbers or rights of way can be imposed by the NRAs—in addition to administrative charges—in. order to ensure the optimal use of such resources. This discretion of NRAS to impose additional charges for the use of frequencies finds its application in the form of competitive biddings (auctions). It should be stressed that there are widespread concems about the fact that auctions can result in excessive charges for the players involved and that these charges are passed on to the con- sumer,*” The Commission's objective to ensure the efficient use and allocation of radio frequencies cannot be achieved since the imposition of such high charges is driven by national budgetary thinking, Ze. a policy with the sole aim being to maximise revenue. Therefore, the provision that such fees must be objectively justified and respect the prin- ciples of non-discrimination, transparency, and propottion- ality cannot be considered as adequate safeguards in this case. Modification of rights and obligations ‘The Proposed Authorisation Directive stipulates that Member States may need to amend rights, conditions, procedures, 65 ibid, An. 12,3). 64 ibid, Art 12(1)(b). For the opposite view, Ze. that fees should fot be proportional to uimover, see: Response of the Norwegian ‘Goverment to the DG Information Society Working Documents, May 29, 2000, p. 7; comments ofthe Finish Ministy of anspor: ‘and Conarmanications on the DG infotmation Society Working Doci- rmetis, May 2000, p, 3: Royal KPN N.V, comments tothe Woe Documents of DG information Society, May 2000, p. 18: Ministry Foreign Aflairs, Japan, commen's on the DG information Secety ‘Working Docurtents, ay 2000, p. 1; Helienic Teeear:munications Organisation (OTE) comments on the Working Doounens of DG Information Society, May 2000, p. 5; Telecom Austria comments «9 the Working Documents of DG tnformation Society, May 2000, pp. 88. 65 Proposed Authorisation Directive, Art. 12(2). 66 iid, Ar. 13. 67 See for instance: Motorola's response wo the :C Green Paper on Radko Spectrum Policy, Kp 7, 1999, p. 3; Nocwegian Adainista- tion's response 9 the questions in'the Green Paper on Radio Specttum Policy, April 1989, p. 5; comments of the Telecommunica- tions Administration Centre of Finiand (TAC) on the Green Paper of Radio Speciram Poiky, Apt 15, 1989, p. 8: response by the European Telecommunications Platform (ETP) to the Comassion's ‘Green Peper on Radio Spectrum Policy, Apel 10, 1999, p. 15; Exropeat Public Telecommunicadons Network Opeaiors’ Assocla- tion (ETNO), Reflection Docament onthe E. Green Paper on Radio ‘Spectrum Policy, April 1999, p. 8 Telia's comments on the E., ‘Green Papec on Radio Spectrum: Poicy, Apil 15, 1999, pp. 8-9. charges and fees relating to general authorisations and rights cof use where this is objectively justified. However, in order to create the necessary transparency, Member States will have to respect the principle of proportionality and to give timely notice of their intention to proceed to such amendments so that interested parties will have adequate time—at least four ‘weeks—to express their views.*® Nevertheless, it is obvious that the way Article 14 is drafted gives Member States complete discretion to alter the rights, conditions, procedures, charges and fees conceming general authorisation and rights of use. This can potentially prevent appropriate checks from taking place, especially ‘when a Member State decision on amendment of rights and obligations departs from the principles set out in the E.U regulatory framework and thus raises serious doubts with regard to the compatibility of the decision with Community Jaw. Therefore, Article 14 should explicitly state that the consultation and transparency mechanism set out in Article 6 of the Proposed Framework Directive should be followed prior to any amendments being imposed. This means that—apart from giving interested parties the chance to comment—the ‘Member States’ decisions to amend rights, conditions, proce- dures, charges and fees relating to general authorisations and Tights of use will have to be notifed to the Conwaission and will be published in draft. Noomally, these measures that ‘Member States invend to take will go into effect one month from the date of receipt of the aforementioned notication by the Commission.*? In addition, Member States will be required to publish their national consultation procedures”; when they communicate their draft measure to the Commis- sion, they will have to state the reasons and the grounds on which the measure in question is based”; and the Commis- sion will be able, if necessary, to requite Member States to amend or withdraw the draft measure in question. 7? Finally, Anicle 14 should make clear that Member States are required to ensure that a provider of electronic commmu- nications networks and services will have the right to appeal—at the end of the consultation process of Amice 6 of, the Proposed Framework Directive—against decisions by Member States to amend rights and obligations. Details regarding the appeal process and the nature of the appeal ‘body can be found in Article 4 of the Proposed Framework Directive. Conclusions Tt has been confirmed by the vast majority of the comments received in the course of the public consultation that, in view of the emergence of convergence, common principles should apply to all communications infastructure and associated services, irrespective of the types of services carried over them. In other words, networks should be governed by a single set of technologically neutral rules.”> This objective of 68 Proposed Authorisation Directive, Ac. 14 69 Proposed Framework Directive, Art. 6(4). 70 ibid, Ax. 61). 71 tid, An. 62). 72 Wid, An. 62). 73 DG Information Society Working Document, Subject: A common regulatory famework for electonic communications nedwooks and services, Anil 27, 2000, Chap. l p. 5: Commaunication Som the Commission, “The tesul's of the public consutation on the 1999 Coniaanicatons Review ard Orientations for the new Regulatory Framework", COM (2000) 289 final Apr 26, 2000, pp. 8 and 20: ormmunication fom the Comtmssion “Towards a new Framework fr Elecronie Communications inftstracnie and assccated servi- ces—The 1999 Commonictions Review." COM. (1999) 539, November 10, 1999, pp. 3 and 6; Commission Communication [Bo01] CLR. SSUE2 © SWEET & MAXWELL UNITED [AND CONTRIBUTORSNIKOLINAKOS : PROPOSAL FOR AN AUTHORISATION DIRECTIVE : [2001] C.TLR. 43 @ horizontal approach to all infrastructure and associated services will certainly be achieved with the introduction of the Proposed Authorisation Directive which states that it will apply “to all authorisations relating to the provision of electronic communications services and networks".”* Thus for instance, in relation to authorisation of transmission networks, there will be no discrimination between telecoms networks and broadcasting networks.”> However, ithas been, already ilustrated and explained why, when Member States decide that the granting of use for radio frequencies needs to be limited, priority should be given to public broadcasting as ‘well as to all those services and applications of high social significance which safeguard public interest objectives. Jn general, the Proposed Authorisation Directive will succeed in limiting to a great extent the large variations between the national licensing régimes. In particulay, it will contribute towards light licensing régimes by abolishing individual licences and making all electronic communications networks and services subject to general authorisations, with specific rights of use being limited to the assignment of radio frequency and numbers only. Furthermore, the fact that the administrative charges will be limited to the minimum necessary, ie. covering only the actual administrative costs, will aso play an important role in promoting lighter licensing régimes, Je will simplify the licence application process by subject- ing the providers of electronic communications networks and services only to limited procedural requirements. Thus no explicie decision and prior approval by the national regulatory. authority can be required; a notification of the intention t0 enter the market suffices while the information which NRAS may request under the notification procedure must be kept 10 what is stricly necessary. In addition, a systematic and regular verification of compliance with conditions attached to authorisations will be needed only when this is objectively justified and will be limited to those conditions identifed in the proposed Directive. reporting on the Results of the Public Consultation on the Con- vergence Green Papec. COM (1998) 108 EN Gnl, March 10, 1999, p. 2 and 9; Working Document of the Commission, summary of the ‘sults of the public consukation on the Convergence Green Paper, SEC (98) 1284, Jay 29, 1988, p. 30. 14 Proposed Authorisation Directive, Ar. 12). 75 It should be remembered here that. according to the Proposed Framework Directive: “electosic communications network means transmission systems and, where appicbie, switching or rung equipment and other ‘esources which permit the conveyance of signals by wire, by radio, by optical or by other electomagnetic means, including satelite nenrorls, Bxed (cireu-and packet-switched, including tnvemed) ‘and mobile terestrial neworks, networks used for radio and tele- vision broadcasting, and cable TV networks, respective of the type of informacion conveyed; electronic communications service means services provided for remuneration which consist wholly or mainly 4b the transmission and routing of signals on electronic commanica- tions networks, including telecommunicatons services and trans~ mission services in networks used for broadcasting, but excluding services providing, or exercising editorial control over, content ‘ranged using electronic communications neovodks and sen {ges." See also the Proposed Framework Directive, AM. 2. ‘The aim of transparency is achieved by introducing a further limited and exhaustive list of the conditions which ‘may be attached tothe general authorisation forthe provision of electronic communications services or networks and to the specific tights of use for radio frequencies and numbers. Moreover, the target to increase transparency is met by requiring NRAS t publish annual overviews of the total sum of the charges collected and of the administrative costs incurred. Furthermore, it provides security for market players by setting up time-linits and other procedural demands (such as those laid down in Articles 5, 7 and 10) in order to prevent NRAS from treating undermakings in a discriminatory way and to ensure that no excessive delays are introduced due to ‘bureaucratic procedures. However, as already illustrated, some provisions can lead to excessive regulatory intervention and thus legal uncertainty for market players. In particular, Article 7 allows NRAs to limit the granting of rights to use radio frequencies. Article 10 allows NRAS to adopt interim measures immedi- ately—even wien as a result of those measures undertakings are deprived of theit rights to operate—when there is an urgent need to act in order to prevent a serious threat to public safety, security or health. Moreover, Article 14 gives NRAs complete discretion to alter the rights, conditions, procedures, charges and fees conceming general authorisa- tion and rights of use. Therefore, the Commission has to state explicitly that the aforementioned provisions will have to follow the consultation and transparency mechanism set out in Article 6 of the Proposed Framework Directive. This means that the Commission will require NRAs to amend or withdravy any draft measures which are not in accordance with Com- munity law and in particular the provisions of Article 7 of the Proposed Framework Ditective’s; and, if NRAS have adopted measures on the grounds of exceptional circumstances (such. as those referred to in Article 10(4) of the Proposed Author- ‘sation Directive), they will immediately communicate them, alongside the full reasoning on which those measures were taken, to the Commission and the other national regulatory authorities. f the Commission cannot consider those meas- ures to be justified and compatible with the provisions of Article 7 of the Proposed Framework Directive, it will equire the NRAs in question to amend or abolish them.”” ‘This wil provide not only the necessary legal certainty but it will also ensure the same interpretation across Member States of the principles and objectives which underiine the E.U. communications régime, something witich will prevent the fragmentation of the internat market. 1 is submitted that, if the Commission can monitor effectively the implementation and enforcement of this Direc- tive, the heavy, lengthy and cumbersome national licensing régimes will become things of the past. This in tur will strengthen the intemal marker, facilitate market entry, stim- ulate competition, and encourage further investment and commercial initiative in the telecoms and multimedia sectors. 76 Proposed Framework Directive, Art. 6(4) 77 Bid, An. 6(5}, sub-paras 2 and 5. BOO] CTL. SSUE2 © SWEET & PUXWELL UNITED NO CONTREUTORS|NEWS SECTION: CONTENTS : (2001) C.TLR. Ni February 2001 COMPUTER AND TELECOMMUNICATIONS LAW REVIEW VOLUME 7 : ISSUE 2 : 2001 : ISSN 1357 3128 BROADCASTING Spain Digital TV and radio N-26 E-COMMERCE Belgium Domain Names—Belgian Domain Name System Adopts “First Come, First Served” Rule N-18 India Domain Names—tndian Domain Name Policy Opens Up. N-19 International Trade marks—Protection of Marks on the Internet N-20 New Zealand Proposed Legislation—B-commerce Law Reform N-20 Spain Royal Decree 1786/2000, of October 27, regulating the Interministerial Commission of Science and Technology N-22 Order of November 16, 2000, whereby the Ministerial Commission of Information Technologies and Communications within the Ministry of Economy is constituted N-22 Instruction of October 19, 2000, from the General Directorate of Registrars and Public Notaries, regarding the use of electronic signatares by Public Notaries and Registrars N-23 E-CRIME Australia Proposed Legislation—Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 N-17 EXPORT CONTROL United States Encryption U.S. Encryption Rules N-27 SATELLITES International Incelsat—Privatisation of Intelsat N-20 TELECOMMUNICATIONS European Union . Proposed. -Amended Proposal for Regulation of Uunbundled access to the local loop N-18 Spain Legislation—Order of November 6, 2000, establishing a mechanism for operator preselection in metropolitan cails for a transitory period N= 24 Legislation—Order of October 31, 2000, whereby particular conditions (POOH) CTL SUED © SWEET & MAXWELL LINTED (AND CONTHELTORS)Noi NEWS SECTION: CONTENTS : [2001] C-TLR. of the tariffs programmes of the metropolitan service and the new flat tariff for access to the internet during evening and weekends, are established N-2 Lesislation—Resolution of October 31, 2000, from the State Secretariat of Telecommunications and Information Technologies, specifying 3 specie numbering range for access toimemet services N22 is of October 31, 2000, prom at \e resolution ofthe Conmcsion for Beononil tats of Sotober 19, 2000, lifying the Reference interconnection Offer (RIO) of Telefinica de Espafia, S.A.U. (Telefonica) N-22 nterconnection—Administrative Resolutions and Other News N-23 United Kingdom Regulation— Application of the Licensing Directive 91/15/EC Ne-25 ‘Regulation—Local Loop Unbundling—Access Network Facilities Pposed Legislation Digging Up te N-26 pose -n—Digging Up the Streets N= 26 Regulation—Directory Enquiries Services N=26 Regulation—Unmeteted Intemet Access N-26 Regulation—Intesima Carrier Presélection N-27 Regulation—Price Controls N-27 MEASURES TABLE European Community Computing, Telecommunications and Related Measures N-28 [Reo] CLA. EU 20 SWEET & AXWELL UMTED [AND CONTRBUTORSNews Section Epitor ‘SIMON STOKES Tatle Lyons Landon EpiTror 2M. T MICHELE RENNIE Compuralw Edinburgh and London Country CORRESPONDENTS xyz mousron eons Spe Jaques Brisbane nee uanx sweDp0N Caves of Metourne Mebourne Austen MARTIN BRODEY Docda Brugge & Joris Briciam, Geert ota esl Caays Verbeke Bassels Braz ANTONIO CARIOS ¢. MAZzUCO Velrano © Advogades Assocados Sag Paulo Canapa ‘BARRY B. SOORMAN Mecarthy & Tésaule Throat Denanx PeRvtanon sci GaaSTiAN TH RJOLEYE Peoner & hinge Gopenagen France FREDERIQUE DUPUIS-TOUBOL, Jeamet et Assocs Paris TFRIC MORGAN DE RIVERY ‘KATE THACKERAY PASCAL CUCHE Siméon & Assocs Pas Gramany PETER. Brutus saga ‘Frankfurt am Main. = RICHARD LETTERMANN Wilkinson, Backer, Knauer and Quina Frankfort am Main KARL H. PIL. Coudere Brothers Berlin EDITORIAL BOARD AND COUNTRY CORRESPONDENTS: [2001] CLLR. No Eprroriat Apvisory Boarp HENRY CARR ‘barister London ROBYN DURIE Linklaters 6 Allance ondon CLIVE GARGRAS. O'swang London Gnexce LLEONIDAS KANELLOS Kokkas-Kanellos & Associates Atiens Honc Kone CONNIE CARNABUCI Mallesons Stephen Jaques Hong Korg, TOM HOPE Linidaters 8 Painos Hoag Kong RL PUN ‘Departmene of computer Science University of Hong Kong ‘PETER WATERS ‘MICHAEL REDE. Paul Weiss, Rifkiod, ‘Wharton & Garrison’ Hong Kong, Invi PRAVIN ANAND ‘Anand @ Anand New Delhi InstaND JARLETH BURKE ‘Esat Telecom Dubin ANNA MARIE CURRAN ‘AL Goodbody Solitons Dub Isrart IVR ELIIN-KORGN University of Haifa Rafa tay ANDREA VALLI CCsich, Libertini, Macaluso a Vali Rome PAOLD CERINA. Bose Casa «Assoc Japan ‘TeRvo Dot Waseda Universigy iyo Loxtmsours STEPHAN LE COUEEE Le Goself Law Office Exneembourg NrrHERanps SUMONE VAN DER HOP Eniversgy of Mburg ‘Tibucg CHRIS PARKER Digital Equipmen: Co. Limited Reading ELIZABETH ANN STATON Freshfields Bruckhaus Deringer Yendon PADL TAYLOR, orchacd london ANNETE orrow ‘YWOSNE SCHERS Houtholt Amsterdam New Zeatano KEN MOON, ‘AJ Pat & Son ‘Auckland EARL GREY SAMITHA DE SILXA Simpson Geerson ‘Auckland Norway EIRIK JENSEN Sg: Advotatiom as Sincarore ALBAN KANG ‘Alban Tay Mahan & De silva, Siogapore ‘Sourn Arnica, MARCO VAN DER MERWE, ‘Spoor and Fisher Pretarks, ‘ALMUDENA ARPGN DE MENDiMI. Gomez-Acebo & Pombo Made Sweven Ryan & Carscen stockholm Swirzertanp MARTIN LANZ Schellenberg & Halsey axles Tarwan HUBERT HSU Hubert Hsu & Associates ‘Twan Trananp DAVID TOOK Unirep Kincpom ROBYN DERE Tinklsters & Paines (© SWEET ke MASCWEL UNITED [AND CONTRIBUTORS conor waRD ove White Durrant ondon ALAN WHITeTELD Solitor Br London “nm jounsox JACQUELINE HURT 5] Berwin & Co. London ‘SIMON JONES, BLA. Birmingham HEATHER ROWE ‘CONOR WARD. Lovel White Durant anon NIGEL STAM? Baker 6 Mckenzie London usa [RICHARD H, STERN Abjondl, roster, Sobin & Davidow ‘Washington DC JUsmnvT. BOOKEY ‘Wilkinson, Barker, Knauer & Quinn ‘Washington DC Jou R xaNG nobbe, Marens, Olson & Bear [Newport Beach alienia JOHN SWINSON ‘Mallesons Stephen Jaques Brisbane ru ANDREAS BARTOSCH leis Hoo Luc & Hissch Brossels SIMON M. TAYLOR, Norton Rose Bruseels [ROGER TUCKETT ‘Hermes Europe Rael BY BassesNov EDITORIAL BOARD AND COUNTRY CORRESPONDENTS: (2001] C-TLR. PUBLISHING ctir@sweecandmaxwellco.uk This journal should be cited as [2001] C:TLR. 000 ISSN 1357 3128 Published by Sweet & Maxwell Ltd ‘Typeset by Interactive Sciences Ltd, Gloucester Printed and bound in Great Britain by ‘The Headway Press, Reading CONTRIBUTIONS ‘The Editorial Board welcomes contriburions ta the Law Review All ‘material should be submicced in ‘typescript form, on Ad paper in double line spacing. together with a disk if available, and sent to: Greg Smith, CLLR. Sweet & Maxwell Led 100 Avenue Read London NW3 3PF United Kingdom ‘Telephone: 020 7393 7000 International: +44 20 7393 7000 Faxc 020 7393 7333, International: +44 20 7393 7333 SUBSCRIPTIONS AND ORDERS ‘Annual subscription £310 (US$533) plus £13 airmail poseage outside Europe for 8 issues plus Index. Bound Volurne Service is £95 (USSI57) exea, Sweet & Maxwell Led Subscriptions Department FREEPOST Andover Hants SPIO SBR United Kingdom DX 120950 Andover § “Telephone: 01264 342766 International: +44 1264 342766 Fax 01264 349723, International: +44 1264 342761 © Sweet & Marcwell Led 2001. All rights reserved. UK. statutory material inthis publication is acknowledged as Crown copyright. No pare ofthis publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval systom of any nature ‘without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material including permission to reprodues extracts in other published works shall 'be made to the publishers. Full acknowledgement of author, publisher and source must be given. (GSWEET & MAXWELL LISTED [AND CONTRIBUTORS][NEWS SECTION: NATIONAL REPORTS : [2001] C.TLR. N= 17 Nationa. Reports Eery E-CRIME Introduction Proposed Legislation Abill has recently been introduced to the Senate to amend the Criminal Code Act isla eS (coh) ihe Ceminal Code’). [eaims 20 create a more modern and transparent eme for offences such as and fraud occurring lectronic means, to Cipla Armin he Fe ey md ifficulies relate tothe geographical jusdiction of federal criminal law and 1 simply the saute books by repealing over 250 offences. Is anucipated that the Bill will close many gaps which curently exist in the legislation in relation to ‘e-crimes such as fraud and forgery and a loophole left open by the High Court's decision in Mich v. R. (1987) 162 CLR. 110. In the words of the accompanying explanatory memorandum, “[i]t is important that those who use new technology fp dishonesly take the property of oes do not avold resection because the Tanguage of the relevant offences is outdated”. Geographical jurisdiction Zhe Bil proposes to extend the ution of Australian cours for certain fences. Offences will refer to the following categories: + category A—which will cover Australian citizens and Australian registered companies for what they do anywhere in the world as wel as crimes partially comcnitted in Australia by anyone; s axegory B which will exed category A crimes to residents of Aus- tralia; # category C—which will cover simations where the offence occurs anywhere in the world by anyone, but if the acts committed are not a crime in the foreign country and the person is not an Australian citizen (or an Australian registered company), Australian courts will not have jurisdiction to ty the offenders; category D—which will cover crimes done by anyone, anywhere. ‘These changes will extend the reach of Australian authorities for certain cross- border crimes, including those committed over the internet. National infrastructure "The Bill proposes the introduction of a new chapter into the Criminal Code to deal with the protection of the Australian “national infrastructure”. An offence of general dishonesty by an individual (whether a person or a company) with zespect toa "carriage service provider" will be created. “Carriage service provider” has the game meaning as in the ‘elecommunications Act 1997 (Cth). The definition includes major telecommunications providers as well as persons who offer to supply, for reward, a link of more than 500 metres from one place to another by electromagnetic energy. This definition would include intemet service providers (IsPs"). ‘The chapter will also cover situations where a “thing” is sent or caused to be sent in an “electronic communication”. Although “electronic communication” is not defined, the explanatory memorandum provides it “is intended to describe any ‘communication by electronic means, for example by telephone, fax, or telegram, by wire, cable or radio or through the internet or a closed computer network”. The “thing” must be sent within Australia, from a point outside Australia to a point in ‘Australia or from 2 point in Australia tc a point outside Australia. it appears that the intention is to exclude broadcast wansmissions, but an e mail to many recipients could fall within the provisions of the chapter. ‘The Bill creates offences designed to protect the interests of cattiage service providers, In broad terms these offences ate for dishonestly obtaining a gain from a camtiage service provider and dishonestly causing a loss to a carriage service provider. The offences cay a maximum penalty of five years’ imprisonment. Forgery and fraudulent conduct Due to the increased incidence of fraud in electronic transactions, the Bill proposes tocextend the definition of “deception” to include intentional as well as reckless acts ‘BO01) CTLA.SSUE2© SWEET & MAKWELL UMTED [AND CONTRBLTORS,N~ 18 NEWS SECTION: NATIONAL REPORTS : [2001] CLR, ‘where a person causes a “computer, a machine or an electronic device to make a response". The Bill also proposes to extend the definition of “information” to cover electronic information. This is intended to keep the definition technologically neutral and align the Criminal Code with the Electronic Transactions Act 1999 {Cth}. The definition of “document” is extended to include computer coding. in operation, these extensions of the relevant definitions wil mean that a greater range of conduct will be caught by the existing provisions. Property obtained because of fundamental mistake ‘The Bill proposes to extend the definition of theft to cover the situation where @ person: ‘© withdraws or uses for a purchase more money from an ATM or intemet bank account than they have at the time of the withdrawal/purchase; and does not know ofthe exor at the dime but finds out about the err later an © decides to keep the property. ‘The intention is to close the loophle created by the High Court decision in lich ». R. (1987) 162 CLR. 110, which held that where a person obtained property under a fundamental mistake which was discovered after obtaining the property, the conduct did not amount to thet. Comment ‘The proposed amendments display a commitment on the part of the Australian government to ensuring that existing protection provided by the Criminal Code is ot eroded by developments in technology, Although the cinnal laws as they ANNE ETZGRRALD currently stand have been used to successfully prosecute e-crime (such as the use ‘GADENS LAWYERS of spam mail tc promote company shate prices), these amendments will clarify BRISBANE unsettled issues and facilitate e-crime prosccution. ELECTRONIC COMMERCE ‘The Belgian non-profit organisation DNS.BE, which is responsible for granting all domain names inthe“ be" domain, has abolished is esteceve rules on obtaining Domain Names “be” domain names. Under the former rules, DNS.BE only granted a domain name ‘to merchants or legal entities ifthe domain name corresponded to the applicant's, Bein cman name mem ates scone fst —«tTade mark, trade name or corporate name. served” nde From December 11, 2000, any physical person or legal entity may apply for ary domain name Gonec name, names of physical persons, and geographic ‘names will be accepted for registration by the first applicant. The Belgian rules will be similar to those applicable to the generic top-level domains (gTLDs) *.com", “net”, and “org” and to several country code tep-level domains (¢cTLDs) that have also simplified their registration rules. Tp avo preg or cybetsquating, DNS.BE has taken two precautions, Fist domain names will be personal to the applicant and will not be wansferable unless underlying assets are also transferred. Second, DNS.BE will enter into an arbitra- tion agreement with a Belgian or international arbitration authority. Trade mark owners may slatl an arbitration procedure to obtain the tansfer or Cancellation of a domain name that is identical or similar to their trade mark, that has been registered in bad faith and in which the domain name holder has no legitimate interest. IEREMANS ‘The Belgian government is currently developing a legal framework to brin nulay's even domain name disputes before the commercial or civil cous by way of injunctive BRUSSELS, relief proceedings. Scie TELECOMMUNICATIONS On November 23, 2000 the Commission published an amended proposal for a oan ‘egulation of unbundled access to te local oop, The European Fariament adopted Proposed Legislation a Diock of 18 amendments which the Commission has accepted in ful. ‘The amendments effectively fesh out the Regulation to make it clear that Arend popes regen ef wnndec ccs «operators should provide information on unbundled access to thitd parties under tebe ap the same conditions and the same quality as theix own services or those of associated companies or partners. ‘The Regultion wll apply to al operators with ignifcant market power inthe provision of fixed networks. [Po0!] CTL BSUE2 © S WERT & MAXWALL LEITED AND CONTRIBUTORSROBYN DURIE LINKLATERS. LONDON NEWS SECTION: NATIONAL REPORTS : [2001] CLLR. N= 19 Operators are reqpited to publish from December 31, 2000 and to keep updated a reference offer for unbundled access and related facilities and fiom that dete to take reasonable requans ftom other operators for unbunded acres under ‘transparent, fair and non- tory conditions. Any refusais must be on the basis of objective ctlteria relating to technical feasibility or the need to maintain network integrity. Prices must be set on the basis of cost orientation. National regulatory authorities will have the power to impose changes on the reference offer including relating to prices and to require operators with sigalécant market power to supply information relevant to the implementation of the Regulation. They can intervene on their own initiative, or where requested to ensure non-discrimination, falr competition, economic efficiency and maximum benefit for users, ‘When the local access market is sufficiently competitive, operators with significant market power will not be required to accept prices on the basis of cost orientation. ‘The Annex to the draft’Regulation sets out a minimum list of items to be included in the reference offer. It was expected that the Regulation would come Into force by December 22, 2000. ELECTRONIC COMMERCE Domain Names Inen cersin rome pkey apes up SHAMNAD BASHEER, ANAND AND ANAND Ina rather unexpected move, Indian domain name policy has been amended with effect from September 18, 2000. With this amendment, even foreign corporations ‘with no business entity/presence in India may register their domain names here. Earlier policy ‘ade the eal poly, twas exe dificult fer a foreign corporation to have a domain name registered in India. The policy required that for a registration under the co.in sub-domain (which was the relevant sub-domain in so far as commercial organisations were concemed), the applicant entity should have a physical presence in India in the form ofa branch offtce/lialson office. More specifically, the significant changes are as listed below. Addition of new sub-domains New catgores of sub-domains such as gen.in, fimin and indin have been added. (_ind.in is for the benefit of individuals only; the only qualification for this sub-domain is that the name cannot be generic in nature, (ii) A new sub-domain gen. in has been created specifically for entities that are tunable to meet the strict requirements for a co.in registration. Thus even foreign corporations with no presence in India can avail themselves of this main, (ii) firm. in has been created for shops, partnership fioms and foreign corpora~ tion’ having their branch/liison office in India. Previously, only foreign corporations with a branch/iaisen office could avail themselves of the co in registiation. However, under the amended policy, the co.i7 sub-domain is only available for business entities that ae incorporated in India, and not for mere ranchflaison offices. ‘The local server requirement Further, the earlier requirements that the name server be physically present in India and that the applicant entity have permanent internet connectivity through an internet service provider (ISP) located in India, have been done away with. Under the amended policy, the server as well as the ISP can be located in any jurisdic- ton. Conclusion From its inception, Indian domain name policy has been uncleat and has fluctuated frequently twas only after repeated representations thatthe National Center for are Technology (NCST, the domain name registrar in India) finally decided to liberalise the policy and create new sub-domain names to cater for entities that were not able to fulfil the strict requirements under the earlier poli Tn a country reputed to be one of the world’s software leaders, this amendment is seen as a postive step which will enhance India's image as a key player in the internet economy. [aie CTL isUeR © SWEET & MAXWELL LMTED [AND CONTRBLTORS]N= 20 NEWS SECTION: NATIONAL REPORTS : [2001] CTL Pie ELECTRONIC COMMERCE Trade Marks Preeton of mason the erat SATELLITES Intelsat Phatsaten of tot ROBYN DURIE LINKLATERS, LONDON E-COMMERCE Proposed Legislation Cemnere fon rern At a meeting in September of WIPO's standing committee on trade marks, agreement was reached in principle on draft proposals setting out intemational Guidelines on the protection of trade marks and other distinctive signs on the intemet. The proposals are intenéed to be finalised next March and may be fomnally approved by WIPO in September 2001. ‘The basic principles in the proposal ate that intellectzal property law should apply to the intemet. The provisions will only apply to claims ifthe use of the sign has a “commercial effect” in the WIPO Member State. This will be judged by the level and character of commercial activity of the user in relation to the country, such as whether the user is acwally serving customers in that country, the connection of the offer of goods or services in the country and the relationship of the website with the country. If the use of a sign on the intemet in a WIFO Meniber State nfinges an intellecwal propery dght in a mark or other sigu in that county, the intemet user will not be held liable for infringement prior to receiving notification of infringement if the user proves that he owns a sign in another member WIPO country, ifthe sign was not acquired in bad faith and that contact Getails are provided on the website where the sign is displayed. Ifa notification of infringement is reccived, the user will not be held liable if steps are taken expeditiously to avold commercial effect in a Member State where the infingement notice is served end to avoid confusion with the owner of the conflicting right. Permanent injunctions will not be awarded if the infringer owns imulecsual property rights in another WIPO Member State and there i no bad Intelsat ‘he Intelsat Assembly of Fates has unanimously agreed tothe privatisation of intelsat, A new holdin; company, Intelsat Limited, will be created based in Bermuda which will hold all of the assets, labllies and operations of the current inter- governmental organisations. The privatised entity will have a clear set of public ‘commitments including global coverage and connectivity, continuity of service to “tifeline” customers and non-discriminatory access to the Intelsat satellite net- works. Intelsat will continue to be based in Washington and the United States will be its licensing jurisdiction, aside from three bands including Ka, and BSS, for ‘which the United Kingdom will be the relevant jurisdiction, The privatisation will complete in July 200% with an initial public offering to take place during the frst ‘year of operations. As yet, no special purpose e-commerce is in effect in New Zealand. However legislative reform is underway in various areas, the most important being the Electronic ‘Transactions Bill which was introduced to Parliament in November 2000. The purpose of this {aw is to remove any legislative impediments to electronic transactions and, where possible, to remove any uncertainty at law ‘which might arise when tansactions are caied out electronical. ‘The Bill is based on the 1996 Model Law on Electronic Commerce issued by the United Nations Commission for Intemational ‘rade Law (UNCITRAL) and two sepons produced by the Law Commission on electronic commerce. 1c has many similarities with the Auswalian Elearonic Transactions Act 1999. ‘The scope of the Bill is quite broad in that it will extend to all electronic transactions and electronic records, whether ‘commercial or non-commercial. The ‘most important function of the Bil is to modify all other legislation requiring documentation in writing, written signatures and the retention of paper docu- ments. ‘There are a large number of exceptions to the general rule of making electronic documents and electronic signatures acceptable. Wills, affidavits, negotiable instru- ments and bills of lading ‘will still need to be in writing and signed in che conventional manner. Statutes relating to elections will not be affected, along with numerous statutory provisions requiring the giving of written notice. Land title registration documents are also excluded. The exceptions may be amended by regulation. Itis not intended that anyone be compelled to accept electronic documents, as the provisions in the Bill alow e-technology only if i is functionally equivalent to [Bool] CTL she 2 © Swe & HRCA, LEFTED [AND CONTRRUTCRS)KEN MOON ALJ. PARK &e SON Ban TELECOMMUNICATIONS Legislation Orie of Novia & 2000 etabiting 2 mech fo ‘pesca preston in mevopolizn cals oe toniary pete NEWS SECTION: NATIONAL REPORTS : [2001] C-TLR. N= 21 \writing and the recipient has agreed. This s in contrast to the Australian Act, where Federal government entities are compelled to accept electronic communications and signatures. In-outline, the Bil will: tL Provide no transaction be denied legal effect merely because it is electronic in form; 2, allow information which is required by statute to be in waiting to be provided in electronic form; 5: allow statutory requltements fo a signature to be satisfied by an electronic equivalent, 4. allow documents which are cequited to be produced by statute to be produced in electronic form subject to data integrity requirements; 5, allow records to be made and kept in electronic form whether the original tTansaction was electronic or pape based 6. provide default rules on time and place of sending and receipt of electronic communications. ‘The Bill differs from its draft form in not including provisions limiting the liability Of internet sevice providers in elation to information they store or tans. ‘The Bill is deliberately “technology neutral” and for example does not require that an electronic signature be digttal in form. It does require an electronic signature to acequately deny the signatory and therefore doesnot validate acceptance of an online contract by the clicking of a “button” displayed on a web browser (as is the case under the US. E-Sign Act) Other e-commerce law reform inkiatives include: ‘© Model Code for Consumer Protection; Taxation Review: © Crimes Act Amendment Bill—anti-hacking and government interception; # Evidence Code—electronic records; ‘ Securities Act amendments—cross-border offers; Privacy Act amendments—safe harbour for European data. Following Royal Decree Law 7/2000 of june 2, this Order: ‘Tegulates the conditions. for complying with November 15, 2000 28 the date on stich preselection ih ‘metropolitan calls becomes possible, iven that as at this date it was not possible to preselect diverse operators for different destinations, this item of regulation establishes transitory conditions that shall apply until such date as preselection becomes possible. ‘According to the Order, for metropolitan calls: (@) Users may choose in advance, through preselection, either the operator who owns the local network or the operator already preselected for long distance calls and fxed-mobile cals. (b)_Where there is no cholce, it wIl be deemed that the operator chosen is the owner of the local network. Order of October 31, 2000, whereby particular conditions of the tariffs programmes of the metropolitan service and the new flat tariff for access to the intemet during evenings and. weekends, are established Tals Order effectively develops article 4 of Royal Decree Law 7/2000, in which the first expression of the advariced liberalisation policy of the new Government was set out, through the obligation imposed on dominant operators of implementing {wo tariff programmes for metropolitan calls and a new tariff for access to the internet. ‘Accordingly, particular conditions for the following programmes are hereby established: (@) "Plan Metropolitano I", for metropolitan calls (€4.20 for the first 600 minutes during evenings and weekends). (©) “Plan Metropolitano I", for metropolitan calls (€8.41 for the frst 600 minutes during the day). (©) “Plan Tarifa Plana J para Acceso a Intemet”, for access to internet calls {€16.52 for al calls made during evenings and weekends). [Boo] CLA ISUE2@ SET A MACHEL LATED [AND CONTRIBUTORS,N~ 22. NEWS SECTION: NATIONAL REPORTS : [2001] C-TLR. ELECTRONIC COMMERCE Rope Decree 17842000, of Caer 27. reing oe Ineriineel Commis of Soca end elvaegy Order of October 31, 2000 promulgating the resolution of the Delegate Commission for Economic Affairs of October 19, 2000, modifying the Reference Interconnection Offer (RIO) of ‘TTelef6nica de Espafia, S.A.U. (Telefonica) “The measures introduced by this Order establish the necessary proportionality between tariffs to users and interconnection rates, especially as a result of the restructuring of the tariffs system approved by the Government. ‘The measures are as follows: {@) Telefnica shalt offer ro other operators interconnection points in switches associated t each tariff district. If the origin and destination of a certain metropolitan call correspond to subscribers connected to local switches in the same tatif districts, the interoonnection rates for such call will be the fol- Ordinary Reduced Access 2.25 ptasimin | 1.76 ptas/min Termination 2.25 pasmin | 1.76 ptas/min ‘These prices are higher than local interconnection rates, but lower than simple ‘transit interconnection rates. (b) Discouris in local and metopotan interconnection rates are approved, on the basis of the trafic effectively generated. (0) New iteconnecton prices ae approved fr access to intemet calls during the hours with reduced tariffs, as fol Local Simple transit Access 1,850 ptas (flat) | 2,500 ptas (flat) Fermination 350 ptas (fat) | 450 ptas (lat) ‘The CMT may also propose changes to this structure, so that in the future interconnection tates may be based on Telefonica’s available capacity, rather than on call duration, thus promoting a more efficient competitive framework as well as, higher investment in local networks. It is likely that the CMT will exercise this, facility during 2001. Resolution of October 31, 2000, from the State Secretariat of ‘Telecommunications and Information Technologies, specifying a specific numbering range for access to internet services ‘This Resolution also develops the above-mentioned Royal Decree Law 7/2000. It reforms the pre-existing situation, in which telephone calls to internet, services were made by dialling geographic or IN numbers. This had the dis advantage that the growth of such tafe could have an adverse effect on the uaty ofthe telephony servic. werefore, it was decided to grant to this service specific numbering ranges: codes 908 and 909. "the aim of this Royal Decree is the establishment of a revised composition for the Interministerial Commission of Science and Technology, following the admin- istrative restructuring ellected through Royal Decree 557/2000, after the general elections of March 2000. ‘This Commission is responsible for the general co-ordination of governmental policy relating to, amongst other furictions.. Order of November 16, 2000, whereby the Ministerial Commission of Information Technologies and Communications within the Ministry of Economy is constituted By means of this Ministerial Order, 2 new governmental body, the Ministerial Comission of Information Technologies and Communications, is constituted and [POOH] CTL ISSUE © SYST & MAXWELL UNITED [AND CONTRIBUTORS]‘TELECOMMUNICATIONS NEWS SECTION: NATIONAL REPORTS : [2001] CTLR. N= 23. charged with the duty of elaborating the policy of the Ministry of the Economy as cs information technologies and communications, through instructions and fuldelins, as wel as the promotion, approval, follow-up and assessment of te informatics and communications plans and projects from the different centres and entities in the Ministry of the Economy. Instruction of October 19, 2000, from the General Directorate of Registrars and Public Notaries, regarding the use of electronic signatures by Public Notaries and Registrars Public commissioners, such as registrars and public notaties, have been very active in encouraging the use of new information technology. Their goveming body has issued an instruction dated October 19, 2000, cegarding the use of electronic signacures when exchanging information amongst themselves and when address- ing any official notices to the General Counsel of Notaries, the Spanish Registrars association or to any public adrninistration entity. The main features ofthis regulation are the following, (a) Public notaries and registrars are obliged to have an e-mail address for the exchange of official communications, which shall be notified to the General Council of Notaries and the Spanish Registrars Association. (b) These governing bodies shal become authorised certification services providers for the sole purpose of issuing electronic certificates by which the identity, professional status and administrative situation of theit members shall be evidenced. (©) Public notaries and registrars shall obtain from their respective governing body, a new advanced electronic signature, Interconnection, Administrative Resolutions —_{i) /nterim measures on interconnection rates and Other News 1m recent issues of this publication we referred to the CMs resolutions dated July 27, 2000 and September 28, 2000, where, at the request of Lince Telecomunica- clones, SA and Retevisién I, SA respectively, it was decided to impose on the incumbent cperte, Telefonica, inter measuies consisting of applying, to nur dpezs corresponding to those intemet access services rot third operators, interconnection rates not exceeding the price offered by Telefenica's subsidiary Terra to its final users, e. 2,750 pesetas. “These resolutions are now confirmed by two resclutions dated November 2, 2000, resolving appeals of Telefonica and Retevision 1, SA. In the case of Retevision, it has been clatified that Telefnica shall provide such interconnection Fates to those operators whose users are calling using any of thelr indirect services, not only the metropolitan ones. (i) News files ‘At the request of Retevisin, new administrative files were opened within the CMT agzinst Telefonica on November 27, 2900: Retevisin argued tht Telefénica had refused to provide said company with the necessary interconnection capacity to offer local telephony and the fat taciff for internet during evenings and weekends. “This was deerted by Retevision as a breach of the RIO, which sets forth a certain term (75 days) for the inctease by Telefonica of its interconnection capacities. ‘These files ate still pending definitive cesolution. Local loop As stated in Royal Decree Law 7/2000, unbundling of the local loop was expected to be effectively achieved by January 1, 2001. According to certain statements made by the Minister of Sciencé and ‘Technology, the Administration was to be very vigilant on the achievement of said goal by such date. However, an intense debate is now un as tegards the price to be paid to the local network operator for the lease of the loop anid, moreover, representa- tives from the incumbent Telefonica have stated that by such date only certain tests would have been canted out. ‘The fnaf regulation on unbundling has not yet been passed. Mobile telephony General ‘The Spanish Government approved on November 10, 2000 some measures aimed at enhancing competition ia the mobile telecommunications market, as follows. [ol] CLR ISSUE © SWEET & MAKELL LIED {AND CONTRBUTORS)N= 24 NEWS SECTION: NATIONAL REPORTS : [2001] CTLR. BROADCASTING MANUEL CRESPO. ALMUDENA ARPON DE MENDIMIL {a) Regulation of mobile virtual network operators (MVNOs): MVNOs have een authorised by the Government, and they will be subject to a gpecitic regulation by the Ministry of Science and Technology before the end of 2000. However, the existence of a statute for such MVNOs does not imply the obligation of mobile network operators to reach agreements with these service Providers, thus suc agreements wil only depend upon the mucval agretrent etween the patties. (b) New mobile licences: the Government decided to call a tender process, early in 2001, to grant two more licences for the establishment and operation of 2 DCS-1800 mobile telecommunications network, with the possibility of & later migration to the UMTS standard or of a qualified position for any subsequent UMTS tender process. Apparently, the granting of new UMTS licences should wait, at least. until UMTS operators start providing their services in the market (August 1, 2001), when an assessment should be made as to whether the frequencies allocated to them are being efficiently used. () Portabilicy ‘Two resolutions from the CMT have been made definitely Bxing a date for the implementation of portability amongst mobile operators: {a) Resolution of November 8, 2000: Airtel, one of the dominant mobile operators, requested the suspension of the obligation to implement mobile portability by October 8, 2000, once this term had elapsed. Such suspension ‘was refused, and an urgent procedure was opened in order to determine the cate and conditions according to which mobile porability had to be effective in Spain, with the necessary cuality guarantees for end users. At the same time, by means of this Resolution, an informative fle was opened to assess the cegree of breach of the CMT’s Resolution of June 8, 2000, which established October 8, 2000 as the final implementation date. {b) Resolution of Novernber 15, 2000: following the above, November 25, 2000 was definitely established as the date as of which mobile portability was effective in Spain, once the necessary tests by mobile operators have been completed. (ity Pre-selection Although the Regulation on Interconnection and Numbering, approved through Royal Dectee 1651/1998, established December 1, 2000 as the as of which mobile preselection for intemational calls had to’ be implemented, such imple- mentation has not been effected by the dominant operators in this sector (Telefonica Servicios Moviles and Airtél), due co interconnection conflicts and the difficulty of reaching pricing agreements amongst mobile services providers. Digital TV and radio On November 24, 2000, the Government resolved the public tenders called in March of the same year, for the award of two concessions of digital terrestrial TV (DTT) for the explitation of one channel each (to be added to the 14 channels already exploited by the platform Quiero TV), as well as of two further concessions of cig cadio (10 were already granted March 2000). The awardees have been 3¢ follow ()orr (@ Net TV: E-Media (25%); Pantalla Digital (24%): Viaplus (18%); Buro- producciones (9%); Radio Intereconimfa (8%): SIC (7%); TFI (79); Dinamia ‘Telematica (2%). . (0) Veo Televisién: Bof Media (25.5%); Unedisa (25.55 ‘Torreal and Inverstones Suizas (15%); others (14%) berdrola (20%): (li) Digital radio (@) Comeradisa (Correo Group), (0) Grupo Godé de Comunieacién, [POOH] TLR. ISSUE 2 @ SWEET & MAXWELL UMITED [AND CONTRIBUTORSUNITED KINGDOM ‘TELECOMMUNICATIONS Regulation Apia oe Ucnsrg Dincive PSEC Rv Secrewry of Sate forTade nd hcg (CeangePorsoal Cormmuticons Services Line soc moter TELECOMMUNICATIONS Regulation (ee top wbncing cee nate es spre NEWS SECTION: NATIONAL REPORTS [2001] C-LLR. N~ 25 Application of the Licensing Directive Inthe case of R. x. Secretary of State for Trade and Industry, ex p, Orange Personal Communications Services Limited and another, Mc. Justice salivan of the High Court held that if Parliament was amending rights granted in primary legislation By secondary legislation, Parliament should be told. ‘At the end of 1999 all U.K. telecommunications licences were amended to ensure compliance with the E.U. Licensing Directive (97/13/E.C.). This was done by making regulations under section 2(2) of the European Communities Act 1972. ‘The U.K. “Telecommunications Act 1984 creates a detailed licence modification procedure, which is impermissible in form. However the judge held that in gubsance they operated as a mandatory potion fer the bene of Hcene- oiders. By amending the licences by the statutory instrument, these procedures were being amended. Parliament had not been told and so the applicant was successful in judicially the decision to modify these provisions. Accordingly the amended Condiions $6 and 564 of the applicants! Hcences were hel! to be unlawhil, “The U.K. Department of Trade and Industry is now considering whether or not all such licences or whether new zegulations will be needed relating to all individual ‘Telecommunications Act licences to give effect to the decision. On November 23, 2000 OFTEL publisied a proposed determination of the terms of. an access network facilites (ANF) agreement. Access network facilities are those necessary to use BT's local loop and the provision of exchange space and o:her associated facilities. Under condition 83.19 of BT's licence BT is required to provide these facilities only on terms and conditions which are reasonable. In the event of adispute, either pany can seek detention from the Director General of Telecommunications SOREL’) There were five substantive issues for determination: « allocation of co-location space; © BT's contractual commitments, including its exclusion of liability: ‘© imposition of certain restrictions; withholding of information about resources; and # a general complaint about “quality”. The consultation remained open until December 20, 2000. The draft determination takes into account the proposed E.U. Regulation on local loop unbundling and condition 83.24 of BT's licence in respect of undue preference and undue dis- crimination, Each of those issues is examined below. Co-location space OFTEL proposed that the operators can ask an expert to check BT's statement that To spar fe available fo. cerlcauon. His decision woold be binding, BT will be ‘made subject to a positive obligation to provide space and to compensate operators forloss, including loss of revenue, if tae expert finds space is available. The expert can also examine BT's costs. Contractual obligations ‘The Director was of the view that BT should be contractually bound to meet specific timescales and commitments for making available other sites, including construc- tion work, repair and maintenance of cables and quality of service, BT must also meet the sare benchmarks and targets as it sets itself when providing an equivalent service, and in this regard the burden will be on BT to show what these are and whether they have been met. Standacd compensation will be set and if there are recoverable losses beyond this amount the other licensed operator may sue, Liability should be capped at £2 million for one event and £5 million for any exchange in one yeat. There is no liability for an operator's customers’ economic loss. BT will also’ be able to recover a reasonable proportion of the open market pretium fora reasonable level of cover against losses arising from the 20:5 Of omissions by OLOs. Restrictions in the agreement OFTEL agreed with the shared use of backhaul circuits. The prohibition on sub- letting was reasonable, but operators with a licence should be able to provide [Roo ELA. SSUEZE SWEET & MAXWELL UMITED [AND CONTRIBUTORS]N~ 26 NEWS SECTION: NATIONAL REPORTS : [2001] CLR. TELECOMMUNICATIONS Proposed Legislation Dieta up the sees TELECOMMUNICATIONS Regulation Deery enue series ‘TELECOMMUNICATIONS Regulation ered inemetoxeet services to other OLOs and to transfer the licence by agreement. On transfer BT ‘would be able to seck an upward review of the licence fee, but only to market value, and the wansfer would take the form of a novation rather than an assignment. The licence of co-location facilities should be unlimited in time or -granted fora period of 10 years, subject to the OLO actually using the space for the Purpose of local loop unbundling, BY continuing to be legally obliged to make space available, material breach or direction by the Director. Withholding of information BT will need to make available che information required by the E.U. Regulation concerning location of exchange sites, access and plans of its sites. Quality of offering ‘The general allegation that the ANF agreement was obscure and unclear was not found tobe juste. Some clarification will be made and BT is to draft the precise words meeting the terms of the determination by January 2, 2001, ‘The Department of the Environment, Transport and the Regions has issued a onsutation paper proposing to activate secon 74 of the Reads and street Works Act 1991. ill allow highway authorities to charge utilities for failing to complete road disrupting works on time. Ifapproved, the regulations will come into force from April 1, 2003, Utilities ‘will be charged for every day or part of a day their excavations overrun an agreed period of time. This will be three days, unless there has been an altematively agreed reasonable petiod. Penalties will also apply for failing 20 remove all traces of occupation. Charges proposed will work on a sliding scale according to the type of work undertaken and the type of road on which itis performed. There are five categories of work ranging from minor works to emergency works and major works. There are also five categories of road type, from motorways or city centre trunk routes to type four roads carrying up to 500,000 vehicles per year. On November 21, 2000 OFTEL published a consultation document on directory enguiies services. sets outa range of opdons and issues on directory enquires and foreshadows consumer res in relation to greater choice and provision of directory enquiries services, New services would have to be accessed through telephone numbers other than 192 and OFTEL is secking views on whether consumers will be prepared to use altemative numbers. Tis will be done through OTFEL's quarterly consumer survey. Currently, when customers dial 192 they are automatically transferred to the directory enquiries service offered by their telecom supplier and cannot choose to se another company's directory enquiry service by using sila shor code Specialist directory enquiry providers which offer facllties such as call-connect would like to be able to offer theit services in competition to existing telecoms erators, ee OFTEL' cost benefit analysis published early tn 1999 identified tree options inclading Keeping the 192 number and inteducing anew range of amber © be ‘used by individual directory enquiry service providess, replacing 192 with a new number code and removing it and allocating number in the 118 xxx range to individual service providers. Currently OFTEL provides unlimited access under what is known as FRIACO. On November 13, 2000 OFTEL issued new guidelines to BT to introduce a new FRIACO tariff. BT isto provide other operators with a new wholesale flat rate internet access product from February 1. Cumrently FRIACO takes unmetered internet traffic from the customer to BT's local exchange and then the calls are passed on at an additional charge to the other operatsr's network. The new product will cazry web trafic on an unmetered basis from the consumer to the network of the competing operator. Traffic will initially be limited to enable BT's network to cope with the (9001 CLR. SLE 2 © SWEET & MAXWELL LMTTED [AND CONTRBUTORS]‘TELECOMMUNICATIONS Regulation rer cer preston TELECOMMUNICATIONS Regulation Pree conte ROBYN DURIE UNKLATERS. LONDON [NEWS SECTION: NATIONAL REPORTS : [2001] C.TLR. N- 27 anticipated large amounts of traffic generated by increased use of unmetered schemes. Restrictions on trafic will go by january 2002. oe November 17, 2000 OFTEL announced revised costs for interim cartier pre- selection, Carrier preselection automatically routes telephone calls on to different net- ‘works, allowing customers to choose which operators they would like to use. It was to be introduced in December 2000 for national and international calls. The service will extend to local calls and thes main call types by the end of 2001. The interim. version will be the use of auto-diallers located in customers’ premises. OFTEL made a determination, but that was overmmed by a High Court Judgment on August 4, 2000. As a est ofthe judgment, BI'sproporon forthe total cost of interim carrier preselection will increase, although its actual costs will fall because of its use as a substitute of a cheaper type of dialler. ‘On October 27, 2000 OFTEL publishe¢ a consultation docament on the continuing price contuols appiable to Batish Teleommunications ple the dommant UI operator. BT is cuzrently subject to two price controls, a retall price control due to end in 2001, and network or interconnection charge control which ends in September 2001. ‘The retail price controls cover residential line rental and the prices of local, national and international calls and cells to directory enquiries. It is based on the spending pattems of the 80 per cent of residential customers with the lowest bills, ‘with protection for small business customers. OFTEL has said it intends to retain retail price controls on BT of the retail price index minus 4.5 per cent until July 2002, and also to retain price caps on BT's interconnection, sérvices. The caps will be up to RPI minus 11.5 per cent until 2005. If competition does not increase significantly over the coming year, allowing service providers without nesworks to use BT's network at cost-based rates, further measures may be introduced. Caner preselection will effectively be introduced into the United Kingdom n January 2001 and OFTEL wishes to assist competion once occurs. A final statement on the proposals will be published in January 2001. EXPORT CONTROL Encryption 1S even aca ROBYN DURIE LINKLATERS, LONDON On July 17, 2000 the Clinton Administration announced the easing of restrictions on exports of encryption software in two dozen countries including those in the European Union, ‘The new rules will remove a 30-day waiting period for American firms hoping to export encryption software and treat both government and nen-goverament end-users equally. In January the Administration cased restrictions on the sale of encryption software to approved private enterprises, but continued to block sales to the public sector, ‘The move follows an E.U. decision to allow encryption software to be sold to the same list of countries (which includes Australia, the Czech Republic, Hungary, Japan, New Zealand, Norway, Poland and Switzerland). [Boon CTL ISSUE 2 SWEET & MAXWELL LMITED {AND CONTREUTORS,N= 28 NEWS SECTION ; TABLE OF MEASURES : [2001] C.TLR. E.C. ComPuTING, TELECOMMUNICATIONS AND RELATED MEASURES PREPARED BY FRESHFIELDS BRUCKHAUS DERINGER ‘Tals table sots out the principal areas of tegistative action in relation to Computing and Telecommunications SUBJECT MEASURE ‘CURRENT POSITION (as at January 11, 2001) ‘Telecommunications Liberalisation of telecommunication services ‘Open Neswork Provision (ONF) ‘Access and Incerconnection ™ Directive 96/19 amending Directive {30/388 on the implementation of ful ‘competition in telecommunications markets (the Full Competition Directive) (1996] Os 7413 Directive 96/19 amending Directive 90(388 on the Implementation of ful competion in tolocommunications markets (che Ful Compettion Directive) [1996] 6). 1743 + Drafe Commission Directive on competion in the marks Notice on Status of voice ‘Communications on Internet Under Directive 90/388, [1998] ©). C04 ‘Consulative communication reviewing the above Notica on the status of voice on the Ineoenae [2000] 0} € 1714 ‘Supplement to the above Notice 12000) OJ. c 36913 ‘Communication: Sixth Report on the Implementation of che ‘Telecommunications Regubatory Package COM (2000) 814 Directive 97151 amending Directive 90/387 (the ONP Framework Directive) and Directive 92/44 (the ONP Lesed Lines Direaive [1997] Ol, 1295723 Recommendation on leased fines pricing COM (1999) 3863, ™* Directive 98/10, replacing Di, 95/62 fn che application of ONP to voice telephony and on universal service for telecommunications in a competitive environmen [1999] O} Lio4 * Draft Directive on common framework COM (2000) 393 Directive 9773 (the Interconnection Direcave) [1997] OJ. L199132 Note: amended by Directive 98/61 on Numbering (see below) Notice on the ‘Application of the Competition Rules to Access Agreements in the “elecommunicaions Sector [1998] OJ, ssi. Recommendation 2000/263 amending Recommendation 98/195 on Interconnection in a liberalised ‘olecommunications market (Pare 1 — incereonrection 2000] Oj. tc pricing) [2090] Oj ‘Adopted March 13, 1996. Timetables for derogations regarding implementation periods agreed with Ireland (November 27, 1996). Pormugl (February 12, 1997), Luxembourg (May 14, 1997), Spain une 10, 1997) ane Greece (uly 18, 1997) ‘Adopted by Commission—aly 12, 2000 Published by Commission—january 10, 1998 Published by Commission—Jone 27, 2000 ‘Adopted by Commission December 21, 2000 ‘Adopted by Commission—December 7, 2000 ‘Adopted by Council, October 6, 1997 {UK Implementation— Telecommunications (Open Network Provision and Leased Lines) Reguacons 1997 (81. 1997 No. 2932) Adopted by Commission—November 24, 1999 ‘Adopted by Council February 26, 1998 UK. Implementation —The Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998 (S| 1998 No. 1580) ‘Adopted by Commission July 12, 2000 ‘Adopted by Counell June 30, 1997 UK. Implamentation— ‘Telecommuniesions (Interconnection) Regulations 1997 (Si. 1997, No. 293!) ‘Adopted by Commission—March 31, 1998 ‘Adopted by Commission—Mareh 21, 2000

You might also like

• The Subtle Art of Not Giving a F*ck: A Counterintuitive Approach to Living a Good Life

  

  From Everand

  The Subtle Art of Not Giving a F*ck: A Counterintuitive Approach to Living a Good Life

  Mark Manson

  Rating: 4 out of 5 stars

  4/5 (5820)
• The Gifts of Imperfection: Let Go of Who You Think You're Supposed to Be and Embrace Who You Are

  

  From Everand

  The Gifts of Imperfection: Let Go of Who You Think You're Supposed to Be and Embrace Who You Are

  Brené Brown

  Rating: 4 out of 5 stars

  4/5 (1093)
• Never Split the Difference: Negotiating As If Your Life Depended On It

  

  From Everand

  Never Split the Difference: Negotiating As If Your Life Depended On It

  Chris Voss

  Rating: 4.5 out of 5 stars

  4.5/5 (845)
• • Magazines
  • Podcasts
  • Sheet music
• Principles: Life and Work

  

  From Everand

  Principles: Life and Work

  Ray Dalio

  Rating: 4 out of 5 stars

  4/5 (609)
• The Glass Castle: A Memoir

  

  From Everand

  The Glass Castle: A Memoir

  Jeannette Walls

  Rating: 4.5 out of 5 stars

  4.5/5 (1717)
• Grit: The Power of Passion and Perseverance

  

  From Everand

  Grit: The Power of Passion and Perseverance

  Angela Duckworth

  Rating: 4 out of 5 stars

  4/5 (590)
• Sing, Unburied, Sing: A Novel

  

  From Everand

  Sing, Unburied, Sing: A Novel

  Jesmyn Ward

  Rating: 4 out of 5 stars

  4/5 (1104)
• Hidden Figures: The American Dream and the Untold Story of the Black Women Mathematicians Who Helped Win the Space Race

  

  From Everand

  Hidden Figures: The American Dream and the Untold Story of the Black Women Mathematicians Who Helped Win the Space Race

  Margot Lee Shetterly

  Rating: 4 out of 5 stars

  4/5 (898)
• Shoe Dog: A Memoir by the Creator of Nike

  

  From Everand

  Shoe Dog: A Memoir by the Creator of Nike

  Phil Knight

  Rating: 4.5 out of 5 stars

  4.5/5 (540)
• The Perks of Being a Wallflower

  

  From Everand

  The Perks of Being a Wallflower

  Stephen Chbosky

  Rating: 4.5 out of 5 stars

  4.5/5 (2104)
• The Hard Thing About Hard Things: Building a Business When There Are No Easy Answers

  

  From Everand

  The Hard Thing About Hard Things: Building a Business When There Are No Easy Answers

  Ben Horowitz

  Rating: 4.5 out of 5 stars

  4.5/5 (349)
• Bad Feminist: Essays

  

  From Everand

  Bad Feminist: Essays

  Roxane Gay

  Rating: 4 out of 5 stars

  4/5 (1018)
• Elon Musk: Tesla, SpaceX, and the Quest for a Fantastic Future

  

  From Everand

  Elon Musk: Tesla, SpaceX, and the Quest for a Fantastic Future

  Ashlee Vance

  Rating: 4.5 out of 5 stars

  4.5/5 (474)
• Her Body and Other Parties: Stories

  

  From Everand

  Her Body and Other Parties: Stories

  Carmen Maria Machado

  Rating: 4 out of 5 stars

  4/5 (822)
• The Outsider: A Novel

  

  From Everand

  The Outsider: A Novel

  Stephen King

  Rating: 4 out of 5 stars

  4/5 (1867)
• The Sympathizer: A Novel (Pulitzer Prize for Fiction)

  

  From Everand

  The Sympathizer: A Novel (Pulitzer Prize for Fiction)

  Viet Thanh Nguyen

  Rating: 4.5 out of 5 stars

  4.5/5 (122)
• The Emperor of All Maladies: A Biography of Cancer

  

  From Everand

  The Emperor of All Maladies: A Biography of Cancer

  Siddhartha Mukherjee

  Rating: 4.5 out of 5 stars

  4.5/5 (271)
• Angela's Ashes: A Memoir

  

  From Everand

  Angela's Ashes: A Memoir

  Frank McCourt

  Rating: 4.5 out of 5 stars

  4.5/5 (441)
• Brooklyn: A Novel

  

  From Everand

  Brooklyn: A Novel

  Colm Tóibín

  Rating: 3.5 out of 5 stars

  3.5/5 (1947)
• The Little Book of Hygge: Danish Secrets to Happy Living

  

  From Everand

  The Little Book of Hygge: Danish Secrets to Happy Living

  Meik Wiking

  Rating: 3.5 out of 5 stars

  3.5/5 (401)
• A Man Called Ove: A Novel

  

  From Everand

  A Man Called Ove: A Novel

  Fredrik Backman

  Rating: 4.5 out of 5 stars

  4.5/5 (4771)
• The World Is Flat 3.0: A Brief History of the Twenty-first Century

  

  From Everand

  The World Is Flat 3.0: A Brief History of the Twenty-first Century

  Thomas L. Friedman

  Rating: 3.5 out of 5 stars

  3.5/5 (2259)
• Steve Jobs

  

  From Everand

  Steve Jobs

  Walter Isaacson

  Rating: 4.5 out of 5 stars

  4.5/5 (808)
• The Yellow House: A Memoir (2019 National Book Award Winner)

  

  From Everand

  The Yellow House: A Memoir (2019 National Book Award Winner)

  Sarah M. Broom

  Rating: 4 out of 5 stars

  4/5 (98)
• Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America

  

  From Everand

  Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America

  Gilbert King

  Rating: 4.5 out of 5 stars

  4.5/5 (266)
• A Tree Grows in Brooklyn

  

  From Everand

  A Tree Grows in Brooklyn

  Betty Smith

  Rating: 4.5 out of 5 stars

  4.5/5 (1929)
• The Art of Racing in the Rain: A Novel

  

  From Everand

  The Art of Racing in the Rain: A Novel

  Garth Stein

  Rating: 4 out of 5 stars

  4/5 (4208)
• Yes Please

  

  From Everand

  Yes Please

  Amy Poehler

  Rating: 4 out of 5 stars

  4/5 (1903)
• Team of Rivals: The Political Genius of Abraham Lincoln

  

  From Everand

  Team of Rivals: The Political Genius of Abraham Lincoln

  Doris Kearns Goodwin

  Rating: 4.5 out of 5 stars

  4.5/5 (234)
• A Heartbreaking Work Of Staggering Genius: A Memoir Based on a True Story

  

  From Everand

  A Heartbreaking Work Of Staggering Genius: A Memoir Based on a True Story

  Dave Eggers

  Rating: 3.5 out of 5 stars

  3.5/5 (231)
• The Woman in Cabin 10

  

  From Everand

  The Woman in Cabin 10

  Ruth Ware

  Rating: 3.5 out of 5 stars

  3.5/5 (2522)
• Fear: Trump in the White House

  

  From Everand

  Fear: Trump in the White House

  Bob Woodward

  Rating: 3.5 out of 5 stars

  3.5/5 (738)
• Wolf Hall: A Novel

  

  From Everand

  Wolf Hall: A Novel

  Hilary Mantel

  Rating: 4 out of 5 stars

  4/5 (3811)
• John Adams

  

  From Everand

  John Adams

  David McCullough

  Rating: 4.5 out of 5 stars

  4.5/5 (2409)
• On Fire: The (Burning) Case for a Green New Deal

  

  From Everand

  On Fire: The (Burning) Case for a Green New Deal

  Naomi Klein

  Rating: 4 out of 5 stars

  4/5 (74)
• The Light Between Oceans: A Novel

  

  From Everand

  The Light Between Oceans: A Novel

  M.L. Stedman

  Rating: 4.5 out of 5 stars

  4.5/5 (789)
• Manhattan Beach: A Novel

  

  From Everand

  Manhattan Beach: A Novel

  Jennifer Egan

  Rating: 3.5 out of 5 stars

  3.5/5 (792)
• The Constant Gardener: A Novel

  

  From Everand

  The Constant Gardener: A Novel

  John le Carré

  Rating: 3.5 out of 5 stars

  3.5/5 (104)
• The Unwinding: An Inner History of the New America

  

  From Everand

  The Unwinding: An Inner History of the New America

  George Packer

  Rating: 4 out of 5 stars

  4/5 (45)
• Britt Krause

  

  Document15 pages

  Britt Krause

  Ale

  No ratings yet
• Rise of ISIS: A Threat We Can't Ignore

  

  From Everand

  Rise of ISIS: A Threat We Can't Ignore

  Jay Sekulow

  Rating: 3.5 out of 5 stars

  3.5/5 (137)
• Little Women

  

  From Everand

  Little Women

  Louisa May Alcott

  Rating: 4 out of 5 stars

  4/5 (104)
• Extreme Sports Vocabulary Esl Picture Dictionary Worksheet For Kids PDF

  

  Document2 pages

  Extreme Sports Vocabulary Esl Picture Dictionary Worksheet For Kids PDF

  Ale

  No ratings yet
• 1 ST Grade

  

  Document2 pages

  1 ST Grade

  Ale

  No ratings yet
• Extreme Sports Vocabulary Esl Picture Dictionary Worksheet For Kids PDF

  

  Document2 pages

  Extreme Sports Vocabulary Esl Picture Dictionary Worksheet For Kids PDF

  Ale

  No ratings yet
• Computer and Telecommunications Law Review

  

  Document58 pages

  Computer and Telecommunications Law Review

  Ale

  No ratings yet
• Countable and Uncountable

  

  Document10 pages

  Countable and Uncountable

  Ale

  No ratings yet
• Computer and Telecommunications Law Review

  

  Document50 pages

  Computer and Telecommunications Law Review

  Ale

  No ratings yet
• Computer and Telecommunications Law Review

  

  Document50 pages

  Computer and Telecommunications Law Review

  Ale

  No ratings yet
• Computer and Telecommunications Law Review

  

  Document65 pages

  Computer and Telecommunications Law Review

  Ale

  No ratings yet
• Computer and Telecommunications Law Review

  

  Document45 pages

  Computer and Telecommunications Law Review

  Ale

  No ratings yet
• JournalOfEnergy&NaturalResourcesLaw Vol12N1 February1994 PDF

  

  Document216 pages

  JournalOfEnergy&NaturalResourcesLaw Vol12N1 February1994 PDF

  Ale

  No ratings yet
• Global Arbitration Review

  

  Document49 pages

  Global Arbitration Review

  Ale

  No ratings yet
• Global Arbitration Review

  

  Document49 pages

  Global Arbitration Review

  Ale

  No ratings yet
• Weather and Colors

  

  Document8 pages

  Weather and Colors

  Ale

  No ratings yet
• Global Arbitration Review

  

  Document49 pages

  Global Arbitration Review

  Ale

  No ratings yet
• Computer and Telecommunications Law Review February 2000

  

  Document57 pages

  Computer and Telecommunications Law Review February 2000

  Ale

  No ratings yet
• Global Arbitration Review

  

  Document49 pages

  Global Arbitration Review

  Ale

  No ratings yet
• Global Arbitration Review

  

  Document49 pages

  Global Arbitration Review

  Ale

  No ratings yet
• Transport Vocabulary

  

  Document1 page

  Transport Vocabulary

  Ale

  No ratings yet
• In The Past (Yesterday / Last Week Etc)

  

  Document2 pages

  In The Past (Yesterday / Last Week Etc)

  Ale

  No ratings yet
• The Clothes: Cinturón Blouse Blusa

  

  Document10 pages

  The Clothes: Cinturón Blouse Blusa

  Ale

  No ratings yet