Spain

Changes over the last three months (Oct.-Dec. 98)

On-going developments

I - Historical and juridical viewpoint

1. Telecommunications Policy

The Telecommunication Act -1987- (Ley de Ordenación de la Telecomunicaciones) establishes a juridical framework and defines the functions and responsibilities of the Public Administration and the public and private sectors. As a consequence of the Directives 88/301/CEE and 90/388/CEE, the Telecommunication Act was modified and promulgated as a new Act in 1992. Then, the Government established the First National Telecommunication Plan and made a new contract with "Telefónica Nacional de España" company, defining the final services assigned to the company.

The Telecommunication Adviser Council was constituted with different missions: study, deliberation and propositions concerning the telecommunication issues.

Radio electric systems as mobile communications in close groups of users, automated mobile telephony, system of Tele-signals are considered added value services and their running is made in free competition.

Other diverse laws which regulated the telecommunications field before 1994 were voted. Liberalisation measures of the Union led to relevant changes:

• separation between the regulation and the operation of the services was finalised ;
• terminal equipment were liberalised
• data commutation liberalisation was finalised in 1993 with 8 new licences assigned ;
• non radio-electric added value was definitely liberalised ;
• the standardised supply of renting circuits was concluded in 1993.

Concerning the communications by satellite, 3 operators for VSAT were authorised.

Concerning the mobile communications:

• 3 licences of national coverage radio paging and 49 of local coverage were conceded ;
• 16 regional licences of mobile communication for close groups of users were granted ;
• the regulation related to GSM automated mobile telephony was approved ;
• a competition for the assignation of a licence for GSM modality was organised.

The running of public-use telephones was liberalised through the Decree 1647/1994.

1.1 1995 Laws

In 1995, the following laws have been issued:

• Satellite Communications (Ley 37/1995, de 12 de diciembre, de Telecomunicaciones por satélite)
• Telecommunications by cable (Ley 42/1995, de 22 de diciembre, de las Telecomunicaciones por cable)
• Conventional Television (Ley 41/1995, de 22 de diciembre, de Televisión local por ondas terrestres)

1.2 Regulatory developments in 1996

• The "Real Decree Law 6/1996" of liberalisation of telecommunications ;
• Approval of the Services Rendering and Technical Regulation of Telecommunication by Cable ;
• Development of the "Real Decree Lax" in accordance with the second operator of the telecommunications and the public organism Retevision.

1.3 First quarter 1997 (January - March 1997)

1.4 Second quarter 1997 (April - June 1997)

This period was highly productive. There were two important laws put into force, in order to organise modern telecommunications systems:

Ley 17/1997 de 3 de Mayo de las Telecomunicaciones (Telecommunications Act, 1997).
The EU Directive 95/47/CE concerning the normalisation for TV signals transmission and additional measures for the liberalisation of the sector is incorporated in this Law.

It establishes a juridical framework containing main guidelines for digital cable television and satellite television rendering, in order to encourage competency in this sector.

It addresses the following objectives:

• Upgrade safety among operators and consumers.
• Unify of common European codification algorithm in all equipment.
• Avoid monopolies and dominant positions that may damage the plurality of this services supply and also the freedom of information.
• Apply regular VAT tariff to radio and television fees, as it happens in the rest of European countries.

Ley 12/1997 de 24 de abril de Liberalización de las Telecomunicaciones (Telecommunication Liberalisation Act)
This law tries to solve the essential obligation of the Spanish Government of safeguarding free market principles in the telecommunications sector. In order to reach this aim the Liberalisation Law addresses the following objectives:

• Protecting effective market conditions, controlling pricing policies and regulating future disputes among the sector
• Modification of the 31/1987, December 18th Law (Ley de Ordenación de las Telecomunicaciones), reformed by the 32/1992, December 3rd.
• Modification of the 42/1995, December 22nd Law (Ley de las Telecomunicaciones por Cable).
• Creation of the second Telecommunications Operator. It is awarded to Ente Público de la Red Técnica Española de Televisión (RETEVISION). This public entity will constitute itself in a stock company. The Government will grant through a decree the requirements and criteria for the invitation to tender.

Complementary regulations of Telecommunications

1.5 Third quarter 1997 (July - September 1997)

The period has not been highly productive in terms of laws, but a lot of dispositions and decrees have been put into force.

The second basic telephony operator (Retevisión) has been awarded to the consortium leaded by Endesa.

1.6 Fourth quarter 1997 (October - December 1997)

Several dispositions were approved to establish the conditions for the invitations to tenders for the concessions of cable telecommunications service rendering in different areas. Telefónica de España was selected to carry out cable telecommunication service rendering in several locations.

1.7 First quarter 1998 (January - March 1998)

The third license of fixed telephony has been awarded to the Consortium led by France Telecom and Editel. In the future, Deutsche Telecom will join them.

1.8 Second quarter 1998 (April - June 1998)

The main event was been the definitive issue of the Telecommunication’s General Act (11/1998, 24^th of April).

This law replaces the former Telecommunication Act –1987- (Ley de Ordenación de las Telecomunicaciones) and includes the criteria established in the following EU regulations:

• Directive 90/387/CEE and 97/51/CE concerning the internal market of the Telecommunications services.
• Directive 95/62/CE and its planned modification about a ONP for the vocal telephony and the Telecommunications’ universal service.
• Directives 90/388/CEE and 96/19/CE about full competitiveness in the Telecommunications market.
• Directive 97/13/CE about the common framework of general authorisations and individual licences.
• Directive 97/33/CE about the interconnection of the telecom networks in order to guarantee inter-operativity and universal service
• Directive 97/66/CE about personal data processing and privacy protection.

The General Law addresses the following objectives:

• To promote entire competition through the application, in every rending of services, of the principles of no discrimination and transparency
• A general authorisation and individual license system for the services’ rendering and the telecom networks setting up and exploitation will also be established. Networks’ inter-connection is also regulated.
• To guarantee the general interest in a liberalised market, the public service obligations requested to the public networks exploiters are also regulated, including the shared use of infrastructures to reduce the impact of the telecom networks.
• The telecommunication sets’ certification is also adapted to the EC normative.
• The competencies’ s system distribution of the different bodies of the General Public Service is also regulated.
• The regime of prices and taxes applicable to the Telecommunications’ services is unified.
• The system of sanctions and infractions is reviewed to accommodate to the new administrative competencies.
• Finally, there is a substantial change in the philosophy of the sector’s regulation, in order to settle the mechanisms of a fully liberalised regime.

Derogation:

• 31/1987 Telecommunications Ordination Law, on December 18th, but its articles 25, 26, 36.2. And its 6th additional disposition
• 37/1995 Satellite Telecommunications Law, on December 12th, but the disposed for the T.V. diffusion service regimen
• 42/1995 Cable Telecommunications Law, on December 22nd, with the exception from what is disposed for the T.V. diffusion service regime
• 12/1997 Telecommunications Liberalisation Law's articles 2 & 3 and the second transitory disposition, on April 24th
• 13/1996 Tax measures, Administrative, and Social Order Law's article 170, on December 30th
• In the same manner, all other dispositions with inferior or equal rank from the present Law that are opposed to what is disposed in this one, are revoked.

Complementary regulations of Telecommunications in the period:

Since the 4th of April, fixed telephone numbers include the full prefix even for local calls, following the European normalisation.

1.9 Third quarter 1998

The Telecommunications’ General Act issued in April (see above), originated many additional regulations.

Specific issues

• Universal service regulation: by the Telecommunications General Act’s art.38, the Ministry of Fomento awards until the year 2005the universal service to Telefónica, which has the right to charge the other telecom operators of this service from December 1998.
• Consumer’s protection: following the liberalisation, the Economic Affairs Delegate Commission is responsible for periodically setting the prices of the services included in the Universal Service, thus guaranteeing its affordability.
• Monopoly and Concentration (Competition Policy): Law 11/1998, art.22 deals which the interconnection principles, by which the Telecommunications public network’s holders will be obliged to facilitate the interconnection to the other operators using the same type of networks. Besides, Law 127/1997 states that the Telecommunications Market Commission’s prime objective is the safeguard of the competence in the market.

2. Information Society Policies since 1995

2.1 National and regional umbrella policies

• The above described Telecommunications’ General Act acts as an umbrella policy, as it compiles many IS issues that were scattered in other previous regulations (civil, penal,...)
• The government set up the Advisor Group on the Information Society Industries, which directly reports to the Minister Piqué.
• PISTA programme promotes the use of telecommunication advanced services in several sectors: education, healthcare, industry, domestic consumers,etc.
• Following the Catalonian telecommunications white book (1991), Catalonia created on July 1998 a Commissioner for the Information Society, in charge of an Information Society White Book and specially focused on education, public administration, healthcare, commerce, social and cultural matters. The Barcelona City Council has also a specific IS Commissioner.
• In May 1998 was launched Infodex (Information Society Regional Strategy in Extremadura)
• The Valencian Regional Administration is carrying out a strategic plan for the Administration modernisation and decentralisation (PEMAV), in which Infoville 98 is the key tool for the region’s telematic involvement.
• Galicia (!994), Castilla y León (1994) have published their Telecommunications White Books, as a first step to Information Society general policies.

2.2 IS platform issues

Standards and interoperability
The public Administrations Ministry has set up several informatic solutions in order to harmonise the Public Administrations exchange standards, as Indalo, Sicres, Istmo, Magerit or the Euromethod adoption.

Education, training and skills
TECNIMAP is the inter-administrative forum to promote the use of the information technologies and systems by Public Administrations, both concerning the internal management and their relationship with the citizens.

Research and Development
The Government’s Presidency created the Science and Technology Office (OCYT) by the 121/1998 Real Decree, as a support unit to the Science and Technology’s inter-Ministries Commission (CICYT). Following the 13/1986 Law (known as "the Science Law"), the 3^rd R+D National Plan (1996-1999) is underway.

2.3 Information content regulation

Privacy, data protection
The Law 5/1992 of Personal Information Automated Management (L.O.R.T.A.D) avoids the misuse of data files to prevent privacy violations while personal information treatment, by the creation of the Data Protection Agency, attached to the Justice Ministry. L.O.R.T.A.D. has been enlarged by Real Decree 1332/94 and the new Penal Code.

Intellectual property rights
On March 1998 was passed the Database Juridical protection Law and incorporated to the new Intellectual Property Law’s Text Refunded. These matters are also included in the new Penal Code.

Information Content Stimulation
See above the Resolution - July 31st 1998 concerning the Audio-visual sector.

2.4 Electronic Commerce

Digital signatures
Spain was waiting for the EC Directive on electronic Certification Authorities to develop the regulation. At present, there exists a co-existence model: the government, the firms and other bodies accredit Certification Authorities. Nevertheless, the National Mint is becoming the main one in electronic document certification emitted by the Administration. Besides, it's very close the Certification National Office constitution.

Security and Encryption
The Telecommunications General Law (article 52) establishes a full liberty for the use of information coding systems in the telecommunications.

EDI
As a general rule, the legal validity of most of the documents is accepted in the case of documents relating to commercial relationships (selling conditions, contracts, etc.) when there is an Exchange Agreement signed by the contractors. For those documents for which the law requires some formal requisites (a written document, hand-written signature...) the express recognition by the Law is needed to use the electronic form. The Ministry Order of the 22 of March 1996 regulates the Invoice System by Telematic Procedures, for example.

Computer fraud and crime
The new Spanish Criminal Code (Law 10/95, 25^th of September) includes some articles related to matters such as electronic tricks, computer damages or pornography diffusion. Privacy, one's own image right and domicile's inviolability crimes are also referred (detection and disclosure of secrets, industrial and intellectual property crimes, prohibition of manufacturing or owning computer programs destined to fraud committing, prohibition of the telecommunications interception by the authorities infringing constitutional or legal guarantees...)

2.5 IS Application Areas

Education
The Information and Communication New Technologies Programme, created by the Order of November 7th 1989 regulate the actions related to IT devoted to the non-university field. The most recent action within this general programme, on July 13th 1998, has been the signature of The Framework Agreement " The Education in the Net", to promote the IT’s diffusion and knowledge, to facilitate the education centres Internet connectivity and to create a "Virtual School" Forum.

Medicine
The Sanitary Assistance General Secretary of the National Healthcare System has worked out in 1998 the INSALUD Strategic Plan focused on the modernisation of the assistance services, which includes the Parliament Agreement on the Consolidation and Modernisation of the National Healthcare System (December 18th 1997). This process is parallel to the Information Technologies Plan.

Transport
The State Traffic Office (Dirección General de Tráfico) takes part in the Budget Line TEN-T in European Co-ordination Projects as EDEN and ECORTIS, Euro-regional Project Studies and Equipment as SERTI and ARTS. It also develops National Project Studies and Equipment (such as the National Plan of Traffic Control) and participates in R&D Projects of the IV Framework Programme. By his side, the Ministry of Fomento, trough the Telecommunications General Secretary, is involved in electronic commerce promotion programmes in the of goods and travellers road transport fields.

Government
"One-Stop Shopping" (OSS): PISTA (Promotion and Identification of Advanced Telecommunications Emergent Services) pleads for the public Administration's register conversion into One-Stop Shopping, in order to access to the whole public services system, independently from which is in each case the competent Administration. (See above the Real Decree 1652/ 1998)

• ARTE/PYME Programme (Regional Telecommunications Actions) by the Telecommunications General Secretary is focused on the collectives and associations on the Information Society integration.
• The Ministry of Economic Affairs and Finance has passed an order that states that, from July 1st 1999 the big enterprises will have to present some of the monthly tax returns to the Revenue Service in a telematic way.

II - Changes over the last three months (October-December 1998)

These are the relevant developments, actions and reactions occurred in October, November and December:

1. Umbrella Policies

The Advisory Group on the Information Society Industries, launched by the Industry Minister became on September 29^th 1998, the Information Society Forum, as a permanent Government advisory body. The Forum involves the representatives of main Spanish information and telecommunication firms (electronic, information and telecommunication industries, telecommunication operators, communication media, audio-visual contents and information services industry, business associations and other entities). By the end of 1998, the Forum is presenting its conclusions on business incentives, training and new added value fields related to electronic commerce, audio-visual contents, education and training and Public Administrations new technologies’ application.

2. Telecommunications Policy

The date of 1^st of January 1998 determined the liberalisation of the telephony service. However, the lower network development in some countries made it advisable to enlarge this period. Spain had an additional period of 11 months (until December 1st 1998). It has been possible, from August 1^st to apply for operator licenses with authorisation from December 1^st.

The liberalisation will ensure that:

• Any company will be able to ask for a telephony service-rendering license. Seven new licenses have been awarded.
• The Telecommunications Market Commission will gradually assume the regulatory competencies of the Ministry of Fomento.
• The operators will be able to rent the Telefónica’s networks, paying the interconnection fees.
• New business as cable telecommunications and Internet are open.
• Other service’s competition (such as terrestrial digital television) is enlarged.

2.1 Voice and data communications

The 3^rd chapter of the 2^nd title of the Telecommunications General Act establishes the basic juridical rules of the individual licenses. The regulation has been developed by the following orders:

• Order - 22th September 1998 - which establishes the applicable regime to the general telecommunication services and networks’ authorisations, as well as the conditions to be filled by their holders.
• Order - 22th September 1998 - which establishes the applicable regime to the individual licenses of general telecommunication services and networks’, as well as the conditions to be filled by their holders.

2.2 Broadcasting

The State General Budget Accompaniment Law deeply revises the Private Television Act of 1988 by the inclusion of several liberalising measures, as the possibility of stock exchange quotation for private broadcasting companies.

Digital Terrestrial Television

• Real Decree 2169/1998 - October 9^th - which approves the National Technical Plan of the Terrestrial Digital Television.
• Order - October 9^th 1998 - which approves the Technical and Service Provision of the Terrestrial Digital Television.

The transition to the digital television will allow the Government to sensibly increase the broadcasting capacity in national scope channels till a number of 45 in 2012. Firstly, the Executive will run 25 channels: five to the current national scope channels (TVE1, TVE2, Antena 3, Tele 5 and Canal Plus) and the other 20 will be granted to be run in an open or coded system. The Government will call for four multiplexed channels (Retevisión is planning to create a terrestrial television platform). The five actual companies will be forced to simultaneously broadcast through both ways (analogical and digital) before two years.

2.3 Mobile communications

The Order of November 26^th sets the interconnection tariffs effective date of the Interconnection Reference Tender by Telefónica addressed to mobile automatic telephony service operators.

3. Competition Policy

3.1 Monopoly and Concentration

The negotiation between the only two satellite T.V. platforms (Canal Satélite Digital and Vía Digital) for their fusion was stopped and re-launched Minister Arias - Salgado announced that both satellite TV platforms are viable, as they don’t compete for a 30 million, but for a 400 million of Spanish speakers.

3.2 Conglomeration and ownership

The Telecommunications Market Commission decided on October 28^th to disclose to Lince the secret clauses of the inter-connection agreement between Telefónica and Retevisión. This decision is considered necessary to the new operators to negotiate in equal conditions and will be enlarged to the other license owners. Consequently, Telefónica has denounced the Commission for interventionism.

The Telecommunications Market Commission approved on October 29^th the interconnection prices -to be paid by new operators for using the Telefónica’s network- lower than the previously proposed by Telefónica.

3.3. Consumer protection

The Telecommunications Market Commission has established the deadlines for the number portability. The Interconnection and Numeration Regulation stated that this service should be available on 1/1/2000.

4. IS Platform issues

4.1 Standards and interoperability

The General State Budget’s Accompaniment Act, voted on October 2^nd, allows the Work Ministry to force those companies with more than 100 workers, to furnish their Social Security Data in a magnetic support. It allows the Finance and Economic Affairs Ministry to establish the prerequisites to effectuate Tax Returns by Telematic proceedings. The complete income tax return through Internet will be a fact next year and could involve 14 million of taxpayers.

4.2 Research and development

The Government is finalising the project of the Industrial Innovation Promotion Act, which will settle up a new tax relief system through Innovation. The Act should be presented to the Parliament before the end of 1998, but due to the current legislative obstruction, Minister of Industry advanced some of the measures in the General State Budget’s Accompaniment Act. Some of these measures are tax deductions, bonifications to SME and incentives related to Patrimony and Mortgages Tax.

5. Information Content Regulation: privacy, data protection

The Spanish Electronic Commerce Association, with the approval and collaboration of the Data Protection Agency presented last November 26th the first Ethic Code on Internet Personal Data Protection. The code includes the contribution of the Publicity Self-control Association (AAP), the Consumers and Users Confederation (CECU), the Consumers and Users Organisation (OCU) and the Spanish Consumers Union (UCE).

III - On-going developments

1. Umbrella Policies

The Senate approved the 24th of February the creation of the 'Special Commission on Computer Networks', which aim is to analyse the social, political, economical, social, cultural consequences of Internet. At present, the Commission is preparing its first report for March 1999.

The Economic and Social Council (Consejo Económico y Social), within its Annual Report –as a Government’s advisor body- on the Nation’s socio-economic situation, will write a chapter on the Information Society impact in Spain. In order to prepare this Report, the CES is launching in the first trimester of 1999 four specialised seminars, concerning the following areas: Technology and Society, Science, Research, development and knowledge Society, Business and job and social communication media and citizen dialogue.

2. Telecommunications policy

In spite of the extensive telecommunication regulations of 1998, some unsettled matters remain, even if some solutions are on going:

• The State still participates in some companies.
• Retevisión has the monopoly of the television signal transmission network.
• The Government still temporarily takes some fees’ control in charge.
• The inter-connection prices to the user’s loop have not being settled yet.
• There is not a clear limitation of responsibilities between the Ministry of Fomento, the Telecommunications market Commission and the Competence Defence Court.
• The change of the Universal Service conception should create a new mechanism for the operator’s assumption of the telecommunications social aspects’ obligations sprung.

2.1. Voice and data

The Telecommunications Market Commission Economical Office is considering the possibility of a plain tariff for local calls. It would be viable for 3.350 PTAs (20 ECU) and only would include local voice connections.

2.2 Broadcasting

At present is on its parliamentary process the proposition of the third channel Act. This regulation will involve the regional channels’ privatisation, the regional TV corporations, as well as the creation and authorisation of new ones.

2.3 Satellite, cable services

Once finalised the licenses award process to the cable operators, the Telecommunications General Secretary is drafting some actions to promote the use of advanced cable telecommunications services through PISTA programme. The programme timetable goes from 1999 to 2002 and will involve cable operators and users groups. The target sectors are rural areas access, advanced services to SME and domestic access equipment and applications.

2.4. Universal service/access

Following the Ministry of Fomento’s Order issued on September 8^th 1997, the current Telefónica’s Internet access system (INFOVIA) should have stopped its services, due to the liberalisation. However, the new system (INFOVIA PLUS) had presented some adaptation problems, as the change supposes the need of changing the phone number and other parameters in the computer’s configuration. Consequently, the Telecommunications Market Commission has decided to postpone the transition till January 17^th 1999.

On September 29^th the Spanish Congress approved unanimously the implementation of a plain tariff for Internet access. This fact has launched a significant debate: The Spanish Senate Internet Commission criticises Telefónica for its tariffs and sets that the debate is related to the Network universal access, without economical discrimination. The first step for a plain tariff is a specific legal framework for Internet, which takes into consideration the inter-connection tariff between providers.

3. Information Content Regulation: audio-visual sector

The Parliamentary Groups PP, PSOE, IU, CiU and Grupo Mixto reached (on October 8^th) an agreement for the creation of an Audio-visual Council, which would be in charge of the audio-visual contents’ control. Concerning this new body, major disagreements are related to its dependence of the Telecommunications Market Commission (which depends of Fomento Ministry).

4. Electronic Commerce: Security and encryption

The Telecommunications Market Commission will assume the Internet control and regulation tasks. It will assume the electronic firm certification, the territorial domains’ assignation for the Net addresses and the conflict resolution between all the Internet Market actors. This regulation will set the common content restrictions, the provider’s registration and fraud control, following the Single Market rules.

The Telecommunications General Act’s article 52 (related to cryptography) is causing a debate among the specialised media, as it could be considered as too vague and could permit, in future developments, compulsory centralised key storage systems.

5. IS Application Areas

5.1 Medicine

The National Health Institute (INSALUD) is carrying out at the beginning of 1999, an Action Plan related to Tele-medicine.

5.2 Government

CERES project is starting on 1999 and intends to legally validate the relations with Public Administrations by electronic certification systems. Each citizen will be able to ask for a unique and coded smart card, with a personal code associated, so that the data transmission will be coded and not available for third parts.