Chambers Europe. TMT
On one hand, current Russian telecommunications legislation is characterised by a rather detailed regulation of certain aspects of telecommunications services. On the other hand, it contains various provisions that are clearly obsolete and are not in line with the contemporary level of technological development. It is also ambiguous with regard to a number of key matters.
The fundamental piece of legislation that underpins the regulation of telecommunications services is Federal Law No. 126-FZ "On telecommunications" dated 7 July 2003 (the “Telecommunications Law"). Every so often, the Russian Ministry for Communications and the Mass Media (the "Communications Ministry") declares that it intends to rework the Telecommunications Law substantially or even pass a new law.
Subordinate legislation sets out more detailed regulation of the work of various telecommunications service providers (for example, the Rules for Providing Mobile Communication Services approved by the Russian Government’s Resolution No. 328 dated 25 May 2005; and the Rules for Providing Local, Regional, Long-Distance National and International Telephone Communications Services approved by the Russian Government’s Resolution No. 310 dated 18 May 2005, etc.)
Below we examine some of the most noteworthy recent legislative changes and trends in the development of the legislation and case law regulating telecommunications services:
Mobile Number Portability
In 2012-2013 Russian telecommunications legislation was amended to enact a right for subscribers to keep their telephone number when changing their mobile phone operator. Most of these changes came into effect at the end of 2013. Discussions are currently taking place at the level of the Communications Ministry as to whether fresh legislation is needed to allow a subscriber's number to be transferred not only between mobile networks, but also between fixed telephone networks and data communications networks.
Regulation of OTT services
At present Russian legislation does not specifically regulate OTT services (Skype, Viber, WhatsApp, etc.). At the same time, telecommunications market players are actively discussing how these services should be regulated. Certain telecommunications operators maintain that a legal and regulatory framework is required for OTT services with a view ultimately to there being the opportunity to charge an extra fee for the traffic which their communication networks generate. The Communications Ministry however is exploring whether it would be reasonable to adopt the network neutrality principle for telecommunication networks.
Joint use of the RF spectrum and technological neutrality
In Russia, the lack of sufficient free radio frequency bands is a serious problem. To a large extent, this is because the radio frequency bands which have already been assigned are fragmented and not always used in an efficient way, as well as because that many bands are ring-fenced for the security services and law enforcement agencies. To this end, market players are discussing whether a right for telecommunication operators jointly to use the same RF bands should be enshrined in the legislation and the technological neutrality principle should apply to RF bands that are in use.
At present the technological neutrality principle (including encumbrances for telecommunication operators in terms of coverage of the territory where the telecommunications services are provided) applies only to certain RF bands. This is so that third generation (3G) telecommunication networks may be developed and LTE technology to be applied.
Regulation of activities on the Internet
Starting from the middle of 2012 an active effort has been made in Russia for new laws to be adopted and various legislative initiatives to be considered with a view to tightening the regulation of the activities of various companies and individuals on the Internet.
In the summer of 2012 legislative amendments were adopted (the so-called Blacklists Law) which put in place a mechanism to restrict access to Internet sites which contain information which is prohibited for distribution in Russia (materials with pornographic images of minors, information on means of making narcotic substances, resources that promote suicide, etc.) In line with these amendments a Unified Register of the Domain Names, Website References and Network Addresses was created which allows websites to be identified which contain information prohibited for distribution in Russia.
On 1 August 2013 legislative amendments came into force which introduced a mechanism for restricting access to information resources on the Internet where films (or information on how to obtain them) are located in such a way that the IP rights of the right holders are infringed. This law has also introduced liability for infringing the intellectual rights of an "information intermediary" (i.e. the party which transferred the material or granted the opportunity for the material to be placed on the Internet or the party which provides the access to the material on the Internet). It is likely that in 2014 these new legislative developments will be extended to cover not only films but other items to which copyright and neighbouring rights attach.
In particular, a draft law is presently being considered according to which individuals and companies will be responsible for notifying the proper state authority when they begin to arrange for information to be distributed and data to be exchanged over the Internet between users. Such parties will need to store the information concerning any actions which users perform for six months from the end date of such actions. If necessary, such information will have to be passed to the authorised state agencies.
Case law concerning the use of radio frequencies being used
In the end of 2011 Russian mobile operators had assigned to them certain RF bands in which LTE communication devices could be used. Given that the range of radio frequencies is limited and it is impossible to use RF bands jointly, different telecommunication operators often find themselves in dispute with the government (since it is the government, acting through state authorities, which is responsible for assigning RF bands).
The primary cause of such disputes is companies objecting to the way in which the State Commission for Radio Frequencies (the agency responsible for assigning RF bands) has assigned the RF bands which allow LTE networks to be deployed.
Many such disputes were considered in 2012-2013, telecommunication operators challenging actions of state authorities (primarily the State Commission for Radio Frequencies), which related in various ways to RF bands being assigned for LTE technology to be used.
When these court cases are analysed, it becomes fairly clear that the case law in disputes with the State Commission for Radio Frequencies in terms of how RF bands are assigned is not evolving favourably for companies. It is difficult to go to court to challenge decisions of the State Commission for Radio Frequencies, and this in large measure is down to the unclear regulation governing how RF bands are selected and assigned, as well as to the State Commission for Radio Frequencies having almost unlimited powers to allocate the RF spectrum, and to the uncertain legal status of decisions of the State Commission for Radio Frequencies It is apparent that in the near future the disputes over how the RF spectrum is being used will continue to be topical.
However, with the exception of various legislative initiatives, the overall trends in the development of legislative regulation of telecommunications services are in our opinion favourable. These should help the telecommunications market in Russia to continue to develop.