Recent Utilities Legislation

As of October 28, 1995, private persons may apply to provide telecommunication services other than voice transmission in Italy under new regulations which implement the Legislative Decree of March 17, 1995, no. 103, which carried EEC Directive no. 388 of 1990 into national law. These regulations are contained in the Presidential Decree of September 4, 1995, no. 420, which was published in the Italian Official Gazette on October 13, 1995.

Decree 420/1995 states that all telecommunication services other than general voice transmission are liberalized. "Voice transmission service" is defined in Legislative Decree 103/1995, as: "furnishing the public with direct transport and switching of voice in real time, originating and ending on points of the public switch system, that allows each user to use the equipment attached to his or her terminal point of such system to communicate with another terminal point" (see Art. 1(1)(g), Leg. Decree 103/1995). Specific voice transmissions in a closed system, however, are included in the liberalization. A closed system, such as an infra-corporate telephone network, is defined as: "a plurality of subjects tied to each other by a stable, common professional interest, so as to justify the need for internal communications connected directly to the aforesaid interest" (see Art. 2, Decree 420/1995). The liberalization of such closed systems directly responds to the Italian Antitrust Authority's recent finding that Telecom Italia S.p.A. had abused its dominant position in this field.

Decree 420/1995 provides instructions and forms to request connection to the public telephone network both for dial up or switchboard-mediated connection and for direct connection. The only potential applicants indicated are nationals of the European Economic Area ("EEA"). This would also include a European subsidiary of a company based outside of the EEA, such as in the United States or Japan. For dial up connection, a mere declaration to the Ministry of Post and Telecommunications is sufficient, and for direct connection, an application for authorization is required. Although the set is open-ended, certain services are specifically mentioned, and include: data transmission, re-leasing of transmission capacity, and voice transmission services for a closed system (for which capacity may not be re-leased). In order to provide the latter services, an applicant must receive both authorization and a declaration of no objection from the Postal Ministry.

The Postal Ministry must provide a response to declarations and applications for authorizations within 120 days (90 days, extendible by 30 days), and any no objection declaration within 60 days of request. Authorizations have a validity of five years and are renewable. If the Postal Ministry rejects an application, it must provide reasons for such rejection, and its decision may be appealed to the Regional Administrative Court. Applicants must meet the required technical specifications for connection, and the public carrier, Telecom Italia S.p.A., may refuse connection only in the case of technical impossibility.

The content of this article is intended to provide general information on the subject matter. It does not substitute the advice of legal counsel.