1.1 What are the overall policies and objectives for the electronic communications industry and have these been published in draft or final form?
Taking into consideration that the Colombian legislation and regulation on electronic communications industry is based on services (see the General and Regulatory Overviews below), the legislation and regulation as well as the Government entities in charge of defining policies and regulation may differ among telecommunication services (see question 1.5). With such initial remarks in mind, we are going first to illustrate how the Colombian telecommunications services are structured by presenting the current organisation of the industry.
Colombian Telecommunications Industry - General Overview:
- Fixed Telephony: Local and long distance (national and international).
- Mobile Services: Cellular, PCS, trunking, beeper.
- Value Added Services: Internet and broadband.
- Radio broadcasting services: Public interest, commercial and community.
- Television broadcasting services: Free-to air-TV: (i) Public (regional and national), and (ii) private (National and local); and subscription TV: (i) cable, (ii) satellite and (iii) community.
- Postal services:* Mail and specialised
*Provided by the National Postal Services (SPN).
In order to keep the terms of the Colombian legislation and for greater certainty, telecommunication services are classified as follows:
Colombian Telecommunications Industry - Regulatory Overview:
- Basic Services: Carrier and teleservices (fixed telephony, mobile, telegraphy and telex).
- Broadcasting Services: Radio broadcasting services and television broadcasting services.
- Telematic and Value Added Services: Telematic (Telefax, teletext, videotext and data fax); Value Added (Internet and broadband).
- Auxiliary Services: Emergency and security Services.
- Special Services: (Radio ham, experimental, and research)
OVERALL POLICIES AND OBJECTIVES TYPE OF SERVICE
The Colombian Constitution sets forth the principles that public services are not only intrinsic to the social purpose of the State and therefore, its duty is to assure the efficient supply of them throughout the entire nation, but also may be provided by the State, directly or indirectly, through organised communities or individuals. With reference to competition, the Colombian Constitution establishes the principle that the economic activity is free within the welfare limits. In addition, free economic competition, which is not absolute - because could be limited by Congress, is also a Constitutional principle placed in order to encourage private initiative.
Guarantee the quality of public utility services with the intention of assuring the improvement of the users' quality of life, including priority attention of basic needs, and continuous and uninterrupted service supply.
Recognise the pre-eminence of the public interest over all others, which entails the social responsibility of mass media and the respect to Constitutional values.
Encourage free competence market to assure its development, avoid restrictive practices and agreements derived from dominant position, and control monopolistic activities.
All the Colombians shall be connected and informed by increasing the broadband penetration.
Separation between opinions and information and impartiality of the information.
Consolidation and institutional modernisation are key to build up a strategic sector to the country.
Respect to the politic, religious, social and cultural pluralism.
The information and telecommunication industry ought to be developed to improve competitiveness.
Protection of the family; right to privacy.
Public television and radio broadcasting policies should be targeted to increase quality and competitiveness.*
*Except for regional television services, the Ministry of Communications (the "Ministry") is in charge of the public television services operation.
Published by Law 142 of 1994, Decree 1900 of 1990, Law 72 of 1989, and by an official presentation of the Ministry on August 25, 2006.
Published by Law 182 of 1995.
In response to the new technological developments, the Ministry recently enacted Decree 2870, 2007 (the "Convergence Decree") the main purpose of which is to implement measures to facilitate the convergence of services and networks with respect to telecommunications services excluding television, radio broadcasting services, and auxiliary and special services.
1.2 Is Colombia a member of the World Trade Organization?
Yes, Colombia has been a member of the WTO since April 30, 1995.
1.3 Has Colombia made commitments under the GATS/GATT regarding telecommunications and has Colombia adopted the WTO Basic Telecommunications Agreement?
Yes, Colombia has made specific commitments under GATS, and has adopted the WTO BTA.
1.4 How is the provision of electronic communications networks or services regulated? Is the provision of electronic communications networks or services open to competition in Colombia?
As stated above, electronic communications are regulated by services and on an ex-ante basis.
With reference to competition, electronic communications are open (see question 1.1). As a result of the Convergence Decree, relevant markets shall be established by the Regulatory Commission of Telecommunications (the "CRT") to determine obligations to significant market power (SMP) operators.
1.5 Which are the regulatory and competition law authorities? How are their roles differentiated?
Regulatory And Competition Law - Authorities:
- Policy: Ministry;
- Regulation: CRT; and
- Competition: Superintendence of Public Utilities except for mergers or acquisitions approval (Superintendence of Industry and Commerce -SIC-).
- Policy: Ministry;
- Regulation: CRT; and
- Competition: SIC.
Value Added Services:
- Policy: Ministry;
- Regulation: CRT; and
- Competition: SIC.
Radio Broadcasting Services
- Policy: Ministry;
- Regulation: CRT; and
- Competition: SIC.
Television Broadcasting Services:
- Policy: CNTV;
- Regulation: CNTV; and
- Competition: CNTV.
Therefore, the roles heavily depend on the regulated service and are differentiated by the Constitution, laws, statues, regulations, etc.
1.6 Are decisions of the national regulatory authority able to be appealed? To which court or body?
As a general rule, decisions of the regulatory Commissions (CRT and CNTV) cannot be appeal to any other governmental body. However, with regard to decisions made by the CNTV's Offices of Internal Control and Competition Policy are able to be appealed to the CNTV's Board of Directors which acts as Second Instance in relation to internal disciplinary processes and particular community television issues. For greater certainty, users may bring legal actions to the administrative jurisdiction (Council of State) against the decisions of both Commissions (CRT and CNTV).
2.1 If a license or other authorisation is required to install or operate electronic communications networks or provide services over them, please briefly describe the process and timescales.
License Or Other Authorisation:
- Fixed Telephony: Public service utilities law established that the provision of fixed telephony does not require concession, which is certainly an innovation within the international telecommunications regulatory framework. However, the principle of free access stipulated on such law (article 25) specifies the obligation of obtaining concessions only when using radio spectrum or waters. Furthermore, depending on the particular case, in order to operate shall obtain from the authorities only the environmental and health permissions.
- Mobile Services: It is subject to concessions granted by the Ministry.
- Other telecommunication services: According to Convergence Decree, other telecommunications operators (value added services, long distance, trunking, among others) can provide any of these services throughout Colombia with the same license issued by the Ministry (Convergence License or "Título Habilitante Convergente").
- Radio broadcasting services: Licences of Radio broadcasting services may be granted through a special binding process (contratación directa).
- Television broadcasting Services:With respect to television services, authorisations shall be issued by the CNTV to install or modify networks in technical coordination with the Ministry. The concessionaries* of television services may use the telecommunications interconnected network ("Red de Telecomunicacioes del Estado")* to distribute the television signal prior agreement with the network operators. To operate and provide television services, authorisations (through concessions or licences) must be issued by the CNTV.
*The scope of the term "concessionary (s) of television services" within the present document shall be limited to national and local private free-to-air television and cable television.
*For further information on the scope of the telecommunications interconnected network ("Red de Telecomunicacioes del Estado"), please see Decree 1900 of 1990, arts.15 and 16.
Depending on the service, processes and timescales may vary. Generally, processes to obtain an authorisation or a licence are simplified but processes to obtain a concession are more elaborated.
Finally, it is important to point out that the installation, addition, renovation; enlargement and modification of the telecommunications interconnected network is generally authorised and hence will not require any specific authorisation or licence.
2.2 What other requirements, permits or approvals must be met or obtained before networks may be installed or operated and services provided?
- Fixed Telephony (and long distance telephony services): As a general rule, corporations may supply fixed telephony and long distance telephony services; corporate names of public utility companies must be followed by the words "empresa de servicios públicos -E.S.P-".
- Mobile Services: As a general rule, corporations organised under Colombian law may receive concessions or licences for the supply of telecommunications services within Colombia.
- Value Added Services: Corporations organised under Colombian law may receive concessions or licences for the supply of telecommunications services within Colombia.
- Radio broadcasting services: A concession to supply radio broadcasting services may be granted only to Colombian national or to corporations organised under Colombian law. The number of concessions to provide radio broadcasting services is subject to an economic needs test that applies criteria set forth by law.
- Television broadcasting Services: Only Colombian nationals (natural persons or individuals) or corporations organised under Colombian law may be granted concessions to provide national free-to-air television services.
Only organised communities and educational institutes (such as high schools, universities, foundations, and non-profit associations) may supply non-profit local television services.
Regional television may be supplied only by state-owned entities.Community television services may only be supplied by communities organised and legally constituted under Colombian law as foundations, cooperatives, associations or corporations governed by civil law. Only corporations organised under Colombian law may supply subscription television services. Each particular case will have to be analysed in order to determine if environmental or municipal permission is required.
2.3 May licences or other authorisations be transferred and if so under what conditions?
Permissions will be required when an operator requests such authorisation. Conditions depend on the operation as well as the service.
2.4 What is the usual or typical stated duration of licences or other authorisations?
Duration Of Licences:
- Mobile Telephony: 10 years, extendable for the same period.
- Value Added Services, trunking, carrier and long distance telephony: 10 years, extendable for the same period.
- Radio Broadcasting (community): 10 years, extendable for the same period.
Television broadcasting Services:
- National channels (Free-to-air TV): 10 years, extendable for the same period.
- Subscription TV: 10 years, extendable for the same period.
- Community television: Indefinite.
- Non-Profit Local television: Indefinite.
3. PUBLIC AND PRIVATE WORKS
3.1 Are there specific legal or administrative provisions dealing with access to public and private land in order to install telecommunications infrastructure?
Yes. The installation, addition, renovation, enlargement and modification of the telecommunications interconnected network is treated under the principles of public utility and social interest, so may be subject to real state expropriations and rights of way.
As for concessionaries of television services, prior agreement and subject to the technical capacity, such operators may use the interconnected telecommunications and electric energy networks as well as the infrastructure of pylons and ducts.
3.2 Do any specific rules exist which assist in securing or enforcing rights of way over public or private land, for the installation of network infrastructure?
Yes. Principally, when installing network infrastructure of fixed telephony and mobile telephony (in countryside) companies may: (i) pass through other's lands the lines and cables required to operate the service; (ii) temporarily occupy the zones within those lands, and (iii) remove cultivations and any obstacle for the installation of network infrastructure.
3.3 Is there a specific planning or zoning regime that applies to the installation of network infrastructure?
Yes. Specifically, the public zones for the construction of telecommunications and television services infrastructure will be subject to the Zoning Plan (Plan de Ordenamiento Territorial "POT") of the respective municipality or district.
3.4 Are there any rules requiring established operators to share their infrastructure, e.g. masts, sites, ducts or cables?
Yes. The telecommunications operators shall offer and allow the use of its networks to other telecommunications operators and to the content and applications providers.
Furthermore, SMP operators within a relevant market must offer and allow to other operators the access to unbundled network elements, identified as essential facilities, in addition to submarine cable-heads and local loop.
Subject to the CNTV's authorisation, value added and telematic operators may operate in concurrence with the cable television service, which is not under the scope of the Convergence Decree.
4. ACCESS AND INTERCONNECTION
4.1 Is network-to-network interconnection and access mandated, and what are the criteria for qualifying for the benefits of interconnection?
Yes, it is mandated. The criteria for qualifying for the benefits of interconnection are being an operator of telecommunication services excluding radio broadcasting and television operators.
4.2 How are interconnection or access disputes resolved? Does the national regulatory have jurisdiction to adjudicate and impose a legally binding solution?
Interconnection or access conflicts are resolved by the CRT which has the legal power to impose binding solutions by guaranteeing the principles of free and fair competence within the industry and efficiency of the service.
4.3 Are charges for interconnection and/or network access subject to price or cost regulation and, if so, how?
Yes, charges for interconnection are regulated on a cost orientated basis (US -WEST LECC) and taking as basis an efficient cost model for a network in Colombia.
4.4 In the local loop are existing owners of access infrastructure required to unbundled their facilities and if so, on what terms or regulatory controls?
According to the Convergence Decree, the SMP operators in a relevant market shall unbundle their facilities (essential facilities and local loop), according to technical and economical requirements established by the CRT.
4.5 How are existing interconnection and access regulatory conditions to be applied to new network technologies such as so-called next generation networks or IP-based networks?
This issue has not been stated yet in Colombia. This year, the CRT carried out a preliminary study on next generation networks and Convergence named "Integral Study of Next Generation and Convergence Networks; Yellow Document. Center of Knowledge of the Business", published on June 2007.
5. PRICE AND CONSUMER REGULATION
5.1 Are (i) retail or (ii) wholesale price controls imposed on any operator in relation to fixed, mobile, or other services?
In general terms and except for fixed telephony (e.g. price cap fixed to mobile), telecommunications operators are in supervised tariffs regime, which means that the operators are free to determine their tariffs. However, tariffs must be registered in the CRT.
Convergence Decree states that SMP operators in a relevant market must submit their wholesale offer to the general public.
Currently, subscription television operators are free to determine their prices, but under surveillance; however, based on recent regulations the CNTV will soon establish a start price to such operators in order to avoid predatory prices. On the other hand, CNTV established a price cap to community television to prevent that their services fall into the subscription television modality.
5.2 Is the provision of electronic communications services to consumers subject to any special rules and if so, in what principal respects?
As stated before, legislation and regulation of electronic communications in Colombia differed among services and as a consequence of that, the regulation regarding consumers may also vary between services. However, in general terms in all communications services (i) consumers are entitled to present to the operator claims and formal complaints regarding the provision of the service; (ii) operators have the duty to give consumers information regarding the conditions of their agreement and the provision of service; and (iii) there is a regime for consumers' protection rights.
For telecommunication and subscription television services, they are special rules regarding the inclusion of minimum permanency clauses, fines or sanctions for anticipated termination and automatic contract extensions.
5.3 Are there any rules governing use and retention of customer call information?
The Constitutional provision of habeas data establishes general rules governing the right to know, update and rectify information recollected by data banks, and other rights, liberties and constitutional guarantees related to the recollection, treatment and traffic of personal data.
6.1 How are telephone numbers and network identifying codes allocated and by whom?
The Government has a Numbering Plan and a National Dialing Plan allocated and administered by the CRT. The right of allocation may be granted to all the telecommunication service operators that have the right to such resources.
As a practical matter, numbering allocations are subject to operators legally established through a formal request determined by the CRT.
6.2 Are there any special rules which govern the use of telephone numbers?
Yes. The use of telephone numbers are governed by the following main principles: (i) neutrality; (ii) efficiency; and (iii) promotion of competition. The particular rules are explained through detailed procedures articulated by the numbering structure and the numeric resource. Therefore, due to the high level of specification, if further information is needed please see Decree 25 of 2002.
6.3 How are telephone numbers made available for network use and how are such numbers activated for use by customers?
The CRT in its condition of administrator of the Numbering Plan and the National Dialing Plan has the faculty to assign numbering to telecom operators per previous request or at its own decision.
6.4 What are the basic rules applicable to the 'porting' (i.e. transfer) of telephone numbers (fixed and mobile).
Although there is an obligation to provide number portability for fixed telephony operators, it is subject to technical and economic capacity.
On the other hand, as for the other services, based on a study that the CRT should carry out, such Commission will determine the application of number portability for a particular market. However, the study is not sufficiently developed. in fact, there is no current regulation to mobile telephony operators on this particular matter.
7.1 What fees and levies are payable and to whom with respect to the grant of a licence or other authorisation for the installation or use of network infrastructure or the provision of communication services?
The payable structure for the provision of communication services may be divided into two payment considerations: (i) an entrance fee due to the concession or licence (According to Convergence Decree an initial compensation must be paid, which is equivalent to three minimum salaries) ; and (ii) a periodic compensation. Depending on the service provided, both are payable to the Ministry or to the CNTV. For further information, please see Decree 1972, 2003.
- Fixed Telephony (long distance), Mobile Services and Value Added Services: Percentage over the net incomes that oscillate between 3% and 5%. Nevertheless, the Convergence Decree establishes the possibility to reduce it to the 3% after reviewing the periodic compensation of the telecom operators by 2010.
- Television broadcasting Services: Please see question 9.6.
8. SUBMARINE CABLES
8.1 What are the main rules governing the bringing into Colombia's territorial waters, and the landing, of submarine cables? Are there any special authorisations required or fees to be paid with respect to submarine cables?
A formal request to the Maritime General Director of Colombia is mandated. Such request must contain at least the following requirements, which are divided into the next two sections: (A) with relation to the project: (i) a fully description of the project; (ii) a detailed description of the cable's lay including a daily schedule, and (iii) an environmental licence, and (B) with relation to the ship: (i) a security and seaworthiness certificates; (ii) a Chamber of Commerce Registry, and (iii) a timescale plan indicating period of permanence in Colombian territorial waters.
Currently, there are no special fees to be paid with respect to submarine cables.
9. RADIO FREQUENCY SPECTRUM
9.1 Is the use of radio frequency spectrum specifically regulated and if so, by which authority?
Yes, it is specifically regulated. The radio frequency spectrum is a public good administered by the Colombian State, therefore, depending on the service, the Ministry or the CNTV will be responsible for its policies and administration.
In view of the fact that television has a particular public service consideration due to its constitutional treatment, the regulation and administration of the radio frequency spectrum is shared by the Ministry and the CNTV.
9.2 In the grant of spectrum rights are distinctions made between mobile, fixed and satellite usage?
According to Convergence Decree, the grant of spectrum rights is not necessarily associated to any telecommunications service, therefore there is no distinction made between them.
9.3 How is the installation of satellite earth stations and their use for up-linking and down-linking regulated?
The providers of spatial segment in Colombia of any satellite networks require an authorisation of the Ministry, prior the accomplishments established in the international treaties signed by Colombia. This authorisation implies the use of associate radio frequency bands. For further information, please see Decree 1137 of 1996.
9.4 How is the use of radio frequency spectrum authorised in Colombia? Do the procedures available include spectrum auctions and comparative selection of candidates?
Since the radio spectrum is a public good and a scarce resource its use must be authorised by the granting of a licence by the Ministry. Comparative and objective selection of proponents shall be implemented and observed.
9.5 Can the use of spectrum be made licence-exempt? If so, under what conditions?
The general rule is that the use of spectrum cannot be made licence-exempt, except for the use of radio frequency spectrum, which is free for industrial, scientific and medical use as well as the equipment, terminal and systems, which are generally authorised by the Ministry.
On the other hand, there is a free use for frequency bands related to all the wireless access systems, such as Wi-Fi and bluetooth. For further information, please see Resolución 689 de 2004 of the Ministry.
9.6 If licence or other authorisation fees are payable for the use of radio frequency spectrum, how are these applied and calculated?
Yes. Before answering the question, it is first important to underline that the concession or permission to provide a telecommunications service is different from the permission to use the radio frequency spectrum, and since we are starting on the basis that cable television physically doesn't use the spectrum, such modality of television service will not be included within this answer.
- Telecom Services (fixed telephony, mobile services and value added services): An annual fee must be paid according to objective formulas established by the Ministry (For further information, please see Decree 1972 of 3003).
Television broadcasting Services:
- Private national operators of free-to-air-television (currently are two operating): Current private national operators of free-to-air-television had to pay each one an entrance fee of US $ 95.000.000.00
- For-profit local television operator (currently is operating one in Bogotá DC): Had to pay for the use of radio frequency spectrum US $ 14.185.209.
- State television channels (currently are four concessionaries operating one of the State television channels-"Canal Mixto"-): Shall pay a fixed component each year and a variable component constituted by the percentage over the gross income as a result of the sale of the advertising spots which will be charged every trimester after the third year of operation.
9.7 Are spectrum licences able to be traded or sub-licensed and if so on what conditions?
According to the Convergence Decree, the radio frequency spectrum licences are able to be transfer, upon previous authorisation by the Ministry. The conditions will be regulated within the six (6) months following the entering into force of the Convergence Decree (31 July 31, 2007).
As for free-to-air television, its concessions are unable to be transferred or sub-licensed.
10.1 What are the essential rules applicable to the interception of messages, traffic data and other call records? Which rules apply to the retention of such call data, and over which period(s)?
Telecommunication services operators shall not allow any interception of communications (voice, data) unless ordered by judge.
11. THE INTERNET
11.1 Are services over the Internet regulated in any different way to other electronic communications services? Which rules, if any, govern access to the Internet at a wholesale and/or retail level?
Given that the Colombian legislation and regulation is based on services, as mentioned above, a case by case study shall be carry out in order to determine the nature of the service provided over the Internet, such as VoIP, IPTV, among others. For further information on this mater, please see Convergence Decree.
With respect to the second question, they are no rules governing the access to the Internet at a wholesale and/or retail level.
11.2 Are there any rules to prevent, restrict or otherwise govern Internet or email communications, in particular, marketing and advertising communications?
No. However, the only provision that refers expressly to the responsibility of the ISP's is related to the rights of minors. Such regulation establishes not only particular obligations to prevent the access of minors to any modality of pornography through Internet contents or to the different types of computer networks through global information networks, but also the obligations to restrict commercial sexual exploitation of children or advertising offering services that imply sex abuse with minors.
12.1 Is there a concept of universal service obligation; if so how is this defined, regulated and funded?
Yes, there is a concept of USO. In fact, universal service is defined as such, with the purpose to bring to every Colombian home generalised access to basic telecommunication services (beginning with fixed telephony, incorporating other services, as technical advances and funds allow it). The Communications Fund created by Law 142, 1994 is in charge of fostering social telephony programs, specially dedicated to urban and rural areas characterised by users with unsatisfied basic needs. The mentioned fund shall submit to the Colombian National Council of Economic and Social Policy (CONPES) for approval, social telephony programs. USO is funded by telecom services concessions and licence fees, Colombian State contributions and other International Cooperation Agreements funds.
13. FOREIGN OWNERSHIP RULES
13.1 Are there any rules restricting direct or indirect foreign ownership interests in electronic communications companies whether in fixed, mobile, satellite or other wireless operations?
As a general rule, there are no restrictions on FDI and FII in telecommunications services. However, the foreign equity in any corporation holding a free-to-air television concession is limited to forty percent (40%) in reciprocity conditions.
14. FUTURE PLANS
14.1 Are there any imminent and significant changes to the legal and regulatory regime for electronic communications?
In an attempt to regulate technological convergence the National Government enacted the Convergence Decree. Additionally, for the last years, the Ministry has been trying to present several Bills and Constitutional amendments in order to adjust the institutional model of television and telecommunication services regulation, together with its supervision, financing and control.
Currently, the main objective in the short term of the regulatory regime is to harmonise the regulatory framework. Put another way, the Government's intention has to do with the fact that the regulation of electronic communications shall be centralised into one administrative or executive body in order to promote competition, liberate and integrate services, and facilitate foreign investment.
Consequently, as from the entering into force of the Convergence Decree, the CRT has the legal duty to adapt - within one year- the regulatory framework applicable to the access, use and interconnections of the networks as well as the market of telecommunication services, except radio broadcasting and television services, including the obligation to offer and allow the access to unbundled network elements, identified as essential facilities, in addition to submarine cable-heads and local loop.
According to a recent study carried out by the Latin America Multichannel Advertising Council, Colombia is the natural market with the largest cable penetration in Latin America (50.4%); such circumstance has created a foreign investment environment that is generating legal and regulatory changes pertaining to the convergence challenges.
Finally, the CNTV recently announced that by 2009 Colombia will have a third private national free-to-air channel-currently are two operating-, and by March 2008 the Commission will decide the digital standard technology (Japanese, European or American) that Colombia will adopt due to the analog blackout. Both regulatory policies will be taken after studies carried out in tandem by the CNTV and by the Ministry in order to analyse the new technologies effects with reference to the provision of telecommunications services within a convergent scenario.
In relation to the adoption of the digital standard technology, the CNTV created an Advisory Council and a Technical Committee integrated by several sectors of the industry, the main purpose of which is to advise the CNTV on the subject of what shall be the appropriate technological standard to suit Colombian needs, as well as promote and develop the studies in order to give technical and economic support about the pros and cons, impacts, actions to be followed, among others, of the CNTV's decision-making process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.