← Malta

L.S. 399.48 Regolamenti dwar in-Networks u s-Servizzi ta’ Komunikazzjonijiet Elettroniċi (Ġenerali)

ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 SUBSIDIARY LEGISLATION 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) REGULATIONS 1st October, 2021 LEGAL NOTICE 379 of

  1. PART I PRELIMINARY
  2. The title of these regulations is the Electronic Communications Networks and Services (General) Regulations. Citation.
  3. requires: Interpretation. In these regulations, unless the context otherwise ""Act" means (Regulation) Act; the Electronic Communications "application programming interface" or "API" means the software interface between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital television and radio services; "authorised undertaking" means an undertaking deemed to be authorised to provide electronic communications networks and, or services in accordance with these regulations; "call" means a connection established by means of a publicly available interpersonal communications service allowing two-way voice communication; "caller location information" means, in a public mobile network, the data processed, derived from network infrastructure or handsets, indicating the geographic position of an end-user’s mobile terminal equipment, and, in a public fixed network, the data about the physical address of the network termination point; "the Charter" means the Charter of Fundamental Rights of the European Union; "competent authority" and, or "competent public body" means any national or regional authority, and any national or regional public body or bodies as the Minister may, after consultation with the Authority and with the Minister responsible for such public authority or body, designate under the Fourteenth Schedule in accordance with his powers under article 47 of the Act, to be responsible or to undertake any of Cap.
  4. 1 2 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) the functions however so described, as stipulated in these regulations; "Decision (EU) 2017/899" means Decision (EU) 2017/ 899 of the European Parliament and of the Council of 17 May 2017 on the use of the 470-790 MHz frequency band in the European Union; "Decision No 243/2012/EU" means Decision No 243/ 2012/EU of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme; "Directive 2003/98/EC" means Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information; "Directive 2014/30/EU" means Directive 2014/30/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility; "Directive 2014/53/EU" means Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC; "Directive 2014/61/EU" means Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks; "Directive (EU) 2015/1535" means Directive (EU) 2015/ 1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services; "durable medium" means any instrument which enables the consumer or the trader to store information addressed personally to him in a way which is accessible for future reference for a period of time for the purposes of such information and which allows the unchanged reproduction of the information stored; "enhanced digital television equipment" means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services; ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 "ENISA" means the European Union Agency for Network and Information Security; "gateway operator" means an undertaking providing or authorised to provide a public electronic communications network and, or publicly available electronic communications services which includes a submarine connection between the Maltese islands and, or includes an international connection between Malta and other countries; "geographic number" means a number from the national numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point; "ICNIRP" means the International Commission on NonIonising Radiation Protection; "most appropriate PSAP" means a PSAP established by responsible authorities to cover emergency communications from a certain area or for emergency communications of a certain type; "number-independent interpersonal communications service" means an interpersonal communications service which does not connect with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, or which does not enable communication with a number or numbers in national or international numbering plans; "non-geographic number" means a number from the national numbering plan that is not a geographic number, such as mobile, freephone and premium-rate numbers; "other electronic communications services" include: (i) services consisting wholly or mainly in the conveyance of signals such as transmission services for the provision of machine-to-machine (M2M) or Internet of Things (IoT); (ii) number-based communications services; interpersonal non-voice (iii) publicly available telephone directories and directory enquiry services; (iv) other publicly communications services; and available electronic 3 4 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) (v) non-publicly communications services. available electronic "provision of an electronic communications network" means the establishment, operation, control or making available of such a network; "radio local area network" or "RLAN" means a lowpower wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a nonexclusive basis, harmonised radio spectrum; "Recommendation 1999/519/EC" means Council Recommendation of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz); "Regulation (EU) No 1315/2013" means Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on European Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU; "Regulation (EU) 2016/679" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation); "Regulation (EU) 2018/1971" means Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009; "security incident" means an event having an actual adverse effect on the security of electronic communications networks and, or services; "small-area wireless access point" means low-power wireless network access equipment of a small size operating within a small range, using licensed radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users to electronic communications networks ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 5 regardless of the underlying network topology, be it mobile or fixed; "subscriber" means any person who is party to a contract with the provider of publicly available electronic communications services for the supply of such services; "television and radio distribution services" means the delivery of television and, or radio broadcasts or other television services to a subscriber through an electronic communications network; "total conversation service" means a multimedia real time conversation service that provides bidirectional symmetric real time transfer of motion video, real time text and voice between users in two or more locations; "transnational markets" means markets identified in accordance with regulation 53 which cover the European Union or a substantial part thereof located in more than one Member State; and "TFEU" means the Treaty on the Functioning of the European Union.". 3.

(1)These regulations shall, unless the context otherwise requires, apply to: (
  1. a)public electronic communications networks; (
  2. b)voice communications services; (
  3. c)internet access services; (
  4. d)television and radio distribution services; and (
  5. e)other electronic communications services. Application.
(2)Any person providing any of the services or operating any of the networks mentioned in this regulation shall comply with these regulations. PART II COMPETITION 4.
(1)An undertaking shall refrain from doing anything by an act or omission, which has the effect or the intention of preventing, restricting or distorting competition.
(2)The Authority shall, to the extent that it shall be empowered under the laws that it is entitled to enforce, ensure that the principles of competition law are fully adhered to in the electronic communications Competition rules. 6 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) sector, in particular with regard to: (
  1. a)the agreements; (
  2. b)examination of any interconnection the conditions for market access to undertakings; (
  3. c)the schemes established for funding universal service obligations; (
  4. d)the access to rights of way; (
  5. e)the cross-ownership of different networks and the joint provision of networks and, or services; and (
  6. f)the emergence of any global and regional partnerships and alliances: Provided that for the purpose of exercising its duties and functions under the Act, the Authority may seek the advice of the competent authority responsible for competition. PART III GENERAL AUTHORISATION General authorisation of electronic communications networks and services. 5.
(1)An undertaking shall be entitled to provide electronic communications services and, or networks, in accordance with the Act and with these regulations: Provided that an undertaking shall only be prevented from providing electronic communications networks or services, where this is necessary for the reasons set out in Article 52
(1)of the TFEU. Any such limitation to the freedom to provide electronic communications networks and services shall be duly reasoned and shall be notified to the European Commission.
(2)The provision of electronic communications networks or services, other than number-independent interpersonal communications services shall, without prejudice to the specific obligations referred to in regulation 7
(2)or rights of use referred to in article 37 of the Act and regulation 81, be subject only to a general authorisation.
(3)In accordance with the Act and these regulations, any undertaking subject to a general authorisation as stated in subregulation
(2)shall notify the Authority in writing of its intention to provide such a network or service before commencing with the provision of any such network or service.
(4)An undertaking in submitting a notification for a general authorisation to the Authority, shall not be required to obtain an explicit decision or any other administrative act from any public authority ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 before exercising the rights derived from the general authorisation. Upon notification to the Authority, an undertaking may start the activity so notified, where necessary subject to the provisions on the rights of use under the Act and these regulations.
(5)The notification submitted in accordance with this regulation shall not entail more than a declaration by a person to the Authority of his intention to start the provision of electronic communications networks and, or services, and the submission of such minimum information as is required to allow the Authority and BEREC to keep a register of providers of electronic communications networks and, or services: Provided that the information shall be limited to: (
  1. a)the name of the provider; (
  2. b)the legal status of the provider, its form and registration number; (
  3. c)the official address for service of notice in Malta, and the geographical address of the main establishment of the provider in Malta or any other Member State, as the case may be; (
  4. d)the website address of the provider, where applicable, associated with the provision of electronic communications networks and, or services; (
  5. e)a contact person and contact details; (
  6. f)a short description of the networks and, or services intended to be provided; (
  7. g)the Member State or Member States where the networks and, or services are being provided; and (
  8. h)an estimated date for starting the activity.
(6)No additional or separate notification requirements shall be imposed other than those required under this regulation.
(7)In line with any guidelines for the notification template and maintenance of a European Union database of the notifications transmitted to the competent authorities in all Member States that BEREC may publish in order to approximate notification requirements, the Authority shall, by electronic means, forward each notification received to BEREC without undue delay.
(8)An undertaking shall notify in writing the Authority of any changes to the information supplied under sub-regulation
(5)(
  1. a)to (
  2. e)7 8 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) within fourteen
(14)days of such change, and in relation to the information referred to in sub-regulation
(5)(
  1. f)to (
  2. h)within fourteen
(14)days prior to the commencement of the relevant activity.
(9)An undertaking shall notify in writing the Authority immediately when it ceases to provide any electronic communications networks and, or services under these regulations, and shall remain responsible for the fulfilment of any obligations as a provider of such networks and, or services until such notification is received and acknowledged by the Authority: Provided that the Authority may specify any such additional requirements onerous on the undertaking concerned as the Authority considers necessary in order to ensure the protection of end-users and, or to prevent any disruption to other authorised undertakings.
(10)Any right, interest or entitlement resulting from a general authorisation is not transferable and shall only be exercised by the undertaking identified in the notification made to the Authority in accordance with the provisions of this regulation, and shall apply only to the electronic communications service and, or network described in that notification. Decision where notification under regulation 5 is not required. 6.
(1)The Authority may decide to specify an electronic communications network or service of a particular category as being a network or service in relation to which an undertaking is not subject to the notification requirements as provided for in regulation 5. Any such undertaking is deemed to be authorised under these regulations.
(2)The Authority in making such determination shall give its reasons therefor. Conditions attached to the general authorisation and to the rights of use for radio spectrum and for numbering resources and specific obligations. 7.
(1)The general authorisation for the provision of electronic communications networks and, or services, and the rights of use for radio spectrum and rights of use for numbering resources may be subject only to the conditions listed in the First Schedule which conditions shall be non-discriminatory, proportionate and transparent: Provided that in the case of rights of use for radio spectrum, such conditions shall ensure the effective and efficient use thereof and shall be in accordance with regulations 32 and 38, and in the case of rights of use for numbering resources, they shall be in accordance with regulation 81.
(2)Specific obligations which may be imposed on undertakings providing electronic communications networks and, or services under regulation 48
(1)and
(8)and regulations 50, 55 and 70, or on those undertakings designated to provide universal service under these regulations, shall be legally separate from the rights and obligations under the general authorisation: ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 9 Provided that the Authority, in order to achieve transparency, shall refer to the criteria and procedures for imposing such specific obligations on individual undertakings in the general authorisation.
(3)The general authorisation shall contain only conditions which are specific for that sector and are set out in Parts A, B and C of the First Schedule and shall not duplicate conditions which are applicable to undertakings by virtue of any other national law.
(4)The conditions of the general authorisation shall not be duplicated where they grant the right of use for radio spectrum or for numbering resources. 8.
(1)The conditions applicable to general authorisations shall be those as stated in the Thirteenth Schedule: Provided that the Authority may in accordance with regulation 7 amend the Thirteenth Schedule. In doing so the Authority shall not impose any conditions not listed under Part A of the First Schedule: Conditions attached to general authorisation to provide electronic communications services and, or networks. Provided further that, the Authority may establish that certain conditions may not apply to such categories of undertakings as may be specified by the Authority.
(2)Any conditions attached to a general authorisation, or nonapplication of conditions to such categories of undertakings as may be specified under sub-regulation
(1), shall be objectively justified, nondiscriminatory, proportionate and transparent in relation to the electronic communications network or service concerned.
(3)An undertaking shall comply with the conditions attached to the general authorisation applicable to it.
(4)The Authority shall not attach as a condition to a general authorisation, any specific obligations that it may impose on an undertaking nor any conditions which are applicable to undertakings by virtue of any other law. 9. If the Authority considers that an undertaking which enjoys a general authorisation is not complying with one or more conditions of a general authorisation, the Authority may in accordance with the applicable provisions under Part VI of the Malta Communications Authority Act, take such measures as it considers appropriate, including interim measures, to ensure compliance. Non-compliance with conditions of general authorisation. 10.
(1)The Authority shall, within one week of the receipt of a request of an undertaking, issue to that undertaking in such form as the Authority may from time to time determine, a standardised declaration confirming, where applicable, that the undertaking has Declarations to facilitate the exercise of rights to install facilities and rights of interconnection. Cap. 418. 10 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) submitted a notification under regulation 5
(3).
(2)When issuing a declaration under this regulation, the Authority shall detail the circumstances under which an undertaking providing electronic communications networks and, or services under the general authorisation has the right to apply for rights to install facilities, negotiate interconnection, and obtain access or interconnection, in order to facilitate the exercise of those rights.
(3)Where the Authority considers it appropriate to do so, it may issue such a declaration as an automatic reply following the notification pursuant to regulation 5
(3).
(4)The Authority shall establish and maintain a register of those undertakings that have notified the Authority of an intention to provide a network or service pursuant to regulation 5
(3)and such information contained in any such notification as the Authority considers appropriate, other than information which the Authority reasonably considers to be confidential, shall be entered in the register established and maintained under this sub-regulation: Provided that the Authority may, as necessary, amend or delete an entry in the register.
(5)A person may inspect the register free of charge at all reasonable times and may, at a reasonable charge to be determined by the Authority, make copies of, or take extracts from, entries in the register. List of minimum rights derived from the general authorisation. Cap. 81. 11.
(1)An undertaking subject to the general authorisation pursuant to regulation 5 shall have the right to: (
  1. a)services; provide electronic communications networks and (
  2. b)have its application for the necessary rights to install facilities considered in accordance with articles 4 and 4D of the Utilities and Services (Regulation of Certain Works) Act; (
  3. c)use, subject to regulations 7 and 42, and article 37 of the Act, radio spectrum in relation to electronic communications networks and, or services; and (
  4. d)have its application for the necessary rights of use for numbering resources considered in accordance with regulation 81.
(2)Where such an undertaking is providing electronic communications networks or services to the public, the general authorisation shall give it the right to: ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 (
  1. a)negotiate interconnection with and, where applicable, obtain access to, or interconnection from, other providers of public electronic communications networks or publicly available electronic communications services covered by a general authorisation in the European Union in accordance with the Act and these regulations; and (
  2. b)be given an opportunity to be designated to provide different elements of the universal service or to cover different parts of Malta in accordance with regulations 73 or 74. 12.
(1)Any administrative charges imposed by the Authority on undertakings providing electronic communications networks or services under the general authorisation or to which a right of use has been granted, shall: (a) cover, in total, only the administrative costs incurred in the management, control and enforcement of the general authorisation system and of the rights of use and of specific obligations as referred to in regulation 7
(2)which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of legislation and regulatory decisions; and (b) be imposed upon the individual undertaking in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges.
(2)The Authority shall publish an annual overview of its administrative costs and of the total sum of the charges collected. Where there is a difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made.
(3)The Authority shall, in the case of charges imposed on an annual basis, make appropriate repayments or compensation in the case of overcharging, or impose additional charges in the case of undercharging of an undertaking to whom a charge is imposed in the light of any difference between the total sum of administrative charges collected and the administrative costs incurred.
(4)An undertaking providing electronic communications networks and, or services under the general authorisation shall pay to the Authority such administrative charges as are established under Part A of the Twelfth Schedule: Provided that in all cases, any such charges shall be established in accordance with this regulation. Administrative charges. 11 12 [ S.L. 399.48 Accounting separation and financial reports. ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) 13.
(1)An undertaking providing public electronic communications networks or publicly available electronic communications services which has special or exclusive rights for the provision of services in other sectors in Malta or in another Member State, shall: (
  1. a)keep separate accounts for the activities associated with the provision of electronic communications networks or services, to the extent that would be required if those activities were carried out by legally independent entities, in order to identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to such activities, including an itemised breakdown of fixed assets and structural costs; or (
  2. b)have structural separation for the activities associated with the provision of electronic communications networks or services: Provided that the Minister may, after consultation with the Authority, by order in the Gazette establish that the requirements referred to in this sub-regulation do not apply to undertakings which have an annual turnover of less than fifty million euro (€50,000,000) or any such inferior amount as the Minister may, after consultation with the Authority, establish in the Gazette in activities associated with electronic communications networks and, or services in the European Union.
(2)Where an undertaking providing public electronic communications networks or publicly available electronic communications services is not subject to the requirements of national company law and does not satisfy the small and medium-sized enterprise criteria of European Union law accounting rules, its financial reports shall be drawn up and submitted to independent audit and published. The audit shall be carried out in accordance with the relevant European Union and national rules: Provided that the provisions of this sub-regulation shall also apply to the separate accounts required under paragraph (a) of the subregulation
(1)of this regulation. Restriction or withdrawal of rights. Cap. 418. 14.
(1)Without prejudice to regulation 20 and articles 31, 32 and 33 of the Malta Communications Authority Act, the rights to install facilities or rights of use for radio spectrum or for numbering resources before the expiry of the period for which they are granted, shall not be restricted or withdrawn, except where justified pursuant to subregulation
(2)of this regulation, and, where applicable, in accordance with the First Schedule, and to any relevant national provisions regarding compensation for the withdrawal of rights. ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48
(2)In line with the need to ensure the effective and efficient use of radio spectrum, or the implementation of the technical implementing measures adopted under Article 4 of Decision No 676/ 2002/EC, the Authority may restrict or withdraw the rights of use for radio spectrum, including the rights referred to in regulation 36, based on pre-established and clearly defined procedures which the Authority shall from time to time establish, in accordance with the principles of proportionality and non-discrimination: Provided that in such cases, the holders of the rights may, where appropriate and in accordance with European Union law and national law, seek to be compensated appropriately.
(3)A modification in the use of radio spectrum as a result of the application of regulation 32
(3)and
(4)or of regulation 32
(5)and
(6)shall not alone constitute grounds to justify the withdrawal of a right of use for radio spectrum.
(4)Any intention to restrict or withdraw rights under the general authorisation or individual rights of use for radio spectrum or for numbering resources without the consent of the holder of the rights shall be subject to consultation of the interested parties in accordance with article 4A of the Malta Communications Authority Act. Cap. 418. PART IV PROVISION OF INFORMATION, SURVEYS AND CONSULTATION MECHANISM 15.
(1)The Authority may require undertakings providing electronic communications networks and services, associated facilities, or associated services, to provide all the information, including financial information, necessary for the Authority and BEREC to ensure conformity with the provisions of, or decisions or opinions adopted in accordance with, the Electronic Communications Code, the Act, these regulations and Regulation (EU) 2018/1971: Provided that the Authority shall have the power to require such undertakings to submit information concerning future network or service developments that could have an impact on the wholesale services that they make available to competitors, as well as any information on electronic communications networks and associated facilities, which is disaggregated at local level and sufficiently detailed to enable the geographical survey and designation of areas in accordance with regulation 17.
(2)If the Authority considers that the information collected in accordance with sub-regulation
(1)is insufficient for the Authority and, or BEREC to carry out their regulatory tasks under European Union law, the Act or these regulations, such information may be required from other relevant undertakings active in the electronic communications or closely related sectors. Information request to undertakings. 13 14 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL)
(3)The Authority may require undertakings designated as having significant market power on wholesale markets to submit accounting data on the retail markets that are associated with those wholesale markets.
(4)The Authority may request information pursuant to any of its regulatory tasks at law from the single information points established pursuant to Directive 2014/61/EU.
(5)Any request for information made in accordance with this regulation shall be proportionate to the performance of the task being undertaken by the Authority, or BEREC as the case may be, and shall be reasoned.
(6)An undertaking shall provide any information requested in accordance with this regulation, promptly and in accordance with the timescales and level of detail required by the Authority.
(7)The Authority shall provide the European Commission, after a reasoned request, with the information necessary for the European Commission to carry out its tasks under the TFEU. The information requested by the European Commission shall be proportionate to the performance of those tasks: Provided that where the information provided refers to information previously provided by undertakings at the request of the Authority, such undertakings shall be informed accordingly by the Authority: Provided further to the extent necessary and unless the Authority has made an explicit and reasoned request to the contrary, the European Commission shall make the information provided available to any other such authority in another Member State.
(8)Subject to the requirements of sub-regulation
(9), the Authority shall ensure that the information submitted to it can be made available to another such authority in Malta or in another Member State and to BEREC, after a substantiated request, where necessary to allow either authority, or BEREC, to fulfil its responsibilities under European Union law.
(9)Where information gathered pursuant to sub-regulation
(1), including information gathered in the context of a geographical survey, is considered to be confidential by the Authority in accordance with European Union and national rules on commercial confidentiality, the European Commission, BEREC and any other competent authorities concerned shall ensure such confidentiality: Provided that such confidentiality shall not prevent the sharing of information between the Authority, the Commission, ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 15 BEREC and any other competent authorities concerned in a timely manner for the purposes of reviewing, monitoring and supervising the application of the Electronic Communications Code, the Act and these regulations.
(10)Acting in accordance with national rules on public access to information and subject to European Union and national rules on commercial confidentiality and protection of personal data, the Authority shall publish information that contributes to an open and competitive market: Provided that in doing so the Authority shall also publish the terms of public access to such information including the procedures for obtaining such access. 16.
(1)Without prejudice to any information requested pursuant to regulation 15 and to information and reporting obligations under national law other than the general authorisation, the Authority may require undertakings to provide information with regard to the general authorisation, the rights of use or the specific obligations referred to in regulation 7
(2), which is proportionate and objectively justified in particular for the purposes of: (a) verifying, on a systematic or case-by-case basis, compliance with condition 1 of Part A, conditions 2 and 6 of Part D, and conditions 2 and 7 of Part E of the First Schedule and of compliance with obligations as referred to in regulation 7
(2)and in the Thirteenth Schedule; (
  1. b)verifying, on a case-by-case basis, compliance with conditions as set out in the First Schedule and in the Thirteenth Schedule where a complaint has been received, or where the Authority has other reasons to believe that a condition is not complied with, or in the case of an investigation by the Authority of its own initiative; (
  2. c)carrying out procedures for and the assessment of requests for granting rights of use; (
  3. d)publishing comparative overviews of quality and price of services for the benefit of consumers; (
  4. e)studies; collating clearly defined statistics, reports or (
  5. f)carrying out market analyses for the purposes of the Electronic Communications Code, the Act and these regulations including data on the downstream or retail markets associated with or related to the markets which are the subject of the market analysis; Information required with regard to the general authorisation, rights of use and specific obligations. 16 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) (
  6. g)safeguarding the efficient use and ensuring the effective management of radio spectrum and of numbering resources; (
  7. h)evaluating future network or service developments that could have an impact on wholesale services made available to competitors, on territorial coverage, on connectivity available to end-users or on the designation of areas pursuant to regulation 17; (
  8. i)(
  9. j)BEREC: conducting geographical surveys; and responding to reasoned requests for information by Provided that the information referred to in paragraphs (
  10. a)and (b), and (
  11. d)to (
  12. j)shall not be required prior to, or as a condition for, market access.
(2)As regards the rights of use for radio spectrum, the information referred to in sub-regulation
(1)shall refer in particular to the effective and efficient use of radio spectrum as well as to compliance with any coverage and quality of service obligations attached to the rights of use for radio spectrum and their verification.
(3)Where the Authority requires an undertaking to provide information as referred to in sub-regulation
(1)it shall inform that undertaking of the specific purpose for which this information is to be used.
(4)The Authority shall not duplicate requests of information already made by BEREC pursuant to Article 40 of Regulation (EU) 2018/1971 where BEREC has made the information received available to the Authority. Geographical surveys of network deployments. 17.
(1)The Authority shall be responsible for the conduct of a geographical survey of the reach of electronic communications networks capable of delivering broadband (‘broadband networks’) by 21 December 2023, and shall update it at least every three years thereafter.
(2)The geographical survey referred to in sub-regulation
(1)shall include a survey of the current geographic reach of broadband networks within Malta, as required for the tasks of the Authority and, or other competent authorities under the Act, these regulations or any other applicable law, and for the surveys required for the application of State aid rules.
(3)In undertaking a geographical survey in accordance with this regulation, the Authority may also decide to include in the geographical survey, a forecast for a period determined by it of the reach of ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 broadband networks, including very high capacity networks, within Malta: Provided that such forecast shall include all relevant information, including information on planned deployments by any undertaking or public authority, of very high capacity networks and significant upgrades or extensions of networks to at least 100 Mbps download speeds. For this purpose, the Authority shall request undertakings and other public authorities to provide such information to the extent that it is available and can be provided with reasonable effort.
(4)The Authority shall decide, with respect to tasks specifically attributed to it under the Act and these regulations, the extent to which it is appropriate to rely on all or part of the information gathered in the context of a forecast undertaken in accordance with this regulation.
(5)The information collected in the geographical survey shall be at an appropriate level of detail and shall include sufficient information on the quality of service and relative parameters and shall be treated in accordance with regulation 15
(9).
(6)The Authority may designate an area with clear territorial boundaries where, on the basis of the information gathered and any forecast prepared pursuant to sub-regulation
(3), the Authority determines that, for the duration of the relevant forecast period, no undertaking or public authority has deployed or is planning to deploy a very high capacity network or significantly upgrade or to extend its network to a performance of at least 100 Mbps download speeds. In so doing the Authority shall publish the designated areas on its website.
(7)Within a designated area, the Authority may invite undertakings and public authorities to declare their intention to deploy very high capacity networks over the duration of the relevant forecast period. Where this invitation results in a declaration by an undertaking or public authority of its intention to do so, the Authority may require other undertakings and public authorities to declare any intention to deploy very high capacity networks, or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds in this area: Provided that the Authority shall specify the information to be included in any such submissions made in accordance with this regulation, in order to ensure at least a similar level of detail as that taken into consideration in any forecast pursuant to sub-regulation
(3): Provided further that in so doing, the Authority shall also inform any undertaking or public authority expressing its interest as to whether the designated area is covered or likely to be covered by a next-generation access network offering download speeds below 100 17 18 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) Mbps on the basis of the information gathered pursuant to this regulation.
(8)The Authority shall only impose sanctions in the context of the procedure referred to in sub-regulation
(7)where an undertaking or public authority knowingly or due to gross negligence provides misleading, erroneous or incomplete information: Provided that when determining the amount of fines including where applicable of daily fines to be imposed in such instances, the Authority shall consider inter alia, whether the behaviour of the undertaking or public authority has had a negative impact on competition and, in particular, whether, contrary to the information originally provided or any update thereof, the undertaking or public authority either has deployed, extended or upgraded a network, or has not deployed a network and has failed to provide an objective justification for that change of plan.
(9)Measures pursuant to this regulation shall be taken in accordance with an efficient, objective, transparent and nondiscriminatory procedure, whereby no undertaking is excluded a priori.
(10)The Authority in defining coverage obligations attached to rights of use for radio spectrum and for verifying availability of services falling within the universal service obligations in Malta, shall take into account the results of the geographical survey and of any designated areas pursuant to this regulation.
(11)The competent authorities including where applicable local or regional authorities with responsibility for the allocation of public funds for the deployment of electronic communications networks and for the design of national broadband plans shall take into account the results of the geographical survey and of any designated areas pursuant to this regulation.
(12)When conducting the geographical survey the Authority shall supply those results to other relevant authorities subject to the receiving authority ensuring the same level of confidentiality and protection of business secrets as the Authority, and shall inform the parties which provided the information accordingly. Those results shall also be made available to BEREC and the European Commission upon their request and under the same conditions.
(13)If the relevant information is not available on the market, the Authority shall make the data from the geographical surveys which are not subject to commercial confidentiality, directly accessible in accordance with Directive 2003/98/EC to allow for its reuse: Provided that the Authority shall also, where information tools enabling end-users to determine the availability of connectivity in ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 19 different areas are not available on the market, make available such tools ensuring that these include a level of detail which is useful to support the choice of operator or service provider of the end-user. 18. The provisions under article 4A of the Malta Communications Authority Act shall also apply where the Authority intends to provide for restrictions in accordance with regulation 32
(3),
(4),
(5)and
(6), which have a significant impact in a market for any communications networks or services: Consultation and transparency mechanism. Cap. 418 Provided that for the purposes of regulation 23, the Authority shall inform the RSPG at the moment of publication about any such proposed decision which falls within the scope of the comparative or competitive selection procedure pursuant to regulation 42
(2)and
(3)and relates to the use of radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband electronic communications networks and services. 19.
(1)The Authority shall ensure that the use of radio spectrum is organised in Malta in a way that no other Member State is prevented from allowing on the territory of that Member State the use of harmonised radio spectrum in accordance with European Union law, especially due to cross-border harmful interference between Malta and any another Member State or Member States: Provided that the Authority shall take all necessary measures to this effect without prejudice to the obligations of Malta under international law and relevant international agreements such as the ITU Radio Regulations and the ITU Radio Regional Agreements.
(2)The Authority shall cooperate with other Member States, and where appropriate through the RSPG, in the cross-border coordination of the use of radio spectrum in order to: (a) ensure compliance with sub-regulation
(1); or (b) resolve any problem or dispute in relation to cross-border coordination or cross-border harmful interference between Malta and other Member States, as well as with third countries, which prevent Malta and, or other Member States from using the harmonised radio spectrum in their territory.
(3)In order to ensure compliance with sub-regulation
(1), the Authority, in consultation with the Minister, may request the RSPG to use its good offices to address any problem or dispute in relation to cross-border coordination or cross-border harmful interference.
(4)Where the actions referred to in sub-regulations
(2)or
(3)have not resolved the problem or dispute, the Authority, in Radio Spectrum Coordination among Member States. 20 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) consultation with the Minister, may request the European Commission to adopt decisions to resolve cross-border harmful interference which prevent Malta from using the harmonised radio spectrum in its territory.
(5)The Authority, in consultation with the Minister, may request the European Union to provide legal, political and technical support to resolve radio spectrum coordination issues with countries neighbouring the European Union, including candidate and acceding countries, in such a way that Malta can observe its obligations under European Union law. PART V IMPLEMENTATION Compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources and compliance with specific obligations. Cap. 418. 20. Without prejudice to the generality of its powers under the Act and under the Malta Communications Authority Act, the Authority: (a) shall monitor and supervise compliance with the conditions of the general authorisation, of the rights of use for radio spectrum, and for numbering resources, with the specific obligations referred to in regulation 7
(2)and with the obligation to use radio spectrum effectively and efficiently in accordance with articles 4A and 38 of the Act and with regulation 33; and (b) may require undertakings subject to a general authorisation or benefiting from rights of use for radio spectrum or for numbering resources to provide all information necessary to verify compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources or with the specific obligations referred to in regulation 7
(2)or regulation 33, in accordance with regulation 16. PART VI INTERNAL MARKET PROCEDURES Consolidating the internal market for electronic communicat-ions. 21.
(1)Except where otherwise provided in any recommendations or guidelines adopted pursuant to article 34 of the Electronic Communications Code, upon completion of the public consultation, if required under regulation 18, where the Authority intends to take a measure which: (
  1. a)or 70; and falls within the scope of regulations 48, 52, 54, 55 (
  2. b)would affect trade between Malta and other Member States, the Authority shall publish the draft measure and communicate it to the European Commission, to BEREC, and to the ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 national regulatory authorities in other Member States at the same time, and in doing so shall state the reasons for the measure in accordance with regulation 15
(9): Provided that the aforesaid national regulatory authorities, BEREC and the European Commission may comment on that draft measure within one month from receipt of the draft measure, which period shall not be extended.
(2)The draft measure referred to in sub-regulation
(1)shall not be adopted for a further two months, where that measure aims to: (a) define a relevant market which is different from those defined in the recommendation referred to in Article 64
(1)of the Electronic Communications Code; or (b) decide whether or not to designate an undertaking as having, either individually or jointly with others, significant market power, under regulation 54
(6)and
(7)or
(8); and the draft measure would affect trade between Malta and other Member States, and the European Commission has indicated to the Authority that it considers that the draft measure would create a barrier to the internal market or that it has serious doubts as to its compatibility with European Union law and in particular with the objectives referred to in article 4 of the Act: Provided that the two-month period shall not be extended: Provided further that, the European Commission shall inform BEREC and the Authority of its reservations in such a case and simultaneously make them public.
(3)BEREC shall publish an opinion on the reservations of the European Commission referred to in sub-regulation
(2), indicating whether it considers that the draft measure should be maintained, amended or withdrawn and shall, where appropriate, provide specific proposals to that end.
(4)Within the two month period referred to in sub-regulation
(2), the European Commission may either: (
  1. a)take a decision requiring the Authority to withdraw the draft measure; or (
  2. b)take a decision to lift its reservations referred to in sub-regulation
(2): Provided that the European Commission shall take utmost account of the opinion of BEREC before taking a decision: 21 22 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) Provided further that decisions referred to in paragraph (a) shall be accompanied by a detailed and objective analysis of why the European Commission considers that the draft measure is not to be adopted, together with specific proposals for amending it.
(5)Where the European Commission has adopted a decision in accordance with paragraph (a) of sub-regulation
(4)requiring the Authority to withdraw a draft measure, the Authority shall amend or withdraw the draft measure within six months of the date of the decision of the European Commission: Cap. 418. Provided that where the draft measure is amended, the Authority shall undertake a public consultation in accordance with article 4A of the Malta Communications Authority Act, and shall notify the amended draft measure to the European Commission in accordance with sub-regulation
(1).
(6)The Authority shall take the utmost account of comments of the other national regulatory authorities, of BEREC and of the European Commission and may, except in the cases covered by subregulation
(2)and by paragraph (a) of sub-regulation
(4), adopt the resulting draft measure and shall, where it does so, communicate it to the European Commission.
(7)The Authority shall communicate to the European Commission and to BEREC all adopted final measures which fall under sub-regulation
(1).
(8)In exceptional circumstances, where the Authority considers that there is an urgent need to act, in order to safeguard competition and protect the interests of users, by way of derogation from the procedure set out in sub-regulations
(1)and
(2), it may immediately adopt proportionate and provisional measures: Provided that in doing so the Authority shall, without delay, communicate those measures, with its full reasons therefor, to the European Commission, to the other national regulatory authorities, and to BEREC: Provided further that, a decision of the Authority to render such measures permanent or extend the period for which they are applicable shall be subject to sub-regulations
(1)and
(2).
(9)The Authority may withdraw a draft measure made in accordance with this regulation at any time. Procedure for the consistent application of remedies. 22.
(1)Where an intended measure covered by regulation 21
(1)aims to impose, amend or withdraw an obligation on an undertaking according to regulations 48 or 54 in conjunction with regulations 56 to 63 and regulation 70, the European Commission may, within the one month period referred to in regulation 21
(1), notify the ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 Authority and BEREC of its reasons for considering that the draft measure would create a barrier to the internal market or of its serious doubts as to its compatibility with European Union law. In such a case, the draft measure shall not be adopted for a further three months following the notification by the European Commission: Provided that in the absence of such notification, the Authority may adopt the draft measure, taking utmost account of any comments made by the European Commission, BEREC or any other national regulatory authority.
(2)Within the three month period referred to in sub-regulation
(1), the European Commission, BEREC and the Authority shall cooperate closely to identify the most appropriate and effective measure in light of the objectives laid down in article 4 of the Act, whilst taking due account of the views of market participants and the need to ensure the development of consistent regulatory practice.
(3)Within six weeks from the beginning of the three month period referred to in sub-regulation
(1), BEREC shall issue an opinion on the notification by the European Commission referred to in subregulation
(1), indicating whether it considers that the draft measure should be amended or withdrawn and, where appropriate, provide specific proposals to that end. In that opinion reasons therefor shall be provided and shall be made public.
(4)If in its opinion, BEREC shares the serious doubts of the European Commission, BEREC shall cooperate closely with the Authority to identify the most appropriate and effective measure. Before the end of the three month period referred to in sub-regulation
(1), the Authority may either: (a) amend or withdraw its draft measure taking utmost account of the notification by the European Commission referred to in sub-regulation
(1)and of the opinion of BEREC; or (b) maintain its draft measure.
(5)The European Commission may, within one month following the end of the three month period referred to in sub-regulation
(1)and taking utmost account of the opinion of BEREC, if any: (
  1. a)issue a recommendation requiring the Authority to amend or withdraw the draft measure, including specific proposals to that end and providing reasons for its recommendation, in particular where BEREC does not share the serious doubts of the Commission; (
  2. b)take a decision to lift its reservations indicated in accordance with sub-regulation
(1); or 23 24 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) (c) for draft measures falling under regulations 48
(4)or 63
(3), take a decision requiring the Authority to withdraw the draft measure, where BEREC shares the serious doubts of the European Commission, accompanied by a detailed and objective analysis of why the European Commission considers that the draft measure should not be adopted, together with specific proposals for amending the draft measure, subject to the procedure referred to in regulation 21
(5), which shall apply mutatis mutandis.
(6)Within one month of the European Commission issuing the recommendation in accordance with paragraph (a) of sub-regulation
(5)or lifting its reservations in accordance with paragraph (b) of subregulation
(5), the Authority shall communicate to the European Commission and to BEREC the adopted final measure: Cap. 418. Provided that such period may be extended to allow the Authority to undertake a public consultation in accordance with article 4A of the Malta Communications Authority Act.
(7)Where the Authority decides not to amend or withdraw the draft measure on the basis of the recommendation issued under paragraph (a) of sub-regulation
(5), it shall give its reasons therefor.
(8)The Authority may withdraw the proposed draft measure at any stage of the procedure. Peer review process. 23.
(1)Where the Authority intends to undertake a selection procedure in accordance with regulation 42
(2)and
(3)in relation to radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/ 2002/EC in order to enable its use for wireless broadband networks and services, it shall, pursuant to article 23 of the Electronic Communications Code, inform the RSPG about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to regulation 42
(2)and
(3)and indicate whether and when it shall request the RSPG to convene a Peer Review Forum.
(2)When the RSPG convenes a peer Review Forum, the Authority shall provide an explanation on how the draft measure: (
  1. a)promotes the development of the internal market, the cross-border provision of services, as well as competition, and maximises the benefits for the consumer, and overall achieves the objectives set in articles 4 and 37 of the Act, regulations 32 and 33, as well as in Decisions No 676/2002/EC and No 243/2012/EU; (
  2. b)ensures effective and efficient use of radio ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 25 spectrum; and (
  3. c)ensures stable and predictable investment conditions for existing and prospective radio spectrum users when deploying networks for the provision of electronic communications services which rely on radio spectrum.
(3)The Authority may following the Peer Review Forum: (a) request the RSPG to adopt a report on how the draft measure achieves the objectives provided in subregulation
(2), reflecting the views exchanged in the Peer Review Forum; and (b) measure. request the RSPG to adopt an opinion on this draft 24. Where the use of radio spectrum has been harmonised, access conditions and procedures have been agreed, and undertakings to which the radio spectrum shall be assigned have been selected in accordance with international agreements and European Union rules, then the Authority shall grant the right of use for such radio spectrum in accordance therewith: Harmonised assignment of radio spectrum. Provided that where all national conditions attached to the right to use the radio spectrum concerned have been satisfied in the case of a common selection procedure, the Authority shall not impose any further conditions, additional criteria or procedures which would restrict, alter or delay the correct implementation of the common assignment of such radio spectrum. 25.
(1)The Authority may, where it considers it appropriate, cooperate with other Member States and with the RSPG, taking into account any interest expressed by market participants, by jointly establishing the common aspects of an authorisation process and, where appropriate, also jointly conducting the selection process to grant individual rights of use for radio spectrum.
(2)When designing a joint authorisation process under this regulation, the Authority and the competent authorities of cooperating Member States may take into consideration the following criteria, namely that: (
  1. a)the individual national authorisation processes shall be initiated and implemented together with the competent authorities of the other Member States in accordance with a jointly agreed schedule; (
  2. b)it shall provide, where appropriate, for common conditions and procedures for the selection and granting of individual rights of use for radio spectrum in Malta and the Joint authorisation process to grant individual rights of use for radio spectrum. 26 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) other Member State or Member States concerned; (
  3. c)it shall provide, where appropriate, for common or comparable conditions to be attached to the individual rights of use for radio spectrum in Malta and the Member State or Member States concerned, inter alia allowing users to be assigned similar radio spectrum blocks; and (
  4. d)it shall be open at any time to Malta and the other Member State or Member States until the joint authorisation process has been conducted.
(3)Where, in spite of the interest expressed by market participants and such interest impacts Malta, and the Authority does not act jointly with the other Member State or Member States, the Authority shall inform those market participants of its reasons explaining its decision therefor. Standardisation. 26.
(1)The Authority shall encourage the use of the standards or specifications referred to in Article 39
(1)of the Electronic Communications Code for the provision of services, technical interfaces or network functions, to the extent strictly necessary to ensure interoperability of services, end-to-end connectivity, facilitation of provider switching and portability of numbers and identifiers, and to improve freedom of choice for users.
(2)Where standards or specifications have not been published in accordance with Article 39
(1)of the Electronic Communications Code, the Authority shall encourage the implementation of standards or specifications adopted by the European standardisation organisations: Provided that in the absence of such standards or specifications, the Authority shall encourage the implementation of i nternati onal st andards or recom m endati ons ad opted by t he International Telecommunication Union (ITU), the European Conference of Postal and Telecommunications Administrations (CEPT), the International Organisation for Standardisation (ISO) and the International Electrotechnical Commission (IEC).
(3)Any standards or specifications referred to in Article 39
(1)of the Electronic Communications Code or in this regulation shall not prevent access as may be required under the Act or these regulations, where feasible. S.L. 427.41.
(4)This regulation does not apply in respect of any of the essential requirements, interface specifications or harmonised standards to which the Radio Equipment and Telecommunications Terminal Equipment and the Mutual Recognition of their Conformity Regulations applies. ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 27 PART VII SECURITY 27.
(1)An undertaking providing publicly available e l e c t r on i c co m m u n i c a ti o n s s e r v i c e s o v e r p ub l i c el e c t r on i c communications networks, shall take all necessary measures to ensure the fullest possible availability of such service in the event of catastrophic network breakdown or in the case of force majeure. Availability of services in the event of catastrophic network breakdown and, or force majeure.
(2)The Authority may specify the obligations to be complied with by such undertakings for the purpose of ensuring compliance with this regulation. In doing so the Authority shall also factor any particular characteristics, such as insularity, where the consequences of catastrophic events or of force majeure are likely to cause severe and, or prolonged service deterioration and, or disruption: Provided further that the Authority may, after considering the nature and extent of the services provided and any attendant relevant circumstances, require such undertakings, in line with the principles of reasonableness and proportionality, to adopt such resilient and secure solutions as the Authority may consider appropriate, in such a manner as to ensure the availability of such services. 28.
(1)Providers of public electronic communications networks or of publicly available electronic communications services, or gateway operators shall take appropriate and proportionate technical and organisational measures to appropriately manage the risks posed to the security of networks and services: Provided that having regard to the state of the art, such measures shall ensure a level of security appropriate to the risk presented. In particular, measures, including encryption where appropriate, shall be taken to prevent and minimise the impact of security incidents on users and on other networks and services.
(2)Providers of public electronic communications networks or of publicly available electronic communications services, or gateway operators shall notify without undue delay the Authority of: (
  1. a)any security incident that has a significant impact on the operation of networks or services; or (
  2. b)failure or serious degradation of connectivity provided by a gateway operator.
(3)The measures referred to under sub-regulations
(1)and
(2)shall at least: (
  1. a)ensure that personal data can be accessed only by authorised personnel for legally authorised purposes; Security of networks and services. 28 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) (
  2. b)protect personal data stored or transmitted against accidental or unlawful destruction, or accidental loss or alteration and unauthorised or unlawful storage, processing, access or disclosure; and (
  3. c)ensure the implementation of a security policy with respect to the processing of personal data: Provided that the Authority may audit the measures taken by the providers of public electronic communications networks or of publicly available electronic communications services, or gateway operators, and issue recommendations on best practice concerning the level of security which such measures should achieve.
(4)In order to determine the significance of the impact of a security incident, where available the following parameters shall, in particular, be taken into account: (
  1. a)incident; (
  2. b)the number of users affected by the security the duration of the security incident; (
  3. c)the geographical spread of the area affected by the security incident; (
  4. d)the extent to which the functioning of the network or service is affected; and (
  5. e)activities. the extent of the impact on economic and societal
(5)Where appropriate, the Authority shall inform the competent authorities in other Member States and ENISA of any security incidents as may be notified to it in accordance with this regulation. The Authority may also inform the public and, or may require the providers of public electronic communications networks or of publicly available electronic communications services, or gateway operators to inform the public of any such security incident, where it determines that disclosure of the security incident is in the public interest.
(6)Once a year, the Authority shall submit a summary report to the European Commission and to ENISA on the notifications received and the action taken in accordance with this Part.
(7)In the case of a particular and significant threat of a security incident in public electronic communications networks or publicly available electronic communications services, providers of such networks or services and gateway operators shall inform any of their users who may be potentially affected by such a threat of any possible protective measures or remedies which they can take. Where ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 29 appropriate, such providers and gateway operators shall also inform their users of the threat itself. 29.
(1)Without prejudice to any other obligations under this Part, a gateway operator shall at all times: (
  1. a)adopt appropriate measures to safeguard the integrity and resiliency of the network elements utilised to provide connectivity; and Security and integrity of networks and services - A gateway operator. (
  2. b)secure the availability of capacity, or have in place alternative measures, sufficient to ensure an adequate level of uninterrupted connectivity.
(2)A gateway operator shall not unreasonably refuse the provision of capacity to another gateway operator for the purposes of meeting the obligations established by sub-regulation
(1): Provided that the Authority shall have the discretion to determine whether a gateway operator acted unreasonably or otherwise by taking into account the specific circumstances relating to the request for the provision of capacity. 30.
(1)In order to ensure compliance with the requirements of this Part, the Authority may issue binding instructions, however so described, which may include such measures as it may consider necessary to remedy a security incident or to prevent one from occurring when a significant threat has been identified, and may include time-limits for implementation of such measures by providers of public electronic communications networks or publicly available electronic communications services, or by gateway operators.
(2)The Authority may require a provider of public electronic communications networks or publicly available electronic communications services, or gateway operators to: (
  1. a)provide information needed to assess the security and integrity of its networks and services, including documented security policies; (
  2. b)submit to a security audit carried out by a qualified independent body or by the Authority, as the Authority may determine, and make the results thereof available to the Authority in order to assess amongst other matters the following: (
  3. i)the level of security, integrity and resiliency of any public electronic communications network and, or service, or of the network elements operated by a gateway operator; and Implementation and enforcement. 30 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) (
  4. ii)compliance with any guidelines or binding instructions that the Authority may establish in accordance with the provisions of this Part: Provided that the cost of any such audit shall be paid by the provider or gateway operator concerned: (
  5. c)establish the necessary contingency plans for the purpose of complying with the requirements under this Part; (
  6. d)submit such contingency plans to the Authority as the Authority may reasonably determine; and (
  7. e)publish information regarding the measures it has in place in order to meet the obligations under this Part.
(3)The Authority shall investigate cases of non-compliance and the effects thereof on the security of the networks and services. S.L. 460.35. S.L. 460.35.
(4)The Authority may, where it considers necessary, require the assistance of the Computer Security Incident Response Team (‘CSIRT’) designated in accordance with the Measures for High Common Level of Security of Network and Information Systems Order.
(5)The Authority shall, where appropriate and in accordance with national law, consult and cooperate with the relevant national law enforcement authorities, the competent authorities within the meaning of the Measures for High Common Level of Security of Network and Information Systems Order, and the Information and Data Protection Commissioner. PART VIII MARKET ENTRY AND DEPLOYMENT Fees for rights of use for radio spectrum. 31. An undertaking authorised to use radio spectrum shall pay to the Authority such fees for rights of use of radio spectrum that are used for the provision of electronic communications networks or services and associated facilities which ensure the optimal use of such resources. Such fees shall be those provided for under Part B of the Twelfth Schedule. Any such fees shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the general objectives stated in the Act and shall be set at a level which ensures efficient assignment and use of radio spectrum, including by: (a) setting reserve prices as minimum fees for rights of use for radio spectrum by having regard to the value of those rights in their possible alternative uses; (b) taking into account costs entailed by conditions ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 31 attached to those rights; and (c) applying, to the extent possible, payment arrangements linked to the actual availability for use of the radio spectrum. 32.
(1)In the exercise of its functions under the Act, the Authority shall promote the harmonisation of use of radio spectrum by electronic communications networks and services across the European Union, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as competition, economies of scale and interoperability of networks and services. In so doing, the Authority shall act in accordance with article 4A of the Act and with Decision No 676/2002/EC, inter alia, by: (
  1. a)pursuing wireless broadband coverage in Malta at high quality and speed, as well as coverage of major national and European transport paths, including trans-European transport network as referred to in Regulation (EU) No 1315/ 2013 of the European Parliament and of the Council; (
  2. b)facilitating the rapid development in the European Union of new wireless communications technologies and applications, including, where appropriate, in a cross-sectoral approach; (
  3. c)ensuring predictability and consistency in the granting, renewal, amendment, restriction and withdrawal of rights of use for radio spectrum in order to promote long-term investments; (
  4. d)ensuring the prevention of cross-border or national harmful interference in accordance with regulation 19 and article 37 of the Act respectively, and taking appropriate pre-emptive and remedial measures to that end; (
  5. e)promoting the shared use of radio spectrum between similar or different uses of radio spectrum in accordance with competition law; (
  6. f)applying the most appropriate and least onerous authorisation system possible in accordance with article 37 of the Act in such a way as to maximise flexibility, sharing and efficiency in the use of radio spectrum; (
  7. g)applying rules for the granting, transfer, renewal, modification and withdrawal of rights of use for radio spectrum that are laid down in a clear and transparent manner in order to guarantee regulatory certainty, consistency and predictability; and Management of radio spectrum. 32 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) (
  8. h)pursuing consistency and predictability throughout the European Union regarding the way the use of radio spectrum is authorised in protecting public health taking into account Recommendation 1999/519/EC, the radiation emission standards adopted and published by ICNIRP, or by a national public authority which at law is responsible for the adoption of any such standards, or with any other appropriate standard as may be specified at law.
(2)Where the Authority considers that there is a lack of market demand for the use of a band in the harmonised radio spectrum, it may then allow an alternative use of all or part of that band, including the existing use, in accordance with sub-regulations
(5),
(6)and
(7)provided that: Cap. 418. (
  1. a)the finding of a lack of market demand for the use of such a band is based on a public consultation in accordance with article 4A of the Malta Communications Authority Act, including a forward-looking assessment of market demand; (
  2. b)such alternative use does not prevent or hinder the availability or the use of such a band in other Member States; and (
  3. c)the Authority takes due account of the long-term availability or use of such a band in the European Union and the economies of scale for equipment resulting from using the harmonised radio spectrum in the European Union: Provided that any decision to allow alternative use on an exceptional basis shall be subject to a regular review and shall in any event be reviewed promptly upon a duly justified request by a prospective user to the Authority for use of the band in accordance with the technical implementing measure: Provided further that the Authority shall inform the European Commission and the other Member States of the decision taken by the Authority, together with the reasons therefor, as well as of the outcome of any review.
(3)Without prejudice to sub-regulation
(1), the Authority shall ensure that all types of technology used for the provision of electronic communications networks or services may be used in the radio spectrum declared available for electronic communications services in the Frequency Plan in accordance with European Union law.
(4)Notwithstanding the provisions of this regulation the Authority may provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for electronic communications services where it considers that ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 this is necessary to: (
  1. a)avoid harmful interference; (
  2. b)protect public health against electromagnetic fields, taking utmost account of Recommendation 1999/519/ EC, the radiation emission standards adopted and published by ICNIRP, or by a national public authority which at law is responsible for the adoption of any such standards, or with any other appropriate standard as may be specified at law; (
  3. c)ensure technical quality of service; (
  4. d)ensure maximisation of radio spectrum sharing; (
  5. e)safeguard efficient use of radio spectrum; or (
  6. f)ensure the fulfilment of a general interest objective in accordance with sub-regulation
(5).
(5)Without prejudice to the sub-regulation
(6)the Authority shall ensure that all types of electronic communications services may be provided in the radio spectrum declared available for electronic communications services in the Frequency Plan in accordance with European Union law: Provided that the Authority may provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided, including, where necessary, to fulfil a requirement under the ITU Radio Regulations.
(6)Measures taken by the Authority in accordance with these regulations that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as laid down by the Minister in accordance with European Union law, including, but not limited to: (
  1. a)safety of life; (
  2. b)cohesion; the promotion of social, regional or territorial (
  3. c)the avoidance of inefficient use of radio spectrum; or (
  4. d)the promotion of cultural and linguistic diversity and media pluralism, for example the provision of radio and television broadcasting services: Provided that a measure which prohibits the provision of any other electronic communications service in a specific band may be 33 34 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) provided for only where necessary to protect the safety of life services. The Authority in consultation with the Minister may, on an exceptional basis, also extend such a measure in order to fulfil other general interest objectives in accordance with national law and European Union law.
(7)The Authority in consultation with the Minister shall regularly review the necessity of the restrictions referred to in subregulations
(4),
(5)and
(6), and shall make the results of those reviews public. Conditions attached to individual rights of use for radio spectrum. 33.
(1)The Authority shall attach conditions to individual rights of use for radio spectrum in accordance with regulation 7
(1)in such a way as to ensure optimal and the most effective and efficient use of radio spectrum.
(2)The Authority shall, before the assignment or renewal of any rights under sub-regulation
(1)clearly establish any such conditions, including the level of use required and the possibility to fulfil that requirement through trading or leasing, in order to ensure the implementation of those conditions in accordance with regulation 20: Provided that conditions attached to renewals of right of use for radio spectrum shall not provide undue advantages to existing holders of those rights: Provided further that the Authority in making such conditions shall specify the applicable parameters, including any deadline for exercising the rights of use, the non-fulfilment of which would entitle the Authority to withdraw the right of use or impose other measures.
(3)The Authority shall, in a timely and transparent manner, consult and inform interested parties regarding conditions attached to individual rights of use before their imposition. In doing so the Authority shall determine in advance and inform interested parties, in a transparent manner, of the criteria for the assessment of the fulfilment of those conditions.
(4)The Authority may specify that certain conditions shall not apply to such categories of undertakings as may be specified by the Authority.
(5)The Authority shall ensure that where a requirement is specified as a condition of a right of use for radio spectrum, such a requirement shall not be specified as a condition of the general authorisation.
(6)Any person authorised to use radio spectrum, shall pay to the Authority such fees for rights of use of radio spectrum as may be established under Part B of the Twelfth Schedule: ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 35 Provided that in all cases, any such fees shall be established in accordance with regulation 31.
(7)When attaching conditions to individual rights of use for radio spectrum, the Authority may, in particular with a view to ensuring effective and efficient use of radio spectrum or promoting coverage, provide for the following possibilities: (
  1. a)sharing of radio spectrum or sharing of passive or active infrastructure which relies on radio spectrum; (
  2. b)commercial roaming access agreements; or (
  3. c)joint roll-out of infrastructures for the provision of networks or services which rely on the use of radio spectrum.
(8)The Authority shall not prevent the sharing of radio spectrum in the conditions attached to the rights of use for radio spectrum.
(9)Implementation by undertakings of conditions attached pursuant to sub-regulation
(7)shall remain subject to competition law. 34. Without prejudice to the provisions of the Act and taking into account the relevant national circumstances, the Authority may lay down rules in order to prevent spectrum hoarding, in particular by setting out strict deadlines for the effective exploitation of the rights of use by the holder of the rights. These rules shall be established and applied in a proportionate, non-discriminatory and transparent manner. Rules preventing spectrum hoarding. 35.
(1)Where it is necessary the Authority shall, upon request, grant individual rights of use for radio spectrum to any undertaking for the provision of electronic communications networks or services under the general authorisation referred to in regulations 5 and 6, subject to regulations 7 and 8, to regulation 16
(1)(c) and to regulation 42 and to any other rules ensuring the efficient use of those resources in accordance with the Act and these regulations. Granting of individual rights of use for radio spectrum.
(2)The Authority shall establish open, objective, transparent, non-discriminatory and proportionate procedures for the grant of individual rights of use for radio spectrum: Provided that the Authority may establish specific criteria and procedures for the granting of individual rights of use for radio spectrum to providers of radio or television broadcast content services with a view to pursuing general interest objectives in accordance with European Union law and with regulation 32: Provided further that an exception to the requirement of open procedures may apply where the granting of individual rights of use for radio spectrum to the providers of radio or television broadcast 36 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) content services is necessary to achieve a general interest objective in accordance with European Union law.
(3)The Authority shall consider applications for individual rights of use for radio spectrum in the context of selection procedures pursuant to objective, transparent, proportionate and nondiscriminatory eligibility criteria that are set out in advance and reflect the conditions to be attached to such rights. In doing so the Authority may request all necessary information from applicants in order to assess, on the basis of those criteria, their ability to comply with those conditions. Where the Authority concludes that an applicant does not possess the required ability, it shall provide a duly reasoned decision to that effect.
(4)When granting individual rights of use for radio spectrum, the Authority shall specify whether those rights can be transferred or leased by the holder of the rights, and under which conditions. The provisions of regulations 32 and 38 shall apply in this regard.
(5)The Authority shall take, communicate and make public the decisions on the granting of individual rights of use for radio spectrum as soon as possible after the receipt of the complete application, and within six weeks after such receipt in the case of radio spectrum declared available for electronic communications services in the Frequency Plan. Provided that such time limit shall be without prejudice to regulation 42
(9)and to any applicable international agreements relating to the use of radio spectrum or of orbital positions. Duration of rights. 36.
(1)Where the Authority authorises the use of radio spectrum through individual rights of use for a limited period, it shall ensure that the right of use is granted for a period that is appropriate in light of the objectives pursued in accordance with regulation 42
(2),
(3)and
(4), taking due account of the need to ensure competition, as well as, in particular the effective and efficient use of radio spectrum, and to promote innovation and efficient investments, including by allowing for an appropriate period for investment amortisation.
(2)Where the Authority grants individual rights of use for radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband electronic communications services (‘wireless broadband services’) for a limited period, it shall ensure regulatory predictability for the holders of the rights over a period of at least twenty years regarding conditions for investment in infrastructure which relies on the use of such radio spectrum, taking account of the requirements referred to in subregulation
(1): ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 Provided that the provisions of this regulation are subject, where relevant, to any modification of the conditions attached to those rights of use in accordance with article 47
(4)of the Act. In this regard the Authority shall ensure that such rights are valid for a duration of at least fifteen years and include, where necessary in order to comply with this sub-regulation, an adequate extension thereof, under the conditions laid down in this sub-regulation.
(3)The Authority shall make available the general criteria for an extension of the duration of rights of use, in a transparent manner, to all interested parties in advance of granting rights of use, as part of the conditions laid down under regulation 42
(5)and
(8). Such general criteria shall relate to: (a) the need to ensure the effective and efficient use of the radio spectrum concerned, the objectives pursued in regulation 32
(1)(
  1. a)and (b), or the need to fulfil general interest objectives related to ensuring safety of life, public order, public security or defence; and (
  2. b)the need to ensure undistorted competition.
(4)By not later than two years before the expiry of the initial duration of an individual right of use, the Authority shall conduct an objective and forward-looking assessment of the general criteria laid down for the extension of the duration of that right of use in light of regulation 32
(1)(c): Provided that the Authority has not initiated enforcement action for non-compliance with the conditions of the rights of use pursuant to regulation 20, it shall grant the extension of the duration of the right of use unless it concludes that such an extension would not comply with the general criteria laid down in sub-regulation
(3)(a) or (b). On the basis of that assessment, the Authority shall notify the holder of the right as to whether the extension of the duration of the right of use is to be granted: Provided further that if such extension is not to be granted, the Authority shall apply regulation 35 for granting rights of use for that specific radio spectrum band.
(5)Any measure taken under sub-regulations
(2),
(3)and
(4)shall be proportionate, non-discriminatory, transparent and reasoned.
(6)By way of derogation from article 4A of the Malta Communications Authority Act, interested parties shall have the opportunity to comment on any draft measure pursuant to subregulations
(3)and
(4)for a period of at least three months.
(7)This regulation is without prejudice to the application of regulations 14 and
  1. Cap.
  2. 37 38 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL)
(8)When establishing fees for rights of use, the mechanism provided for under this regulation shall be taken into account.
(9)Where the Authority considers that there is justification, it may then derogate from sub-regulations
(2)to
(6)in the following cases: (a) in limited geographical areas, where access to high-speed networks is severely deficient or absent and this is necessary to ensure achievement of the objectives of regulation 32
(1); (
  1. b)for specific short-term projects; (
  2. c)for experimental use; (
  3. d)for any uses of radio spectrum which, in accordance with regulation 32
(3),
(4),
(5)and
(6), can coexist with wireless broadband services; or (e) for any alternative use of radio spectrum in accordance with regulation 32
(2).
(10)The Authority may adjust the duration of rights of use laid down in this regulation to ensure the simultaneous expiry of the said duration of rights in one or several bands. Renewal of individual rights of use for harmonised radio spectrum. 37.
(1)The Authority shall take a decision on the renewal of individual rights of use for harmonised radio spectrum in a timely manner before the duration of those rights expires, except where, at the time of assignment, the possibility of renewal has been explicitly excluded: Provided that for such a purpose, the Authority shall assess the need for such renewal of its own initiative or upon request by the holder of the right, in the latter case not earlier than five years prior to expiry of the duration of the rights concerned. This shall be without prejudice to renewal clauses applicable to existing rights.
(2)In taking a decision pursuant to sub-regulation
(1), the Authority shall consider, inter alia: (a) the fulfilment of the objectives set out in article 4 of the Act, regulation 32
(1)and regulation 35
(2), as well as public policy objectives under European Union law or national law; (
  1. b)the implementation of a technical implementing measure adopted in accordance with Article 4 of Decision No 676/ 2002/EC; ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 39 (
  2. c)the review of the appropriate implementation of the conditions attached to the right concerned; (
  3. d)the need to promote, or avoid any distortion of, competition in line with regulation 39; (
  4. e)the need to render the use of radio spectrum more efficient in light of technological or market evolution; and (
  5. f)the need to avoid severe service disruption.
(3)When considering possible renewal of individual rights of use for harmonised radio spectrum for which the number of rights of use is limited pursuant to sub-regulation
(2), the Authority shall conduct an open, transparent and non-discriminatory procedure, and shall, inter alia: (
  1. a)give all interested parties the opportunity to express their views through a public consultation in accordance with article 4A of the Malta Communications Authority Act; and (
  2. b)Cap. 418. clearly state the reasons for such possible renewal.
(4)The Authority shall take into account any evidence arising from the consultation pursuant to sub-regulation
(3)of market demand from undertakings other than those holding rights of use for radio spectrum in the band concerned when deciding whether to renew the rights of use or to organise a new selection procedure in order to grant the rights of use pursuant to regulation 42.
(5)A decision to renew the individual rights of use for harmonised radio spectrum may be accompanied by a review of the fees as well as of the other terms and conditions attached thereto. Where appropriate, the fees for the rights of use may be adjusted as necessary in accordance with regulation 31. 38.
(1)An undertaking may transfer or lease individual rights of use for radio spectrum in the bands identified in the Frequency Plan to other undertakings in accordance with the conditions attached to such rights of use of radio spectrum and with applicable law: Provided that conditions attached to individual rights to use radio spectrum shall continue to apply after the transfer or lease, unless otherwise stated by the Authority: Provided further that, the Authority may determine that this sub-regulation shall not apply where the individual right of use for radio spectrum of the undertaking was initially granted free of charge or assigned for broadcasting. Transfer or lease of individual rights of use for radio spectrum. 40 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL)
(2)Without prejudice to any applicable law or any procedures that the Authority may specify, an undertaking shall notify its intention to transfer or lease rights of use for radio spectrum, as well as the effective transfer thereof to the Authority, and the Authority shall ensure that such intention is made public: Provided that in the case of a harmonised radio spectrum, any such transfer shall comply with such harmonised use.
(3)The Authority shall allow the transfer or lease of rights of use for radio spectrum where the original conditions attached to the rights of use are maintained.
(4)Without prejudice to the need to ensure the absence of a distortion of competition, in particular in accordance with regulation 39, the Authority: (
  1. a)shall submit transfers and leases to the least onerous procedure possible; (
  2. b)shall not refuse the lease of rights of use for radio spectrum where the lessor undertakes to remain liable for meeting the original conditions attached to the rights of use; and (
  3. c)shall not refuse the transfer of rights of use for radio spectrum unless there is a clear risk that the new holder is unable to meet the original conditions for the right of use.
(5)Any administrative charge imposed on undertakings in connection with processing an application for the transfer or lease of rights of use for radio spectrum, shall comply with regulation 12.
(6)Sub-regulation
(4)(a), (
  1. b)and (
  2. c)are without prejudice to the competence of the Authority to enforce compliance with the conditions attached to the rights of use at any time, both with regard to the lessor and the lessee, in accordance with applicable national law.
(7)The Authority shall facilitate the transfer or lease of rights of use for radio spectrum by considering any request to adapt the conditions attached to the rights in a timely manner and by ensuring that those rights or the relevant radio spectrum may to the best extent be partitioned or disaggregated.
(8)In light of any transfer or lease of rights of use for radio spectrum, the Authority shall make relevant details relating to tradable individual rights publicly available in a standardised electronic format when the rights are created and keep those details for as long as the rights exist. ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 39.
(1)The Authority shall promote effective competition and avoid distortions of competition in the internal market when deciding to grant, amend or renew rights of use for radio spectrum for electronic communications networks and services in accordance with the Act, these regulations and the Electronic Communications Code.
(2)When granting, amending or renewing rights of use for radio spectrum, the Authority may take those measures as it may consider to be appropriate in the circumstances, such as: (
  1. a)limiting the amount of radio spectrum bands for which rights of use are granted to any undertaking, or, in justified circumstances, attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics; (
  2. b)reserving, if appropriate and justified with regard to a specific situation in the national market, a certain part of a radio spectrum band or group of bands for assignment to new entrants; (
  3. c)refusing to grant new rights of use for radio spectrum or to allow new radio spectrum uses in certain bands, or attaching conditions to the grant of new rights of use for radio spectrum or to the authorisation of new uses of radio spectrum, in order to avoid the distortion of competition by any assignment, transfer or accumulation of rights of use; (
  4. d)including conditions prohibiting, or imposing conditions on, transfers of rights of use for radio spectrum, not subject to European Union or national merger control, where such transfers are likely to result in significant harm to competition; or (
  5. e)amending the existing rights in accordance with the Act, these regulations, or the Electronic Communications Code where this is necessary to remedy ex post a distortion of competition by any transfer or accumulation of rights of use for radio spectrum: Provided that the Authority shall, taking into account market conditions and available benchmarks, base its decisions on an objective and forward-looking assessment of the market competitive conditions, of whether such measures are necessary to maintain or achieve effective competition, and of the likely effects of such measures on existing and future investments by market participants in particular for network roll-out. In doing so the Authority shall take into account the approach to market analysis as set out in regulation 54
(5). 41 Competition in relation to rights of use for radio spectrum. 42 [ S.L. 399.48 Cap. 418. Co-ordinated timing of assignments. ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL)
(3)When applying sub-regulation
(2), the Authority shall act in accordance with the procedures provided in article 47
(4)of the Act, article 4A of the Malta Communications Authority Act, and regulations 14 and 23. 40.
(1)The Authority shall cooperate with the relevant competent authorities in other Member States in order to coordinate the use of harmonised radio spectrum for electronic communications networks and services in the European Union, taking due account of the different national market situations. This may include identifying one, or, where appropriate, several common dates by when the use of specific harmonised radio spectrum shall be authorised.
(2)Where harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable the radio spectrum use for wireless broadband networks and services, the Authority shall allow the use of that radio spectrum, as soon as possible and at the latest thirty months after the adoption of that measure, or as soon as possible after the lifting of any decision to allow alternative use on an exceptional basis pursuant to regulation 32
(2). This is without prejudice to Decision (EU) 2017/899 and to the right of initiative of the European Commission to propose legislative acts.
(3)The Authority may delay the deadline provided for in subregulation
(2)for a specific band under the following circumstances: (a) to the extent justified by a restriction to the use of that band based on the general interest objective provided in regulation 32
(6)(
  1. a)or (d); (
  2. b)in the case of unresolved cross-border coordination issues resulting in harmful interference with third countries, provided the Authority has, where appropriate, requested European Union assistance pursuant to regulation 19
(5); (
  1. c)safeguarding national security and defence; or (
  2. d)force majeure. Provided that the Authority shall review any such delay at least every two years.
(4)The Authority may delay the deadline provided for in subregulation
(2)for a specific band to the extent necessary and up to thirty months in the case of: (a) of unresolved cross-border coordination issues resulting in harmful interference between Malta and another Member State or Member States, provided that the Authority takes all necessary measures in a timely manner pursuant to ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 43 regulation 19
(3)and
(4); (b) of the need to ensure, and the complexity of ensuring, the technical migration of existing users of that band.
(5)In the event of a delay under sub-regulation
(3)or
(4), the Authority shall inform the other Member States and the European Commission of such a delay in a timely manner, stating the reasons. 41.
(1)For terrestrial systems capable of providing wireless broadband services, the Authority in consultation with the Minister shall, where necessary in order to facilitate the roll-out of 5G, take all appropriate measures to: Coordinated timing of assignments for specific 5G bands. (
  1. a)reorganise and allow the use of sufficiently large blocks of the 3,4-3,8 GHz band; (
  2. b)allow the use of at least 1 GHz of the 24,25-27,5 GHz band, provided that there is clear evidence of market demand and of the absence of significant constraints for migration of existing users or band clearance.
(2)Measures taken pursuant to sub-regulation
(1)shall comply with the harmonised conditions set by technical implementing measures in accordance with Article 4 of Decision No 676/2002/EC. 42.
(1)Without prejudice to regulation 40, where the Authority concludes that a right to use radio spectrum cannot be subject to a general authorisation and where it considers whether to limit the number of rights of use to be granted for radio spectrum, it shall, inter alia: Procedure for limiting the number of rights of use to be granted for radio spectrum. (
  1. a)clearly state the reasons for limiting the rights of use, in particular by giving due weight to the need to maximise benefits for users and to facilitate the development of competition, and review, as appropriate, the limitation at regular intervals or after a reasonable request by the affected undertakings; (
  2. b)give all interested parties, including users and consumers, the opportunity to express their views on any limitation through a public consultation in accordance with article 4A of the Malta Communications Authority Act.
(2)When the Authority concludes that the number of rights of use is to be limited, it shall clearly establish, and give reasons for, the objectives pursued by means of a competitive or comparative selection procedure under this regulation, and where possible quantify them, giving due weight to the need to fulfil national and EU internal market objectives. Cap. 418. 44 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL)
(3)The objectives that the Authority may set out with a view to designing the specific selection procedure shall, in addition to promoting competition, shall be limited to one or more of the following: (
  1. a)promoting coverage; (
  2. b)ensuring the required quality of service; (
  3. c)promoting efficient use of radio spectrum, including by taking into account the conditions attached to the rights of use and the level of fees; and, or (
  4. d)promoting innovation and business development.
(4)The Authority shall clearly define and justify the choice of the selection procedure, including any preliminary phase to access the selection procedure. The Authority shall also clearly state the outcome of any related assessment of the competitive, technical and economic situation of the market and provide reasons for the possible use and choice of measures pursuant to regulation 23.
(5)The Authority shall publish any decision on the selection procedure chosen and the related rules, clearly stating the reasons therefor. The Authority shall also publish the conditions that are to be attached to the rights of use.
(6)After having determined the selection procedure, the Authority shall invite applications for rights of use.
(7)Where the Authority concludes that additional rights of use for radio spectrum or a combination of general authorisation and individual rights of use can be granted, it shall publish that conclusion and initiate the process of granting such rights.
(8)Where the granting of rights of use for radio spectrum needs to be limited, the Authority shall grant such rights on the basis of selection criteria and of a selection procedure which are objective, transparent, non-discriminatory and proportionate. Any such selection criteria shall give due weight to the achievement of the objectives and requirements of articles 4 and 4A of the Act, and regulations 19 and 32.
(9)Where competitive or comparative selection procedures are to be used, the Authority may extend the maximum period of six weeks referred to in regulation 35
(5)for as long as necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than eight months, subject to any specific timetable established pursuant to regulation 40: Provided that such time limits shall be without prejudice to any applicable international agreements relating to the use of radio ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 45 spectrum and satellite coordination.
(10)This regulation is without prejudice to the transfer of rights of use for radio spectrum in accordance with regulation 38. 43.
(1)The Authority shall allow the provision of access through RLANs to a public electronic communications network, as well as the use of the harmonised radio spectrum for that provision, subject only to the applicable general authorisation conditions relating to radio spectrum use as referred to in article 37
(2)of the Act: Provided that where that provision is not part of an economic activity or is ancillary to an economic activity or a public service which is not dependent on the conveyance of signals on those networks, any undertaking, public authority or end-user providing such access shall not be subject to any general authorisation for the provision of electronic communications networks or services pursuant to regulation 5, to obligations regarding end-users rights pursuant regulations 80, 81, 82 and 83, and to regulation 7 of the Emergency Communications, the Single European Call service (‘112’ Number) and the European Harmonised Services of Social Value (‘116’ Numbering Range) Regulations, or to obligations to interconnect their networks pursuant to regulation 48
(1).
(2)Article 19 of the Electronic Commerce Act shall apply to the provisions of this regulation.
(3)The Authority shall not prevent providers of public electronic communications networks or publicly available electronic communications services from allowing access to their networks to the public, through RLANs, which may be located at the premises of an end-user, subject to compliance with the applicable general authorisation conditions and the prior informed agreement of the enduser concerned.
(4)In accordance in particular with Article 3
(1)of Regulation (EU) 2015/2120, the Authority shall ensure that providers of public electronic communications networks or publicly available electronic communications services do not unilaterally restrict or prevent endusers from: (
  1. a)accessing RLANs of their choice provided by third parties; or (
  2. b)allowing reciprocally or, more generally, accessing the networks of such providers by other end-users through RLANs, including on the basis of third-party initiatives which aggregate and make publicly accessible the RLANs of different end-users.
(5)The Authority shall not limit or prevent end-users from Access to radio local area networks (RLANs.) S.L. 399.
  1. Cap.
  2. 46 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) allowing access, reciprocally or otherwise, to their RLANs by other end-users, including on the basis of third-party initiatives which aggregate and make the RLANs of different end-users publicly accessible.
(6)The Authority shall not unduly restrict the provision of access to RLANs to the public: (
  1. a)by public sector bodies or in public spaces close to premises occupied by such public sector bodies, when that provision is ancillary to the public services provided on those premises; and (
  2. b)by initiatives of non-governmental organisations or public sector bodies to aggregate and make reciprocally or more generally accessible the RLANs of different end-users, including, where applicable, the RLANs to which public access is provided in accordance with paragraph (
  3. a)of this subregulation. Deployment and operation of smallarea wireless access points. Cap. 81. S.L. 427.41. Cap. 81 44.
(1)The Authority shall not unduly deployment of small area wireless access points. restrict the
(2)The Authority shall ensure that any rules governing the deployment of small-area wireless access points are nationally consistent. In doing so the Authority shall publish such rules in advance of their application in consultation with any such public authority as the Authority may consider necessary: Provided that in particular, the competent authority responsible for town planning shall not subject the deployment of small area wireless access points complying with the characteristics laid down pursuant to paragraph 2 of Article 57 of the Electronic Communications Code to any individual town planning permit or other individual prior permits. By way of derogation from this proviso the aforesaid competent authority may require permits for the deployment of small-area wireless access points on buildings or sites of architectural, historical or natural value protected in accordance with national law or where necessary for public safety reasons. Article 18 of Utilities and Services (Regulation of Certain Works) Act shall apply to the granting of those permits.
(3)This regulation is without prejudice to the essential requirements laid down in the Radio Equipment and Te l e c o m m u n i c a t i o n s Te r m i n a l E q u i p m e n t a n d t h e M u t u a l Recognition of their Conformity Regulations and to the authorisation regime applicable for the use of the relevant radio spectrum.
(4)In the context of the application of the procedures adopted under national law, notably those under Parts III and IV of the Utilities and Services (Regulation of Certain Works) Act, operators shall have ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 47 the right to access any physical infrastructure controlled by national, regional or local public authorities, which is technically suitable to host small-area wireless access points or which is necessary to connect such access points to a backbone network, including street furniture, such as light poles, street signs, traffic lights, billboards and bus stops and stations: Provided that public authorities shall meet all reasonable requests for access on fair, reasonable, transparent and nondiscriminatory terms and conditions, which shall be made public at the single information point established under the Utilities and Services (Regulation of Certain Works) Act.
(5)Without prejudice to any commercial agreements, the deployment of small-area wireless access points shall not be subject to any fees or charges going beyond the administrative charges in accordance with regulation
  2. The procedures laid down in Directive (EU) 2015/1535 shall apply with respect to any draft measure by competent national health authorities taken in accordance with their powers at law, that would impose on the deployment of small-area wireless access points different requirements with respect to electromagnetic fields than those provided for in Recommendation 1999/519/EC. Technical regulations on electromagnetic fields. PART IX ACCESS 46.
(1)No restrictions may be imposed or maintained which prevent undertakings in Malta, or in Malta and other Member States from negotiating between themselves agreements on technical and commercial arrangements for access or interconnection, in accordance with European Union law: General framework for access and interconnection. Provided that the undertaking requesting access or interconnection in Malta does not need to be authorised to operate in Malta if it is not providing services and does not operate a network in Malta.
(2)Without prejudice to regulation 101, no legal or administrative measures shall be maintained which require undertakings, when granting access or interconnection, to offer different terms and conditions to different undertakings for equivalent services or measures imposing obligations that are not related to the actual access and interconnection services provided, and this without prejudice to the conditions set out in the First Schedule. 47.
(1)Operators of public electronic communications networks shall have a right and, when requested by other undertakings authorised in accordance with regulation 11, an obligation, to negotiate with each other interconnection for the purpose of providing publicly Rights and obligations of undertakings. 48 [ S.L. 399.48 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) available electronic communications services, in order to ensure provision and interoperability of services in Malta and throughout the European Union: Provided that operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the Authority pursuant to regulations 48, 50 and 55.
(2)Without prejudice to regulation 16, an undertaking that acquires information from another undertaking before, during or after the process of negotiating access or interconnection arrangements, shall use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of information transmitted or stored. Such an undertaking shall not pass on the received information to any other party, in particular to other departments, subsidiaries or partners, however so described, for whom such information could provide a competitive advantage.
(3)The Authority may provide that negotiations be conducted through neutral intermediaries if it considers that conditions of competition so require. Powers and responsibilities of the Authority with regard to access and interconnection. 48.
(1)The Authority shall, acting in pursuit of the objectives set out in article 4 of the Act, encourage and, where appropriate, ensure, in accordance with the Act and these regulations, adequate access and interconnection, and the interoperability of services: Provided that in doing so the Authority shall exercise its responsibility in a way that promotes efficiency, sustainable competition, the deployment of very high capacity networks, efficient investment and innovation, and gives the maximum benefit to endusers: Provided further that the Authority shall provide guidance and make publicly available the procedures applicable to gain access and interconnection to ensure that small and medium-sized enterprises and operators with a limited geographical reach can benefit from the obligations imposed.
(2)Without prejudice to measures that may be taken regarding undertakings designated as having significant market power in accordance with regulation 55, the Authority may impose: (
  1. a)to the extent necessary to ensure end-to-end connectivity, obligations on undertakings subject to general authorisation that control access to end-users, including, in justified cases, the obligation to interconnect their networks where this is not already the case; ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 (
  2. b)in justified cases and to the extent necessary, obligations on undertakings subject to general authorisation that control access to end-users to make their services interoperable; (
  3. c)to the extent necessary to ensure accessibility for end-users to digital radio and television broadcasting services and related complementary services specified by the Authority, obligations on operators to provide access to the other facilities referred to in Part II of the Second Schedule on fair, reasonable and non-discriminatory terms; (
  4. d)in justified cases, where end-to-end connectivity between end-users is endangered due to a lack of interoperability between interpersonal communications services, and to the extent necessary to ensure end-to-end connectivity between end-users, obligations on relevant providers of number-independent interpersonal communications services which reach a significant level of coverage and user uptake, to make their services interoperable: Provided that the obligations referred to in paragraph (
  5. d)shall be imposed only: (
  6. i)to the extent necessary to ensure interoperability of interpersonal communications services and may include proportionate obligations on providers of those services to publish and allow the use, modification and redistribution of relevant information by the Authority and other providers, or to use and implement standards or specifications listed in regulation 26 or of any other relevant European or international standards; (
  7. ii)where the European Commission, after consulting BEREC and taking utmost account of its opinion, has found an appreciable threat to end-to-end connectivity between end-users throughout the European Union or in at least three Member States and has adopted implementing measures specifying the nature and scope of any obligations that may be imposed, which implementing measures shall be adopted in accordance with the examination procedure referred to in Article 118
(4)of the Electronic Communications Code.
(3)Without prejudice to sub-regulations
(1)and
(2), the Authority may impose obligations, upon reasonable request, to grant access to wiring and cables and associated facilities inside any building or up to the first concentration or distribution point as determined by the Authority, where that point is located outside the 49 50 ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES (GENERAL) [ S.L. 399.48 building: Provided that where the Authority considers that the replication of such network elements would be economically inefficient or physically impracticable, the Authority may then impose such obligations on providers of electronic communications networks or on the owners of such wiring and cables and associated facilities, where those owners are not providers of electronic communications networks. Any access conditions that may be so imposed, may include specific rules on access to such network elements and to associated facilities and associated services, on transparency and non-discrimination and on apportioning the costs of access, which whe

🔗 Għas-sors uffiċjali

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.