Technological Convergence under Colombian Telecommunications Regulation

By Tomás Calderón-Mejía

Posted: 2nd October 2014 08:46

In 2009, the Colombian Congress enacted Law 1341 on which it created a new regulatory framework for telecommunications in Colombia in an era of telecommunications convergence, under which multiple telecommunications services can be provided through a single network. 

The former regulation framework contained in Decree Law 1900 of 1990 set forth a different regulation for each telecommunications service and different fees to be paid depending on the service rendered.  The following chart reflects the above mentioned:
 
Service Regulation Fees pursuant to Decree 1972 of 2003
Public Switched Telephone Network (PSTN) for Local and Local Extended Services. Law 142 of 1994. None. 
Mobile Telephony Services. Law 37 of 1993 and Law 422 of 1998 Quarterly fee of 5% of gross revenues.
Personal Communications Services (PCS) Law 555 of 2000 and Decree 575 of 2002 Quarterly fee of 5% of gross revenues.
Value Added and Telematics Services.  Decree 1794 of 1991, Decree 600 of 2003, Decree 3055 of 2007 and Decree 2870 of 2007 Quarterly fee of 3% of net revenues.
Carrier´s Services.  Decree 556 of 1998, Decree 1367 of 2000, Decree 447 of 2003 and Decree 2870 of 2007 Quarterly fee of 3% of net revenues.
Public Switched Telephone Network (PSTN) for National and International Long Distance Services. Decree 2542 of 1997, Decree 2926 of 2005,
Decree 2870 of 2007
Quarterly fee of 5% of gross revenues.
Trunking Services Decree 2343 of 1996, Decree 4239 of 2004, Decree 2943 of 2006, Decree 2870 of 2007 and Decree 3145 of 2008 Quarterly fee of 5% of gross revenues.
Space Segment Providers Decree 1137 of 1996 20 minimum monthly legal wages for Registration and 1/3 of a minimum monthly legal wage per 25 KHz of total bandwidth used. 
 
Net Revenuesmeant all revenues for the provision of the services to users or other operators, less devolutions, rebates and discounts and the costs caused for the services provided by other operators for the provision of the corresponding service. 
 
Gross Revenuesmeant all revenues for the provision of the services to users or other operators, less devolutions, rebates and discounts for the applicable service.
 
Thus, if a telecommunications operator provides different services, such as triple or quadruple play, it was subject to different regulations and the payment of different fees. 
 
With the enactment of Law 1341 of 2009, technological neutrality was included as a principle, under which technologies may be freely used in order to allow the efficient rendering of telecommunications services, contents and applications that use information and communication technologies.  Based upon such principle, Law 1341 of 2009 and the provisions that regulate it, created the following:
 
1. A single general authorisation for the provision of all telecommunications networks and services which is granted once the corresponding company is registered at the ICT Registry pursuant to Decree 4948 of 2009.  Television (which is regulated by Laws 14 of 1991, 182 of 1995, 335 of 1996 and 1507 of 2012) and Postal services (regulated by Law 1369 of 2009) are not included in such general authorisation, since they are regulated by their own special regulation. 

Such registry can be made onlineand it only requires basic information regarding the telecommunications operator company, the service and the network to be provided.  No fee is to be paid for such registration. 
 
2. A single fee rate to be paid each quarter of 2.2% of the gross revenues, for the provision of all telecommunications networks and/or services, excluding terminal equipment pursuant to Resolution 290 of 2010, as amended by Resolution 2877 of 2011. 
 
This reduction can be significant in some cases since it reduces from 5% to 2.2% of gross revenues; and in other cases, it increases the fees to be paid since the fee changes from 3% of net revenues to 2.2% of gross revenues. 
 
3. Telecommunication operators that require using the radioelectric spectrum shall obtain a previous permit from the Ministry of Information and Communication Technologies (“MINTIC”) through an objective selection process.  The requirements for such permit are regulated on Decree 4392 of 2010.
 
4. Satellite operators require obtaining the registration at the Andean Satellite Listpursuant to Decision 707 and 715 of the Andean Community of Nations.  This registration causes no fee to be paid. 
 
Afterwards shall obtain the registration in Colombia at the Providers of Satellite Capacity Registry pursuant to Resolution 106 of 2013 of MINTIC.  The latter registration causes a fee for the telecommunications operator in favor of MINTIC of 20 minimum monthly legal wages pursuant to Resolution 2877 of 2011. 
 
Furthermore, pursuant to said Resolution 2877 of 2011 the telecommunications operators that use satellite capacity from Providers of Satellite Capacity shall pay an annual fee equal to six minimum monthly legal wages multiplied by the total bandwidth used in a year in MHz. 
 
Law 1341 of 2008 also included a transition period for those operators that already held a license issued under Decree Law 1900 of 1990, who could choose between either to:
 
1. Continue with their telecoms license until their expiry, which would be subject to the regulation under which they were granted.
2. Apply for the ICT Registry, in which case their old licenses would be terminated and they would not be entitled to raise any claim for that matter against the State.
 
Conclusions:

· The telecommunications regulation in Colombia has taken a great leap in recent years, in order to allow the technological convergence of networks and services which will allow more competition and better telecommunication networks, services and prices. 
·  Currently, except for Television, Postal Services and the Provision of Satellite Capacity, with a single registration at the ICT Registry of MINTIC a company may provide all telecommunications networks and/or services to the public. 
· The playfield with respect to the fees for the provision of telecommunication networks and/or services has been levelled up.  Thus, currently the fee to be paid to MINTIC is at a sole rate of 2.2% of the gross revenues, for the provision of all telecommunications networks and/or services, excluding terminal equipment.
· Regarding the provision of satellite capacity in Colombia, the providers shall register first at the Andean Satellite List of the Andean Community of Nations, and afterwards, they shall register at the Providers of Satellite Capacity of MINTIC.  The latter causes a fee of 20 minimum monthly legal wages in favour of MINTIC. 
· Under the new telecommunications regulation, the use of the radioelectric spectrum in the provision of satellite capacity causes a fee which shall be paid not by the satellite operators (Providers of Satellite Capacity) as it occurred under the former regulation, but by their clients, the telecommunications operators that use such capacity to provider their services to the public.  In any case, the new formula to calculate the fee to be paid has been reduced almost in half to which was set forth back in the former regulation, which should benefit the provision of telecommunication services to remote parts of the country with no other networks. 
 
TOMÁS CALDERÓN-MEJÍA
 
Associate at Lloreda Camacho & Co. since 2007, works in M&As, corporate, telecommunications and aviation law.
 
He holds an LLM in International Legal Practice from Instituto de Empresa, Spain (2006), a Specialisation in Spanish Law from Universidad de Alcala, Spain (2010), a Specialisation in International Business Law (2005) and a JD degree (2004) from Universidad de los Andes and currently undertaking a Specialisation in Tax Law at the same university. 
 
Scholarship recipient from Fundación Carolina (2005), exchange student of the LLM at the Marshall-Wythe Law School, US (2006) and admitted to practice in Colombia in 2004 and in Spain in 2010. 
 
Email: tcalderon@lloredacamacho.com

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