The Electronic Communications Law or the ‘Constitution of the Telecommunications Market’

On Sunday, 10 November this year, the long-awaited Polish regulation – the Electronic Communications Law (‘ECL Act’) came into force. ECL Act implements the provisions of two directives into the Polish legal system: Directive 2018/1972 of the European Parliament and of the Council (EU) of 11 December 2018 establishing the European Electronic Communications Code and Directive 2022/2380 of the European Parliament and of the Council (EU) of 23 November 2022 amending Directive 2014/53/EU on the harmonization of the laws of the Member States relating to the making available on the market of radio equipment. The legislation work on ECL Act took a very long time and the EU Court of Justice fined Poland more than €10 million for its delay in implementing the provisions of the European Electronic Communications Code.

The constitution of the telecommunications market

The ECL Act comprehensively regulates the functioning of the telecommunications market therefore it is referred to by some (not without exaggeration) as the ‘constitution of the telecommunications market’. The new act replaces the Telecommunications Act, which has been in force for 20 years and has regulated Poland’s telecommunications sector until now. The ECL Act includes many existing regulations but also introduces significant changes that should be noted.

The ECL Act is primarily a series of simplifications for consumers using telecommunications services (common and compatible chargers for all phones, an obligation for operators to present easily comparable offers and to formulate agreements in simple and understandable language, an obligation to return remaining funds on prepaid cards, or an obligation to inform about the expiry of a contract, etc.), but also changes relating directly to the telecommunications operators themselves,  which are expected to improve the functioning of the telecommunications market (new rules for entry in the register of telecommunications undertakings, new telecommunications fees, changes in the rules for telecommunications access and access to buildings, or changes to certain information and reporting obligations towards the regulatory authority).

Telecommunications entrepreneurs should first be aware of the obligation to supplement data in the telecommunications entrepreneurs’ register, which the President of the Office of Electronic Communications keeps. Under the provisions of the ECL Act, existing entries in the register remain valid; however, due to differences in the data subject to entry, it is necessary to adjust the record to the new requirements. The legislator has given entrepreneurs 6 months to complete their entries; otherwise, they will be deleted from the register.

Electronic communication undertakings

What is particularly important and generates particular interest is the extension of the new provisions to so-called ‘electronic communication undertakings,’ which should be defined as ‘telecommunications undertakings or entities providing a publicly available interpersonal communication service that does not use numbers.’ Thus, a range of obligations previously binding on ‘traditional’ telecommunications undertakings (telecommunications service providers and telecommunications network operators) will now also cover providers of publicly available e-mail or Internet communicators. Extension of the scope of regulation of the ‘telecommunications provisions’ is undoubtedly related to changes in the market and the replacement of traditional telecommunications services by various types of Internet communicators. As we read in the Preamble of Directive 2018/1972 “Given the growing importance of number-independent interpersonal communications services, it is necessary to ensure that they are also subject to appropriate security requirements in accordance with their specific nature and  economic importance”.

Advanced Mobile Location

To improve public safety, ECL Act is implementing the Advanced Mobile Location (AML) service, which will provide precise caller location information to 112 and other three-digit emergency numbers. The obligation to implement this service is based on the provisions of Directive 2018/1972, which indicates that the precise location information of the person making the emergency call must be made available to the most appropriate emergency call center immediately upon receipt of the emergency call. This information includes network-based location information and caller location information derived from a mobile phone device, where technically feasible.

Location access within the AML service is intended to be fully secure for end users and not interfere with existing privacy policies. Location data will only be released during the duration of a voice call to the selected emergency numbers, transmitted only to the services called to provide assistance, and covered by telecommunications secrecy. According to ECL Act the criteria for the accuracy and reliability of the location will be defined and published by the President of UKE on the UKE BIP entity page.

Conclusion

The new provisions of the Electronic Communications Law are designed to strengthen the position of consumers in their relations with operators, as well as to improve the functioning of the telecommunications market and, at the same time, increase the quality and transparency of telecommunications services. A more detailed discussion of the impact of the new provisions on consumer rights, the protection of personal data of recipients of telecommunications services, the conduct of e-mail and telephone marketing, or the use of cookies will be discussed in subsequent articles.