2010 GCR

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GLOBAL COMPETITION REVIEW

Telecoms and Media An overview of regulation in 47 jurisdictions worldwide Contributing editors: Natasha Good and Laurent Garzaniti

2010 Published by Getting the Deal Through in association with:

Al Kamel Law Office Alvarez, Santamarina y Acedo SC Barretto Ferreira, Kujawski, Brancher e Gonçalves Sociedade de Advogados (BKBG) Blake, Cassels & Graydon LLP Bowman Gilfillan Inc Carey y Cía Ltda Cocalis & Psarras Law Firm Coulson Harney Drakopoulos Law Firm Drew & Napier LLC Freshfields Bruckhaus Deringer Harris Kyriakides LLC Henry Davis York Holland & Knight LLP J J Roca & Asociados Lavrynovych & Partners Law Firm Lenz & Staehelin LG@vocats Mannheimer Swartling Matheson Ormsby Prentice Moreno Baldivieso Estudio de Abogados Nielsen Nørager PLMJ Pradhan & Associates Seth Dua & Associates Sycip Salazar Hernandez & Gatmaitan The National Telecommunications Commission, Thailand Udo Udoma & Belo-Osagie Wierzbowski Eversheds Wigley & Company Wong Jin Nee & Teo Yangming Partners Yulchon, Attorneys at Law Zang Bergel & Viñes Abogados

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Telecoms and Media 2010 Contributing editors: Natasha Good and Laurent Garzaniti, Freshfields Bruckhaus Deringer Business development manager Joseph Samuel Marketing managers Alan Lee George Ingledew Robyn Hetherington Dan White Tamzin Mahmoud Ellie Notley Subscriptions manager Nadine Radcliffe Subscriptions@ GettingTheDealThrough.com Assistant editor Adam Myers Editorial assistant Nina Nowak Senior production editor Jonathan Cowie Chief subeditor Jonathan Allen Senior subeditor Kathryn Smuland Subeditors Ariana Frampton Sara Davies Charlotte Stretch Peter Beech Editor-in-chief Callum Campbell Publisher Richard Davey Telecoms and Media 2010 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 © Law Business Research Ltd 2010 No photocopying: copyright licences do not apply. ISSN 1471-0447 The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of May 2010, be advised that this is a developing area.

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Global Overview Laurent Garzaniti, Natasha Good and Ben Graham Freshfields Bruckhaus Deringer iii Argentina Pablo Crescimbeni and Ivana Blumensohn Zang Bergel & Viñes Abogados 1 Australia Robert Neely, Peter Mulligan and Carrie Neal Henry Davis York 9 Austria Bertram Burtscher and Stefan Köck Freshfields Bruckhaus Deringer 22 Belgium Laurent Garzaniti, Hein Hobbelen, Jan Blockx and Vincent Mussche Freshfields Bruckhaus Deringer 33 Bolivia Andres Moreno Gutierrez Moreno Baldivieso Estudio de Abogados 44 Brazil Ricardo Barretto Ferreira da Silva and Fabio Ferreira Kujawski Barretto Ferreira, Kujawski, Brancher e Gonçalves Sociedade de Advogados (BKBG) 50 Canada Gary Jessop, David Kidd and Andrée Wylie Blake, Cassels & Graydon LLP 58 Chile Alfonso Silva and Eduardo Martin Carey y Cía Ltda 72 China Connie Carnabuci and Xun Yang Freshfields Bruckhaus Deringer 83 Cyprus Michalis Kyriakides and Nectaria Tyropolis Harris Kyriakides LLC 97 Denmark Henrik Peytz and Jakob Mosegaard Larsen Nielsen Nørager 103 Dominican Republic Sharin Pablo de Roca, Deborah Guzman and Yumari Torres J J Roca & Asociados 112 Egypt Mohamed Hashish Al Kamel Law Office 119 European Union Thomas Janssens, Laurent Garzaniti and Matthew O’Regan Freshfields Bruckhaus Deringer 127 France Jérôme Philippe and Aude-Charlotte Guyon Freshfields Bruckhaus Deringer 149 Germany Norbert Nolte and Annegret König Freshfields Bruckhaus Deringer 161 Greece Alkiviades Psarras Cocalis & Psarras Law Firm 171 Hong Kong Connie Carnabuci and Victoria White Freshfields Bruckhaus Deringer 179 India Atul Dua and Rahul Goel Seth Dua & Associates 195 Ireland Helen Kelly and Ciara Treacy Matheson Ormsby Prentice 203 Italy Tommaso Salonico and Luca Ulissi Freshfields Bruckhaus Deringer 222 Japan Mariko Kobayashi and James Wood Freshfields Bruckhaus Deringer 233 Kenya Richard Harney and Kenneth Njuguna Coulson Harney 243 Korea Hee-Woong Yoon, Kum-Ju Son, Seung-Hyuck Han, Kyu-Hyun Kim and Sangwook Daniel Han Yulchon, Attorneys at Law 251 Luxembourg Stephan Le Goueff LG@vocats 264 Malaysia Jin Nee Wong Wong Jin Nee & Teo 271 Mexico Andrés Acedo M, Emmanuel A Cárdenas R and Paola Jiménez Pons-Madrigal Alvarez, Santamarina y Acedo SC 281 Nepal Devendra Pradhan Pradhan & Associates 289 Netherlands Onno Brouwer, Winfred Knibbeler and Nima Lorjé Freshfields Bruckhaus Deringer 298 New Zealand Michael Wigley Wigley & Company 306 Nigeria Myma Belo-Osagie, Jumoke Lambo and Afoke Igwe Udo Udoma & Belo-Osagie 314 Philippines Rose Marie M King-Dominguez and Ruben P Acebedo II Sycip Salazar Hernandez & Gatmaitan 324 Poland Arwid Mednis, Boz˙ena Marciniak and Artur Salbert Wierzbowski Eversheds 331 Portugal Luis Pais Antunes PLMJ 341 Romania Adrian Roseti and Marina Dranga Drakopoulos Law Firm 349 Russia Igor Gerber, Leonid Sedov and Roman Churakov Freshfields Bruckhaus Deringer 355 Saudi Arabia Gerald Steinke Freshfields Bruckhaus Deringer 372 Singapore Chong Kin Lim and Wei Hao Loh Drew & Napier LLC 381 South Africa Daniel Pretorius and Livia Dyer Bowman Gilfillan Inc 399 Spain Francisco Cantos and Margarita Fernández Freshfields Bruckhaus Deringer 408 Sweden Biorn Riese, Martin Gynnerstedt and Mikael Moreira Mannheimer Swartling 419 Switzerland Marcel Meinhardt and Astrid Waser Lenz & Staehelin 428 Taiwan Robert C Lee Yangming Partners 437 Thailand Sudharma Yoonaidharma The National Telecommunications Commission, Thailand 445 Ukraine Iryna Marushko, Olena Trapeznikova and Roman Blazhko Lavrynovych & Partners Law Firm 454 United Kingdom Rod Carlton, Mark Sansom and Manish Das Freshfields Bruckhaus Deringer 466 United States Norm Leventhal, Charles Naftalin, George Wheeler, Peter Connolly, Roz Allen, Eric Fishman, Jonathan Epstein, Bill LeBeau and Leighton Brown Holland & Knight LLP 483 Quick Reference Tables 494

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Al Kamel Law Office

egypt

Egypt Mohamed Hashish Al Kamel Law Office

Communications policy 1 Policy Summarise the regulatory framework for the telecoms and media sector. What is the policymaking procedure?

Telecoms and media are governed by various legislation that includes: • Telecommunication Regulation Law No. 10 of 2003 (the Telecoms Law); • Intellectual Property Rights Law No. 82 of 2001 (the IP Law); • Law No. 15 of 2004 on E-Signature and Establishment of the Information Technology Industry Development Authority (the E-signature Law); • the Investment Guarantees and Incentives Law (the Investment Law) No. 8 of 1997; • Law No. 159 of 1981 on Joint-stock companies, Partnerships limited by Shares and Limited Liability Companies (the Companies Law); • Law No. 3 of 2005 on the Protection of Competition and Prohibition of Monopolistic Practices (the Competition Law); • Presidential Decree No. 379 of 1999 organising the Ministry of Communication and Information Technology; and • Presidential Decree No. 72 of 1995 by which Egypt acceded to the World Trade Organization (the WTO), the WTO basic Telecommunication Agreement, and the WTO Information Technology Agreement. Egypt has also been a member of the International Telecommunication Union (the ITU) since 1876. There are three major authorities that regulate the fields of telecoms and media as follows: • The General Authority for Investment and Free Zones (the GAFI) established by Presidential Decree No. 384 of 1997 and affiliated with the Ministry of Investment (the MI), applies the provisions of the Investment Law and Companies Law and issues approvals for the incorporation of companies to practise any commercial activities including telecoms and media activities. • The National Telecommunication Regulatory Authority (the NTRA) established by the Telecoms Law, affiliated to the Ministry of Communications and Information Technology (the MCIT), which organises the telecommunications sector. The core mission of the NTRA is to encourage national and international investment within free competition rules as the Egyptian government endeavours toward the formulation of free-market and business-friendly policies. By virtue of article 5 of the Telecoms law, the NTRA specifies the general rules binding the operation and the telecommunication service providers and determines the limits that if exceeded will lead to the violation of the free competition rules.

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• The Information Technology Industry Development Authority (the ITIDA) established by virtue of the E-signature Law affiliated to MCIT, regulates the activities of e-signature services and other activities in relation to e-transactions and the information technology industry. The telecommunication licences are divided as follows: Services Fixed services

Sub-services Fixed telephony Pre-paid calling card Payphones

International services

International services and gateways International submarine cables Licence A

Data services

Licence B Licence C Global peering

Cellular

2G & 2.5G GSM 3G & 3.5G GSM Wireless truck

Satellite services

Inmarsat & Inmarsat service provider GMPCS VSAT

Telecommunication infrastructure leasing Telecoms services on navigation lines

The provision of telecommunications and media services is prohibited in Egypt unless a licence is obtained from the competent authorities. The legal structure and the financial and technical adequacy of the applicant are important points of consideration for the relevant authorities in order to obtain telecommunications and media licences. Egypt is rapidly setting up modern telecommunications networks and services, thereby supporting the participation of local and foreign capital through various legal forms of public and private partnerships. By so doing, Egypt is cooperating with the private sector to improve telecoms services, liberalising the telecoms market and committing to the universal service policy. Development procedures are rapid in connection with the development of the national telecoms regulations; hence, the National Telecoms Master Plan was drafted by the government in coordination with the private sector. 2

Convergence Has the telecoms-specific regulation been amended to take account of the convergence of telecoms, media and IT? Are there different legal definitions of ‘telecoms’ and ‘media’?

The Telecoms Law has not been amended to take account of the convergence of ICT and media, whereas the ICT Industry is undergoing a unique phase of development due to the convergence taking place between telecoms and media.

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egypt Egyptian law does not contain any specific texts that differentiate between telecoms and media. Telecoms are defined according to the provisions of article 1 of the Telecoms Law as follows: ‘any means for transmitting or receiving signs, signals, messages, texts, images or sounds of whatsoever nature whether through wired or wireless communication’. There is presently no specific legal definition for the term ‘media’ within the Telecoms Law. 3

Broadcasting sector Is broadcasting regulated separately from telecoms? If so, how?

Broadcasting in Egypt is separately regulated by the Ministry of Culture which requires a licence in order to broadcast audio, video or audio-video in accordance with the provision of article 2 of Law No. 430 of 1955 as amended by Law No. 38 of 1992, which organises censorship on movies, magic lantern slides, songs, plays, monologues, discs and sound recording tapes. However, such separate regulations are not applicable in connection with type approvals for the usage of any broadcasting equipment, which shall be obtained from the NTRA. Telecoms regulation 4

WTO Basic Telecommunications Agreement Has your jurisdiction committed to the WTO Basic Telecommunications Agreement and, if so, with what exceptions?

By virtue of Presidential Decree No. 72 of 1995, Egypt has acceded to WTO agreements regarding results of the Uruguay Round of Multilateral Trade Negotiations, and the relevant scheduled commitments of Egypt. Based on the foregoing, Egypt has committed to the WTO Basic Telecoms Agreement. Currently, there are no exceptions specifically related to the WTO Basic Telecoms Agreement. 5 Public/private ownership What proportion of any telecoms operator is owned by the state or private enterprise?

Telecom Egypt (TE) had the executive right to establish, operate and exploit international transmission networks between Egypt and other countries through international gateways via submarine and land cables, microwave links and satellites for fixed services and provide telephone, fax, telex and telegraph services over such networks during from 1998 until 31 December 2005. By virtue of article 63 of the Telecoms Law and article 8 of Law No. 19 of 1998, transforming the National Authority for Wire and Wireless Communication into an Egyptian joint-stock company called Telecom Egypt, the state owns the greater part of TE’s stocks, amounting to 51 per cent. 6

Foreign ownership Do foreign ownership restrictions apply to authorisation to provide telecoms services?

By virtue of article 4 of Commercial Register Law No. 34 of 1976, foreign ownership shall not exceed 49 per cent of partnership companies. Nevertheless, no provisions of any Egyptian laws apply such foreign ownership restrictions to the authorisation of joint-stock, limited liability or limited partnership shares companies to provide any telecoms services.

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Operator exclusivity and limits on licence numbers Are there any services granted exclusively to one operator or for which there are only a limited number of licences? If so, how long do such entitlements last?

Fixed telephony’s services are currently granted exclusively to TE who has the sole right to set up and establish the core infrastructure of telecoms networks to offer fixed local and international telephony services as well as fax. However, it is worth noting that the NTRA is currently offering a tender for two ‘triple-play’ licences, which will allow the sale of fixed-line voice, high-speed broadband and pay-TV services inside the gated communities which contain between 50 and 5,000 housing units and provide such services outside these areas. Therefore, such licences will decrease TE’s monopoly once the new operators offer their services. 8

Fixed, mobile and satellite services Comparatively, how are fixed, mobile and satellite services regulated? Under what conditions may public telephone services be provided?

The fixed, mobile and satellite services are regulated and licensed as seen in the table at the end of the chapter. The regulations of each service are determined on a case-by-case basis by the NTRA and according to the provisions of the licence agreement, which shall be confidential. However, the following regulations and conditions are generally applied to the provision of such services: • the applicant should have sufficient experience in the sphere of telecommunication practices in general and, specifically, in the sphere of the licence; • the applicant should present to the NTRA its suggested geographical coverage plan and the required frequencies to provide the services during the following five years in the Egyptian market, the technical solutions and technologies that will be used for providing the services; • all telecoms equipment determined for use by end-users shall have type approvals from the NTRA before distribution in the Egyptian market; • the licensed entity shall provide the services at all times in compliance with international standards and ITU recommendations; • the licensed entity shall guarantee the availability of emergency calls for each user free of charge; • the licensed entity shall contribute to scientific research and training programmes in the telecoms fields as specified by the NTRA and in accordance with the provisions of the Telecoms Law; • the licensed entity shall comply with standards of free competition, non-disclosure, transparency and cost accounting approved by the NTRA; • the licensed entity shall carry out the operation plan of the telecoms networks with respect to general mobilisation and in compliance with national security; • the licensed entity shall set up a system for receiving complaints from end-users on a daily basis throughout the licence term; • the licensed entity shall sign service-level agreements with endusers after obtaining the approval thereof by the NTRA; • the licensed entity shall present all financial, administrative, marketing or technical statements to the NTRA in the form and on the date required thereof; • the licensed entity shall sign an interconnection agreement with other licensees inside Egypt after obtaining the prior approval of the NTRA; and • all technical capabilities shall be made available by the licensed entity at its own cost to allow the national security agencies to practice their competences in accordance with the Egyptian laws. In addition to the above-mentioned regulations and conditions there are some regulations specifically applied to provide the Inmarsat and VSAT services.

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The specific regulations required for providing Inmarsat services are as follows: • the licensed entity shall not provide the voice service using VoIP; and • the licensed entity shall not be entitled to provide Inmarsat services except after signing an interconnection agreement with Inmarsat Company or any distributors thereof and it should include technical and financial terms. A copy of such agreements should be provided to the NTRA. Secondly, the specific regulations required for providing VSAT services include: • the licensed entity shall set up, operate and secure infrastructure for the VSAT network through the VSAT satellite in compliance with the allocated frequencies thereof; • the licensed entity shall not provide voice service using VoIP; • the services of VSAT include the following: • providing data, video, and voice services within Egypt excluding radio and TV services; • providing data and video services from Egypt to remote locations in others countries and vice versa; and • providing internet services, private internet (closed user groups), broadcast and multicast and VPN services; and • the licensed entity shall provide the VSAT services via a central hub station installed in Egypt and approved by the NTRA. 9

Satellite facilities and submarine cables In addition to the requirements under question 8, do other rules apply to the establishment and operation of satellite earth station facilities and the landing of submarine cables?

Yes, in addition to the general regulations mentioned in question 8, the following requirements are applicable: • the applicant must form a consortium comprising at least two entities that are licensed to perform direct communication with the International Cable System in Egypt. Such entities should obtain a licence for VSAT or data services; and • such consortium must comprise the active international or regional entities practising in the field of international communications. Normally, this would be the foreign member of the applying consortium. 10 Radio frequency requirements For wireless services, are radio frequency (RF) licences required in addition to telecoms services authorisations and are they available on a competitive or non-competitive basis? How are RF licences allocated? Do RF licences restrict the use of the licensed spectrum?

An RF licence is required for the authorisations of the licences of wireless services and it is available on a non-competitive basis. By virtue of the provisions of article 3 of Decree No. 258 of 2003 from the minister of communication and information technology concerning the conditions and terms of licensing wireless equipment and radio frequency, an RF licence is not allocated using auctions, since RF is licensed by the NTRA after the submission of an application for a licence thereto. 11 Spectrum trading Is licensed RF spectrum tradable?

The allocated RF is not tradable under any circumstances. 12 Next-generation mobile services Is there any regulation for the roll-out of 3G, 3.5G or 4G mobile services?

• the licensed entity shall provide 3G services in compliance with the geographic coverage plan and the quality of service, which are determined by the NTRA on a case-by-case basis; • the new licensed entrants may use the national roaming system, site sharing and transferability of SIM numbers, including the digital code of the network among its network and the licensed Public Land Mobile Network in Egypt; • the new licensed entrant has the right to make available international roaming service through its network and other compatible public networks; • the licensed entity shall comply with the latest ITU and ETSI technical standards related to any quality of service indicators; • the licensed entity shall present weekly reports to the NTRA including, but not limited to, performance, traffic, roll-out indicators and the results of the quality of service indicators; and • the licensed entity shall use the most advanced technology to provide 3G services, including UMTS and EDGE. 13 Fees What fees are payable for each type of authorisation?

The fees for each licence are determined by the NTRA on a case-bycase basis. However, based on the fees paid for the current licences, the approximate fees for each service are as follows: Services Fixed Mobile

Fees Approximately US$3 billion

Satellite Wireless trunk

Value not available

Telecom services on navigation lines Data services

Approximately 3% to 6% of the gross revenues of licensed entity

Infrastructure leasing

Value not available

International services

Approximately US$500,000

In addition to the mentioned fees, the licensed entity shall pay to the NTRA the following: • approximately 5 per cent of its annual gross revenues throughout the licence term; • approximately 0.5 per cent of its annual gross revenues throughout the term of the licence in return for telecoms scientific research and training; and • an annual amount in return for using the frequency spectrum and wireless connections. 14 Authorisation timescale Are licences or other authorisations required? How long does the licensing authority take to grant such licences or authorisations?

Yes, the licensee should obtain authorisations from the competent local governorate in order to setup cables or a network within such governorate in addition to a licence from the NTRA. As regards the authorisation timescale, it is normally obtained within 90 days from the date of submission of all required documents to the local governorate. 15 Licence duration What is the normal duration of licences?

The duration of each licence is determined by the NTRA on a caseby-case basis, but it is normally 15 to 20 years.

In additional to the general regulations and conditions mentioned in question 8, the following regulations are applicable: www.gettingthedealthrough.com



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16 Modification and assignment of licence How may licences be modified? Are licences assignable or able to be pledged as security for financing purposes?

21 Internet service provision Are there limits on an internet service provider’s freedom to control or prioritise the type or source of data that it delivers?

The licences may be modified by the State Council and consensually between the licensee and the NTRA. The licences may not be assigned or pledged as security for financing purposes, except after obtaining prior approval of the NTRA.

There are no limits on an internet service provider’s freedom to control or prioritise the type or source of data that it delivers, except that it shall not divulge customers’ data gathered throughout the execution of its licence.

17 Radio spectrum Is there a regulatory framework for the assignment of unused radio spectrum (refarming)? Do RF licences generally specify the permitted use of the licensed spectrum or can RF licences for some spectrum leave the permitted use unrestricted?

22 Financing of broadband and NGA networks Is there a government financial scheme to promote broadband penetration?

By virtue of article 57 of the Telecoms Law, the licensed entity shall not have the right to waive its allocated radio spectrum in favour of other parties except after obtaining the prior written approval of the NTRA as to whether or not the licensed entity uses such radio spectrum. By virtue of article 51 of the Telecoms Law, the licensed entity shall only use a frequency or a band in accordance with the licence conditions and the NTRA shall have the right to terminate such licence in the event of any contravention. 18 Cable networks Is ownership of cable networks, in particular by telecoms operators, restricted?

No. 19 Local loop Is there any specific rule regarding access to the local loop or local loop unbundling? What type of local loop is covered?

Licensed network services providers are allowed to access the local loop with TE to co-locate their digital subscriber line access multiplexer and provide broadband data services using ADSL technology, while maintaining TE rights over voice services. 20 Internet services How are internet services, including voice over the internet, regulated?

As previously mentioned, there are four types of data services’ licences, class A, B, C and global peering, which are regulated as follows: • licence of class A allows its licensee to set up, manage and operate the core infrastructure necessary for offering internet services without the right to offer voice telephony services; • licence of class B allows its licensee to set up, manage and operate the core infrastructure necessary for offering local and international data transfer only without offer voice telephony services; • licence of class C allows its licensee to offer free internet services at the same tariff of fixed telephony calls; and • licence of global peering allows its licensee to build and operate the infrastructure necessary for connecting between class A and B licensees, e-content providers, domain name providers, and data centres. Concerning VoIP services, TE has the exclusive right to offer VoIP and call centres operating in Egypt are allowed to use VoIP to make international calls only when they have a minimum of 100 employees as well as other criteria determined by ITIDA on a case-by-case basis. NTRA has recently banned international calls made via a mobile VoIP internet connection (not fixed lines), due to the fact that such activity violates Telecoms Law.

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The Egyptian government is working on a financial scheme for the promotion of broadband penetration. 23 Interconnection and access How is interconnection regulated? Can the regulator intervene to resolve disputes between operators? Are wholesale (interconnect) prices controlled and, if so, how? What are the basic interconnect tariffs? Are wholesale access services regulated, and, if so, which and how?

By virtue of article 28 of the Telecoms Law, the telecoms service providers shall abide by the following: • disclosing between them the technical specifications and the provided services details that may be required to achieve interconnection; • ratifying interconnection agreements in accordance with reasonable terms without any prejudice between them, which shall be submitted to the NTRA for approval, or acceding to the ratified interconnection agreements approved by the NTRA in this regard; and • presenting the data necessary to prove and estimate the extent of harm occurring to the service provider as a result of tort by any subscriber to another service provider, upon a request filed by the service provider claiming damages and after approval of the NTRA. According to the provisions of article 29 of the Telecoms Law, in the event of any dispute arising between the telecoms service providers concerning an interconnection agreement signed between them, such dispute shall be referred to the NTRA in order to issue a decision in accordance with the provisions of such agreements. Wholesale prices are controlled by the NTRA in collaboration with operators. 24 Mobile virtual network operator (MVNO) traffic Are any mobile network operators expressly obliged to carry MVNO traffic?

Information not available. 25 Mobile call termination Does the originating calling party or the receiving party pay for the charges to terminate a call on mobile networks? Is call termination regulated, and, if so, how?

The originating calling party shall pay the charges to terminate a call on mobile networks. Regulations of calls to and from mobile networks are determined and modified by the NTRA in collaboration with the operators of mobile services and such regulations are modified permanently in accordance with changes of the economic system of the telecommunications sector.

Getting the Deal Through – Telecoms and Media 2010

Al Kamel Law Office

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26 International mobile roaming Are wholesale and retail charges for international mobile roaming regulated?

• reaching a tele-density of 100 per cent when measured by the number of fixed phone lines per family.

Wholesale and retail charges are regulated for international mobile roaming by the NTRA in collaboration with operators.

31 Changes to telecoms law Are any major changes planned to the telecoms laws?

No major changes are planned. 27 Retail tariffs Are retail tariffs regulated? If so, which operators’ tariffs are regulated and how?

Retail tariffs are regulated. Each tariff of the telecommunications service is regulated by a decision of the NTRA in consideration of the submitted studies and recommendations in this concern by the service providers in accordance with the provisions of article 26 of the Telecoms Law. 28 Customer terms and conditions Must customer terms and conditions be filed with, or approved by, the regulator or other body? Are customer terms and conditions subject to specific rules?

Operators shall sign contracts with its customers in accordance with the standard forms approved by the NTRA and such contracts shall contain the following terms: • definition of type of service or services contracted and description of its performance thereof; • operator must maintain confidentiality of the information related to end-users and its contacts according to the terms of law; • the current payment conditions including the applicable interests, administrative expenses, taxes and any other charges; • contract term and renewal terms; • user’s and operator’s rights in the event of default of a contract entered between them, or in the event of early termination of contract; and • the contract is personal and as such the services cannot be transferred or resold to third parties without the prior consent of the operator. 29 Number portability Is number portability across networks possible? If so, is it obligatory?

Number portability across networks is obligatory between the three mobile services providers in Egypt. It is not applicable to fixed lines as there is only one operator for fixed lines. 30 Universal service obligations and financing Are there any universal service obligations? How is provision of these services financed?

By virtue of article 2 of the Telecoms Law, telecommunication services should be in compliance with provisions of universal services and all telecoms providers must shoulder the responsibility of enabling the underprivileged sectors in society to access basic telecoms services by sharing some of the financial burdens of this goal along with the government of Egypt. This responsibility is known under Telecoms Law as the ‘universal service obligations’ and it is up to the NTRA to identify the universal services obligations for each telecoms services provider, and to make sure that such provider meets them. The financial provisions of these services are determined on a case-by-case basis by the NTRA; however, the NTRA has set clear steps to realise the goal of achieving universal services as follows: • provision of basic telecoms services to low-income areas where such provision in deemed economically non-feasible; • increasing the average penetration rate in each governorate to 20 per cent; • narrowing the digital divide between people who enjoy tele-services, especially users of e-government services; and www.gettingthedealthrough.com



32 Next-generation networks How are next-generation networks (NGN) regulated?

The regulations of next-generation networks are still under discussion between the NTRA and the telecoms entities. 33 Structural or functional separation Is there a legal basis for requiring structural or functional separation between an operator’s network and service activities? Has structural or functional separation been introduced or is it being contemplated?

There is one indirect legal basis concerning operators of more than one licensed telecoms service, which shall not sustain any of these services in detriment of other services. Media regulation 34 Ownership restrictions Is the ownership or control of broadcasters restricted? May foreign investors participate in broadcasting activities in your jurisdiction?

By virtue of article 4 of Commercial Register Law No. 34 of 1976, foreign ownership shall not exceed 49 per cent of partnership companies. Nevertheless, there are no provisions in Egyptian laws applying the foreign ownership restrictions to joint-stock, limited liability or limited partnerships by shares companies that perform broadcasting activities. Foreign investors may participate in broadcasting activities in Egypt. 35 Cross-ownership Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

No. 36 Licensing requirements What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

There is one zone of the Egyptian free zones, the Media Public Free Zone (the MPFZ) established by Prime Ministerial Decree No. 411 of 2000. MPFZ is affiliated to GAFI and organised by the Decree of the Head of GAFI No. 4 of 3 January 2008. MPFZ specialises in media production activities including, without limitation, the following: • audio-visual, audio and information broadcasting via satellites; • establishment of all type of radio, television and information satellite channels; • offering advertising and publicity and public relations services; and • offering all kind of media marketing and consulting services. The established projects within MPFZ have a lot of benefits, such as exemption of their necessary exports and imports from the customs taxes, sales tax and other types of taxes and duties, freedom to transfer profits, invested money and re-exportation, and absence of restrictions imposed on the nationality of capital. The following requirements must be observed in order to obtain the MPFZ’s licence:

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egypt • the project shall be incorporated either in the legal form of a joint-stock company or a limited liability company to the exclusion of other forms such as branch for foreign company or representation office; • no licence is granted to channels conducting religious or partisan activities or that instigate sex, violence or politics; • the project’s capital shall cover the cost of the lease paid for the transmission segment space, studio and all other project-related costs; • the initial approvals of the Egyptian Media Production Company and the Egyptian Satellite Company are required before submission of the incorporation application; • the project shall declare its commitment to the Arab Media Ethical Charter and the MPFZ’s Business Controls and Principles; and • foreign labour shall not exceed 10 per cent of the total workforce. The following fees are determined by MPFZ: • annual consideration for services at one-half over 1,000 of the project’s investment cost at a minimum US$100 and a maximum of US$1,000; • annual fee of 1 per cent of the gross revenues of the project services; and • annual fee of 1 per cent of the value of commodities with respect to storage projects. Authorisation takes approximately 90 days from the date of submission of all required documents to MPFZ. 37 Foreign programmes and local content requirements Are there any regulations concerning the broadcasting of foreignproduced programmes? Do the rules require a minimum amount of local content?

Yes, the regulations prohibit the broadcasting of any foreign or local content encouraging acting under religious or sectarian partisan influence or encouraging sex or violence. Such content shall not be prejudiced against public morality and order and it shall comply with the Arab Media Ethical Charter. A minimum amount of local content is not required. 38 Advertising How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

Broadcast media advertising is subject to Law No. 430 of 1955 as amended and its Executive Regulations issued by Prime Ministerial Decree No. 162 of 1993 and the Decree of the Minister of Culture No. 307 of 1992 that regulates commercial advertising of visual and audio-visual works. According to the provisions of the above-mentioned laws and decrees, any type of audio or audio-visual work is subject to the supervision of the Ministry of Culture for proposes of protection of public morality and order. Any advertisement is prohibited except after obtaining the prior permission of the Ministry of Culture in this concern. Online advertising is subject to the same regulations in addition to the provisions of Intellectual Property Law, as amended, and its Executive Regulation issued by Prime Minster’s Decree No. 1366 of 2003 as amended, which require a licence from the ITIDA for the practice any of activities of e-content as online advertising. 39 Must-carry obligations Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

There are no regulations in this area.

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Al Kamel Law Office 40 Changes to the broadcasting laws Are there any changes planned to the broadcasting laws? In particular, do the regulations relating to traditional broadcast activities also apply to broadcasting to mobile devices or are there specific rules for those services?

Currently, the Legislative and Constitutionality Affairs’ Committee at the People’s Assembly (the Parliament) is reviewing a draft of Broadcast Law concerning audio-visual broadcasting, to be issued shortly. Based on the draft provisions of Broadcast Law, a national independent authority will be established, namely the National Audiovisual Broadcasting Regulation Authority (the NABRA), which will manage the audio-visual broadcasting sector and develop administrative and financial regimes. The NABRA is the authority competent to organise the services of audio-visual broadcasting via different telecommunication systems whether in use or for the future to ensure compliance with established controls, specifications and quality standards relating to content, production, distribution, protection of community and its values, as well as protecting younger audiences content concerning sex, violence and suppression, according to the effective laws in Egypt. 41 Regulation of online content How is the delivery of content online regulated?

The regulations are not sufficient in this regard. However, as mentioned in question 38, a licence from the ITIDA is required for the practice of any activities of e-content services such as IPTV, and such e-content shall not: influence people to act under religious or sectarian partisan influences, encourage sex or violence, or be against public morality or order. 42 Digital switchover When is the switchover from analogue to digital broadcasting required? How will radio frequencies freed up by the switchover be reallocated?

The NTRA is still working on the transition to digital broadcasting in Egypt. Regulatory agencies 43 Regulatory agencies Which body or bodies regulate the communications sector? Is the telecoms regulator separate from the broadcasting regulator?

The NTRA regulates the communications sector. The telecommunications regulator is separate from the broadcasting regulator. 44 Establishment of regulatory agencies How is each regulator established and to what extent is it independent of network operators, service providers and government?

By virtue of articles 3 and 12 of the Telecoms Law, the NTRA is established as a public juristic personality, and its board of directors is appointed by decree from the prime minister and presided over by the minister of communication and information technology. Its members include each of the following: • executive president of the NTRA; • a counsellor from the Sate Council; • a representative of the Ministry of Defence; • a representative of the Ministry of Finance; • four representatives of the national security bodies; • a representative of the Radio and Television Union; • six members appointed by a decree of the minister of communication and information technology, three of whom shall be experts in the field of telecommunications and three shall be public figures representing the end-users; and Getting the Deal Through – Telecoms and Media 2010

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• one of the NTRA’s employees to be nominated by the Federation of Egyptian Works. Each regulator is established by law in the legal form of a public authority. It is theoretically independent, but its decisions are sanctioned by the minister of communication and information technology. If any decision is issued by such body and is not rejected by the minister within 60 days, the decision is enforceable. 45 Appeal procedure How can decisions of the regulators be challenged and on what bases?

The Telecoms Law does not contain any regulation of challenges to the NTRA’s decisions; however, by virtue of article 10 of the Council of State Law No. 47 of 1972 as amended, individuals or entities may submit their challenges against any conclusive decisions of the NTRA for the rescission thereof according to the following bases of challenge: • the conclusive decision challenged would be in violation of laws or regulations; • defective in form; or • erroneous application. The refusal or the omission of the NTRA to take a decision that is required according to laws and regulations has the same effect of an administrative decision. 46 Interception and data protection Do any special rules require operators to assist government in certain conditions to intercept telecommunications messages? Explain the interaction between interception and data protection and privacy laws.

As mentioned in question 8, the rules require operators to make available at their own cost all technical capabilities to allow the national security agencies to perform their duties, including the interception of telecoms messages in order to protect national security and the state’s interests in accordance with the Egyptian laws. To date there are no specific rules relating to privacy in Egypt; a law in this domain is still under formulation and study. The regulations applicable to privacy are as follows: Article 45 of the Egyptian Constitution provides the following: Citizens’ private life is protected by law. Same is applicable to postal, telex correspondence, telephone calls and other means of communication. The confidentiality thereof is guaranteed and should never be confiscated, reviewed or controlled except by a motivated and time specified judicial order according to the provisions of the law.

Article 57 of the Egyptian Constitution provides the following: Any aggression on the private freedom or the sacredness of the private life of citizens as well as other freedoms and public freedom

that are guaranteed by the Constitution and law, constitute a serious crime for which there is no time bar with respect to a civil or a criminal case. The State guarantees a fair compensation for the party exposed to such aggression. 47 Data retention and disclosure obligations What are the obligations for operators and service providers to retain customer data? What are the corresponding disclosure obligations? Will they be compensated for their efforts?

Operators shall not divulge customers’ data gathered during the execution of their licence and shall take the necessary procedures to secure the confidentiality of communications, correspondences and telephones calls made via their networks. Recording, listening to, broadcasting or publishing such telephone calls and communications is prohibited. Operators and service providers will not be compensated for their efforts; however, whoever violates the above obligations shall be liable to penalties. 48 Unsolicited communications Does the legislation prohibit unsolicited communications? Are there exceptions to the prohibition?

No. Competition and merger control 49 Competition and telecoms and broadcasting regulation What is the scope of the general competition authority and the sectoral regulators in the telecoms and broadcasting sectors? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation?

The general competition and monopolistic practices rules are regulated by virtue of Law No. 3 of 2005 and its Executive Regulations issued by Prime Ministerial Decree No. 1316 of 2005, which states that the Egyptian Competition Authority shall be competent for coordination with other authorities on matters of common interest. Furthermore, in accordance with the provisions of articles 2 and 24 of the Telecoms Law, telecoms services shall be in compliance with the protection of free competition and the board of directors of the NTRA shall issue the rules that should be applied to confront monopolistic practices and shall determine the limits that, if exceeded, shall result in the occurrence of monopolistic practices in the telecoms field. However, there are no similar provisions applicable in the broadcast sector. There are mechanisms to avoid conflict by authorities in the telecoms sector.

Al Kamel Law Office Mohamed Hashish

[email protected]

Al Kamel Dokki Building 17, Nabil El Wakkad Street, Dokki 12311 Giza Egypt

Tel: +202 3761 5271 Fax: +202 3761 5272 [email protected] www.kamelaw.com

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50 Competition law in the telecoms and broadcasting sectors Are anti-competitive practices in these sectors controlled by regulation or general competition law? Which regulator controls these practices?

Anti-competitive practices are controlled by regulations and general competition law. The NTRA and the Egyptian Competition Authority are the regulators controlling these practices. 51 Jurisdictional thresholds for review What are the jurisdictional thresholds and substantive tests for regulatory or competition law review of telecoms sector mergers, acquisitions and joint ventures? Do these differ for transactions in the broadcasting sector?

Currently, there is no specific regulatory framework or substantive tests for the review of telecoms sector mergers, acquisitions and joint ventures. These do not differ for the broadcasting sector, as there is also no specific regulatory framework or substantive tests for review of transactions in the broadcasting sector.

52 Merger control authorities Which regulatory or competition authorities are responsible for the review of mergers, acquisitions and joint ventures in the telecoms and broadcasting sectors?

The NTRA and the Egyptian Competition Authority are responsible for the review of mergers, acquisitions and joint ventures in the telecoms and broadcasting sectors. 53 Procedure and timescale What are the procedures and associated timescales for review and approval of telecoms and broadcasting mergers, acquisitions and joint ventures?

Review and approval is completed approximately 90 days from the date of submission of all required documents.

Table as referenced in question 8: Category

Licence

Licensees

Issuance date

Duration

Fixed services

Fixed telephony

TE

31/12/2005

15 years

This licence gives the licensee the right to set up and establish the core infrastructure of telecom networks and to offer fixed local and international telephony services as well as fax.

Pre-paid calling card

ATS

5/2/2004

5 years

NTC

5/2/2004

5 years

Telecard

4/8/2004

5 years

This licence gives the licensee the right to prepaid calling car services (local national. International vice calls and mobile phone calls) for fixed-line telephones within Egypt, and may establish, manage, and operate networks that offer and market the prepaid calling card service.

Payphones

Mobile

2G & 2.5G GSM

3G & 3.5G GSM

Wireless Trunk

Satellite

Inmarsat Inmarsat Inmarsat service Provider GMPCS

VSAT

126

TE

31/12/2005

15 years

Nile

3/8/2005

10 years

Menatel

3/8/2005

10 years 15 years

TE

31/12/2005

Mobinil

18/4/1998

Vodafone

5/5/1998

Etisalat

21/8/2006

Description

This licence gives the licensee the right to import, set up, operate and maintain public phone cabinets, within Egypt, that allow the public to carry out local national and international phone calls as well as calls to mobile phone networks.

This licence gives the licensee the right to utilise 2G technologies, and provide the following 15 years starts services: MMS, call barring, roaming, call waiting, from 22/1/2007 voicemail, call forwarding, conference calling, 15 years SMS, SMS to e-mail, missed call notification, file download and data transfer, etc. 15 years

Mobinil

17/10/2007

15 years

Vodafone

21/8/2006

15 years

Etisalat

22/1/2007

15 years

Wireless Trunk

18/6/2003

15 years

This licence gives the licensee the right to offer individual and group speech and data calls for closed user group using Terrestrial Trunked Radio.

Inmarsat

16/11/2004 2 years

This licence gives the licensee the right to offer telecommunications services through Inmarsat (R-BGAN).

Alkan Mobiserve

31/8/2005

2 years

Global Star

16/1/2001

10 years

Al Thuraya

11/7/2001

10 years

Iridium

30/1/2005

10 years

Alkan

15/10/2001

6 years

Mobiserve

16/10/2005

6 years

Egypt Sat

5/5/2005

6 years

Africa Wave

31/8/2005

6 years

This licence gives the licensees the right to utilise broad band 3G technologies to transfer data with speeds much higher than GPRS technology can offer. The operator may offer the following services: Video calling, video messaging, file download, audio/video streaming and high speed data transfer.

This licence gives the licensee the right to set up, manage and operate the core infrastructure necessary to offer Global Mobile Personal Communication System (GMPCS) services through Tharaya systems. This licence gives the licensee the right to set up manage and operate the core infrastructure of a VSAT satellite network to offer the following: • Data transfer, video, and audio services locally and internationally (except for radio and television broadcasting); • Connection to internet services; and • VPN.

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