According to market research, in 2018 the value of the telecommunications market in Poland reached 39.2 billion zlotys, which is a decrease of 300 million zlotys on the previous year.2 Taking into account the data accuracy margin, experts estimate that the value of the telecommunications market in Poland in 2018 did not change in relation to the data of 2017.3
The Polish authorities have ambitions to make Poland a leader of the 5G technology on the European market. There is no doubt that the authorities' intended actions will result in further development of the ICT sector. The 5G network with increased performance parameters will ensure faster data transfer speed, which will be of key importance for market segments that require high data throughput and reduction of data transmission delays (e.g., e-sport, virtual reality, artificial intelligence, internet of things, smart cities or autonomous vehicles).
For the above reasons, on 30 August 2019, the Polish legislature introduced legislative changes to the Act of 7 May 2010 on supporting the development of telecommunications services and networks aimed at improving the legal environment for the planned implementation and development of 5G networks in Poland. Further measures are also planned in the near future, such as the 3.7GHz frequency auction or legislative changes concerning the amendment of regulations to the Telecommunications Law.
i The regulators
One of the most important regulatory authorities of the ICT sector in Poland is the President of the Office of Electronic Communications (the President of UKE), which is the regulatory authority for telecommunications, postal activities and the management of frequency resources. The detailed competences of the President of UKE are spread over several legal acts, including the Telecommunications Act and the Act on Support for the Development of Telecommunications Services and Networks (commonly known as the Mega Act).
Another very important regulatory body is the National Broadcasting Council, whose competences are regulated by the Broadcasting Act. In accordance with Article 6(1) of the Broadcasting Act, the National Council shall safeguard freedom of speech in radio and television broadcasting, protect the independence of media service providers and the interests of the public, as well as ensuring an open and pluralistic nature of radio and television broadcasting.
The President of the Office of Competition and Consumer Protection (the President of UOKiK) is responsible for shaping antitrust and consumer protection policies, as well as providing opinions on state aid projects. The President of UKE shall cooperate with the President of UOKiK on issues concerning the observance of rights of entities using postal and telecommunications services, counteracting competition-limiting practices and anticompetitive concentrations of postal operators, telecommunications undertakings and their associations (Article 192(1) point 14 of the Telecommunication Law).
The President of the Office of the Personal Data Protection (the President of UODO) is a supervisory authority within the meaning of Regulation 2016/679 and Directive 2016/680 of the European Parliament and of the Council of 27 April 2016 (the Police Directive). The President of the UODO controls the performance of the provider of publicly available telecommunications services when carrying out the following duties: ensuring by the provider of publicly available telecommunications services adequate technical and organisational protection measures ensuring security of personal data processing (Article 1741 of the Telecommunications Law), notification of personal data breach (Article 174a of the Telecommunications Law) and keeping a register of personal data breach (Article 174d of the Telecommunications Law).
ii Main sources of law
At the national level, the activity of the ICT sector is regulated mainly by the following legal acts: the Act of 16 July 2004 on Telecommunications Law (TL), the Act of 7 May 2010 on supporting the development of telecommunications services and networks, the Act of 29 December 1992 on radio and television broadcasting (the Broadcasting Act) and the Act of 18 July 2002 on providing services by electronic means.
It is also worth mentioning the following regulations: the Act of 18 July 2002 on the provision of services by electronic means, the Act of 5 July 2018 on the National Cyber-Security System, the Act of 10 June 2016 on counterterrorist activities (and other acts concerning particular uniformed services, e.g., police or intelligence agencies), the Act of 16 February 2007 on competition and consumer protection (ACCP) and the Act of 10 May 2018 on personal data protection.
Owing to the specific nature of the ICT sector, legal regulations concerning particular sectors (e.g., public, finance or healthcare) may also be of great importance. First of all, it is worth noting the financial (banking) sector, which is regulated in a number of legal acts, for example by the Act of 29 August 1997 on Banking Law and the Act of 19 August 2011 on Payment Services. However, the above-mentioned issues fall beyond the scope of this chapter.
iii Regulated activities
Telecommunications activities, in principle, do not require a licence. The telecommunications activities that constitute business activities shall be the regulated activities and shall be subject to entry in the register of telecommunications undertaking (Article 10(1) of the TL). An entrepreneur may perform telecommunications activity if they meet the conditions specified in the provisions of the TL and after obtaining an entry in the above-mentioned register. The above obligations apply to entities providing services via public and non-public telecommunications networks.
Pursuant to Article 209(1) point 2) of the TL, a fine may be imposed on an entrepreneur for performing telecommunications activity in the scope not covered by the application for entry in the register, and pursuant to Article 209(2), a fine may be imposed on the operator of a telecommunications undertaking for such infringement.
Telecommunications law provides a form similar to a licence for a system of frequency (spectrum) and numbering resource management. The manner of frequency management is specified in Article 111 et seq. of the TL. In this respect, the most important are the provisions on frequency reservations or decisions that grant the right to dispose of frequencies or orbital resources (Article 114 of the TL).
In the absence of sufficient frequency resources, entities to which a general exclusive frequency licence is granted shall be appointed by means of a contest, a tender or an auction (Article 116(1) of the TL). An entity that has received the right to use a frequency subject to a general exclusive frequency licence shall pay annual fees for the right to use this frequency (Article 185(1) of the TL).
Additionally, under the Telecommunications Law, the use of radio equipment requires a radio licence issued by the President of UKE by way of a decision (Article 143 of the TL).
iv Ownership and market access restrictions
Polish law does not, as a rule, provide for any obstacles to conducting business activity in the territory of the Republic of Poland by a foreign entity (person). Telecommunications activities conducted by a telecommunications undertaking from a Member State or a state that has concluded with the European Union and its Member States an agreement on the freedom to provide services and that temporarily provides services in the territory of the Republic of Poland under the terms and conditions specified in the provisions of the Treaty establishing the European Community, Agreement on the European Economic Area or in the provisions of another agreement regulating the freedom to provide services, as appropriate, shall be also subject to entry in the register of telecommunications undertaking (Article 10(1) of the TL). An operator from the Member State applying for telecommunications access shall not be obliged to make an entry in the register referred to in Article 10, provided that it does not perform telecommunications activities in the territory of the Republic of Poland (Article 26(4) of the TL).
The President of UKE may specify in the frequency reservations process a limitation of the use of the frequencies covered by the reservation where the introduction of such limitation is justified by the necessity to achieve a public interest objective (e.g., in terms of supporting social, regional or territorial cohesion and promoting cultural and linguistic diversity and media pluralism (Article 1151(1) point 6) letter b) and d) of the TL)).
The Telecommunications Law provides restrictions on participation in a tender or auction for frequency reservations (Article 118(4a) and (4b) of the TL). The President of UKE, when defining the conditions of participation in a tender or auction, may in particular indicate the resources that disposal excludes or entitles to participate in the tender (auction), and also limits the frequency resources for which reservation may be applied for by a given entity (Article 118(4a) of the TL). Moreover, the President of UKE may provide further restrictions regarding financial credibility, experience in telecommunication activities or the fact that only one entity from a given capital group may participate in a tender, auction or competition.
The above-mentioned restrictions are related to further regulations of the Telecommunications Law concerning the conditions of competition (Article 118a(1) point 1 of the TL). Additionally, the President of UKE in consultation with the President of the Office for Competition and Consumer Protection may, by way of a decision, refuse a general exclusive frequency licence for a subsequent period, if justified by the need to ensure effective frequency usage, in particular in a situation where granting a general exclusive frequency licence for a subsequent period could lead to spectrum hoarding by a given entity or a capital group, involving that entity (Article 116(9) of the TL). Reservation of frequencies may also be refused in the cases set out in Paragraphs 9a and 9b relating to the need to increase significantly the efficiency of frequency use or to circumstances giving rise to a threat to national defence, security or safety and public order. With respect to Article 118a(1) point 1 and Article 116(9) of the TL, the President of UKE shall consult the President of UOKiK.
In addition, Article 21 et seq. TL defines the powers of the President of UKE to regulate the telecommunications market. After conducting proceedings (market analysis), the President of UKE, if it is established that a telecommunications undertaking with significant market power or telecommunications undertakings with collective significant market power exist on the relevant market, issues a decision in which it identifies the relevant market, identifies the undertaking or undertakings with significant market power and decides on the regulatory obligations of such undertakings.
Moreover, telecommunications undertakings, while negotiating the provisions of a telecommunications access agreement, shall take account of obligations imposed on them in accordance with Article 26 et seq. of the TL, for example, concerning technical or operational conditions of access (Article 35 of the TL) or equal treatment of telecommunications undertakings (Article 36 of the TL). The President of UKE may also by way of a decision impose an obligation to prepare and present a draft reference offer on telecommunications access, the degree of detail of which will be specified in the decision (Article 42 of the TL), which is approved by the President under the procedure set out in Article 43 of the TL.
In addition, a vertically integrated telecommunications undertaking with significant market power, in order to ensure that all service providers providing their services to end users, including itself, have the possibility to offer equivalent services to end users, shall inform the President of UKE of its intended transfer of local access network assets or a substantial part thereof to a separate legal entity under different ownership or to a newly established entity (Article 44g(1) of the TL). As a result of the notification, the President of UKE, based on the results of market analysis, conducts proceedings and imposes, maintains, changes or repeals regulatory obligations.
v Transfers of control and assignments
The issue of changing the entity that holds the frequency reservation is regulated in Articles 122 and 1221 of the TL. In accordance with the latest amendment to the Telecommunications Law, analogue TV was deleted from the scope of Article 122 as a result of the switch-off of analogue television broadcasting and the lack of reservation for analogue TV.4 With the exception of frequency reservations, for the purpose of broadcasting radio programmes in an analogue manner, the President of UKE changes the entity holding the frequency reservation if the entity holding the rights and obligations and the frequency agree to transfer the rights and obligations and the entity indicated in the application meets the requirements specified in the Act. The President of UKE shall change an entity holding a general exclusive frequency licence granted by means of a tender, an auction or a contest having sought an opinion of the President of UOKiK with respect to a competitive situation (Article 122(5) of the TL). The President of UKE shall take a decision to change an entity holding a general exclusive frequency licence for the purposes of digital broadcasting or rebroadcasting of radio or television programmes in agreement with the Chairperson of KRRiT (Article 122(6) of the TL).
Regardless of the regulations of the Telecommunications Law, the issue of counteracting anticompetitive concentrations of undertakings and their associations is also regulated by the Act on Competition and Consumer Protection. The intention of concentration is subject to notification to the President of UOKiK if the entrepreneurs participating in the concentration meet requirements set in Article 13(1) of the ACCP. Article 14 of the ACCP establishes a closed list of cases to which the obligation to notify the intention of concentration referred to in Article 13(1) does not apply. The statutory exemption from the notification obligation covers, for example, 'bagatelle' (small matter) concentrations and concentrations of undertakings belonging to the same capital group. The process of issuing a decision on a concentration is regulated by Article 18 et seq. of the ACCP. Special regulations concerning the proceedings on concentration are regulated by the provisions of Article 94 et seq. of the ACCP.
Antimonopoly proceedings in concentration cases should be terminated not later than within one month from their institution (Article 96 of the ACCP). However, this time may be extended due to circumstances extraneous to the President of UOKiK (Article 96(2) of the ACCP) and complicated cases (Article 96a of the ACCP).
III TELECOMMUNICATIONS AND INTERNET ACCESS
i Internet and internet protocol regulation
The Telecommunications Act is a comprehensive regulation concerning the principles of performance and control of activities consisting in the provision of telecommunications services, the provision of telecommunications networks or associated facilities (Article 1(1) point 1) of the TL). Telecommunications services using the internet and based on IP address are subject to the regulations of the Telecommunications Law to the same extent as other services. For the application of the TL, it will not matter whether a given entity provides services by means of one's own network, another operator's network or selling on one's own behalf and on one's own account a telecommunications service performed by another service provider (Article 2(1) point 41) of the TL). Therefore, the above-mentioned services are regulated in a manner similar to traditional telephony.
ii Universal service
The Telecommunications Law defines 'universal service' as a set of telecommunications services, including facilities for the disabled, provided in any technology, preserving good quality and at a reasonable price, which should be available in the territory of the Republic of Poland (Article 81(1) of the TL). Currently, the set of universal services includes connection of network termination in a fixed location enabling voice, fax and data transmission, including functional access to the internet, the speed of which enables the use of applications commonly used in minor current matters of everyday life, in particular the use of electronic mail or applications enabling making payments (Article 81(3)(1) of the TL).
Currently, the set of universal services includes connection of a network termination point at a fixed location, capable of supporting voice, facsimile and data communications, including functional internet access at rates supporting the use of common applications to handle current daily life matters, in particular using electronic mail or applications that support payments (Article 81(3) point 1) of the TL).
In September 2018, the Ministry of Digital Affairs submitted to public consultation a draft update of the National Broadband Plan5 – a governmental development programme defining the objectives for universal access to fast and ultra-fast internet, as well as the means to achieve these objectives. The draft NPS update defined the following main objectives of the state in this area: ensuring universal access to the internet with a capacity of at least 100Mb/s on the basis of networks by 2025, which will also enable the provision of services with a capacity measured in Gb/s and ensuring communication in 5G networks in at least one major city by 2020 and in at least all major urban centres and along major railway and road communication routes by 2025.
On 30 August 2019, the amendment to the law on supporting the development of telecommunications services and networks was passed. The purpose of the changes is to implement 5G, eliminate a number of administrative barriers (e.g., reducing the costs of telecommunications investments) and establish a Broadband Fund with an annual budget of approximately 140 million zlotys for co-financing the construction and development of the telecommunications network.
iii Restrictions on the provision of service
The price of services may be regulated within the scope of the reference offer. The President of UKE may, by way of a decision, impose on an operator with significant market power an obligation to prepare and submit within a specific time limit a draft telecommunications access reference offer, the level of detail of which shall be specified in a decision (Article 42(1) of the TL). An operator on whom the obligation was imposed shall conclude telecommunications access agreements under the terms that are not worse for other parties to the agreement than those in the approved offer or determined by the President of UKE (Article 43(5) of the TL).
Telecommunications law, in principle, does not regulate the rights of a telecommunications operator to restrict or favour network access on the basis of content. The President of UKE may order the blocking of access to numbers or services where this is justified by the protection of end users against abuse of the telecommunications network (Article 79b of the TL). As a rule, a telecommunications undertaking cannot control the content, applications and services to which its users have access.
The President of UKE may, by way of a decision, impose an obligation on an operator with significant market power to take into account justified requests of telecommunications undertakings to provide them with telecommunications access, including the use of network elements and associated facilities, in particular taking into account the level of competitiveness of the retail market and the interest of end users (Article 34 of the TL). Moreover, the President of UKE may also impose, by way of a decision, an obligation to treat telecommunications undertakings equally as regards telecommunications access (Article 36 of the TL).
Additionally, the Telecommunications Law also provides for a number of requirements concerning the contract for the provision of telecommunications services, for example, concerning a form (Article 56(2) of the TL), the elements it should contain (Article 56(3) of the TL), its terms and conditions (Article 57 of the TL), the possibility to change or terminate its terms and conditions (Article 60a of the TL) and price lists (Article 61 of the TL). The Law also contains legal requirements for the regulations of provided services (Articles 59 and 60 of the TL).
With regard to the limitation of unsolicited transfers via terminal equipment (telephones, faxes, emails or SMS), the Telecommunications Law makes their use conditional on the prior consent of the subscriber or user (Article 172 of the TL). The provisions on the protection of personal data apply to obtaining the consent of a subscriber or end user (Article 174 of the TL).
iv Privacy and data security
A telecommunications entrepreneur is obliged to perform tasks and duties for the benefit of defence, state security and public security and order within the scope and under the conditions specified in the Telecommunications Law and other acts. Obligations in this respect are regulated by the provisions of Article 176 et seq. of the TL.
Pursuant to Article 179(3) point 1) of the TL, a telecommunications undertaking is obliged to ensure technical and organisational conditions for access and recording of telecommunications transmissions (transmitted or received by the end user) or telecommunications terminal equipment and data held by the undertaking in connection with telecommunications transmissions for the needs of specific services (e.g., the Internal Security Agency or the Border Guard).
Additionally, a telecommunications undertaking is obliged to fulfil their duties in the scope of data retention (Article 180a–180c of the TL). These duties refer to data generated in a telecommunications network or processed by a telecommunications undertaking. It is worth mentioning that security and defence obligations are also included in other legal acts.
According to the regulations of the Telecommunications Law, the provider of publicly available telecommunications services is obliged to implement appropriate technical and organisational protection measures to ensure the security of personal data processing (Article 1741 of the TL). The provider of publicly available telecommunications services notifies the President of UODO about a breach of personal data (Article 174a(1) of the TL) no later than 24 hours after the detection of the personal data breach. If not all the required information is known within this period, the supplier shall send an initial notification within 24 hours and a second notification as soon as possible and at the latest within three days after the initial notification. If this deadline cannot be met, the supplier shall provide the information available to them within three days and explain the reason for the delay in providing the other information (Article 2 of the Commission Regulation (EU) No. 611/2013 of 24 June 2013).6 The provisions of the Act of 10 May 2018 on the Protection of Personal Data shall apply accordingly to the control exercised by the President of the Office for Personal Data Protection over the performance of obligations by the provider of publicly available telecommunications services. The Telecommunications Law imposes on the provider of publicly available telecommunications services the obligation to maintain a register of personal data infringements, including facts accompanying the infringements, their effects and actions taken (Article 174d of the TL).
IV SPECTRUM POLICY
According to the strategy of the President of UKE for the years 2017–2021,7 one of its key areas of activity is making frequencies in the 700MHz band available for broadband systems.
The President of UKE is working to support legal solutions improving the efficiency of radio spectrum management. In this respect, such actions as streamlining the selection procedure, determining the manner of band allocation and preparation of the selection procedure and updating the National Table of Frequency Allocations in terms of changes were introduced at the World Radiocommunication Conference.
Moreover, the President of UKE is pursuing the objectives of changing frequency use, including agreeing new TV channels below the 700MHz band, updating frequency management in the 700MHz and 470–694MHz bands, reconfiguring TV channels, migrating TV services to the 470–694MHz band and changing DVB-T technology to DVB-T2.
There have also been actions taken to implement 5G technology in Poland. In addition to the amendment to the Act supporting the development of telecommunications services and networks, the President of UKE also undertakes other activities, such as taking steps to increase frequency use efficiency through the development of implementation concepts, refarming and optimisation of frequency resources. In addition, the President of UKE envisages active participation in the work of the International Telecommunication Union, the European Conference of Postal and Telecommunications Administrations and groups operating within the EU (the Radio Spectrum Committee, the Radio Spectrum Policy Group and the Communications Committee).
At the beginning of April 2019, the framework action plan of the President of UKE for the allocation of frequencies in the 3,600–3,800MHz band was published.8 On 19 April 2019, the President of UKE published preliminary assumptions for frequency distribution in the 3,600–3,800MHz band.9
In addition, the Ministry of Digital Affairs plans to amend the regulations to the Telecommunications Law and to supplement the list of conditions to be met by participants in tenders or auctions for 5G frequencies.10
ii Flexible spectrum use
The Telecommunications Law provides for the lease or transfer of frequencies for use. Article 1221 of the TL provides that an entity holding a general exclusive frequency licence may lease the frequencies covered by the licence or transfer them for use under another legal title to another entity.
An entity to whom a general exclusive frequency licence was granted shall notify the President of UKE, and with respect to the frequencies intended for broadcasting or rebroadcasting of radio or television programmes also the Chairperson of KRRIT, of the frequencies leased or transferred for use, not later than within 14 days of the date of concluding an agreement (Article 1221(2) of the TL).
The President of UKE may, by way of a decision, change the conditions for using frequencies or prohibit their use by an entity to which the frequency has been leased or transferred for use, for example, where the use of these frequencies by that entity could lead to distortion of competition (Article 1221(5) point 2) of the TL).
iii Broadband and next-generation services spectrum use
At the beginning of April 2019, the President of UKE published a framework action plan for the allocation of frequencies in the 3,600–3,800MHz band. On 19 April 2019, the President of UKE, following the 2018 consultation on frequencies intended for 5G, published preliminary assumptions for frequency distribution in the 3,600–3,800MHz band.
In addition, the Ministry of Digitisation plans to amend the regulations to the Telecommunications Law and to supplement the list of conditions to be met by participants in tenders or auctions for 5G frequencies.
iv Spectrum auctions and fees
As stated in Article 116(1) of the TL, in the absence of sufficient frequency resources, entities to which a general exclusive frequency licence is granted shall be appointed by means of a contest, a tender or an auction, governed by Article 118 of the TL. The announcement of a tender, an auction or a contest shall be published on the UKE BIP website. An announcement of a tender, an auction and a contest shall specify the subject and scope of a tender, an auction or a contest, participation conditions as well as the criteria for selection of offers (Article 118(2) of the TL).
With regard to frequency reservations, the Telecommunications Law provides for the following types of fees: annual frequency management fees (Article 185(1) of the TL) and a frequency reservation fee (Article 185(4) of the TL).
For more information see also Section II.iv.
i Regulation of media distribution generally
The granting of licences for the distribution of television programmes is regulated by the Broadcasting Act. Dissemination of radio and television programmes, with the exception of public radio and television programmes, requires a licence (Article 33(1) of the Broadcasting Act).
The transmission of television programme services exclusively in information and communication technology systems does not require a licence, unless the programme service is to be retransmitted by terrestrial diffusion, satellite or cable networks (Article 33(2) of the Broadcasting Act).
The Broadcasting Act does not provide for the necessity to obtain licences for entities providing on-demand audiovisual media services. However, a number of regulations to apply to the entity (Article 47a et seq. of the Broadcasting Act).
Outside the scope of the Broadcasting Act, there are other types of platforms – the provisions of the Act on the provision of services by electronic means shall apply to them.
ii Internet-delivered video content
Video distribution in IPTV form can be divided into three categories: live web TV, time-shifted TV programmes and VOD. Services of this type available in Poland are generally chargeable, therefore people who cannot afford to buy them do not have access to the presented content.
Radio programmes and digital terrestrial television (DVB-T) offer channels available to the general public without prior payment. However, Polish law requires relatively small monthly fees for the use of a radio or television receiver.
VI THE YEAR IN REVIEW
In 2018, a number of changes took place on the Polish telecommunications market. The most recent of these was the adoption on 30 August 2019 of an act amending the Act on supporting the development of telecommunications services and networks. The aim of the Act is to eliminate administrative and legal barriers hindering the development of telecommunications infrastructure. The law also provides for the improvement of the coverage of telecommunications services and the assurance of adequate quality of mobile services even in geographically difficult areas.
In addition, Poland is currently entering a key period for the implementation of the 5G network. The President of UKE is conducting activities aimed at preparing tenders for frequencies for the 5G network. In addition, the Ministry of Digital Affairs also plans to take legislative action to issue regulations to the telecommunications law in this area.
VII CONCLUSIONS AND OUTLOOK
The implementation of the Act on the national cybersecurity system did not solve all the problems; the relationship of the Act to the telecommunication law is also questionable due to the partial sectoral exclusion contained in the Act on the national cybersecurity system.
In the coming period, it will be crucial for the European Union (and consequently for Poland) to prepare properly for the implementation of the 5G network at both national and EU level and to ensure a favourable environment for the development of new data-based technologies.
1 Xawery Konarski is a senior partner and Michał Matysiak is a trainee legal adviser at Traple Konarski Podrecki & Partners.
2 Report on the condition of the telecommunications market in Poland in 2018 published by Office of Electronic Communications – https://www.telepolis.pl/images/2019/07/raport_o_stanie_rynku_telekomunikacyjnego_2018.pdf.
3 Computerworld Report TOP200 Edition 2019 – https://www.computerworld.pl/news/Computerworld-TOP200-Edycja-2019-Jest-wzrost-szalu-nie-ma,414032.html.
6 Commission Regulation (EU) No. 611/2013 of 24 June 2013 on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0611.