This chapter provides a general overview of the electronic communications, audiovisual and internet access regulations in Spain. Given the complexity and constant evolution of these sectors, this summary is not intended to be comprehensive, but simply to outline the main aspects of the regulations, as well as recent news and trends.
i Electronic communications
Following the consolidation process of the electronic communications market in Spain through mergers and acquisitions, which resulted in the convergence of fixed and mobile operators (e.g., Orange and Jazztel, Vodafone and ONO, Yoigo, Pepephone and Másmóvil), and broadband and pay-TV operators (e.g., Telefónica and DTS), the Spanish market has continued a process of deep transformation due to the convergence of technologies, devices and platforms. On top of that, OTT services have significantly increased their market share, as evidenced by the recent replacement of the Directive on Privacy and Electronic Communications by:
- a new European regulation on the protection of natural persons with regard to the processing of personal data that applies, inter alia, to OTT and IoT services addressed to end users in the EU; and
- the European Commission's Proposal for a Directive to amend the Audiovisual Media Services Directive,2 which is likely to be passed shortly and which, among other things, establishes specific rules for OTT audiovisual services that, inter alia, create a level playing field with the traditional audiovisual services, as alternative audiovisual platforms are growing fast, replacing traditional means of accessing content (e.g., Netflix, HBO, Amazon, Sky and Huawei's OTT audiovisual platforms have entered the Spanish market since 2015).
As regards the regulatory framework, although the General Telecommunications Law,3 which has been the main piece of legislation governing the telecoms sector since 2014, provided for the development of its own ancillary regulations, most of the former Law's ancillary regulations are still in force. As an exception, in February 2017 the government passed Royal Decree 123/2017, of 24 February, on the regulation of the use of the radio spectrum, which sets out the general regime for the use of spectrum and repealed the 2008 Royal Decree in this regard. Additionally, Royal Decree 381/2015 on measures against unauthorised traffic and irregular traffic for fraudulent purposes, and Royal Decree 330/2016, which implements Directive 2014/61/EU on measures to reduce the cost of deploying high-speed ECNs, were issued on 2016.
In compliance with its periodic duty to analyse the electronic communications markets, the National Markets and Competition Commission (NMCC) has followed the deregulation tendency of other European countries and begun its fourth review and analysis of the electronic communications markets. In particular, in January 2017 the NMCC issued a resolution on Markets 1/2007 and 2/2007 (Markets 1 and 2), lifting Telefónica's obligations as a holder of significant market power on the retail market for access to fixed telephony as the requirements to be a relevant market subject to ex ante regulation are no longer being met. However, regarding the wholesale market for call origination in the fixed network, the NMCC still considers that the wholesale market is not really competitive and imposes certain obligations on Telefónica (including providing separate accounts, non-discrimination and transparency measures, etc.). In addition, in April 2017 the NMCC issued a resolution to deregulate access to mobile network markets (Market 15), lifting the obligation on the main three network operators (Telefónica, Vodafone and Orange) to provide virtual mobile operators (OMVs) with reasonable access to their mobile infrastructure on the basis that, according to the NMCC, this market is already competitive. In addition, throughout 2017, the NMCC reviewed Telefónica's main reference offers and prices as an operator designated as having significant market power, including disaggregated virtual access to the fibre optic loop, the new broadband ethernet service, the wholesale offer for access to manholes and conduits, and the reference offer for leased lines.
In the context of its duties as referred to above, the NMCC has also issued three recent resolutions regarding the regulation of the telecommunications market:
- Resolution ANME/DTSA/003/17 listing the operators who shall be considered as principal in the fixed and mobile telephone services in the national market;
- Resolution ANME/DTSA/002/17/M2-2014 approving the definition and analysis of the market of termination of vocal calls in individual mobile networks (Market 2/2014); and
- Resolution ANME/DTSA/001/17 approving the definition and analysis of the wholesale leased trunk line market.
Since the publication of the Spanish Digital Agenda in February 2013, the Ministry of Economy and Enterprise (MINEE) has published several reports that keep the original agenda up to date and address final users of telecommunication services. In August 2017, the MINEE opened a public consultation to obtain feedback on the drafting of a Digital Strategy for an Intelligent Spain, the preliminary results of which were released in November 2017.
In compliance with the European mandate regarding the liberalisation of the 800MHz band (the first digital dividend), in March 2015 the MINEE announced the conclusion of the liberalisation process in favour of telecom operators for the provision of LTE and 4G services. Additionally, in May 2017, Decision (EU) 2019/899 on the use of the 470– 790MHz band in the eu was enacted, seeking to promote the development of a 5G network and the improvement of mobile connections (the second digital dividend).
In September 2014, a new technical plan for DTTV was passed regulating the new allocation of spectrum to DTTV services and certain aspects of the release of frequencies of the digital dividend to telecom operators. As a result of a public tender called during the first half of 2015, the government allocated six new DTTV channel licences (three SD and three HD) in October 2015 that were launched in April 2016. Those licences were challenged in court, but they were finally confirmed by the Spanish Supreme Court in a decision issued in January 2018.
In November 2015, the NMCC also passed a proposal that recommends introducing certain flexibility to the spectrum cap of high bandwidths if certain conditions are met.
Finally, the imminent formal approval of the proposal of a directive to amend the Audiovisual Media Services Directive (which was already approved by the European Parliament) will surely require the amendment of the current national regulation on audiovisual media services dated 2010.4
Following a ruling of the Grand Chamber of the European Court of Justice (CJEU) dated 12 May 2014 on case C131/12, which involved Google and the Spanish Data Protection Agency (AEPD),5 consultations and proceedings on the right to be forgotten have spread, and the AEPD has published a subsection on this right on its website. Recent case law from the Spanish Supreme Court has interpreted such ruling, providing a new approach as regards the definition of an entity against which the right to be forgotten should be exercised. Furthermore, as a consequence of such ruling, the right to be forgotten has been included in the recently adopted EU Regulation on the protection of natural persons with regards to the processing of personal data6 (GDPR).
Since its creation in December 2013, the Spanish National Institute of Cybersecurity (INCIBE) has been quite active in building digital confidence in the Spanish market, particularly and in cooperation with the AEPD, with regards to the protection of privacy and cybersecurity.
Additionally, Spain has recently transposed the NIS Directive7 into the Spanish legal system through Royal Decree-Law 12/2018, of 7 September.
i The main sources of regulation
The main sources of regulation applicable to the TMT sector in Spain are:
- the General Telecommunications Law;
- the General Audiovisual Law;
- the e-Commerce Law;
- the GDPR, the Data Protection Law and its ancillary Regulation approved by Royal Decree 1720/2007, of 21 December;
- the Data Retention Law;
- the National Markets and Competition Commission Law; and
- Royal Decree-Law 12/2018, of 7 September, transposing the NIS Directive.
There have also been several administrative orders, instructions, recommendations and guidelines issued by the government, the relevant ministries and the NRAs that develop these laws.
ii The NRAs
The NMCC is an independent public body in charge of supervising market competition in Spain, as well as certain relevant markets including the electronic communications and audiovisual markets. Its main functions as regards the electronic communications market are to establish and supervise the fulfilment by operators of their obligations, to promote fair competition and the plurality of the offer of ECSs, and the resolution of disputes between operators. The NMCC has, inter alia, the power to define the relevant electronic communications markets, to advise on the regulation of the electronic communications market, and to exercise certain supervisory and sanctioning powers. Among its functions regarding audiovisual matters, the NMCC is in charge of monitoring compliance by TV service providers with the quota and financing obligations set out in the General Audiovisual Law as well as with advertising restrictions.
The State Secretariat for Digital Progress (SEAD), which is part of the MINEE, holds certain powers regarding electronic communication, audiovisual and other TMT matters, and is responsible, inter alia, for:
- proposing general policies and regulations on the electronic communications and information society;
- the promotion and development of TMT infrastructure and services;
- the management of domain names under the Spanish country code (.es);
- the management and control of TMT scarce resources (such as spectrum), including the processing and granting of licences for private spectrum use; and
- keeping the Spanish National Registry of Audiovisual Operators.
As regards certain matters included in the TMT laws that relate specifically to personal data protection and to the submission of commercial electronic communications, some control and sanctioning powers have been granted to the AEPD, which is the independent authority responsible for the enforcement of data protection regulations. The AEPD has the power to grant authorisations set out in the data protection regulation, to hear claims concerning personal data protection, to publish databases that are registered with the Spanish Data Protection Registry, and to exercise sanctioning powers for infringements under the data protection, e-commerce and electronic communications regulations. In addition, some autonomous regions (Catalonia and the Basque Country) have set up regional authorities whose functions are limited to the processing of personal data by regional public entities.
iii Regulated activities
According to the General Telecommunications Law, telecommunications are services of general interest to be provided under conditions of free competition regardless of the imposition of certain public service obligations on operators. Under the General Telecommunications Law, no licence is required for the provision of ECSs and the operation of networks, but formal notice must be provided to the MINEE before these activities can begin. The prior notice must include corporate and identification data and documentation, a declaration of compliance with the applicable laws, a description of the services that are to be provided or of the networks that are to be exploited, and an approximate date of when the activity is expected to start. The MINEE has 15 days to reject a notification if it does not comply with the requirements established in the General Telecommunications Law and its ancillary regulations. If the requirements are met, the MINEE will automatically register the notifying party with the General Operators Registry. Every three years, operators must notify the MINEE of their intention to continue or discontinue providing electronic communication services.
An administrative authorisation or concession is required to make private use of the radio electric spectrum in Spain. The procedure to obtain an authorisation or concession for spectrum use is set out in Royal Decree 123/2017, which distinguishes between general authorisations, individual authorisations and public concessions. According to Royal Decree 123/2017, operators must submit a spectrum use application together with a technical proposal to the MINEE (through the SEAD), in response to which the SEAD must issue a resolution granting or rejecting the application. As a general rule, as a prerequisite for obtaining a spectrum concession, applicants must prove their status as registered electronic communications operators; however, the SEAD may limit the concessions in certain frequency bands in order to guarantee the efficient use of spectrum or when demand for the spectrum exceeds the offer. In those cases, the relevant concessions will be awarded through public tender processes.
In addition, operators interested in obtaining numbering use rights must submit an application to the MINEE, which will decide whether to grant or refuse these rights according to the National Numbering Plan and other regulations within three or six weeks (in the case of competitive selection procedures) following the submission of the application.
The provision of audiovisual communication services is only subject to a prior notification to the relevant administrative body, be it national or regional, depending on the coverage of the service. Exceptionally, DTTV services and any other audiovisual services (including radio) that require the use of terrestrial radio waves must obtain a licence through a public tender process called by the government (for nationwide broadcasting) or by the regional governments (for regional and local broadcasting). Licences are granted for 15-year terms and are subject to subsequent 15-year term renewals if the audiovisual service provider meets all the required conditions.
If the provision of audiovisual services requires spectrum use, such use is subject to the prior reservation of the corresponding spectrum pursuant to a public resolution by the SEAD.
iv Ownership and market access restrictions
Under the General Telecommunications Law, there are no limitations – even for foreign entities – on ownership. The only limitation is imposed not on ownership but on the provision of direct ECSs by foreign (non-EU) entities in Spain, with such provision requiring a reciprocal treaty.
Royal Decree-Law 6/2000, of 23 June, on urgent measures to improve competition in the goods and services markets, provides for certain restrictions on the ownership of certain types of telecommunications service providers. Individuals and legal entities holding, directly and indirectly, 3 per cent or more of the total share capital or voting rights of two or more principal operators in, inter alia, the fixed-line and mobile telephony markets cannot exercise their voting rights in excess of 3 per cent of the total in more than one operator without the prior authorisation of the NMCC. Furthermore, no individual or legal entity may appoint, directly or indirectly, members of the management body of more than one principal operator in, inter alia, the fixed-line or mobile telephony markets without the prior authorisation of the NMCC. Additionally, individuals or legal entities considered principal operators may not exercise more than 3 per cent of the voting rights of another principal operator or appoint, directly or indirectly, members of the management body of any principal operator without the prior authorisation of the NMCC.
Finally, Royal-Decree 458/2011, as amended by Ministerial Orders ITC/2499/2011 and IET/173/2014, establishes certain thresholds on the holding of frequencies by each operator (spectrum cap), and some temporary restrictions on the transfer or assignment of spectrum in certain frequency bands.
According to Royal Decree 123/2017, certain restrictions exist preventing anticompetitive hoarding from restricting the total amount of frequencies to be used by the same operator or group of operators, or providing time limits on the utilisation of the rights of use.
According to the General Audiovisual Law, the following requirements must be met to be granted a TV or radio licence that uses the spectrum as a means of transmission.
Natural persons and legal persons must be citizens of a country within the European Economic Area (EEA) or a country that allows Spanish citizens to hold equivalent licences, and they must have a legal representative domiciled in Spain. For legal persons, any foreign (non-EEA) stake in their capital must also comply with the reciprocity principle, and the individual stake of any non-EEA natural or legal person cannot directly or indirectly exceed 25 per cent of the share capital, while the total non-EEA stake must be below 50 per cent of the share capital.
In addition, there are some constraints on aggregate holdings in TV and radio service providers that are intended to guarantee pluralism in those markets. In relation to TV service providers, individuals and legal entities are forbidden from holding a significant stake8 in more than one operator providing national television audiovisual communication services if the average number of viewers of the television channels broadcast by the audiovisual communication service providers in question exceeds 27 per cent of the total viewers in the past 12 consecutive months. Individuals and legal entities are not allowed to acquire a significant stake or voting rights in more than one provider of television audiovisual communication services when national providers, in aggregate, hold rights to use the spectrum exceeding the technical capacity corresponding to two multiplex channels; and regional providers, in aggregate, hold rights to use the spectrum exceeding the technical capacity corresponding to one multiplex channel.
Moreover, individuals or legal entities holding a stake in a national provider of television audiovisual communication services cannot acquire a significant stake or voting rights in another provider of the same service if the acquisition prevents the existence of at least three different private providers of national television audiovisual communication services so as to ensure pluralism in the media.
With regard to radio licences, no individual or legal entity may control, directly or indirectly, more than 50 per cent of the private licences for the terrestrial radio services within the same coverage area. Furthermore, no individual or legal entity may control, directly or indirectly, more than five of these licences within the same coverage area. In addition, no person is allowed to control more than 40 per cent of the total licences in an autonomous community where there is only one licence per licence area. Nor is any person allowed to control more than one-third of the licences with total or partial nationwide coverage.
The transposition in Spain of the Directive to amend the Directive Audiovisual Media Services Directive, once it will be approved, will require the amendment of some of the above provisions.
v Transfers of control and assignments
There is no express regulation on the transfer of control of an operator or of its telecoms business to a third party. When a telecoms business is assigned to a third party, the latter must ensure that it has previously notified the MINEE of its intention to provide the services in question or operate the relevant network.
The transfer of authorisations or concessions or the assignment of rights to use the spectrum are regulated under Royal Decree 123/2017, and require the prior authorisation of the MINEE or the SEAD. In particular, no transfer or assignment of the spectrum can take place if it is proven that it will restrict market competition or if restrictions to prevent anticompetitive hoarding would be exceeded. The authorisation procedure differs somewhat for transfers and assignments of certain spectrum use rights (particularly, rights on the special use of public spectrum granted by general and individual authorisations or those granted as public concessions cannot be transferred). There are also different formalities that apply depending on whether the relevant title over the private use right is transferred or the right assigned.
Regarding numbering use rights, the holders of these rights may assign them (including the management or marketing of the numbers) to other telecommunications operators with the prior authorisation of the MINEE and provided that the application specifies the intended use of the numbering rights being assigned.
The General Audiovisual Law repealed the notification procedure for transfers of interests in companies holding a TV licence that use the spectrum as a means of transmission. In addition, for the first time it allows and regulates legal transactions involving audiovisual communication licences. Under this regulation, these transactions require the prior authorisation of the relevant public authority (once the applicant has provided evidence of compliance with all applicable legal conditions) and the payment of a fee.
Finally, it should be noted that mergers within the TMT sector may be subject to the authorisation of the NMCC or the European Commission if the thresholds set out in the competition regulations are exceeded.
III TELECOMMUNICATIONS AND INTERNET ACCESS
i Internet and internet protocol regulation
IP-based services are not subject to a separate regulatory structure, but are regulated under the traditional electronic communications regulation, the General Telecommunications Law and its ancillary regulations.
Internet services that do not qualify as ECSs or the operation of telecom networks, such as the provision of mere content services, are excluded from the scope of the General Telecommunications Law and its ancillary regulations, and are regulated by the e-Commerce Law.
ii Universal service
The General Telecommunications Law establishes that electronic communications operators may be requested to provide certain universal services that cover a range of ECSs that must be provided to all users at a reasonable price and be of a certain quality, regardless of their geographical location.
According to the General Telecommunications Law, the availability of functional access to the internet, allowing bandwidth communications at a downlink speed of at least 1Mb/s, is part of the universal service. The Law has empowered the government to review this speed taking into account the market conditions as well as the social, economic and technological developments.
To reinforce the development and use in Spain of internet and broadband services, the government and the old Telecommunication Market Commission (CMT) issued certain decisions with the aim of encouraging the provision of broadband services (e.g., restructuring the wholesale price offering) and the deployment of NGA networks by alternative operators, improving the technical conditions for the deployment of networks by using the main operator's infrastructure. Among these decisions, a new plan developing the Spanish Digital Agenda was approved by the government in February 2013, and a plan with specific measures for the development of ultra-fast networks was published in June 2013. By the same token, the Digital Agenda 2016 Annual Report insists on the significance of the promotion of high-speed networks, focused in high-speed networks (30Mb/s), ultra-fast networks (100Mb/s) and 4G, and remarks that the objectives set for 2015 by the Digital Agenda as regards the ultra-fast networks were achieved.
Additionally, in August 2017 the MINEE opened a public consultation to obtain feedback on the drafting of a Digital Strategy for an Intelligent Spain based on the results obtained from the implementation of the Digital Agenda, which preliminary results were published in November 2017. According to those results, a majority of the population (52 per cent) considered that the strategy planned by the government was accurate because it covered the areas that most concern the citizens. Finally, in the context of the above-mentioned Digital Agenda, the MINEE recently published Order ECE/1016/2018, of 28 September, establishing the rules for the granting of subsidies to pilots on 5G technology.9
iii Restrictions on the provision of service
Regarding restrictions on pricing, the only regulated retail price that was in place in 2012 (i.e., the maintenance fee for telephone line rental) was liberalised as a result of the review of the market for access to the public telephone network at a fixed location carried out by the CMT in December 2012. After 2016, Telefónica ended the freezing and such retail price was fully liberalised. The NMCC has also imposed restrictions on wholesaler prices charged by Telefónica to the alternative operators for the use of its infrastructure and networks.
For operators with significant market power, the NMCC may impose additional obligations to ensure transparency regarding interconnection and access, non-discrimination (i.e., the operator applies equivalent conditions to operators providing equivalent services) and wholesale price control. In this regard, Telefónica has issued, inter alia, price and service level offers validated by the NMCC and available to other operators, including:
- a reference interconnection offer (time-division multiplexing over IP);
- a reference offer for leased lines;
- disaggregated virtual access to the fibre optic loop;
- the new broadband ethernet service; and
- the wholesale offer for access to manholes and conduits.
In addition, all operators must respect end users' rights, which are established in the General Telecommunications Law, and developed by Royal Decree 899/2009 and the Improvement of the Telecommunication Users Support Plan published in May 2015 by the NMCC, which aims to improve the current regulations on these matters and the quality-oriented culture when providing electronic communication services and to develop the inspection plans for 2015 to 2016 (the plans for 2017 and 2018 have been successively published by the MINEE following the requirements set forth in the General Telecommunications Law and its implementing regulations). Ministerial Order IET/1090/2014 regarding the quality of services of electronic service providers was also issued in June 2014.
The limits on unsolicited calls, emails and texts are scattered mainly among the General Telecommunications Law and its ancillary regulation (Royal Decree 424/2005), the e-Commerce Law, the EU and Spanish Data Protection Law and its ancillary regulation (regarding individuals), and the Consumers and Users Defence Law.
As a general rule, direct marketing activities require the subject's prior and informed consent. This consent must be explicit if the direct marketing is sent by e-communication means, fax or email, or through automated calling systems.
Regarding unsolicited calls for commercial purposes, when not carried out through fax, email or through automated calling systems, these may be carried out provided that recipients have not objected to them (e.g., upon the collection of the data, when the recipients have avoided appearing in telephone directories or are not registered in anti-marketing lists) and that they are offered a simple and free-of-charge objection procedure.
Spanish legislation recognises general principles such as homeland security, law enforcement, network security, and freedom of access to information and self-expression either as inspiring principles or in specific rules. They are also measured and applied by the rulings of Spanish courts.
In particular, operators that provide public ECSs or networks must guarantee the secrecy of communications, which is a fundamental right under the Spanish Constitution. The protection of personal data and privacy is mainly regulated by the GDPR, the Data Protection Law and its ancillary regulation (Royal Decree 1720/2007), although all the other TMT rules referred to in this chapter also contain specific provisions to ensure the applicability of data protection in the relevant sectors. The Data Protection Law is currently being reviewed to ensure that it complies with the GDPR,10 which has been enforceable as from 25 May 2018. While such broader modification is drafted, Royal Decree-Law 5/2018, of 27 July, has been approved in order to implement certain urgent measures to adapt Spanish laws to the EU data protection legislation.
Electronic communications operators also have the obligation to retain certain electronic communications data (traffic and locational data, and data that enables the identification of users) pursuant to the Data Retention Law.
With regard to cybersecurity, the NIS Directive has recently been implemented in Spain by Royal Decree-Law 12/2018, of 7 September, and it includes the appointment of competent authorities (most likely, the already developed INCIBE, which is the Spanish public entity in charge of cybersecurity) and computer security incident response teams. Cybersecurity concerns in Spain were readdressed by a reform of the Spanish Criminal Code in March 2015 (effectively in force since July 2015) and a reform of the Criminal Procedure Code in October 2015. Among other developments, these amendments provide for the possibility of police officers disguising themselves on the internet to obtain evidence of remote registrations of computer hardware and for the regulation of technological investigation measures in criminal proceedings.
Finally, INCIBE has been quite active in building digital confidence by, among other activities, publishing various guidelines and reports since June 2015 (the most recent guidelines were published in May 2018) regarding, inter alia:
- the secure storage of information, digital identities and online reputation;
- how to manage an information leak;
- cybersecurity in e-commerce;
- secure deletion of data; and
- how to manage risks related to security measures.
IV SPECTRUM POLICY
The radio spectrum is a public domain commodity that is owned, managed and controlled by the state (through the MINEE). The general rules and principles on the regulation of the spectrum are set out in the General Telecommunications Law.
Royal Decree 123/2017, inter alia, is intended to make spectrum use and its assignment more flexible, as well as to promote services and technological neutrality. Particularly, it clarifies the different types of use of spectrum (i.e., common, special and private) and titles granting the use of spectrum depending on said types. This Royal Decree is aimed at adapting regulations regarding the use of the radio spectrum to the General Telecommunications Law. Royal Decree 123/2017 also foresees the possibility of sharing the right of use over the radio spectrum among various titleholders in the same geographical area and seeks to simplify certain administrative procedures that, along with the mutualisation of exclusive rights of use, aim to make use of the spectrum more efficient and flexible.
Another key piece of legislation is the National Chart of Frequency Attribution (last updated in 2018), which allocates frequency bands to the different categories of services in accordance with technical characteristics.
ii Flexible spectrum use
Several measures have been implemented in Spain to make the use of the spectrum more flexible and to accommodate such use to the current and new uses of technology. Following the European Commission's recommendations, the government announced in 2009 its intention to reserve the 800MHz band (the first digital dividend), previously reserved for TV services broadcasted through the former analogue system, for ECSs (particularly for mobile broadband services). This release became possible as a consequence of the digital switchover, which was completed in April 2010 and was intended to enable a more efficient use of the spectrum according to the current spectrum uses. As set out on Section I.i, in March 2015 the MINEE announced the conclusion of this liberalisation process.
Along the same lines, Royal Decree 458/2011 of 1 April on actions related to the spectrum for the development of the digital society imposes certain measures as regards the 900MHz and 1,800MHz bands, such as the technology neutrality principle. Royal Decree 805/2014 approved a new technical plan for digital television, reallocating bandwidth for DTTV services and electronic communication services in accordance with EU recommendations. In November 2015, the NMCC approved a proposal that recommends introducing certain flexibility to the spectrum cap currently applicable in high bandwidths if certain conditions are met. In May 2017, Decision (EU) 2019/899 on the use of the 470– 790MHz band in the eu was enacted seeking to promote the development of a 5G network and the improvement of mobile connections (the second digital dividend).
Finally, as set out in Section III.ii, a new plan developing the Spanish Digital Agenda was approved by the government in February 2013, whose specific plans were updated in June 2014. This plan highlights the need to optimise spectrum use in Spain. To achieve this goal, the plan proposes certain measures:
- to increase the flexibility in its use, such as access to ultra-fast mobile broadband;
- to facilitate and simplify the regulation of the management and use of the spectrum by encouraging, for instance, the secondary market;
- to review the current use of spectrum to identify those frequency bands that are underused; or
- to evaluate the spectrum needs for an effective development of the NGA networks.
iii Broadband and next-generation mobile spectrum use
The growing need for spectrum for broadband services and next-generation mobile services is being addressed within the new spectrum reorganisation and assignation process explained above.
iv Spectrum auctions and fees
As explained above, whenever the efficient use of spectrum needs to be guaranteed and demand for the spectrum exceeds the offer, spectrum use licences are granted through public tenders.
In addition to other fees applicable to electronic communications operators, the reservation of spectrum use for private purposes is subject to the payment of an annual fee, as set out in Annex I of the General Telecommunications Law. The amount of this reservation fee is calculated according to the number of spectrum reservation units multiplied by the value assigned to each unit, following certain parameters set out annually in the relevant law.
The amount of the fee will mainly depend on the type of service to be provided, the category of band reserved, the equipment and technology used, the level of use and congestion of the bands, the geographical areas, the market value of the reserved frequency and the revenue that the beneficiary may obtain.
i Restrictions on the provision of service
As a general rule, audiovisual service providers enjoy programming freedom; however, the General Audiovisual Law establishes certain service obligations and restrictions to protect other general interests such as those of consumers, children's rights, cultural and linguistic diversity, and political pluralism in the news. The main restrictions and obligations imposed on TV service providers are as follows.
At least 51 per cent of annual broadcasting time (excluding, inter alia, news, sports events and advertisements) of each channel or set of channels must be reserved for European works. Moreover, 50 per cent of that quota must be reserved for European works in any of the official Spanish languages. Regarding annual broadcasting time, 10 per cent must be reserved for independent producers of European works, and half of this 10 per cent must have been produced in the past five years. With respect to non-linear audiovisual services over which a service provider has editorial responsibility, 30 per cent of the catalogue of programmes must be reserved for European audiovisual productions, and half of that 30 per cent for European audiovisual productions must be in any of the official Spanish languages.
TV service providers whose programming includes full-length feature films, television films and series, documentaries, animated series or short films produced less than seven years ago must contribute, on a yearly basis, 5 per cent of the total income from the previous fiscal year (6 per cent for public broadcasters), according to their accounts, to the pre-financing of the production of certain audiovisual works such as full-length feature films, television films and series, documentaries, animated series and short films. Recent judgments of the Spanish Constitutional Court in case STC 035/2016 dated 3 March 2016, and of the Supreme Court in case STS 1665/2016 dated 7 July 2016 have confirmed the legality of this obligation on the grounds that it does not violate the principle of freedom of individual enterprise. The General Audiovisual Law has been developed by Royal Decree 988/2015, which regulates the legal regime applicable to this financing obligation for European audiovisual works.
According to the RTVE Financing Law11 and Royal Decree 1004/2010, since September 2009 private audiovisual communication services operators must pay 1.5 per cent (for pay-TV) and 3 per cent (for free-to-air TV) of their television and other audiovisual communication services revenue on a yearly basis for the financing of the public broadcaster RTVE, since advertising has been banned from RTVE's broadcasting. This obligation was challenged by one of the Spanish audiovisual operators (DTS Distribuidora de Televisión Digital, SA) before the CJEU. By a decision dated 10 November 2016, the CJEU confirmed that the European Commission's authorisation of such financing obligation is compliant with EU legislation (case C-449/14 P).
While there are no specific advertising restrictions on radio services (other than those set out in the General Advertising Law),12 TV service providers must fulfil certain advertising-related obligations, which for linear services include the obligation to broadcast a maximum of 12 minutes of commercials per hour. The General Audiovisual Law has been developed by Royal Decree 1624/2011 on certain aspects of television commercial communication (self-promotion, telepromotion and sponsorship).
Other content-related restrictions and obligations
There are also specific content-related restrictions, including those intended for the protection of children, that are of the utmost importance. First, audiovisual services providers must not use children's voices and images without their consent or that of their parents or legal guardians. Secondly, the broadcasting of content that may seriously impair the development of minors (e.g., pornography or gratuitous acts of violence) is forbidden, and other content that may also be harmful for minors (such as gambling) may only be broadcast within certain time slots. The law also establishes reinforced protection for certain time slots that are considered to be accessible by children. Furthermore, to facilitate parental control, all audiovisual service providers must use digital encryption to classify their content, and TV service providers must use an age rating system according to the guidelines issued by the relevant authorities. In July 2015, the NMCC published the Guiding Criteria for the Classification of Audiovisual Content, which indicate content that is harmful, and on the other hand beneficial, to minors. Under the Criteria, and depending on the content of a programme, a grade is given that ranges from 'for all audiences' to 'not suitable for minors under 18 years old'.
With regards to sports content, additionally to the provisions of the General Audiovisual Law with regards to exclusivity agreements for the broadcasting of relevant sport events, Royal Decree-Law 5/2015 sets out the rules for the commercialisation of certain Spanish football content, and establishes the criteria to distribute the relevant income among organisers and participants in various competitions.
The NMCC also supervises the enforcement of these content restrictions in the audiovisual communication market. In fulfilling this duty, it has been exercising its sanctioning powers very intensively since 2016 and up to the present date against TV services providers for breaching the Advertising Law and the Guiding Criteria for the Classification of Audiovisual Content.
There are further obligations (i.e., subtitling, audio-description and deaf sign language quotas) aimed at guaranteeing disabled people access to TV services.
ii Non-linear services
Stand-alone non-linear services (e.g., VOD streaming services) in 2018 are fully consolidated among Spanish users and the market as a whole. In some cases, these services operate independently, while in others they operate through market arrangements with telecom companies.
The consolidation of web-based streaming services has opened a debate regarding the law applicable to providers that operate in Spain under the EU freedom to provide services rules, as for some issues the General Audiovisual Law will apply, while others may be subject to the e-Commerce Law. Thus far, the NMCC has not issued any specific instructions in this regard. The European Commission took the lead on this issue by launching the Proposal for a Directive amending the Audiovisual Media Services Directive of the European Parliament and the Council, which establishes specific rules addressing these kinds of services and whose approval and publication by the Council is imminent.
iii Mobile services
The provision of mobile television audiovisual services and other ancillary services has been specifically regulated in the General Audiovisual Law. According to this regulation, the provision of mobile television services requires operators to obtain a licence on the same terms as those set out for general audiovisual services as detailed in Section II.iii.
VI THE YEAR IN REVIEW
The most significant development in electronic communications over the past few years has been the approval of the General Telecommunications Law, which is still being developed.
Regarding the audiovisual sector, although no major laws have been passed in recent months, the allocation of six DTTV channels (three SD and three HD) in October 2015, which commenced broadcasting in April 2016, has entailed a significant change in the competitive private television landscape. This year has also been marked by the NMCC's continuous intense sanctioning activity in the audiovisual sector, which has mainly been for breaches of advertising-related obligations.
While the consolidation process reached its peak in 2016, the sector is far from being calm, as the main operators reacted against OTT, requesting further regulation of these services in line with that applied to traditional telecom operators to try to safeguard their competitive position; those requests led to the drafting and approval of a Directive amending the Audiovisual Media Services Directive, which sets up certain new rules that will apply both to OTTs and traditional telecom operators.
As regards to OMVs, the NMCC has deregulated their market on the basis that it has already achieved a reasonable level of competitiveness. The deregulation involves the removal of the obligation for the main three network operators (Telefónica, Vodafone and Orange) to provide OMVs with reasonable access to their mobile infrastructure.
VII CONCLUSIONS AND OUTLOOK
Looking ahead, and despite the apparent state of calm in the market (at least in terms of legislative activity), there are certain events that will have a significant impact on the Spanish TMT market in the coming months, such as the implementation of the NIS Directive through Royal Decree-Law 12/2018, of 7 September, and the execution of the GDPR, the move against OTT and the development of further regulations on e-commerce. Additionally, the approval of the Proposal for a Directive amending the Audiovisual Media Services Directive points to the European authorities' existing preoccupation with OTT services providers and IoT services addressed to end users in the EU.
Furthermore, the NMCC's structure is currently under review, and whether the NMCC should again segregate into sector-specific NRAs is under discussion. No laws have been enacted yet in this regard, but this could entail bringing back the former CMT or the creation of a similar NRA.
Finally, the intense consolidation process in the telecoms and audiovisual market experienced in recent years has reduced significantly the number of players in the market. As a result of these transactions, it is expected that the already consolidated operators will use their joint efforts to bring about fast technological developments in a context where the division between platforms and content is becoming increasingly unclear.
1 Pablo González-Espejo is a partner at Uría Menéndez.
2 Audiovisual Media Services Directive 2010/13/EU of the European Parliament and the Council.
3 Law 9/2014.
4 Only its formal approval and publication by the Council is pending.
5 Google Spain, SL and Google Inc v. the Spanish Data Protection Agency and Mario Costeja González.
6 Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016.
7 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.
8 That is, a direct or indirect holding of 5 per cent of the share capital or 30 per cent of the voting rights, or a lower percentage if such percentage is to be used to appoint, within 24 months following the acquisition, a number of members to the board of directors representing more than half of the total.
9 This initiative is framed in the Spanish 5G National Plan launched by the SEAD for the period running from 2018 to 2020.
10 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
11 Law 8/2009 of 28 August on the financing of the Spanish Radio and Television Corporation.
12 Law 34/1988 of 11 November on advertising.