The Technology, Media and Telecommunications Review: Colombia
The Colombian general telecommunications regulation was designed with a view to increasing access to the information and communications technologies as a premise for achieving the socioeconomic development of the country. The general framework comprises Law 1341 of 2009, Decree 1078 of 2015, Resolution 5050 of 2016 of the Communications Regulation Commission (CRC) and different resolutions of the Information and Communications Technologies Ministry (ICT Ministry). These regulations seek to respond to the challenges and deficiencies in terms of access and connectivity that Colombia faced in the past decade, and still faces in some degree.
The regulations created different mechanisms, such as a Unified Information Technology Fund and a periodic compensation fee payable for the provision of telecommunications services, in order to finance the initiatives to achieve comprehensive service coverage and access to information and communications technologies (ICT) for residents in Colombia.
Based on the objectives of the Law and the ICT regulations, the purpose of this chapter is to give a general overview of the regulatory context of telecommunications in Colombia. The text will touch upon topics such as the structure of the ICT sector, the different telecommunications regulators and their functions and the regulation of content providers under Colombian law, amongst other topics.
i The regulators
The general ICT regulation identifies the Colombian telecommunications authorities or regulators, whose function is to ensure the proper development of the activities and an adequate regulation in this sector.
The telecommunications regulators in Colombia are mainly the ICT Ministry and the CRC.
The ICT Ministry has the general function of establishing the general policies, programmes and projects of the ICT sector, whose goal must be to increase and facilitate access of all inhabitants in Colombia to the information and communication technologies. This general purpose is aligned with the general objective of the Colombian state of promoting socioeconomic development through the use of the information and communication technologies.
The ICT Ministry has the task of defining the objectives and priorities of the ICT sector and establishing the general rules and policies applicable to the different actors (including such entities that depend on the Ministry). The ICT Ministry also has the role of allocating the resources available in the information and communications technologies market, to coordinate a proper functioning and operation of different actors in the market.
The CRC, on its part, is a special administrative unit linked to the ICT Ministry, although it has administrative, technical and financial independence. Its functions are mainly to establish the technical regulation of the ICT sector and protecting and promoting competition in it.
The CRC is empowered to adopt the necessary regulations, aimed at protecting the welfare of users of telecommunications services and competition within this market. In order to achieve its objectives, the rules and regulations it must issue should be inextricably related to the operation of telecommunications service providers and operators. The CRC shall also maintain an updated scope of the regulations in order to facilitate access to the equipment, facilities, the geographic distribution, and other resources needed for the provision of telecommunications services in Colombia, as well as preserving competition in the ICT sector.
To fulfil these functions, the CRC collects from telecommunications service providers a periodic contribution. that aims to maintain the quality of the ICT services for its users. These fees are transferred to in the Unified Information Technology Fund.
ii Main sources of law
The main regulations of the ICT sector in Colombia are included in Law 1341 of 2009, Decree 1078 of 2015, Resolution 5050 of 2016 of the CRC and specific Resolutions of the ICT Ministry.
Law 1341 regulates the general principles and concepts of the ICT sector and provides that the legal structure will be based on a general authorisation for the provision of telecommunication services in Colombia.2 This authorisation is obtained through the registration of the service provider in the Information and Communications Technologies Registry (ICT Registry). Companies that are registered in the ICT Registry obtain a general authorisation to provide almost any type of ICT service without the need to request further licences or permissions. Exceptions to this general authorisation are specifically determined by the regulations and include the rendering of satellite services and the use of the spectrum.
Decree 1078 of 2015 of the ICT Ministry, as amended3 compiles the core regulations governing to the ICT sector in Colombia, including the applicable rules to the ICT Registry, the obligation to pay a periodic compensation fee for the provision of telecommunication services and website blocking obligations.
In turn, Resolution 5050 of 20164 compiles the CRC's regulatory framework. This means that the general regulations issued by the CRC within the framework of its functions are included in this Resolution. These regulations are focused on technical aspects of the sector, including the conditions for the provision of the different telecommunications services.
iii Regulated activities
Colombian ICT regulations do not include an exhaustive list of the activities that are regulated by the general telecommunications framework. Nonetheless, the provision of a telecommunication service is defined by the Colombian regulation as 'the responsibility of supplying third parties with the emission, transmission and reception of information of any nature through telecommunication networks, whether these are its own or those of third parties'.5
Similarly, Colombian law defines the provision of telecommunications networks as 'the responsibility of supplying to third parties the set of nodes and physical, optical, radio electric or other electromagnetic systems that allow the emission, transmission and reception of information of any nature'.6
In accordance with the above, the following three criteria must be met to considered that a provider is engaging in a telecommunication service in Colombia:
- a responsibility in charge of a provider;
- for the provision to third parties (the users);
- of a telecommunication network and/or service -as the case may be.7
Additionally, the ICT Ministry has stated that 'the qualification as provider of telecommunication networks [or services, or both] is not lost by the fact that such networks [or services, or both] are owned [or provided] by third parties'.8
Accordingly, even if the services are rendered through a third party's network or infrastructure, this does not necessarily preclude the application of the Colombian regulatory framework to the service provider. According to the ICT Ministry, the defining criteria, to trigger the application of Colombian ICT regulations to a service provider are that 'the provider assumes the responsibility for the operation of the network or the management of the telecommunications service',9 for the ICT user in Colombia.
Accordingly, if a stand-alone service is provided, and the service does not include or bundle a connectivity service, then a telecommunication service will not be provided under Colombian law. On the other hand, if the product or service includes a connectivity service to the final customer, even if the service is at the end provided by a third party (subcontracting) or using its infrastructure (resale), the bundled or complete service will effectively be considered a telecommunication service.
General authorisation regime
As explained above, Law 1341 of 2009, specifically grants a general authorisation for the provision of telecommunication services in Colombia,10 which is triggered by the registration of the provider in the ICT Registry. This means that, except for certain services such as the satellite service and the authorisations for the use of the spectrum, a company is authorised to provide a telecommunication service in Colombia as long as it is registered in the ICT Registry.
The ICT Registry is a public registry in which companies or individuals that purport to provide telecommunications networks or services, or both, are included. The registration in the ICT Registry is made online, and certain basic corporate information must be provided at the time of the registration, jointly with a description of the service to be provided and the networks to be used.
Specifically, in order to register in the ICT Registry, the following information must be provided.
Basic corporate information
The information required to apply for and formalise the registration, from a corporate perspective includes (1) the corporate name of the company; (2) the Colombian tax identification number (NIT); (3) the name and identification document of the legal representative of the company; (4) the names and identification numbers of the shareholders, or the members of the boards of directors in the case of public companies; (5) a notification and mailing address; (6) an email address; and (7) the Colombian tax registry (i.e., the RUT).
In addition to the basic corporate information, the ICT Registry also requires a basic description of the network or the service, which includes: (1) an express statement of the condition of being a network provider, service provider, and provider of telecommunications networks and/or services, (2) a description of the network or service that the provider intends to operate or provide, which must include: (a) the relevant network information including the relevant network information (such as means of transmission whether wired wireless, optical or other kind) and the scope of coverage (e.g., national, regional or municipal), and a functional description of the service including the general conditions of operation and commercial exploitation of networks and/or services, and (3) the identification of the scarce telecommunications resource when applicable.
Timing of the registration
Once the registration is filed with all the necessary information and once all of the requirements are fulfilled, the ICT Ministry will have a term 10 business days to formalise the registration or request additional information. If the information provided in the application is incomplete, the ICT Ministry will submit a request for information to the company to provide the missing information within a maximum term of one month. During this term, the term of 10 business days to formalise the registration will not be counted.
Additional obligations derived from the registration
The registration entails additional obligations for telecommunications networks and services providers. Among these obligations is the obligation to pay a periodic compensation fee for the provision of telecommunications networks or services, or both.
Currently, this fee corresponds to 1.9 per cent of the of the net income received from the provision of the telecommunication services or networks. Providers must self-calculate the corresponding fee and it must be paid quarterly through the online platform of the ICT Ministry. The amount of the fee is set by the ICT Ministry periodically. For example, it was reduced to 1.9 per cent in 2020 during the covid-19 pandemic.
In order to guarantee the payment of this periodic fee, providers must also grant a bond or guarantee in favour of the ICT Ministry and the Unified Information Technology Fund. This guarantee may consist in either an insurance policy or a bank guarantee, issued by a company authorised to operate in Colombia.
The amount that the guarantee should cover will depend on whether if it is the first time the provider registers itself in the ICT Registry or if it is an existent provider. For new providers the amount the guarantee should cover is the estimated gross income to be generated by the provision of telecommunication services, or networks, or both, as expected to be received during the first year of operation according to the business plan. For existent providers in the ICT Registry, the amount that the guarantee should cover corresponds to the estimated sum considering the last four periodic payments made to the ICT Ministry.
The guarantee must be renewed yearly, and the new guarantee should be submitted to the ICT Ministry within the 30 days prior to the expiration of the previous one.
Update of the information provided in the registration
The information provided during the registration procedure must be periodically updated, when required and specifically within the 15 business days following the date on which a change occurs.
Particularly, the following scenarios must be updated in the ICT Registry: (1) any modification of the provision of telecommunications networks and services; (2) liquidation, merger, spin-off or changes of control situations; and (3) update of the notification information.
iv Ownership and market access restrictions
In principle, there are neither foreign ownership nor local entity restriction under Colombian telecommunications regulation.
However, although not expressly stated by the Law, in practice mainly companies incorporated in Colombia may register themselves in the ICT Registry and therefore be authorised for the provision of telecommunication networks or services, due to the documents required by the law for the registration.
Considering the above from a corporate law perspective, according to Colombian law, if an entity intends to pursue permanent businesses in the country, it must be done through a local entity, such as a branch of the foreign entity or a subsidiary company.
The branch is an extension of the offshore entity and does not have a separate corporate personality. The branch is considered as a group of assets and liabilities destined for the operation in Colombia, and as such it has a commercial registration before the Chamber of Commerce and a tax identification number. This is useful when participating in public bids since it is the same foreign entity and the contracts entered into by the head office can be considered as own experience of the branch. On the other hand, a company has its own corporate personality, is a separate entity from its shareholders and is governed by its own bylaws.
A foreign company that intends to provide occasional services in Colombia can register itself before the ICT Registry, but is required to have a NIT (meaning that it has to have its own registro único tributario (RUT)). This means that in practice, mainly local entities may provide telecommunication networks or services in Colombia.
v Transfers of control and assignments
As for change of control, there are no specific restrictions or applicable regulation in this matter from a telecommunications perspective, although it may be subject to antitrust and merger control regulations that will be analysed by the Competition Authority. Moreover, as pointed out above, there is an obligation for telecommunications service providers to update in the ICT Registry, among other things, the registered information in cases of merger, spin-off or change of control.
As for the assignment of the authorisation, Colombian Law is based on a general authorisation regime, which requires the registration of the company itself in the ICT Registry of registrations, and other licenses, such as the license for the use of the spectrum are generally not transferable under Colombian telecommunications regulation.
Telecommunications and internet access
i Internet and internet protocol regulation
As established above in this chapter, Colombian telecommunications regulation operates on a general authorisation. This means that almost all telecommunications services are subject to the same license/registration requirements regardless of the specific services they provide.
However, depending on the specific services, certain specific requirements must be complied with. In the specific case of ISPs, they are subject to obligations that generally do not apply to other services, such as website blocking requirements for websites providing child pornography or websites of unauthorised online gambling operators, among others, which will be explained in detail below.
ii Universal service
There are currently ambitious plans under the government, led by the ICT Ministry, to expand internet coverage to remote areas that traditionally did not have access to internet services and cover the last mile. For this purpose, the ICT Ministry created the 'Executing and Connecting Plan', which sought to bring Rural Digital Zones to at least 300 rural areas of the country. The plan aimed to install free internet connection points in rural areas.
For this purpose, the Ministry invested more than US$8.1 billion, which were assigned to private operators that were in charge of the design and installation of the networks.
The Plan was overshadowed by corruption scandals, which delayed its operation. Nevertheless, the Ministry has announced it will move forward with its goal to expand internet access to all the Colombian population.
iii Restrictions on the provision of service
In principle the prices that telecommunications service provides may charge users are not subject to regulation, and there is free competition in the market in this regard. However, the CRC has established certain prices lists for specific services, mostly applicable to services to be provided between operators.
For example, the prices telecommunication services and network providers may charge each other for sharing infrastructure for the provision of telecommunications services, or the prices charged to third parties that wish to access their network are regulated by the CRC.
In this last regard, there is a general obligation for telecommunications service providers in Colombia to allow interconnection of their networks and access and use of their essential facilities to other telecommunications operators that request it. This general requirement seeks to ensure the general principles of non-discriminatory treatment, transparency, cost-based prices plus a reasonable profit and the promotion of free and fair competition in the ICT sector.
iv Privacy and data security
Regarding data protection matters, the Colombian data protection regulation is structured as general regulation, meaning it applies in general to the processing of personal data regardless of the technologies or sector of the economy.
Additionally, Colombian data protection regulation is heavily consent–based. A data controllers must obtain prior, explicit and informed consent from data subjects before collecting and processing their personal data. This consent shall include the description of the processing to be made and the purposes of said processing. Therefore, for telecommunication services providers and networks providers, the consent shall include all the processing's purposes concerning the provision of the services. The above-mentioned is significant as Colombian regulation provides that, to the extent possible, the processing shall be limited to the strictly needed purposes unless authorised otherwise by the data subject (i.e., processing for marketing purposes).
Keep in mind that data controllers must store proof of this consent and must be able to demonstrate to the authority that the consent was granted by each and every one of the data subjects.
Only in specific cases this authorisation is not required, such as information requested by authorities exercising their functions or with a prior judicial order. Particularly regarding telecommunications, criminal law provides that telecommunications interceptions can only be made by Colombian prosecutors and shall request an approval of the interception before a judge.
The regulation also establishes certain requirements for sharing personal data with third parties, which include, among other things, the subscription of a data transfer or transmission agreement, as appropriate.11
Moreover, as was mentioned above, certain telecommunications service providers, such as ISPs are subject to certain website blocking obligations for websites providing child pornography or websites of unauthorised online gambling operators.
Regarding child pornography, both Law 679 of 2001 and Decree 1078 of 2015 establish that all individuals must prevent, block, combat and denounce exploitation, accommodation, use, publication, distribution of images, texts, documents, audio files, improper use of global information networks, or establishment of telematics links of any kind, when used to circulate material that is pornographic or alluding to sexual activities of minors.
Article 126.96.36.199.1. of Decree 1078, prohibits providers, servers, administrators and users of global information networks from hosting: (1) images, texts, documents or audiovisual files on their own site that directly or indirectly involve sexual activities with a child; (2) pornographic material on the site, especially in the form of images or videos, when there are indications that the people photographed or filmed are children; and (3) links on their own site that contain or distribute pornographic material involving a minor.
In the same line, Article 188.8.131.52.2. of the same Decree, establishes an obligation for ISPs to: (1) report to the competent authorities any criminal act against minors of which they are aware, including the dissemination of pornographic material associated with minors; (2) combat with all technical means at their disposal the dissemination of pornographic material involving minors; (3) refrain from using global information networks to disseminate illegal material with minors; and (4) establish technical blocking mechanisms by which users can protect themselves or their children from illegal, offensive or undesirable material relating to minors.
Additionally, ISPs must implement certain technical and administrative measures provided for in Articles 184.108.40.206.1 and 220.127.116.11.2. of Decree 1078 of 2015.
As for unauthorised luck and chance games, Article 38 of Law 643 of 2001, establishes that the competent authorities, such as the National Police and Coljuegos, may order the blocking of internet-based luck and chance games that do not comply with all the necessary requirements for their operation. Specifically, this includes internet-based games that do have the necessary concession contract with Coljuegos.
Furthermore, certain administrative authorities, as well as judges and courts might order the blocking of certain pages, in accordance with their faculties. For example, the Superintendence of Industry and Commerce, as the authority for consumer protection and data privacy matters, has issued orders within administrative investigations and in exercising its statutory powers, ordering telecommunication providers to block websites that breach the applicable regulation in these matters.
As previously mentioned, the general authorisation for the provision of telecommunications services established under Colombian law has two main exceptions: the use of the radio electric spectrum and the provision of satellite services.
Authorisations for the use of the radio electric spectrum
Regarding the authorisations for the use of the spectrum, these are assigned to individual telecommunications service providers based on an objective biding procedure initiated by the ICT Ministry.
Once this procedure is initiated, providers that want to participate in it must submit an application that includes the following information: (1) frequencies or frequency bands of the radio spectrum requested; (2) bandwidth (type of emission); (3) service area.; (4) location of repeater stations indicating the exact geographic coordinates in degrees, minutes and seconds; (5) antenna gain, height and radiation pattern; (6) potency; (7) hours of use; and (8) the corresponding bid for the assignment of the spectrum.
However, the specific rules of each bidding procedure will be determined by the ICT Ministry in each case.
Therefore, the use of the spectrum is not subject to general authorisation and requires an awarding within an objective biding procedure initiated by the ICT Ministry.
Authorisation for the provision of satellite services
As for the provision of satellite services in Colombia is regulated, among others, by Resolution 106 of 2013 of the ICT Ministry. This Resolution establishes that the provision of satellite services in Colombia requires two prior registrations. The first registration level corresponds to the List of Satellites of the Andean Community and the second one before the ICT Ministry as a satellite capacity provider.
As for the registration of the satellite before the Andean Community, the satellite itself must be registered in accordance with Decision 877 of 2021 of the Andean Community. The registration requires: (1) a description of the satellite; (2) the detail of the orbit and spectrum resource; and (3) estimated date of entry in operation and useful life of the satellite.
The registration of the satellite must be approved by all the member nations of the Andean Community, which to date are Bolivia, Colombia, Peru and Ecuador. The registration may be denied if the Telecommunications Authority of one of the member nations of the Andean Community considers and proves that a previously registered right may be affected.
Regarding the registration as a satellite capacity provider before the ICT Ministry, it is important to take into account certain particularities of the registration. As a first point, there is a difference between satellite operators and satellite capacity agents in Colombia.
Satellite operators are defined as the '[p]erson that exploits the orbit-spectrum resource',12 while the satellite capacity agent is defined as the '[l]egal entity duly constituted in Colombia, authorised by a satellite operator to commercialise or provide itself or third parties with satellite capacity in the national territory'.13 On its part, satellite capacity is understood as the 'Set of resources that a satellite or satellite system has, including the associated radio electric spectrum . . . offered by a duly authorised provider'.14 The relevance of this difference is that depending if the company registers itself as a satellite operator or a satellite capacity agent, the requirements will differ.
The authorisation to provide satellite capacity in Colombia is formalised through the registration of the company in the Registry of Satellite Capacity Providers. In other words, once the company's registration in the Registry of Satellite Capacity Providers is formalised, it may commercialise or provide satellite capacity for itself or to third parties. It is important to point out that according to the paragraph of Article 4 of Resolution 106, registration as a satellite capacity provider does not entail an authorisation for the provision of telecommunications services, and, therefore, if the service to be provided also involves the provision of a telecommunications service, a registration in the ICT Registry is required.
The registration in the Registry of Satellite Capacity Providers requires the submission of certain basic corporate information and technical information.
Additional obligations derived from the registration
In accordance with Resolution 106 of the ICT Ministry, satellite capacity providers can only provide satellite capacity to third parties that are authorised or registered as providers of telecommunications networks or services or as holders of permits for the use of scarce resources.
ii Spectrum auctions and fees
As mentioned before, authorisations for the use of spectrum in Colombia are based on an objective bidding procedure initiated by the ICT Ministry. The fees for the assignment of spectrum are not established by law and will depend on the specific conditions of each biding procedure.
i Regulation of media distribution generally
Only media involved in to sound broadcasting and open television broadcasting is governed by the principles of telecommunications law and some specific pieces of regulation. Other content providers in Colombia, although regulated by consumer protection and data protection laws, are not regulated by telecommunications laws and are not treated the same as telecommunications service providers.
Generally speaking, apart from certain national content obligations, there is no specific regulation targeted at content providers or over-the-top services.
As for the specific topic of national content, in accordance with Decree 681 of 2020, video on demand services available for users in Colombia must have an easily accessible and clearly identified section, in accordance with the particular design of each service and the manner in which it freely determines the presentation of the content to its users, for the user to locate the audiovisual content of national origin that is part of the catalog of such service.
ii Internet-delivered video content
Regarding the difference between OTTs and traditional telecommunications service providers, the CRC has established that unlike telecommunications service providers, OTTs generally 'do not provide network access to end users' and they deliver 'content and information [that] users access using their own internet connection'.15 Using these same considerations, the Colombian National Planning Department has concluded that OTTs 'are not subject to the regulatory framework of network operators and telecommunications service providers in Colombia'.16
Therefore, even though content providers are regulated in Colombia from a consumer protection and data protection perspective, they are not subject to the same regulation and obligations as telecommunications networks and service providers.
The year in review
The ICT Ministry regularly issues reports assessing the market and assessing the current access status to telecommunication services. In this regard, for example, the ICT Ministry issued a report on the ICT sector, considering the data available for the first trimester of 2021,17 as well as a report on the access to cable television and community television.18 In general both reports show the increase of users regarding both services but also pointed out the remaining access gap between the different regions and social economic groups.
Considering these conclusions, the policies and programmes lead by the ICT Ministry are led to increase the access to the services, particularly to mobile phone networks and services, to ensure access to internet for rural communities.
In this regard the government has acknowledged the relevance that this service has and how it has become more evident due to the covid-19 pandemic. During the past year, the internet access has become vital to allow Colombian residents to live their day-to-day lives, from working from home and studying to accessing medical and judicial services.
Moreover, a focus to be considered in any upcoming regulation is regarding competitiveness in this sector. A recent study conducted by Universidad de los Andes,19 jointly with Telefonica, showed that the mobile telecommunications market is highly concentrated; Claro, the main provider, serves 18.1 million users, in comparison with the second main provider, Movistar, which has 7.8 million users, in accordance with the report prepared by the ICT Ministry.
The above-mentioned study also concluded that despite its decrease in the past years, the concentration in the market has affected the quality of the services, their price, and the attention received by users in Colombia, indirectly affecting the country's competitiveness in the region.
Even though this study only refers to mobile phone communications, the same tendencies can be seen regarding other telecommunications services, such as fixed internet, fixed telephony and cable television, among others. Considering this, as mentioned above, the authority is also making a regulatory effort to either reduce the concentration in the market or mitigate its effects to ensure quality services to Colombian residents.
Moreover, considering the effects of the covid-19 pandemic in the economy in general, the authority has adopted measures to protect the providers and ensure the continuity of service provision, such as, for example, reducing the percentage considered to calculate the amount of the fee or royalty to be paid yearly by the providers.
Conclusions and outlook
As mentioned during the introduction, Colombian telecommunications regulation has the general objective of increasing access to the Information and Communications Technologies as a premise for achieving the socioeconomic development of the country. For achieving this general objective, the ICT Ministry has somehow shifted the focus if its regulation and has been moving forward to issuing regulation that increasingly requires telecommunications service providers to establish a local entity in Colombia for the provision of telecommunications services.
For example, in a recent draft regulation for establishing a new satellite regulation, the ICT included a provision according to which only entities incorporated and domiciled in Colombia would be able to provide satellite services in the country and we believe the regulation will more and more move in that direction.
It is, therefore, likely that in the coming years, the pressure for foreign providers to incorporate themselves in Colombia will increase as has been happening in other sector of the Colombian economy, such as the tourism sector. With the recent enactment of the Colombian General Tourism Regulation, digital platforms that provide lodging services are required to register themselves in the National Tourism Registry, and in other cases the Colombian Data Protection authority has increased its oversight against foreign entities.
Therefore, it is likely that in the coming years more and more regulation of different sectors of the economy, including the ICT sector, will take a turn towards adopting this trend and each time require a legal presence in the country for the provision of the services concerned.
1 Carolina Pardo is a partner and Daniela Huertas and Daniel Fajardo are associates at Baker McKenzie.
2 Article 10 Law 1341 of 2009.
3 Decree 1078 of 2015 is the sole regulatory Decree of the ICT Sector in Colombia.
5 Article 18.104.22.168.1.2 of Decree 1078 of 2015.
7 These criteria have also been established by the ICT Ministry in opinion 1196455 of 2018.
8 ICT Ministry, Opinion 1196455 of 2018.
10 Article 10 of Law 1341 of 2009.
11 In Colombia the transfer of personal data occurs when the information is shared on a controller-to-controller basis, while the transmission of personal data occurs when it is shared on a controller-to-processor basis.
12 Article 3 of Resolution 106 of 2013 of the ICT Ministry.
15 Communications Regulation Commission. The role of OTT services in the Colombian communications sector, 2019.
16 National Planning Department. The future of the audiovisual sector in Colombia: The need for public policy and regulatory reforms in the context of technological convergence and market trends. Final report.