Whereby The Provision Of Cellular Mobile Telephony Is Regulated Holding Company Contracts And Partnership In The Field Of Telecommunications And Other Provisions Are Issued

Original Language Title: Por la cual se regula la prestación del servicio de telefonía móvil celular, la celebración de contratos de sociedad y de asociación en el ámbito de las telecomunicaciones y se dictan otras disposiciones

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37 OF 1993

(January 6)

Official Journal No. 40,710 of 6 January 1993

1341, 2009 >

For which the provision of cellular mobile phone service is regulated, the conclusion of partnership and partnership contracts in the field of telecommunications and other provisions are dictated.

THE CONGRESS OF COLOMBIA,

DECRETA:

ARTICLE 1o. DEFINITION OF CELL PHONE SERVICE. 1341 of 2009 > Cell mobile telephony is a public telecommunications, non-home, scope and national coverage service, which provides in itself full capacity for the telephone communication between mobile users and, through interconnection with the public switched telephone network (RTPC), between those and fixed users, making use of a cellular mobile telephone network, in which the part of the spectrum Assigned radio is its main element.

Act 80 of 1993; art. 33

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ARTICLE 2o. CELLULAR MOBILE TELEPHONE NETWORKS. 1341 of 2009 > Cell mobile telephone networks are the telecommunications networks, which interconnected between them or through the public switched telephone network, allow a national coverage to be used mainly to the provision to the public of cellular mobile phone service in which the assigned radio spectrum is divided into discrete channels, which in turn are assigned in groups of geographic cells to cover an area. Discrete channels are susceptible to being reused in different cells within the coverage area.

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ARTICLE 3o. SERVICE DELIVERY. 1341 of 2009 > The cellular mobile phone service will be in charge of the Nation, who will be able to provide it directly or indirectly, through concessions granted through contracts to state companies, companies private, or mixed in nature in which operators of fixed or conventional telephony in Colombia are directly or indirectly involved.  Concession administrative contracts shall be awarded prior to the processing of the public tender, in accordance with the requirements, procedures, terms and other provisions laid down in Decree-Law 222 of 1983 or the rules which replace it, modify or add.

In any case, the principles of equality and democratic access must be observed for the tendering, granting and operation of the service. The act of award shall take place in public hearing.

In no case can the ordinal 16 of Article 43 of the said Decree be applied. These contracts may only be concluded with companies incorporated in Colombia, in accordance with the laws of Colombia and with principal domicile in this country, specialized according to their social object in the provision of the telecommunications service or in mobile cell phone in particular.

Corresponds to the Ministry of Communications, in compliance with the objectives and functions provided for in Decree-Law 1901 of 1990 to advance the contracting processes referred to in this article and to ensure the due compliance and execution of the the contracts concluded.

Because cellular mobile telephony is a service of national coverage and coverage, it does not require any authorization from the territorial entities.

PARAGRAFO 1o. 5o. of Law 422 of 1998. The new text is as follows: > The private and mixed companies that this article deals with must be public limited companies. Private companies must register their shares on the domestic and foreign stock exchanges.  

The National Securities Superintendence will monitor compliance with the provisions of this paragraph.

PARAGRAFO 2o. The act of award shall take place in public hearing, convened by means of social communication of wide circulation and dissemination, in advance of five working days. The hearing shall be chaired by the president of the body responsible for awarding the hearing, at the hearing, at the request of any member of the body responsible for awarding the hearing, the public servants who made the studies and evaluations of the proposals.

Proponents will be able to intervene in their own right, in the spirit of asking for clarifications on the reports supporting the act of adjudication.

Participants may be involved in the event who have a direct interest in the service or who may be affected by the service. In case of persons with the same interest, the president of the public hearing will make up groups to appoint their respective spokesperson, in order to expedite the interventions and the development of the act.

PARAGRAFO 3o. The Ministry of Communications will inform the public about the offers, by means of social communication of wide circulation and dissemination, once the reception of the proposals has been closed and before it is carried out the public hearing. To this end, it will draw up a comparative table of the proposals submitted.

PARAGRAFO 4o. The Ministry of Communications shall inform the public by means of social communication of wide circulation and dissemination, the result of the public tender, within the following ten working days to the award. The information shall contain an explanation of the reasons taken into account, in order to adjudicate.

ARTICLE 4o. 1341 of 2009 > In accordance with the Constitution and the law, the National Government will regulate the conditions under which the cellular mobile phone service should be provided, taking into account, among others, the following criteria:

a. The service will be provided throughout the national territory, both in urban areas with rural areas, even in those with difficult access, in accordance with the plans for the expansion of the service and the networks.

Any proposal to assign frequencies for cell phone operation will include a plan to expand this service, in special conditions to the municipalities with higher rates of unmet basic needs within the the respective area of the concession; these plans must be carried out in a term no longer than five years and will be an essential factor of assessment for the respective award.

b. Concessions shall be granted in two networks, which compete with each other, in each service area, in accordance with the distribution of frequencies allocated by the Ministry of Communications, referred to in Article 6 ( 6or) of this law. One of these networks, in each of the areas identified, will be operated by mixed-economy companies or by state-owned enterprises and the other by private companies.

In the event that a single company is submitted to the tender for the operation of one of these networks, within an area, the Ministry of Communications may make the award of the concession, as long as it meets the conditions and requirements laid down in the specification.

In the event that not enough proposers or proposers are present for one of the networks, or that they do not comply with the conditions and conditions required, the provision of the service may be awarded to a proposer of the other network, within the same area, according to the order of qualification.

PARAGRAFO 1o. In mixed societies, decentralized entities of any administrative order that are responsible for the provision of public telecommunications services may participate directly or indirectly. Decentralized entities of the national order that provide telecommunications services are authorized by this Law to participate directly or indirectly in these companies.

PARAGRAFO 2o. The shares, shares, or parts of interest of the companies that are the concessionaires of the cellular mobile phone service before three years, counted from the date of the granting of the service. The contract may not be transferred within the same period.

c. Entities providing this public service shall refrain from exercising monopolistic or restrictive practices in any sense of competition.

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ARTICLE 5o. FOREIGN INVESTMENT IN TELECOMMUNICATIONS. 1341 of 2009 > Foreign investment, in matters governed by this law, added value, service and satellite infrastructure, will be governed by Law 9a of 1991 and the rules that the amend or supplement and shall have no more limitations than those identified in those provisions.

PARAGRAFO. For the purposes of this article the telematic services referred to in Decree-Law 1900 of 1990 will be assimilated to those of added value.

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ARTICLE 6o. RADIO SPECTRUM CONTROL AND MANAGEMENT. 1341, 2009 > In accordance with Articles 75, 101, and 102 of the National Constitution, it is up to the Ministry of Communications to assign the frequencies for the provision of cellular mobile phone service, distribute and define its coverage and indicate the other conditions within which the service will be provided.

The allocation of frequencies of the radio spectrum will be done in such a way that it covers three areas with their corresponding technical poles, which will be defined by the National Government. These areas will be the East, the West and the Atlantic Coast. The Eastern area should assume the provision of cellular telephony in the new departments and ensure the development of this service in these territories within a period of no more than three years.

The final grouping of the areas, for the purpose of providing the service, will be determined in each of the networks covered by Article 4or literal (b), taking into account technical and economic studies. which are presented in the tender.

In any case to decide the final grouping of these areas, the participation of companies belonging to the respective area and the exploitation of economies of scale for the benefit of the end user will be taken into account. For this purpose, the National Government will point out the corresponding technical poles.

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ARTICLE 7o. GUARANTEES OF INTERCONNECTION, ACCESS AND COST. 1341 of 2009 > Mobile cell phone operators will have the right of access to fixed public telephone networks (RTPC), which are established in the country, for the purposes of the interconnection of the elements of their own networks and the handling of their traffic. This interconnection will be subject to the principle of equal access-equal charge, under which the operators of the public switched telephone network (RTPC) are obliged to provide the interconnection under technical and economic conditions equal to all cell operator to request it.

The operators of the public switched telephone network (RTPC), which are partners in mobile phone service companies, will not give these companies advantageous technical and economic conditions in relation to those offered to them. other mobile phone companies.

PARAGRAFO. The violation of this article will be sanctioned by the Ministry of Communications. According to the case, the Ministry will be able to sanction both the operator of the public switched telephone network (RTPC) that has offered advantageous terms and the mobile phone operator that has accepted them.

The penalties will consist of fines up to a thousand minimum monthly legal salaries, each, according to the seriousness of the lack, the damage produced and the recidivism in their commission, without prejudice to the judicial actions that advance the parties.

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ARTICLE 8o. INTERCONNECTION POINTS. 1341 of 2009 > The cellular cellular network will be interconnected to the public telephone network switched to (RTPC) in the points in which the parties agree, being for the account of the cellular operator all the equipment required for the interconnection to the central Switching of the local switched public telephone network (RTPC), both local and long distance, and will be closed to the national government's plans for signage, numbering, charging and routing.

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ARTICLE 9o. OTHER ASSOCIATIVE FORMS IN THE TELECOMMUNICATIONS SECTOR. 1341 of 2009 > Entities attached to and linked to the Ministry of Communications and indirect or second-grade entities belonging to it, providing services of telecommunications, with the exception of Inravisión, are authorized to constitute among themselves or with other natural or legal persons, national or foreign, companies or associations intended to carry out the activities within their objectives, in accordance with the law of their creation or authorization and their respective statutes.

These entities will be subject to the rules provided for in Decree-Law 130 of 1976 and the provisions that add or modify it.

Likewise, the decentralized entities of any order, entrusted with the provision of telecommunications services, in order to ensure the objectives outlined in the National Constitution, the law and the statutes, may conclude contracts association with legal persons, national or foreign, without the emergence of new legal persons.

PARAGRAFO. Set a period of ninety (90) days for the Ministry of Communications to resolve the technical requests or authorizations that the Decree-Law 1900 of 1990 treats for the entities of the order departmental or municipal. This deadline will be understood as approved in the terms submitted by the entity.

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ARTICLE 10. 1341 of 2009 > To the procurement procedures outlined in the previous article, except as provided in this Law, the provisions of private law and contracts shall be established among other stipulations:

a. The mechanisms to ensure that the ownership of the service is carried out by the contracting public entity.

b. The specific goods and services which the particular contractor makes available for the performance of the subject-matter of the contract and which constitutes the exclusive ownership infrastructure of the same contractor.

c. The proportion in which the contracting parties shall participate in the profits or losses generated by the joint management, as well as the manner in which they are wound up.

d. The conditions under which the contracting entity may acquire, if there is a place, at the end of the contract, the goods which the contractor has provided for the performance of its contractual obligations.

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ARTICLE 11. 1341 of 2009 > Public entities of any order entrusted with the provision of the telecommunications service may conclude leasing contracts with an option to purchase, which shall be governed by the civil rules (i) the Commission's position on the Commission's proposals for the implementation of the Treaty on the European Community and the Treaty on the European Community (OJ L 213, 7.8.1993, P. To this end, the national government will regulate in sixty (60) days the form of convocation, in order to guarantee the plurality of proponents and establish parameters for the award and contracting, without prejudice to the strict compliance of the statutory requirements of each institution.

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ARTICLE 12. 1341 of 2009 > The contracting companies of the concessions of this law, within four years after the award of the concession, must prove the following requirement, without prejudice to the others that order the rules.

That at least 10% of its capital must belong to the social sector of solidarity, which for the purposes of this law is understood as integrated by the trade union organizations, foundations, corporations and non-profit associations, the funds of employees, mutual funds, or cooperative institutions.

The regulation will define a privileged treatment for the actions of the social sector, which will include among others the following aspects: these actions can be paid within three years, They shall be excluded from the obligations of entry into the stock market and of trade.

If by any circumstance, the institutions of the social sector of solidarity do not participate in the formation of the social capital of the contracting entities, they will be reserved, on the part of these, according to the law, the law for four years following the award of the concession, in the legal percentage. This will be the case for the award or concession contract with the obligation to be added to this article.

The subscription of capital by the social sector entities in solidarity prior to the date of improvement of the concession contract shall be made in accordance with the same nominal value of the shares as shown in the tender. But where the subscription is subsequently at the time, it shall be adjusted to the value of the market, certified by the stock exchange.

The government will be able to create financial incentives to facilitate capital contributions from the social solidarity sector.

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ARTICLE 13. 1341 of 2009 > Shared risk contracts will also be established in rural sectors and municipalities with low telephone density for the expansion of the infrastructure in local basic switched public telephony and/or cellular mobile telephony.

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ARTICLE 14. 1341 of 2009 > The term of association at risk sharing will be up to ten years, at the expiration of which it will be reviewed and may be renewed for ten years, provided that the contractor has not incurred sanctions during his/her execution.

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ARTICLE 15. LEGISLATIVE IMPLEMENTATION. 1341 of 2009 > As not provided for in this law, they will apply to cellular mobile telephone networks and services, the provisions of Law 72 of 1989 and the Decree-Law 1900 of 1990.

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ARTICLE 16. VALIDITY. This law governs from the date of its publication and repeals the rules that are contrary to it.

Dada en Santafe de Bogota D.C.,

at the ... days of the month ... of a thousand nine hundred and ninety-two (1992).

The President of the Honorable Senate of the Republic,

TITO EDMUNDO RUEDA GUARIN,

The Secretary General of the Honorable Senate of the Republic,

PEDRO PUMAREJO VEGA,

The President of the Honorable House of Representatives,

CESAR PEREZ GARCIA,

The Secretary General of the Honorable House of Representatives,

DIEGO VIVAS TAFUR.

COLOMBIA-NATIONAL GOVERNMENT

Publish and Execute.

Dada en Santafe de Bogota D.C.,

at six (6) days of the month of January thousand nine hundred and ninety-three (1993)

CESAR GAVIRIA TRUJILLO

The Minister of Communications,

WILLIAM JARAMILLO GOMEZ.

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