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Whereby The Provision Of Personal Communication Services, Pcs Is Regulated And Other Provisions

Original Language Title: Por la cual se regula la prestaciĆ³n de los Servicios de ComunicaciĆ³n Personal, PCS y se dictan otras disposiciones

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555 OF 2000

(February 2)

Official Journal No. 43,883 of 7 February 2000

COLOMBIA CONGRESS

1341, 2009 >

By which the provision of Personal Communication Services, PCS is regulated and other provisions are dictated.

Vigency Notes Summary

DECRETA:

ARTICLE 1o. OBJECT. 1341 of 2009 > This law aims to establish the legal regime applicable to Personal Communication Services, PCS and to establish general rules and principles for granting concessions for the provision of services. PCS services.

The concession will additionally entail permission for the use of the radio spectrum attributed for the provision of the PCS service and the authorization for the establishment of the network associated with the provision of the same, according to the regulations issued by the Ministry of Communications.

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ARTICLE 2o. DEFINITION. 1341 of 2009 > Personal Communication Services PCS are public telecommunications services, not domiciled, mobile or fixed, of scope and national coverage, that are provided making use of a terrestrial network telecommunications, whose fundamental element is the radio spectrum allocated, which provide in themselves complete capacity for communication between PCS users and, through interconnection with the State's telecommunications networks with users of such networks.

These services allow the transmission of voice, data and images both fixed and mobile and are provided using the frequency band that for the effect attribute and assign the Ministry of Comuni-cations.

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ARTICLE 3o. PCS REDES. 1341 of 2009 > PCS networks are part of the State's telecommunications networks, make use of the radio spectrum attributed and assigned to provide the Personal Communication Services, PCS, which are interconnected with each other. or through state telecommunications networks allow a national coverage. This radio spectrum is used in geographic cells and can be reused within each covering area.

For the formation of complementary networks, other frequency bands may be used, including satellite segment, prior to granting permits for the use of spectrum, by the Ministry of Communications.

These permissions will result in the payment of corresponding consideration.

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ARTICLE 4. PROVISION OF THE PERSONAL COMMUNICATION SERVICES, PCS. 1341 of 2009 > Personal Communication Services, are the responsibility of the Nation, who will be able to provide them in direct management, or indirect through concessions granted through contracts for State-owned enterprises, private companies or joint ventures.

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ARTICLE 5o. GENERAL PRINCIPLES OF PROCUREMENT. 1341 of 2009 > State concession contracts shall be awarded prior to the public tender procedure, in accordance with the requirements, procedures and terms provided for in this Law and other provisions laid down in Law 80 of 1993, or the rules which replace, amend or add to them.

In no case can the concession contract be awarded through the direct procurement process.

The award procedure will be performed by the auction procedure and will take place in public hearing.

The National Government will regulate the auction procedure by seeking to maximize the economic income that the nation can obtain.

In any case, the principles of equality, democratic access and non-discriminatory treatment must be observed for the tendering, granting and operation of the service.

Considering that the Personal Communication Services, PCS are of national scope and coverage and that the radio spectrum is a public good of the Nation, the competence to grant the concession corresponds to the Nation, through the Ministry of Communications. The Ministry of Communications, in compliance with its objectives and functions, shall advance the procurement processes referred to in this law and shall ensure the proper performance and enforcement of the contracts concluded.

PARAGRAFO.

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ARTICLE 6o. CONCESSION DEADLINE. 1341 of 2009 > The deadline for the concession for PCS services is ten years. This concession may be extended for an equal or lesser period, at the request of the concessionaire, on a date not later than the eighth year of the initial period of the concession.

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ARTICLE 7o. NATURE OF THE CONCESSIONAIRES. 1341 of 2009 > Concession contracts for the provision of PCS services may only be concluded with legal persons governed by public law or with private or mixed companies incorporated in Colombia, according to the Colombian law and its principal place of residence in this country, the main social object of which is the provision of telecommunications services.

PARAGRAFO 1o. The companies in which this article deals must be public limited companies and must register their shares in one of the national stock exchanges, within a period not exceeding three (3) years from the date of improvement of the concession contract, subject to expiry of the contract. The Superintendency of Securities will monitor compliance with the provisions of this paragraph.

PARAGRAFO 2o. In mixed societies, decentralized entities of any administrative order that are responsible for the provision of 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.

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ARTICLE 8o. MODIFICATION OF THE CONCESSION. 1341 of 2009 > After five years of granting concessions, in those municipalities where the assigned radio spectrum is not being used or has no plan of use for the five years The operator concerned shall lose the permit for the use of the spectrum in those municipalities and the Ministry of Communications may again attribute and reassign the spectrum for the provision of telecommunications services.

The above does not exempt the PCS operator from the mandatory compliance with the minimum expansion plan that is dealt with in article 10.

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ARTICLE 9o. OF THE CONTRACTING. 1341 of 2009 > The Ministry of Communications will follow the following general rules, and as not provided for in them by Law 80 of 1993, for the procedure of selection of the contractors and for the act of adjudication.

1. Dissemination of the procedure. The Ministry of Communications, prior to the start of the administrative procurement procedure, shall inform the media of widespread dissemination and circulation of the procedure for the award and the public award hearing. This dissemination shall be carried out in a manner prior to the initiation of the procedure for the objective selection of the dealers.

2. Transparency. All documentation relating to the process will be public, except in cases where there is express legal reservation. The partial and final results will be published in media of wide circulation and dissemination.

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The Ministry of Communications will inform the public which proposers complied with the specifications, by means of communication of wide circulation and dissemination, before the auction procedure is carried out.

The Ministry of Communications shall inform the public by a means of communication of wide circulation and dissemination the result of the award.

3. Specifications of the Conditions. The Ministry of Communications shall draw up the specifications in respect of which it shall lay down the minimum legal, administrative, technical, economic and other conditions which it considers appropriate, which must be complied with by each of the the proposers to be able to participate in the auction procedure. Compliance with these conditions shall not give rise to any other right to the submission of economic tenders.

4. Public hearing prior to the auction procedure: According to the terms of the regulation, the Ministry of Communications will hold a public hearing for:

a) Explain the content of the regulation and

b) Allow interested parties to submit their comments.

Based on this hearing, the Ministry of Communications will make adjustments that it deems relevant to the regulations.

5. Public auction hearing. In accordance with the terms of the regulation, the Ministry of Communications will carry out the procedure for the auction and award of concessions in public hearings, which will be convened by means of communication of wide circulation and dissemination, not less than five (5) working days in advance. the hearing will be chaired by the Minister of Communications.

6. Minimum value. The Ministry of Communications shall set the minimum value for each of the concessions.

7. Guarantee of seriousness of the proposals. The proposers must provide guarantees of seriousness for their proposals and for this purpose the Ministry of Communications will establish the base value of the proposals. The Ministry of Communications may order the extension of the time limit or the value of the guarantees at any time within the auction procedure.

8. Economic consideration. Dealers in the provision of PCS services shall make an initial payment and periodic payments.

The initial payment corresponds to the value that the proposer offered in the auction procedure and for which the concession was awarded.

In case of extension of the concession contract, the government must charge a percentage of the value of the initial license paid by the operators of the PCS. The concessionaire shall also pay the periodic consideration provided for in this law.

Regular payments will be calculated as a percentage of the revenue that the operators of their users receive for the provision of these services. The value of these periodic payments includes consideration for the use of the radio spectrum allocated for PCS services. This percentage shall be set by the National Government in accordance with the rules governing the matter. This percentage will be the same as the one set for TMC.

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ARTICLE 10. CONDITIONS UNDER WHICH THE PERSONAL COMMUNICATION SERVICES, PCS. 1341 of 2009 > SHOULD BE PROVIDED > In accordance with the Constitution and the law, the National Government will govern the conditions under which the communication services will be provided Personnel, PCS, taking into account the following criteria:

The service will be provided throughout the national territory, both in urban and rural areas, in conditions so that most Colombians can have access to this public service.

The concessions for the provision of Personal Communication Services, PCS, will be made in accordance with the allocation of frequency bands to be carried out by the Ministry of Communications.

Any proposal to be assigned frequencies for the operation of PCS services, will include a minimum plan of expansion of mandatory compliance, under special conditions to the municipalities with higher rates of unmet basic needs within the respective area of the concession. Such plans must be carried out in a term not greater than five (5) years and their non-compliance will result in the penalties for the use of the plans provided for in this law.

For initial concessions, the minimum expansion plan will in no case be less than the minimum plan set for the TMC operators.

PARAGRAFO. COMPETITION REGIME. The Superintendence of Industry and Commerce is the inspection, surveillance and control authority of the free and fair competition in the services. communications addresses, as well as all other economic sectors. In such a capacity, the Superintendence will apply and ensure compliance with the provisions contained in Law 155 of 1959, Decree 2153 of 1992 and Law 256 of 1996, To this end, it shall have its ordinary powers and to follow the general procedure applicable, without prejudice to the regulatory powers of the Telecommunications Regulatory Commission and the National Television Commission.

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ARTICLE 11. INITIAL CONCESSIONS. 1341 of 2009 > A concession will initially be granted for the provision of the Personal Communication Services, PCS, in each of the Eastern, Western and Atlantic Coast areas, which correspond to the for the provision of cellular mobile telephony in Law 37 of 1993 and its regulations. In this way, the allocation of frequencies will be made in such a way as to store this special division of the national territory.

In any case, the following rules will be observed:

a) Concessions will be granted within the limits of this law, in terms and opportunities that the National Government will establish for the effect;

(b) Cellular mobile telephony dealers, TMC, national trunking operators, their subsidiary companies, parent companies, subordinate companies; shareholders of TMC dealers, shareholders of the national trunking operators, which have an individual or a joint participation of more than 30% and the parent, subsidiary or subordinate undertakings of such shareholders may not:

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Participate in the bidding process, or obtain PCS concessions in any of the PCS delivery areas.

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Being a shareholder of PCS service dealers, during the first three years of concession for the provision of PCS services, counted from the completion of the first contract;

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(c) CCS service dealers, their subsidiaries, parent companies or subordinate companies; the shareholders of the PCS service dealers, the parent companies, subsidiaries or subordinates of such shareholders, may not acquire more than 30% of the (30%) of the share capital of a TMC dealer providing services within the same area or of a national trunking operator during the first three years of the concession for the provision of PCS services.

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PARAGRAFO 1o. The Ministry of Communications will promote the participation of minority shareholders in the public limited companies that are the concessionaires of the PCS service.

In the development of such an objective, forecasts will be established to ensure that dealers offer minority investors for sale at least 15% of shares in stock exchanges, no later than the fourth year of the year from the end of the year. improvement of the respective concession contract, subject to the penalty of revocation.

The Ministry of Communications will regulate the matter so that, before the bidding process, the mechanisms, rules and procedures that will be followed to comply with this paragraph will be established.

PARAGRAFO 2o. The National Government will contract by public tender or contest an advisory that includes a telecommunications consultant and an investment bank, both of which are recognized as national prestige, so that other functions, recommend the opportunity to initiate the process of public bidding and advise the National Government on the design of the auction and on the establishment of the minino value of each concession, in consultation with the market and conformity with the provisions of this law.

To preserve an environment of healthy competition by setting the minimum value of each concession, the Ministry of Communications will address the principle of economic equilibrium with the TMC operators.

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ARTICLE 12. NEW CONCESSIONS. 1341 of 2009 > New concessions will be granted to those provided for in Article 11, for the PCS Service to be regulated in this law, after three years Since the enactment of this law, the mechanism to grant new concessions will be the auction.

In the process of obtaining the new concessions, all public, private or mixed legal entities will be able to participate without any restriction, provided that they comply with the conditions of the bidding process that for the The Ministry of Communications.

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ARTICLE 13. FOREIGN INVESTMENT. 1341 of 2009 > Foreign investment in the provision of Personal Communication Services, PCS shall be governed by Law 9a. of 1991 and the rules which amend or supplement it, and shall have no more limitations than those laid down in those provisions.

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ARTICLE 14. SYSTEM OF INTERCONNECTION, ACCESS AND USE. 1341 of 2009 > All telecommunications operators must allow the interconnection of their networks and access and use to their essential facilities to any other telecommunications operator that request, in accordance with the terms and conditions set forth by the Telecommunications Regulatory Commission, to ensure the following objectives:

a) Non-discriminatory treatment;

b) Transparency;

c) Cost-based pricing plus a reasonable utility;

d) Promotion of free and fair competition.

PARAGRAFO. The violations of this article will be sanctioned by the Minister of Communications, without prejudice to the legal powers assigned to other authorities.

The penalties will consist of daily fines for up to 250 minimum monthly legal salaries, for each day the offence is incurred and for each breach, depending on the seriousness of the fault, the damage produced and the recidivism in your commission, without the damage to the legal proceedings brought forward by the parties.

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ARTICLE 15. TELECOMMUNICATIONS REGULATORY COMMISSION. 1341 of 2009 > The CRT will be the competent body to promote and regulate competition between the operators of the Personal Communication Services, PCS, with each other and with other service operators public telecommunications, fixing the tariff arrangements, regulating the system of interconnection, ordering easements in cases where necessary, issuing the system of protection to the user and directing the conflicts on an administrative basis. present among the operators of PCS, or between these and other operators of services of telecommunications.

The CRT will issue the rules governing interconnection taking into account the principles of neutrality and equal access-equal charge.

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ARTICLE 16. REVENUES. 1341 of 2009 > The total collection of the initial payments made by the PCS operators for the concessions referred to in Article 11 of this law will be directly done by the General Directorate of the National Treasure. Such value is constituted in a current income of the Nation and its amount will be a reference for the Nation through the Ministry of Finance and Public Credit to make contributions, for the same value, to the assets that Telecom and Adpostal have constituted or to the entities that make their times and to the Fund of Communications in order to meet the payment of the pension obligations.

This contribution will be distributed as follows: sixty-five percent (65%) for Telecom's autonomous heritage, twenty-five percent (25%) for Adpostal's or the entity making its own In order to pay for their pension obligations and ten percent (10%) to the Communications Fund to collect and make such a contribution to the assets or entities that it does its times to contribute to cover the obligations (a) a pension for official and joint ventures in which public participation is equal to or more than 70% (70%) of the share capital, which provides the basic local or local commuted basic public telephone service, according to criteria established by the Communications Fund.

contribution will be made on the date you set the amount, by means of a debt document whose capital depreciation will start at the latest three years after its creation. and within a maximum period of seven years from the date of its establishment. In any form, current interest will be caused during the period of the obligation at a given market rate based on the time limit and the form of authorisation that are established.

payments from the additional concessions referred to in Article 12 of this Act shall be made for the promotion of programs of social investment in the telecommunications sector, as well as the periodic payments covered by this law which belong to the Communications Fund and will be used for the same purpose.

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ARTICLE 17. SYSTEM OF PROTECTION FOR THE USER. 1341 of 2009 > The Commission on Telecommunications Regulation will set the system of rights and obligations of users of the services of PCS and will establish the regulation of protection to the same, in which recognize these:

1. Right to free choice of operator.

2. Right to measurement.

3. Right to protection.

4. Right to claim the operator.

5. Right to go to the authorities.

6. Right to information.

7. Right to protection against undue publicity.

8. Right against restrictive or abusive conduct.

9. Right to equal treatment.

10. Right to the inviolability and secrecy of communications.

PARAGRAFO 1o. The Telecommunications Regulatory Commission will regulate protection clauses for users in contracts for the provision of mobile telecommunications services considering, inter alia, the following rules:

(a) Only periods of minimum stay, penalties or fines for early termination, or automatic extension, shall be established when the user in an independent annex to the contract expressly accepts such a condition;

(b) Operators must submit subscription alternatives to the user who does not impose a certain period of stay;

(c) Operators may not set clauses that limit or exclude the liability of operators.

d) Operators will not have the power to terminate contracts for reasons other than the user's failure to comply, legal causes, force majeure or fortuitous cases.

PARAGRAFO 2o. Operators of all mobile telecommunications services will only be able to store and record data that, according to the rules or guidelines set by the Telecommunications Regulatory Commission, and According to Article 15 of the Constitution, they are considered strictly relevant to assess the economic profile of their holders.

Personal data collected and processed must be relevant, accurate and up to date in a manner that is true to the actual situation of your holder.

Any damage caused by violation of this rule will result in damages according to the civil liability rules, without prejudice to the origin of the guardianship action to protect the fundamental right to the personal intimacy.

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ARTICLE 18. 1341 of 2009 > In the award process the government will have within the selection criteria the maximization of technology transfer, research and development to the country, as well as the generation of internal value added in different forms such as the use of national talent, the contribution of knowledge of the successful bidders to research centers, the production and assembly of pieces, among others.

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ARTICLE 19. LEGISLATIVE IMPLEMENTATION. 1341 of 2009 > The provisions of Law 80 of 1993, Law 72 of 1989, Decree 1130 of 1999, Decree-Law 1900 of 1990 and Law 422 1998, and other rules that modify, replace, or add.

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ARTICLE 20. VALIDITY. This law governs from the date of its publication and repeals the rules that are contrary to it.

The President of the honorable Senate of the Republic,

MIGUEL PINEDO VIDAL.

The Secretary General of the honorable Senate of the Republic,

MANUEL ENRIQUEZ ROSERO.

The President of the honorable House of Representatives,

ARMANDO POMARICO RAMOS.

The Secretary General of the honorable House of Representatives,

GUSTAVO BUSTAMANTE MORATTO.

COLOMBIA-NATIONAL GOVERNMENT

PUBLISH AND EXECUTE.

Dada en Santa Fe de Bogota, D. C., 2 February 2000.

ANDRES PASTRANA ARANGO

The Minister of Finance and Public Credit,

JUAN CAMILO RESTREPO SALAZAR.

The Minister of Communications,

CLAUDIA DE FRANCISCO ZAMBRANO.

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