Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and the rights of users related to the networks and services of electronic communications (universal service directive), in its article 13(1), on the financing of the universal service obligations, establishes that «when, on the basis of the net cost calculation referred to in article 12 (, national regulatory authorities consider that a company is subject to an unfair burden, Member States, on request from a designated undertaking, decide: to) introduce a mechanism to compensate public funds in terms of transparency, that undertaking by the net costs to be determined; (o también b) distribute the net cost of the universal service obligations between providers of electronic communications networks and services '.
On consideration of whether an undertaking is subject to an unfair burden, the transposition in article 39.1 of the regulations on the conditions for the provision of electronic communications services, universal service and the protection of users, approved by Royal Decree 424/2005, of April 15, provides that when the appointment of an operator for the provision of the universal service is carried out in accordance with article 37 (i.e. (, designation by tender) will lead, in the event that the provision for which it has been designated to involve a net cost, the qualification of the operator as a recipient of funds from the National Fund for financing of the universal service or, in absence thereof, of the compensation mechanism between operators established in that regulation.
With this provision the results of the bidding process were consolidated to liberate them from an ex-post evaluation on if the nature of the burden that could assume the existence of a net cost in the provision of service award was justified or unjustified, making prevail the result of this bidding process. However, this possibility is not contemplated in the aforementioned universal service directive.
At the same time, article 47.1 of the regulation approved by Royal Decree 424/2005, of April 15, provides that when, pursuant to article 39, the designated operator is entitled to the financing of the net costs involved in the provision of the universal service, the Commission of the market of telecommunications will launch the funding mechanism for sharing the net cost and be published in the «Official Gazette» the list of operators obliged to contribute, the data concerning this mechanism and the principles applicable to the allocation of costs. Not establishing, as a result, the requirement contained in the 13.1 the policy of universal service for the implementation of the mentioned mechanism to request from a designated undertaking.
Finally, take place settings specific regulation approved by Royal Decree 424/2005 of 15 April, by amending its articles 28 and 29 as a result that the telephone service can already be through networks of access with other new deployment technologies, as well as to simplify the procedure for extension of the period of delivery of the initial connection.
In particular, new access networks based on optical fibers do not allow the supply of electric power from the PBX to the terminals, so this supply must necessarily be from the mains of the own subscriber.
Therefore, by this Royal Decree are modifications mentioned articles 28, 29, 37, 39, 47 and the second transitional provision of the regulations approved by Royal Decree 424/2005, by April 15.
On the other hand, the possibility of conserving phone numbers has become for users an element of great influence to time to decide on the possibility of changing operator of telephone service available to the public. Therefore, this tool comes offering widely by operators as an incentive instrument for the acquisition of new customers.
Chapter IV of the regulation on markets of electronic communications, access to networks and numbering, approved by article 1 of the Royal Decree 2296 / 2004, of 10 December, establishes that public telephone network operators, and the telephone service available to the public, should communicate to subscribers that request it the conservation of their numbers, regardless of who is the operator who provide the service.
Regulation provides, in paragraph 2 of article 44, that requests for change of operator with conservation of numbers must include a notice of the Subscriber to the operator that intends to unsubscribe, in which one communicates their desire to cause low retaining their numbers.
The requirement of a written request of the Subscriber as the only way to prove the desire of this change the operator of telephone service while retaining its number may be an obstacle to the achievement of the purpose by influencing negatively the agility of the recruitment system, especially if we take into account the existence of alternative methods guaranteeing an adequate protection of the rights of the users.
For this reason, through the amendment of article 44 of the regulation approved by Royal Decree 2296 / 2004, of 10 December, expands the procedures to apply for the conservation of numbers in the procedures provided for by Spanish law for the provision of services by the users, allowing in addition to the written application signed, other formulas such as the request made by recognized electronic signature or through systems of verbal verification by independent third-party application.
By virtue, on the proposal of the Minister of industry, tourism and trade, according to the Council of State and after deliberation by the Council of Ministers at its meeting of March 13, 2009, D I S P O N G O: article 1. Modification of the regulation on the conditions for the provision of services of electronic communications, universal service and protection of users, approved by Royal Decree 424/2005, by April 15.
The regulation on the conditions for the provision of services of electronic communications, universal service and protection of users, approved by Royal Decree 424/2005, of April 15, is to be re-worded as follows: one. Paragraph d) of paragraph 1 of article 28 is drawn up in the following way: «Establish sufficient speed data communications for functional access to Internet, according to authorized interfaces.»
Two. Paragraph 2 of article 28 is drawn up in the following way: «the designated operator must have adequate technical resources to ensure the continuity of the fixed telephone service available to the public in situations of interruption of the power supply for a minimum period of four hours. However, connections to the public network provided through technologies which do not allow the power supply from the premises of the operator up to the terminal of Subscriber, the appropriate technical resources to ensure the power network termination equipment will be provided by Subscriber.»
3. Paragraph 4 of article 29 is drawn up in the following terms: "4. the designated operator must satisfy every reasonable request for initial connection to the public telephone network fixed within a maximum of 60 calendar days, starting from its receipt.»
Where to carry out the supply, it is necessary to obtain permits, rights of occupation specific step or any other cause not imputable to the operator, this can deduct delays due to these causes, prior communication containing necessary delays documentary accreditation sent to the applicant by registered mail with acknowledgement of receipt, in which it will inform the applicant of the possibility available to for file claims that refers Article 104.
In the case of not being able to mentioned supply within that period, once discounted the delays referred to in the preceding paragraph, without causes of force majeure or others attributable to the applicant, shall compensate automatically to this, and will exempt him from payment of a number of a monthly payment equivalent to the number of months or part thereof in which it is over that period."
Four. Paragraph 1 of article 37 is drawn up in the following way: «1. in advance of the expiry of the deadline established for the provision of the universal in a given area service, the Ministry of industry, tourism and trade will launch the tender procedure laid down in this article for the designation of operator in that area. "
5. Amending paragraph 3 of article 37, which is drawn up in the following way: «3. any statutory or legal person may submit to the competition. "
6. Paragraph 4 of article 37 is drawn up in the following terms: "4. the Ministry of industry, tourism and Commerce award the contest to the bidder who offers the most advantageous conditions.» Consequently, the company that won the contract will be considered operator designated for the provision of the universal service.'
7. Paragraph 5 of article 37 is drawn up in the following way:
«5. in the event that the contest be declared void, the designation of the operator responsible for the universal service will be held in accordance with the following article.»
8. Article 39 is drafted in the following way: «La Commission of the telecommunications market will determine annually if the provision of the universal service obligation can involve an unjustified burden on operators obliged to your benefit. In the event that there is a net cost in the provision of universal service, but the telecommunications market Commission considers that it does not constitute an undue burden, the resolution thus establishing it must be motivated.»
9. Paragraph 1 of article 47 is drawn up in the following terms: "1. when, pursuant to article 39, the designated operator is entitled to the financing of the net costs involved in the provision of the universal service, the Commission for the telecommunications market, upon request from the operator, it will launch the funding mechanism for sharing the net cost and be published in the"official bulletin of the State"list of required operators to» contribute, data concerning the mechanism and the principles applicable to the allocation of costs.»
10. Paragraphs 2 and 3 of paragraph 1 of the second transitional provision shall be deleted.
Second article. Modification of the regulation on markets of electronic communications, access to networks and numbering, approved by Royal Decree 2296 / 2004, of 10 December.
Paragraph 2 of article 44 of the regulation on markets of electronic communications, access to networks and numbering, approved by Royal Decree 2296 / 2004, of 10 December, is to be re-worded as follows: «2. operators will only be required to cede a certain subscriber numbers when this low as such and, at the same time, high in another operator.» It is understood there is concurrency when the request for high in the new operator carried out by any means that allows the same record, include a request to this to process its low before the former retaining their numbers.»
First final provision. Schools of development.
The Minister of industry, tourism and trade is authorized to enact the provisions necessary for the development and implementation of this Royal Decree.
Second final provision. Skill-related title.
This Royal Decree is issued under cover of the exclusive competence to the article 149.1.21. ª of the Constitution attributes to the State in the field of telecommunications.
Third final provision. Entry into force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
Given in Madrid, March 13, 2009.
JUAN CARLOS R.
The Minister of industry, tourism and trade, MIGUEL SEBASTIÁN GASCÓN