Royal Decree 381/2015, May 14, Whereby Measures Against Illegal Trafficking And Irregular Traffic For Fraudulent Purposes In Electronic Communications.

Original Language Title: Real Decreto 381/2015, de 14 de mayo, por el que se establecen medidas contra el tráfico no permitido y el tráfico irregular con fines fraudulentos en comunicaciones electrónicas.

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-5854

In the field of electronic communications services there are agents that develop activities aimed at obtaining an improper economic profit, ranging from simple opportunistic uses of commercial offerings of the operators, through actions involving administrative offences, to others that involve illegal activities, both related to own telecommunications services as with other related services, such as the commercialization of content or the terminals and user equipment.

These activities may take different forms, which evolve with time, being the most common which take advantage of the chain of payments for services or content supported by telecommunications networks involving the granting of credit by an operator to a third party, either another operator or an end-user, often it is unpaid.

Thus, these communications often characterized by being generated and prolonged artificially in order to obtain a profit from the chain of payments of invoice. Initially these practices were associated with services of high pricing, which offer higher profit margins, however extending currently to all kinds of services and numbers through massive calls generation techniques, increasing the economic damage to operators and users and causing them to generate problems of quality of service, and even put at risk the security and integrity of networks and services because of the high occupation of resources caused.

In addition, when these practices involve not permitted uses of public resources of numbering, not only constitute a violation of the national legislation specific that can be addressed by an adequate control of the use of the numbering, but can reach compromise international agreements signed by both operators and their own Kingdom of Spain when misuse of international numbering is done.

The Commission for the telecommunications market, agency currently integrated in the National Commission of markets and competition, approved various resolutions to authorise individually to the operators for proceeding with the blocking of traffic in certain cases, as well as a resolution of 5 September 2013, which approves a common procedure for the suspension of the interconnection of numbers by irregular traffic.

Article 51 of the law 9/2014, May 9, establishes General of telecommunications in its second paragraph that, by Royal Decree, the conditions under which operators of public networks of electronic communications or electronic communications available to the public services carry out the blocking of access to numbers or services whenever it is justified by reasons of traffic not permitted and irregular traffic for fraudulent purposes shall be established , and cases in which providers of electronic communications services withhold corresponding revenues for interconnection or other services.

For its part, article 19 of this law establishes the General principles of numbering, addressing and naming of electronic communications services.

Therefore, it is necessary to adopt policy measures against illegal trafficking and irregular traffic for fraudulent purposes, both aimed to eliminate the incentives for these practices and to ensure the correct use of numbering public resources, while ensuring the quality of electronic communications services and, especially, the integrity and security of electronic communications networks and services.

For the purposes of this Royal Decree, there are two types of traffic not permitted, on the one hand, not allowed traffic that used unauthorized numbering and, on the other hand, illegal traffic that makes improper use of the numbering.

Not allowed traffic that used unauthorized numbering which have origin or destination in public of numbering resources that have not been attributed, enabled or assigned in accordance with the relevant national and international numbering plans is considered. This type of traffic, which can be identified by their technical characteristics, must be blocked by operators as soon have evidence of the same.

At the same time, illegal traffic that makes improper use of the numbering is that using numbering is attributed or enabled and assigned, responds to misuse this numbering, even though such circumstances cannot be established a priori, but a case-by-case analysis their specific circumstances.

Finally, irregular fraudulent purposes, which is generated, induced or prolonged artificially, as well as caused by unsolicited commercial communications or traffic by non-consensual monitoring systems or user terminals, in order to make abusive or fraudulent use of networks and services, is that equally only be ascertained after a case-by-case analysis the specific characteristics of the traffic.

For all types of illegal trafficking and irregular traffic pointed out, is established that operators must be able to identify the existence of this kind of traffic on networks that operate and the services provided, as step prior and indispensable to carry out appropriate actions against this traffic, in particular when required them by the administration.

Operators should block transmission to other operators or providers not allowed traffic that uses numbering not authorised as soon as they identify, being forced to identify at least the traffic when it is generated in their networks and with destination of numbering resources belonging to national plans.

For cases of illegal traffic that makes improper use of the numbering and irregular traffic for fraudulent purposes, articulated staggered performances that begin with a request of the operator affected to the Secretary of State for telecommunications and the information society so that it check if there is a not allowed traffic making improper use of the numbering or irregular traffic for fraudulent purposes , and authorize the blockade of these communications.

In order to expedite the taking of measures by operators, expected the authorization criteria for the implementation of specific procedures so that operators, after an evaluation case-by-case basis, can withhold payments related to this traffic as well so they can block the traffic addressed to individual numbers.

As for the case of illegal traffic that makes improper use of the numbering for the traffic irregular fraudulent purposes, is considered the possibility of actions initiated by the operator to have their origin in a conflict between operators in terms of access or interconnection, corresponding in such cases to the National Commission of the markets and competition resolve about them under its powers in the matter.

On the other hand, it is expected that the Secretariat of State of telecommunications and the information society can adopt measures require operators to take relevant measures, in order to ensure the integrity and security of networks and electronic communications services, the quality of the provision of electronic communications services and precautionary , or specific rights of the users of telecommunications, among other objectives, to which operators must be able to identify illegal trafficking and irregular traffic in networks that operate and services that provide.

On the other hand, expected the adaptation of agreements for access and interconnection between operators in order to incorporate the necessary provisions for the implementation of the present Royal Decree, specifying that the lack of adaptation of the agreements does not exempt from compliance with provisions of the same, whose provisions will be effective from the moment of its entry into force.

Finally, provided that operators who had implemented procedures or systems previously approved by the Commission for the telecommunications market or the National Commission of markets and competition for the suspension of the interconnection of numbers by irregular traffic, may continue to use them for one month after the entry into force of this Royal Decree, while operators requesting the authorization of criteria for the implementation of systems or procedures as set out in this Royal Decree can continue using these previously approved procedures until the State of telecommunications and the information society Secretariat resolved on this application.

The measures contained in the present Royal Decree are issued in accordance with articles 19 and 20, and paragraph 2 of article 51 of the law 9/2014, of 9 may, General Telecom.

This Royal Decree is issued under cover of the exclusive competence of the State in the field of telecommunications, recognized in article 149.1.21. ª of the Constitution.

By virtue, on the proposal of the Minister of industry, energy and tourism, with the prior approval of the Minister of finance and public administration and in accordance with the Council of State and after deliberation by the Council of Ministers at its meeting of May 14, 2015, have:
Article 1. Object and scope of application.

1. the present Royal Decree establishes measures and actions to prevent and avoid the traffic that has source or target in public of numbering resources that have not been attributed, qualified or assigned; certain types of traffic contrary to the provisions of attribution, qualification or national and international numbering resource allocation; as well as the irregular traffic for fraudulent purposes in public networks and services of electronic communications available to the public.

2. the present Royal Decree applies to operators who exploit public electronic communications networks, or provide available electronic communications services to the public.

3. the objectives of the present Royal Decree are to protect the integrity of the networks and the security of electronic communications services and networks, ensure quality in the delivery of electronic communications services and guarantee the rights of users. It is also intended to reduce the economic damage suffered by operators and users alike.

Article 2. Concept of traffic not allowed.

1 a the effects of the present Royal Decree, there are two types of traffic not allowed: to) illegal traffic that used unauthorized numbering.

(b) illegal traffic that makes improper use of the numbering.

2 is considered illegal traffic that used unauthorized numbering which have origin or destination in public of numbering resources that have not been attributed, qualified or assigned, belonging to the following plans and instructions on numbering resources: a) the national telephone numbering plan, approved by Royal Decree 2296 / 2004, of 10 December, b) instructions on the use of public of numbering resources for the provision of short text messages and messages multimedia, established in the order ITC/308/2008, of 31 January, c) international numbering plan described in the recommendation E.164 of the Sector of telecommunications of the Union International of Telecommunication Standardization (ITU-T), in the latter case including codes of country or international network that have not been allocated by ITU-T, the ranges of numbers that have not been notified by relevant authorities through the newsletter of exploitation of the ITU-T, and targets identified by dialling procedures contrary to in the corresponding attached list of the quoted newsletter.

(d) any other numbering plan to be determined by order of the Ministry of industry, energy and tourism.

3. is considered disallowed traffic making improper use of the numbering which have origin or destination in public of numbering resources of the plans identified in the preceding paragraph have been assigned and which makes use of those resources contrary to the conditions of use laid down in the relevant provisions of attribution, qualification, or application.

Article 3. Concept of irregular traffic for fraudulent purposes.

1. for the purposes of this Royal Decree, are considered irregular traffic which has characteristics that differ significantly from typical traffic patterns studied under ordinary operation of the network or the services corresponding to business generally accepted practices in the provision of services of electronic communications, in aspects such as its volume, number of connections or distribution time for specific sources, destinations, routes or geographical areas.

2. the irregular traffic will be fraudulent purposes when it is generated, induced or prolonged artificially in order to profit, direct or indirect, of the chain's billing of payments in the provision of services of electronic communications available to the public.

En_particular will be the consideration that, fulfilling the above conditions, pick, among others, the following assumptions: a) the based on the depletion of balances or credit limits of certain users through communications directed to certain destinations and routes, b) based on the abusive use of bonds, rates flat or similar charging schemes aimed at end users for fictitious traffic generation or by making it available to third parties in conditions contrary to ((as provided for in the contracts, c) the caused or induced by unsolicited, communications or d) the caused by manipulation or non-consensual control systems or user terminals.

Article 4. Identification of illegal trafficking and irregular traffic for fraudulent purposes.

1 all operators should be able to identify the disallowed traffic using numbering not authorized, when you have source in their networks and target public numbering resource to which paragraphs are to), b) and d) of article 2(2).

2. operators may implement procedures and systems that allow you to identify the types of traffic that obey to the concepts listed in articles 2 and 3, based on the characteristics of the traffic, and act on them, in particular retaining the corresponding payments of interconnection, access or interoperability, or blocking the transmission of certain types of traffic, as provided for in the following articles.

3. by order of the Ministry of industry, energy and tourism may set requirements that must be satisfied by such procedures and systems and, where appropriate, the obligation to undergo an audit periodically by an external entity, as well as requirements that must comply with auditing bodies and the criteria for conducting the audits.

4. operators intending to implement such systems or procedures shall notify it to the Secretary of State for telecommunications and the information society, detailing the criteria used to identify the different types of traffic, and shall make available all the information about its characteristics and operational, that they must be properly documented and developed to allow both its inspection by the relevant services of the Administration , as their auditing by an external entity.

5. within a maximum period of three months from the receipt of the notification referred to in the preceding paragraph, the Secretary of State for telecommunications and the information society will dictate it reasoned ruling, authorizing or denying the use of reported criteria. Such authorization is prerequisite for putting in operation of abovementioned procedures and systems.

After the term that refers to the previous paragraph without that has relapsed express resolution, should be understood rejected the request, without prejudice to the obligation of the State Secretariat for telecommunications and the information society expressly resolve.

Optional replacement appeal may be brought against the resolutions, which exhausted the administrative channels, to the same authority that has rendered it on within a month from the day following its notification, in accordance with articles 116 and 117 of the law 30/1992, legal regime of public administrations and common administrative procedure , either be challenged directly before the competent authority in the judicial order of contentious within the period of two months from the day following the notification, unless both resources can be simultaneous.

In addition, subsequent to the commissioning, the Secretariat of State of telecommunications and the information society may issue binding instructions relating to these systems or procedures, designed to ensure the effective enforcement of the provisions of this Royal Decree or in its development provisions.

Article 5. Proceedings before the illegal traffic that used unauthorized numbering.

The operators identified on their networks or services not permitted traffic that used unauthorized numbering should block its transmission to other operators or suppliers, and shall so notify the Secretary of State for telecommunications and for the information society, as well as the operators and service providers this blockade which maintain a contractual relationship affect that.

These notifications must be made within a maximum of two business days from the time of the identification of illegal traffic that uses numbering not authorized by the operator. The notification to the Secretariat of State of telecommunications and the information society, it shall show the time of identification of illegal traffic that used unauthorized numbering as well as, where appropriate, information attesting to the moment in which the traffic began to occur, if both acts were not simultaneous.

Article 6. Actions not allowed traffic making improper use of the numbering or the irregular traffic for fraudulent purposes.
1. operators identified in their networks or traffic services that consider that it can respond to the event of illegal traffic that makes improper use of the numbering or irregular traffic for fraudulent purposes may submit a reasoned request requiring authorization for provisional blocking of such traffic transmission, addressed to the Secretariat of State for telecommunications and the information society , or in any of the places mentioned in article 38.4 of law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure, through the electronic of the Ministry of industry, energy and Tourism Office.

In this application, the operator must provide the reasons as well as the information which is available to justify that affected traffic should be considered as illegal traffic that makes improper use of the numbering or irregular traffic for fraudulent purposes, including the indication of the time of his identification by the operator and, where applicable information attesting to the moment in which the traffic began to occur, if both acts were not simultaneous.

The Secretariat of State of telecommunications and the information society will resolve such requests and notify the resolution adopted within a maximum of three months, authorizing or denying the blocking of the transmission of traffic, and for that purpose may collect report to the National Commission of markets and competition on the impact of the blockade applied in the former regulation before the markets , and may take measures precautionary authorizing the blocking of the transmission of traffic.

After the term that refers to the previous paragraph without that has relapsed express resolution, should be understood rejected the request, without prejudice to the obligation of the State Secretariat for telecommunications and the information society expressly resolve.

Optional replacement appeal may be brought against the resolutions, which exhausted the administrative channels, to the same authority that has rendered it on within a month from the day following its notification, in accordance with articles 116 and 117 of the law 30/1992, legal regime of public administrations and common administrative procedure , either be challenged directly before the competent authority in the judicial order of contentious within the period of two months from the day following the notification, unless both resources can be simultaneous.

2. Alternatively to the provisions of the preceding paragraph, operators who identify not allowed traffic making improper use of the numbering or traffic irregular purposes fraudulent procedures or systems referred to in article 4 may, after an evaluation case-by-case basis, retain payments the same, applying the holding from the time of the identification of the traffic or in the event that the moment of identification is later to the production, from the moment in which attest that traffic began to occur, with a period of thirty calendar days prior to the date of identification, unless in its interconnection agreements, access and interoperability they agree to a different period.

In addition, such operators, after an evaluation case-by-case basis, may block temporarily traffic aimed at individual numbers that correspond to specific sources, destinations or contractual relationships, in accordance with the criteria approved by the Secretary of State for telecommunications and the information society, as set out in article 4.

The operator carrying out payments on hold or blocking traffic liable against possible claims of the holders of the number affected by the possible damages caused by the blockade.

When operators made payments on hold or blocking of transmission of traffic as set out in this paragraph, they shall notify the operators and service providers that affect this traffic to maintain a relationship contract, as well as to the Secretary of State for telecommunications and the information society providing the information necessary to identify the affected traffic in the latter case the criteria used in evaluation and measures concrete adopted. These notifications must be made within a maximum of two business days from the time of the identification of the traffic by the operator. At all times the operator may provide supplementary or additional information that allows to identify more accurately the affected traffic.

Within a maximum period of three months from the time of receipt of notification of payment on hold or blocking of transmission of traffic referred to in this paragraph, the Secretariat of State of telecommunications and the information society can bring a record to monitor the measures taken by the operator, as a result of which may order the cessation of the transmission of traffic blocking and , where applicable, the implementation of the payment of the amounts that would have been withheld, increased with the legal interest of the money. In addition, the Secretariat of State of telecommunications and the information society may adopt measures precautionary requiring operators who do not proceed to retention payments, the blocking of the transmission of traffic or both measures simultaneously.

3. operators must provide any additional information that is required to by the Secretary of State for telecommunications and the information society in relation to the events of identification of illegal traffic that a misuse of numbering or irregular fraudulent purposes traffic, or corresponding measures, either as a complement to the information you have submitted in notifications made in accordance with this article or in relation to notifications made by other operators.

The Secretariat of State of telecommunications and the information society may establish the content and format in which notifications and supplementary information required must be submitted.

4. If the processing of the records referred to in the preceding paragraphs shows that requests or notifications have their origin in a conflict between operators in the field of access or interconnection, the National Commission of markets and competition will solve over ends object of the conflict, in accordance with that stated in article 15 of the law 9/2014 , 9 may, General Telecom.

Article 7. Measures and actions upon request of the administration.

The Secretary of State for telecommunications and the information society may at any time, officially, in accordance with the procedural formalities and deadlines in article 6.1, operators require measures of blocking of the transmission of traffic, retention of payments or both simultaneously in relation to irregular traffic or traffic not allowed (, and, where appropriate, adopt precautionary measures with the objectives of: to) ensure the integrity of the networks and the security of networks and electronic communications services.

(b) guarantee the quality in the provision of electronic communications services.

(c) ensure the specific rights of the users of telecommunications.

(d) control the use of the assigned numbering, in particular to ensure the fulfilment of the conditions linked to the use of the public resources of numbering established in the plans and instructions referred to in article 2.

(e) ensure the implementation of commitments in the field of telecommunications by the Kingdom of Spain in international bodies, in particular with regard to the fulfilment of the conditions linked to the use of the public of international numbering resources described in the International Telecommunication Union E.164 recommendation.

Operators must be able to identify the networks that operate and the services provided, the traffic that relate the measures to ensure its effective enforcement.

First additional provision. Maximum duration of traffic crashes.

Operators that block traffic in accordance with article 6 may maintain the blockade for a maximum period of twelve months, unless the Secretary of State of telecommunications and the information society resolved by setting the application of a different term. After this deadline, operators may not apply blocking. A different maximum duration, which may be different depending on the type of traffic involved may be fixed by order of the Ministry of industry, energy and tourism.

In addition, operators may not apply blocking if there is a change in the ownership of the Subscriber of the affected individual numbers and so requested by the recipient of the same operator, as well as when such numbers are assigned to another operator.

Second additional provision. Interconnection, access and interoperability agreements.
1. the arrangements for interconnection, access and interoperability among operators held in accordance with provisions of law 9/2014, of 9 may, General of telecommunications and the regulation on markets of electronic communications, access to networks and numbering, approved by Royal Decree 2296 / 2004, of 10 December, will be adapted to the provisions in the present Royal Decree and its development provisions.

In particular, such agreements must describe the procedures that apply to the blocking of traffic, retention payments and notifications to other operators or service providers.

By order of the Ministry of industry, energy and tourism may be the requirements that have to contemplate such agreements when, to ensure compliance with the provisions of this Royal Decree, the collaboration between operators with contractual wholesale relationships is needed.

The lack of adaptation of the agreements does not exempt from compliance with the provisions of this Royal Decree, whose provisions will be effective from the moment of its entry into force.

2. the National Commission of competition and markets means of disputes between operators in the negotiation of these agreements.

Third additional provision. Limitation of expenditure.

The measures included in this standard may not assume increased allowance or remuneration of other staff costs.

First transitional provision. Modification of the agreements for interconnection, access and interoperability between operators.

Within the period of four months from the entry into force of this Royal Decree, operators referred to in article 1 be reviewed and if necessary amended interconnection agreements, access to networks and interoperability of services, in accordance with the provisions of the second additional provision and its associated resources.

Second transitional provision. Procedures previously approved by the administration.

Operators who had implanted procedures previously approved by the Commission for the telecommunications market or by the National Commission of markets and competition for the suspension of the interconnection of numbering irregular traffic, may continue to use such procedures before the National Commission of markets and competition under the same conditions that were doing for a month following the entry into force of this Royal Decree.

However, operators requesting the authorization of criteria for the implementation of systems or procedures as set out in article 4 of the present Royal Decree within the period of one month after its entry into force, may continue to use such previously approved procedures until the State of telecommunications and the information society Secretariat resolved on this application.

First final provision. Skill-related title.

This Royal Decree is issued under cover of the exclusive competence of the State in matters of telecommunications, recognized in article 149.1.21. ª of the Constitution.

Second final provision. Regulatory development and implementation.

The Minister of industry, energy and tourism will dictate, in the scope of their powers, many provisions and measures necessary for the development and implementation of provisions of the East Royal Decree.

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 on 14 may 2015.

PHILIP R.

The Minister of industry, energy and tourism, JOSE MANUEL SORIA LOPEZ