All questions
Telecommunications and internet access
i Internet and internet protocol regulation
The Telecommunications Act is a comprehensive regulation on the principles of the provision of telecommunications services, the implementation and supervision of activities involving the provision of telecommunications networks or related facilities (clause 1(1) of the TL). Telecommunications services using the Internet and based on IP addresses are subject to the rules of the TL to the same extent as other services. For the application of TL, it will not matter whether this entity provides services through its own network, another operator’s network, or sells the telecommunication service provided by another service provider on its own behalf and at its own expense (Article 2). (1) Clause 41 of TL). Therefore, the aforementioned services are regulated similarly to traditional telephony. This will not change under the ECL, although it also applies to number-independent interpersonal services.
ii Universal service
TL universal service is a set of telecommunications services available on the territory of the Republic of Poland, provided in any technology, of good quality and at an affordable price, including facilities for disabled people (Article 81(1) from TL). Currently, the universal set of services includes voice, fax and data transmission, including the connection of a network termination at a fixed location, which allows functional access to the Internet, the speed of which allows the use of frequently used programs in small pressing matters of everyday life; in particular, the use of e-mail or programs that allow making payments (Article 81(3)(1) of the TL).
Currently, a set of universal services includes connecting a network termination point that can support functional Internet access at a fixed location, voice, fax, and data communications, including those that support the use of common applications to solve current daily life issues, especially those that support e-mail or payments. using programs (clause 1 of article 81(3) of the TL).
One of the biggest and most important changes among the rules made in the ECL will be in the area of universal service regulation. Universal service 314 etc. It is regulated by Article. ECL. The new universal service will consist of “adequate broadband internet access service” and “voice service”. Neither the EECC nor the ECL directly define what the bandwidth required for such a connection would be – this should be determined individually by each Member State according to national circumstances. These services will be aimed at consumers with low income or special social needs. In both cases, the President of UKE will carry out appropriate analysis when appointing the entrepreneur or entrepreneurs to provide these services. The service charge surcharge will only be available to “designated” entrepreneurs and not to all potentially committed entrepreneurs. The obligation to offer special social packages is additionally connected with certain restrictions on concluding and canceling contracts with subscribers.
iii Limitations on Provision of Service
The price of the services may be adjusted within the reference offer. The President of the UKE may, by a decision, oblige an operator with significant market power to prepare and submit a draft reference proposal for telecommunications access within a certain period of time, the details of which shall be specified in the decision. (Article 42(1) of the TL and Article 199 of the ECL). The operator on whom the obligation is imposed must conclude telecommunication access contracts with conditions no worse than those specified in the approved offer for other parties to the agreement or determined by the President of UKE (Article 43(6) of the TL and Article). 200(7) of the ECL).
Telecommunications legislation does not, in principle, regulate the rights of a telecommunications operator to restrict or prioritize network access based on content. The president of UKE may order the blocking of access to numbers or services if justified by the protection of end-users from misuse of the telecommunications network (Article 79b of the TL and Article 307 of the ECL). As a general rule, a telecommunications enterprise cannot control the content, applications and services accessed by its users.
The President of the UKE may, by means of a decision, oblige the operator with significant market power to take into account the justified requests of the telecommunications enterprises regarding the provision of access to telecommunications, including the provision of network elements and related facilities, in particular, the use. taking into account the level of competitiveness of the retail market and the interest of end users (Article 34 of the TL and Article 199 of the ECL). In addition, the President of the UKE may also, by means of a decision, impose an obligation to treat telecommunications enterprises in the same way with regard to access to telecommunications (Article 36 of the TL and Article 192 of the ECL).
In addition, the TL stipulates a number of requirements related to the contract for the provision of telecommunication services, such as the form (Article 56(2) of the TL) and the elements it should contain (Article 56(3)). TL) A similar regulation is provided in Article 252 of the ECL. The ECL clarifies the inclusion of the essential requirement specified in this article into a single document. Pre-contractual information and a brief summary of the terms of the contract are also part of the contract concluded with the consumer. The ECL includes additional rules in this area (Article 253 of the ECL, etc.). The Polish legislature exhibits some inconsistencies in the implementation process of the EECC. While working on the ECL, the Parliament amended the TL by adding articles 56(1)–56(3) regarding termination, automatic extension and informing the subscriber about the most advantageous tariff packages offered.
Additional requirements relate to the terms (Article 57 of the TL and Article 262 of the ECL) and the possibility of changing or canceling its terms (Article 60a of the TL and Article 270 of the ECL).
The law also contains legal requirements for the regulation of the provided services (Articles 59 and 60 of the TL and Article 254 of the EKL).
Regarding the restriction of unsolicited transfers through terminal equipment (telephone, fax, e-mail or SMS), the TL stipulates their use with the prior consent of the subscriber or user (Article 172 of the TL and Article 360 of the ECL). The provisions on the protection of personal data apply to obtaining the consent of the subscriber or the end user (Article 174 of the TL and Article 362 of the ECL). The provisions of Article 360 of the ECL provide for the protection of end users from prosecution in connection with direct marketing or transmission of unsolicited commercial information. The provisions will replace the mandatory rules of Article 10 of the Law of July 18, 2002 on the provision of electronic services (Journal of Laws of 2020, Article 344) and Article 172 of the TL.
iv Privacy and data security
The telecommunications entrepreneur is obliged to perform the tasks and duties within the scope and conditions provided for in the Law of Ukraine and other acts for the sake of defense, state security and public safety and order. Obligations in this regard are regulated by the provisions of Article 176. of TL (Article 50 of EKL, etc.).
In accordance with Article 179, Clause 3, Clause 1 of the TL (Article 51, Clause 1 of the ECL), obtaining and recording telecommunication transmissions (up to the last date of transmission or reception) of the telecommunications enterprise is obliged to provide technical and organizational conditions for user) or telecommunications terminal equipment and information maintained by an entity related to telecommunications transmission for the needs of special services (such as the Homeland Security Agency or Border Patrol).
In addition, the telecommunication enterprise is obliged to fulfill its duties within the framework of data storage (Articles 180a-180c of the TL and 55-56 of the ECL). These duties apply to data generated in the telecommunications network or processed by the telecommunications enterprise. It should be noted that security and protection obligations are also included in other legal acts.
According to the provisions of the TL, the provider of telecommunication services in general use is obliged to implement appropriate technical and organizational protection measures to ensure the security of personal data processing (Article 1741 of the TL and Article 363 of the ECL). The provider of telecommunication services open to the public shall inform the president of the UODO about the personal data breach (article 174a(1) of the TL and article 364 of the ECL) no later than 24 hours after the discovery of the personal data breach. If all the required information is not known within this period, the supplier must send an initial notification within 24 hours and a second notification as soon as possible and no later than three days after the initial notification. If this deadline cannot be met, the supplier must provide the information available to them within three days and explain the reason for the delay in providing other information (Article 2 of Commission Regulation (EU) No. 611/2013 of 24 June 2013). .6 The provisions of the Law dated May 10, 2018 “On Personal Data Protection” are applicable to the supervision of the fulfillment of obligations by the provider of telecommunications services open to the public by the President of the Personal Data Protection Office. TL obliges the provider of telecommunication services in general use to register personal data breaches, including the facts accompanying the violations, their consequences and measures taken (Article 174d of TL and Article 367 of ECL).