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Home : ITU-D : Europe and CIS Region : Broadband Infrastructure
   
Legislative Know-How: Local Governments
 

The aim of the activities taken under the fourth priority is the mobilization of local authorities and their associations to develop access to telecommunications, which is one of the key needs of modern society and knowledge-based economy.

In practice, activities making by local government units in the area of telecommunications are widely reported because of the legal basis for implementing such tasks as the tasks of their own government and thus the validity of public spending. Therefore it is required to review the constitutional laws of local government units and to define them clearly and transparently to the tasks of the telecommunications incumbent on those units and, where appropriate, to allow the conduct of their business as a telecommunications business under certain circumstances (eg.: paid access to the public network for anyone interested in business).

What is more, the law should establish clear legal framework of interference on the market under the rules on competition, not to create local monopolies and the distortions of competition, given that - especially the local community - has an advantage over private operators, having unlimited access to the vast land and buildings and infrastructure of government at the disposal of government agencies (water, sewerage), as well as deciding on the location of telecommunication investment (local plans, decisions on building and land development, permit the location in the Motorway and areas protected by the law of the  water, etc.).

Notwithstanding the establishment of rules to intervene in the telecommunications market, the clear guidelinges for interested operators to share infrastructure should be set out, realized with the participation of public funds, regardless of their source. Currently there are no such regulations, or rules are so ambiguous that often they are not encouraging in the implementation of the investment, which is perceived as an additional problem (for example, defined in the Act on public roads, the principle of sharing technological channels, or the lack of rules for determining the situations in which the concession contract works or services may grant the concessionaire the right to use the public telecommunications network or a monopoly in providing publicly available telecommunications services using a shared purpose in the public telecommunications network).

In this context, the role of the regulator or competition authority and the consumer should be strengthened, and the regulator should be based on available information, and information gathered in the framework of preparation for the implementation of interventions (eg.: in feasibility studies of individual projects), to be able to give opinions on the merits of specific interventions. In addition, they should be disseminated examples of good practice in determining selection criteria and conditions for provision of public infrastructure telecommunications businesses.

An extremely important issue, especially for investment in telecommunications infrastructure, which requires constant investment in its expansion, modernization and maintenance, and specialized knowledge to ensure optimum utilization, it is the realization of the tasks conducted by local government units together with individuals who have knowledge and experience in telecommunications operations, as well as financial capacity expansion and modernization of the infrastructure provided by local government units in most cases as a passive infrastructure. Therefore, the legal system should be consistent and unambiguous rules for making such joint initiatives and the development of contractual relations between partners. Meanwhile, the Polish legal system does not meet these requirements, and applicable from a few days law on the concession contract or service, only deepen the existing doubts. First, it does not specify clearly the relationship of this Act to the Law on public-private partnership, the individual risk of burdening settle this question. Secondly, it does not specify clearly the relationship of this Act to the Public Procurement Act, because the criterion of the border it is difficult to establish the coincidence if the concessionaire bears the economic risk of exercise of concessions, which the grantor will have to individually determine in each case with the awareness penalty money for their mistake and failure of the Law on Public Procurement, which can create pressure on the use of public procurement law in situations in which the concession contract would be justified. Thirdly, the vagueness of definition of service concessions do not allow to determine clearly what is being covered by the law of such a concession to use. Fourth, it is defectively constructed the exclude of application of the Public Procurement Act and the law on concessions in the area related to the activities of telecommunications, in a manner not understandable by making the exemption from the obligations of these laws on the circumstances, whether the grantor or contracting, or have already started the activities in the field of telecommunications, or public contract or concession agreement is to serve only the commencement of such activity. Fifthly, the Act does not allow to determine clearly whether and when the license is linked to the exclusive right to use the facility or service, which is essential for competition in the telecommunications market. Sixthly, the Act prevents the inclusion of the provisions of the concession contract transferring ownership of a telecommunications network to the concessionaire after the concession period, which can significantly limit the usefulness of this institution to carry out the tasks common in the telecommunications sector (lack of such a possible disincentive to the expansion and modernization of infrastructure available and raises the problem of ensuring continuity of service to subscribers of the original concessionaire, if the network was to be followed by another period made available to another concessionaire). Above doubts broadly described attached to these assumptions.

 

The Assumptions Proposed in the Priority IV

 

The Law on access to telecommunications development within the country and changes in the Local Government Act, the Act on Local Self-county, the law on local government region.

  1. Introduction to own tasks the tasks in the area of telecommunications, especially related to the passive infrastructure, broadband and digital exclusion and the decommissioning of land-use areas of telecommunications lands subordinate sovereignty of these entities. Determination of the basic rules of conduct of such business, especially through the use of EU funds.

  2. In some cases ppproval the actiivities carried out by n the area of telecommunications related to the provision of telecommunications infrastructure and their compounds, may in its area to build and operate telecommunications infrastructure. To this end, they may also acquire the telecommunications infrastructure, including telecommunications networks and the right to use such infrastructure.

  3. Local government units shall make available to the telecommunications businesses, the telecommunications infrastructure built with the public fund . The activities of local government units and their relationship ensures sharing built or acquired telecommunications infrastructure on an equal footing (so-called principle of open network), while maintaining the objective, transparent and non-discriminatory procedures. Networks built should maintain the consistency of the technical, standardization and topographic networks with other initiatives undertaken with public entities. Local government units are required to ensure the ability of operators to join the infrastructure built by the infrastructure.

  4. Operators are required to provide the possibility of connecting infrastructure to the infrastructure operated by them.

  5. In exceptional cases, justified, in particular digital exclusion, for which there are no real prospects for the elimination of market forces in a reasonable period of time (lack of alternatives), the provision of telecommunications infrastructure and their compounds, there is an exemptions from the application of open network for the exclusive rights granted under the concession contract or a public-private partnership, but this does not apply to the infrastructure financed by public funds, in particular from EU funds.

  6. In exceptional cases, allowed to provide telecommunications infrastructure and their unions for a price lower than cost price, if the establishment of telecommunications networks or activities Operator is not profitable. In such situations, is also allowed grants for projects of general interest tasks of ensuring the provision of publicly available telecommunications services.

  7. Information on planned projects telecommunications-related activities require the prior publication and notification to the regulatory authority.

  8. Territorial self-government units and their associations may provide publicly available telecommunications services to end users only after finding insufficient interest of telecommunications companies providing such services to prevent end-user needs in this area (private initiatives are not sufficient to cover the demand). In this case, local governments and their associations are obliged to inform the President of UKE of its intention to provide such services. The activities of local government units in this area must be conducted on objective, transparent, proportionate and non-discriminatory basis.

  9. Local government units and their associations leading telecommunications business shall apply to the rights and obligations provided for this activity.

  10. The same entity can not simultaneously pursue telecommunications business and be responsible for granting rights of way (in the current state of the law apply to county, because the governor issued an authorization to occupy other people's property for the construction of telecommunications infrastructure - Art. 140 Pt and 124 ugn) . Expenditures and revenues related to the construction of public telecommunications networks and telecommunications activities implemented by local governments or their compounds are recorded in separate accounts.

  11. Giving the regulatory authority the possibility of settlement or mediation in disputes concerning the technical and tariff conditions for carrying out telecommunications activities and their compounds, as well as relating to the construction, communication and distribution of telecommunications infrastructure and their compounds.

  12. Local government units and their associations and telecommunications companies inform the President of UKE, the technical and tariff conditions are questionable, as well as provide a record of expenses and revenues related to the telecommunications operations of the dispute.

The Law on access to telecommunications development within the country and changes in the law on public procurement and the law on concessions for works or services.

  1. Elimination of the risk of public entities associated with the choice of procedures for the implementation of common tasks with private entities, by clarifying the areas of application of the Law on Public Procurement, Law on concessions for works or services and the law on public-private partnership, as well as other civil law contracts.

  2. To rationalize the telecom-related exclusions from the application of the Public Procurement Act and the Act on the concession contract or service and to adapt them to the so-called: Classical Directive (2004/18/EC).

  3. The removal of differences in interpretation related to the determination the subject of concession, the essence of service concessions and issue exclusive right to use.

  4. The release under strict conditions including the specific commitments (eg.: with regard to further access to such infrastructure or services from its use to anyone interested in the company, as well as to make concessions over a certain level of spending on the infrastructure of their own) transfer the ownership of telecommunications infrastructure concessionaire executed or made available under the concession contract for works or services.

The Act on Public Roads

  1. The imposition on the road managers duty to implement technological channels in accomplishing the construction or expansion of public roads.

  2. Clarifying the rules of the feeds and the technology to interested entrepreneurs to improve coherence of the features described above, the rules of business of the local government units in the competitive telecommunications market.

 

 

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Updated : 2011-06-24