At the end of January 2018, draft amendments to the Telecommunications Act were delivered to the Polish Parliament. The amendments concern premium services, regulations on the permitted forms in which a telecommunications agreement may be executed, as well as a number of minor amendments, such as the abolition of consumer arbitration courts operated by the President of the Office of Electronic Communications and the introduction of a reporting obligation for micro-enterprises.
The proposed amendments will allow the conclusion of agreements for the provision of telecommunications services in written, electronic or so-called document form. Pursuant to article 772 of the Civil Code, the latter means a declaration of will submitted in the form of a document in a manner allowing the identification of the person making such declaration. If an agreement is concluded in document form, the service provider will be obliged to record and deliver the proposed and agreed terms and conditions of the agreement and the subscriber's representation on being bound by such terms and conditions on a durable medium within the meaning of the Consumer Rights Act dated 30 May 2014.
This means that the Minister of Digital Affairs, contrary to the opinion of organisations representing companies from the ICT sector, did not agree to the introduction of the electronic or document form as the presumed form. This is significant because the proposed amendments may lead to the written form of communication remaining the dominant form. Furthermore, it seems that subscribers will obtain the right to demand that the terms and conditions of the publicly available telecommunications services be sent to them (also in the written form) at any time during the term of the agreement, and not only upon its conclusion or upon the introduction of amendments to such terms and conditions.
Premium services will also see significant changes. There will be a number of new obligations related to information provided upon submitting to the President of the Office of Electronic Communications a notification of the provision of such services (entities that already provide premium services will also be subject to such obligations), including an obligation to obtain the subscriber's consent to the provision of such services immediately before starting to provide them. Furthermore, telecommunications operators will be obliged to implement a mechanism that will allow subscribers to set a maximum threshold for premium services. Once such threshold is reached, the operator will be obliged to block premium service numbers, or otherwise incur such costs. The register of numbers used for the provision of premium services, which is maintained by the President of the Office of Electronic Communications, will also be subject to change. An operator will not be allowed to provide premium services to non-registered entities. Should this prohibition not be complied with, the operator may be fined up to 3% of its revenue generated in the preceding calendar year.
The amendments would also allow the President of the Office of Electronic Communications to order telecommunications operators to immediately block access to premium numbers or services (and not collect fees) and the providers of such services to refrain from providing them. It will be possible to take such decision in any situation in which the President of the Office of Electronic Communications determines it as “justified for the protection of end users against abuse with the application of the telecommunications network”. Moreover, such decision will be subject to immediate enforcement.
The amendments introduced with respect to premium services were proposed as a result of irregularities and abuse on the market. However, it is clear that their implementation (especially when considering the short vacatio legis period) will constitute another burden for telecommunications operators both as regards additional costs involved in introducing the relevant changes in ICT systems as well as within the scope of additional risks related to the necessity to perform ongoing checks of the register of numbers used for the provision of premium services. The changes will also introduce a significant risk for entities providing premium services, as the President of the Office of Electronic Communications will be able to take discretionary decisions ordering that the provision of such services be suspended.
As the above refers to the draft, subject to the parliament debate, its individual provisions may be subject to change.