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Trends and developments
What is the current state of the telecoms market in your jurisdiction, including any trends and recent developments/deals?
The Argentine telecoms market is facing a period of change. After more than a decade in which the regulatory scenario remained virtually the same, the telecoms market is moving towards new investment and a modern regulatory framework.
In late 2014 a new regulatory framework for the telecoms market was introduced (Digital Law 27,078). The law’s main aims are to:
- promote information and communication technologies; and
- foster the convergence between the telecoms and media industries, which has been a pending issue for several years.
The most important change under the new law is that telecoms companies can offer audiovisual communication services, including traditional television broadcasting, cable TV and radio broadcasting, with the exception of satellite TV.
Soon after the new national administration took office in December 2015, the government reshaped the telecoms regulatory framework by introducing further amendments to the Digital Law and the Broadcast Media Law. Under the new measures, cable television was excluded from the scope of the Broadcast Media Law and is now considered an information and communication technology service that is regulated by the Digital Law.
However, one of the new regulatory framework’s policy goals has yet to be accomplished, but the convergent law for telecoms and media is expected to be enacted in the next couple of years.
The most important 2017 deal in the telecoms market was the merger between Telecom Argentina (one of the two major fixed and mobile phone companies) and Cablevision, the leading cable television provider which constitutes 40% of the national market. The transaction is under review by the antitrust and telecoms authorities.
What is the primary legislation governing the telecoms market in your jurisdiction?
Digital Law 27,078 is the primary legislation governing the telecoms market. It covers:
- communications infrastructure;
- satellite services;
- telephone networks;
- mobile services;
- broadband connections; and
- cable television.
The law does not regulate content and establishes ‘net neutrality’, meaning the non-discrimination of any type of content. Further, in December 2015 the Executive Branch issued Decree-Law 267/2015, which established the National Communications Agency, the regulatory body for the telecoms and media industries.
Are any regulatory reforms or initiatives envisaged?
New licensing, interconnection and satellite regulations are being discussed at present to implement the Digital Law fully. These rules are expected to be enacted in late 2017 or early 2018.
Further, a Ministry of Modernisation special committee is drafting a new bill which aims to replace the Digital Law and the Broadcast Media Law with unified convergent legislation. It is unclear when the final draft will be finalised and sent to the Federal Congress for consideration.
Universal service obligations
What universal services obligations apply?
Universal services are financed by a universal service trust fund that is managed by the National Communications Agency. The National Communications Agency is responsible for defining a variety of eligible programmes and granting the corresponding subsidies. All operators that hold an information and communications technology (ICT) licence must make a contribution to the universal service trust fund of 1% of gross revenues accrued through the provision of ICT services, net of taxes.
Which authorities regulate the telecoms sector and what is the extent of their powers?
The telecoms sector is regulated by the Ministry of Modernisation (which replaced the Ministry of Communications) and the secretary of information and communications technologies. The ministry has significant decision-making powers regarding the direction of telecoms policy and the ability to enact secondary legislation.
The National Communications Agency oversees enforcement of the remaining aspects of the telecoms regulatory framework, including the granting of licences to provide ICT services and the controlling of tasks.
Are there any restrictions on foreign ownership or investment in the domestic telecoms market?
There are no restrictions on investments by foreign investors in the telecoms market. Foreign companies can establish a local subsidiary or branch or acquire a participation in an existing domestic company. Further, Argentina has entered into bilateral investment agreements with several countries in order to protect and foster foreign investments.
However, in order for foreign satellites to provide satellite facilities in Argentina, their principal jurisdiction (ie, the notifying foreign country before the International Telecommunications Union) must execute a reciprocity agreement with Argentina.
Licensing and authorisation
What licences/authorisations are required to provide telecoms services?
The provision of telecoms services requires an information and communications technology (ICT) licence granted by the National Communications Agency. This is a single licence which authorises the provider to offer any kind of ICT service (eg, fixed or mobile, wired or wireless or domestic or international services) with or without its own infrastructure. Each service to be provided must be registered in the registry on the submission of technical and economic information.
ICT licences have a nationwide scope. Further, there are no mandatory investment obligations and providers are free to choose the technology and network architecture that they consider the most appropriate for the efficient provision of services.
An ICT licence does not include the award of a spectrum, which is subject to a separate procedure.
The existing licence regulation (which has been in force since 2000) is in the process of being replaced and updated by a new regime, which is meant to relax further the requirements to obtain a licence.
The transfer of licences and the controlling stock of operators is subject to regulatory approval.
What are the eligibility, documentary and procedural requirements to obtain a licence/authorisation?
There are no restrictions for the granting of ICT licences to natural persons or juridical entities. Applications must include the required:
- personal and corporate documentation;
- information on the services to be provided; and
- financial statements.
The National Communications Agency may request that applicants to file further information or clarification if deemed appropriate.
Validity period and renewal
What is the validity period for licences/authorisations and what are the terms of renewal?
ICT licences have no expiry date.
What fees apply?
Licence applications are subject to an initial administrative fee of Ps5,000 (approximately $285). Once the licence has been granted, operators must pay a monthly control fee, equivalent to 0.5% of the gross revenue accrued for the provision of ICT services, net of tax.
What is the usual timeframe for obtaining a licence/authorisation?
There is no fixed term for obtaining a licence. At present, the estimated timeframe to obtain a licence is four to six months.
Network access and interconnection
What rules, requirements and procedures govern network-to-network access and interconnection?
The following principles govern interconnection:
- Agreement between the parties – providers are entitled to negotiate the price, terms and conditions of interconnection. Agreements should not be discriminatory or establish technical conditions that prevent, delay or hinder interconnection and should be registered with the National Communications Agency;
- Mandatory – all operators must be directly or indirectly interconnected;
- Non-discrimination – operators have the right to obtain the same technical or economic conditions as those offered to other operators that require similar facilities, regardless of the service that they provide;
- Reciprocal compensation – operators have the right to establish reciprocal compensation for the origin, transportation and termination of communications;
- Efficiency – no operator may impose interconnection terms and conditions which result in the inefficient use of networks and equipment of interconnected providers; and
- Open architecture.
Although parties are free to negotiate interconnection agreements, they are subject to material restrictions imposed by the regulatory framework and the National Communications Agency. The Ministry of Modernisation and the secretary of information and communications technologies are discussing new interconnection rules.
Are access/interconnection prices subject to regulation?
Prices may be freely negotiated between the parties, but should be cost oriented. Nonetheless, the National Communications Agency establishes referential prices for those components that it considers to be essential facilities. The agency can also establish interconnection prices in the case of a lack of agreement between operators, for which the benchmarking of regional prices may be considered.
How are access/interconnection disputes resolved?
All interconnection-related disputes should be submitted to the National Communications Agency, which has primary administrative jurisdiction. National Communications Agency decisions can be appealed with the Ministry of Modernisation and challenged before the judicial courts.
Have any regulations or initiatives been introduced or proposed with respect to next-generation access?
No. However, the new interconnection regulation is expected to address next-generation access.
What rules and procedures govern telecoms operators’ access to land (both public and private) to install, maintain and repair infrastructure?
Telecoms legislation grants operators the legal right to access public and private land to deploy and maintain their infrastructure. In practice, these issues are privately managed by operators and landowners. Regarding public land, the national government recently adopted measures to facilitate the access to and use of public buildings in order to install antennas and wireless network infrastructure.
Are infrastructure sharing agreements among operators popular and/or encouraged by the regulatory authorities? Which infrastructure sharing structures/agreements are commonly used? Do any regulations apply?
Infrastructure sharing agreements are common among operators and encouraged by the regulatory authorities.
Pricing and consumer protection
What rules govern retail pricing for telecoms services?
Retail prices are freely fixed by telecoms operators.
What rules govern consumer service contracts?
Consumer service contracts are generally governed by Sections 1092 to 1122 of the National Civil and Commercial Code and Law 24,240 (the Consumer Law). In addition, a specific consumer regulation governs fixed and mobile telephones.
The general standards of consumer protection prohibit contract clauses that:
- waiver or restrict consumer rights;
- extend the rights of the other party; and
- impose the reversal of the burden of proof to the detriment of the consumer.
Are telecoms service providers bound by any consumer disclosure requirements?
Yes. Section 1,100 of the National Civil and Commercial Code and Section 4 of the Consumer Law establish that the supplier must provide clear and detailed information concerning:
- the essential characteristics of the supplied goods and services;
- their commercialisation conditions; and
- any other circumstance relevant to the contract.
Under Section 4 of the Consumer Law, such information must be provided in writing, unless otherwise expressly accepted by the consumer. Further, Section 4 of Decree-Law 1798/1994 establishes that suppliers of goods or services must immediately inform the competent authorities and consumers of any dangers discovered after said goods or services have been introduced to the relevant market.
In particular, as regards public domiciliary services, Section 25 of the Consumer Law states that companies providing such services must provide information in writing regarding the conditions of the supply and the rights and obligations of both contracting parties. This information must also be made available to public service offices. Similarly, companies must include the following statement in all bills for public attention: "You have the right to claim for compensation if we invoice undue sums or concepts or improperly claim the payment of bills already paid, Law No. 24,240 ".
Section 28 of the Consumer Law sets out that bills must also state whether there are owed periods or other debts, including details of dates, concepts and interests, if applicable. Otherwise, the bill must include the following wording: "There are no outstanding debts". Finally, Section 30 of the Consumer Law foresees that users of public domiciliary services should be adequately informed about the safety conditions of the systems and appliances delivered for the provision of services.
Under Resolutions 45/1997 and 242/2006, telecoms service providers must supply the following details to consumers:
- data on which billing is based;
- the amount of local and international calls made and the resulting costs; and
- any increases of tariffs at least 60 days before their implementation.
Joint Resolutions 29/2014 and 81/2014 of the Secretariat of Trade, the Secretariat of Communication and the Secretariat of Trade Resolution 176/2017 state that mobile communications service providers must provide information on a regular basis via invoices, their websites, consumer emails and free telephone lines regarding:
- the price of:
- hire plans;
- local, national and international long-distance calls per second;
- text and multimedia messages;
- internet access by the hour, day, week, month, kilobyte or megabyte, as appropriate; and
- all of these services in and out of tariff plans;
- bonuses and promotions in a clear, truthful manner, without concealment or inaccuracies that may lead to error or confusion regarding the availability and characteristics of the offered service; and
- details of outgoing calls, text and multimedia messages, internet use and other charges.
Issues and concerns
Are there any particular competition issues or concerns in the domestic telecoms market?
There are no relevant competition issues in the domestic telecoms market at present other than the Telecom Argentina-Cablevision merger, which is under review by the antitrust and telecoms authorities.
The Ministry of Modernisation is expected to revise the spectrum cap for mobile services.
Do any sector-specific competition regulatory/legal provisions apply (eg, special conditions for dominant telecoms market players)?
Dominant market operators are subject to specific obligations concerning interconnection, including:
- maintaining an updated public interconnection offer; and
- guaranteeing to unbundle the local access network.
Are there any requirements for structural, functional or accounting separation of operators’ activities?
Telecoms and mobile operators are subject to accounting separation for cable television services. Further, dominant operators must have separate accounting for interconnection-related activities.
What rules and procedures govern spectrum allocation?
Spectrum allocation is subject to a specific authorisation from the National Communications Agency, which may replace, modify or cancel authorisation, in whole or in part, for public interest reasons. This power is used to incorporate new technologies which require migration from previous operators.
The spectrum for mobile and broadband services is usually granted through a public tender process, for which specific conditions and expiration terms are established on a case-by-case basis.
What fees apply to spectrum allocation/authorisation?
Public tenders for spectrum allocation are usually subject to auctions or economic bids. Spectrum use is charged by recurrent administrative fees according to the specific service or system used.
Can spectrum licences be transferred, traded or sub-licensed?
Spectrum licences can be transferred with prior approval from the National Communications Agency.
Voice over Internet Protocol
How is Voice over Internet Protocol (VoIP) regulated in your jurisdiction?
VoIP and over-the-top content is not specifically regulated in Argentina.
How are telephone numbers allocated in your jurisdiction?
Telephone numbers are allocated by the National Communications Agency at the telephone operators’ request.
What rules govern telephone number portability?
Number portability is available for mobile services.
Privacy and data security
What is your jurisdiction’s regulatory stance on net neutrality?
Digital Law 27,078 provides for net neutrality. Each user is guaranteed the right to access, use, send, receive or offer any content, application, service or protocol through the Internet with no restriction, discrimination, distinction, blocking, interference, obstruction or degradation. The law will be completed by secondary legislation.
Are there regulations or restrictions on encryption of communications?
There are no specific regulations or restrictions on encryption of communications.
Are telecoms operators bound by any rules or requirements on the retention of consumer communications data? If so, for how long must data be retained?
There is no specific rule regarding consumer data retention terms. Pursuant to Section 328 of the National Civil and Commercial Code, operators must continue to support accounting documents for 10 years.
What rules and procedures govern the authorities’ interception of communications and access to consumer communications data?
Authorities can intercept communications and access consumer communications data only at the request of a judicial court.
Data security obligations
What are telecoms operators’ general data security obligations to consumers?
Telecoms operators must guarantee the confidentiality of communications. They are also bound by Data Protection Law 25,326 and related regulations, which govern how personal data must be collected and treated and the rights that are vested in consumers in this regard.
In particular, Disposition 11/2004 establishes the following mandatory levels of protection depending on the nature of the personal data involved:
- basic – for all files containing personal data;
- medium – for files owned by private entities providing public services that include telecoms services; and
- critical – for all files containing sensitive data (ie, that reveal details of the subject’s racial or ethnic origin; political opinions; religious, philosophical or moral beliefs; trade union membership; health; or sexual orientation).
The basic level of data protection that telecoms operators must provide to consumers requires a security document to be compiled, which must include:
- the procedures and safety measures to be observed in connection with the personal data in question;
- the roles and responsibilities of the staff involved;
- a description of the files and information systems that deal with the personal data;
- a description of the routine controls for data entry programmes and actions to be followed to correct any errors detected. All data entry programmes, whatever their mode of processing (ie, batch or interactive) must include control routines which aim to minimise the possibility of incorporating illogical, incorrect or incomplete data;
- records of any security incidents;
- the procedures for reporting, managing and responding to security incidents;
- back-up and data recovery procedures;
- procedures for the identification and authentication of authorised users. In this regard, the relationship between authorised users and the information systems that authorised users can access must be kept updated. In the event that a password authentication mechanism is used, passwords will be assigned by a safety officer in accordance with a procedure ensuring confidentiality. This procedure will provide for periodic password changes and any passwords stored must be unintelligible;
- access control for data users limited to data and resources required to carry out their duties;
- preventive measures to avoid threats from malicious software (eg, viruses) that may affect files containing personal data, including:
- the periodic installation and updating of virus software; and
- prior notification of viruses in any files received via the Internet, email or other means whose origins are uncertain; and
- the procedure to ensure the proper management of personal data support (ie, the identification of the type of information contained, access to restricted access locations, or inventory, authorisation for release and the transfer and destruction of obsolete information).
Disposition 11 also states that if a file contains personal data that could permit a personal profile to be compiled or the conduct of an individual to be deduced, the security document must comply with additional medium-level security conditions.
The security document must be kept up to date and revised where necessary. Personal data must be destroyed where it is no longer necessary for or relevant to the aim for which it was collected.
Medium-level data protection requires:
- the identification of a security officer (or specific body);
- the provision of details of the conduct of audits aimed to verify compliance with personal data security regulations;
- the implementation of measures to block repeated unauthorised access attempts;
- the establishment of physical access control to the premises where the information systems in question are located;
- the maintenance of a registry of inputs and outputs to the relevant information system;
- the establishment of the measures required to back up the information in question and prevent any retrieval of the information after the technical means used are discarded or reused or the data has been deleted;
- the keeping of records of security incidents identifying the individuals involved and a detailed description of the procedures carried out; and
- the undertaking of operational tests of the information systems before their implementation without the use of real data, unless the data security mechanisms used correspond to the type of computerised data processed.
Critical-level data protection requires the following measures:
- When distributing or transferring media containing personal data (including back-up copies), data must be encrypted in order to ensure that it cannot be read or manipulated during the transfer.
- The access registry must comprise information on the user whose data has been accessed, the date and time of the access and whether this access has been authorised. If authorised, information must include details of the data accessed and how it has been treated. The access registry must be analysed periodically by the security officer and be maintained for three years.
- Back-up copies must be kept in-house as well as externally in a fireproof and gas-tight box or bank safety deposit box located a reasonable distance away from the company’s primary location. A procedure for the recovery of this information must also be available.
- Data transferred through communication networks must be encrypted or protected by any mechanism that prevents its reading or treatment by unauthorised persons.