This text introduces highlights of Decree 163/2024/ND-CP detailing quite a lot of articles of, and offering measures to implement, the Legislation on Telecommunications, notably provision of telecommunications providers and telecommunications service market.
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| Putting in a 5G telecom mast__Photo: VNA |
This text introduces highlights of Decree 163/2024/ND-CP detailing quite a lot of articles of, and offering measures to implement, the Legislation on Telecommunications, notably provision of telecommunications providers and telecommunications service market.
Pham Nghiem Xuan Bac, Dang Trong Hieu, Tran Tu Anh
Imaginative and prescient & Associates
On December 24, 2024, the Authorities issued Decree 163/2024/ND-CP, detailing quite a lot of articles of, and offering measures to implement, the Legislation on Telecommunications (Decree 163). The Decree, efficient on December 24, 2024, and changing Decree 25/2011/ND-CP of April 6, 2011 (Decree 25), has been formulated based mostly on Telecommunications Legislation 24/2023/QH15, which was adopted by the Nationwide Meeting on November 24, 2023, and took impact on July 1, 2024 (the 2024 Telecommunications Legislation), has quite a lot of notable new or amended provisions when in comparison with Decree 25.
Dealing in telecommunications providers
Concerning the classification of telecommunications providers, based mostly on the clear method of the 2024 Telecommunications Legislation with respect to knowledge middle providers, cloud computing providers, and OTT providers as telecommunications providers, Decree 163 expands primary telecommunications providers with transmission providers for radio and tv, transmission providers for machine-to-machine connections, digital personal community providers, providers for leasing the entire or a part of telecommunications community, and extra telecommunications providers of primary telecommunications providers; and concurrently provides knowledge middle providers, cloud computing providers, and primary telecommunications providers on the Web to value-added telecommunications providers.
Concerning provision of telecommunication providers, worthy of notice, Decree 163 clearly stipulates that provision of telecommunications providers contains resale of telecommunications providers to telecommunications service customers. Decree 163 maintains the provisions of Decree 25, saying that until in any other case offered by a treaty to which Vietnam is a contracting occasion, the supply of telecommunications providers throughout borders to telecommunications service customers within the territory of Vietnam (however not solely on the mainland as stipulated in Decree 25) should be via a industrial settlement with a Vietnamese telecommunications enterprise that has been granted a license to offer telecommunications providers, together with worldwide communications. Nonetheless, this restriction doesn’t apply to knowledge middle providers, cloud computing providers, and primary telecommunications providers on the Web. Decree 163 additionally provides laws on the supply of telecommunications providers through satellite tv for pc fastened telecommunications networks and satellite tv for pc cellular telecommunications networks whereby telecommunications enterprises taking part in industrial agreements with overseas organizations should have a plan so that every one visitors generated by satellite tv for pc subscriber terminals on the mainland territory of Vietnam should undergo a floor gateway station (gateway) situated on the territory of Vietnam and related to the general public telecommunications community.
Futhermore, Decree 163 clearly defines sure rights and obligations of quite a lot of entities when offering and utilizing telecommunications providers. For instance, the duty of enterprises offering primary telecommunications providers on the Web, cloud computing providers, e-mail providers, voicemail providers, value-added tax providers; overseas organizations offering primary telecommunications providers on the Web, knowledge middle providers, cross-border cloud computing providers to service customers in Vietnam’s territory to inform the Vietnam Telecommunications Authority of service provision; the duty of suppliers of primary telecommunications providers on the Web to register, retailer and handle info of service customers; and rights and obligations of overseas organizations offering primary telecommunications providers on the Web, knowledge middle providers, cloud computing providers throughout borders to service customers within the territory of Vietnam.
Particularly, overseas organizations offering primary telecommunications providers on the Web throughout borders to customers within the territory of Vietnam have the next rights and obligations: (i) to not compensate for oblique injury or unearned earnings because of the provision of telecommunications providers that don’t assure time and high quality and produce other rights as prescribed by related legal guidelines; (ii) to not trigger dangerous interference, injury gear, development works, telecommunications networks; or to not hurt the authorized operations of telecommunications infrastructure of different organizations and people; (iii) to urgently cease the supply of telecommunications providers in case of riots, use of telecommunications providers to oppose Vietnam, or violations of nationwide safety on the request of competent state companies as prescribed by legislation; (iv) to stop, fight, and block unlawful messages and calls as prescribed by the Authorities; (v) to declare the standard of providers offered by themselves in the event that they personal the community infrastructure or have an settlement with a telecommunications enterprise with a community infrastructure; declare the standard of providers offered by themselves relying on the standard of the telecommunications community and telecommunications providers managed and offered by different telecommunications enterprises if they don’t personal the community infrastructure or would not have an settlement with a telecommunications enterprise with a community infrastructure; (vi) to be accountable for the standard of providers in response to the declared requirements; make sure the correctness, adequacy and accuracy of service costs in response to the contract for offering and utilizing telecommunications providers; (vii) to be accountable for notifying customers of the need and should acquire the person’s consent earlier than accessing to the options on the service person’s terminal gear to serve the supply of providers if obligatory; and (viii) to not reap the benefits of telecommunications actions to oppose Vietnam, infringe upon nationwide safety, social order and security, or trigger injury to the State’s curiosity and lawful rights and pursuits of organizations and people; and many others.
Telecommunications service market
Concerning the holding cap in telecommunications service enterprise, beforehand, in response to Decree 25, people and organizations holding greater than 20 p.c of the constitution capital or shares in a telecommunications enterprise weren’t allowed to personal greater than 20 p.c of the constitution capital or shares of one other telecommunications enterprise working in the identical telecommunications service market on the Record of telecommunications providers. Decree 163 now loosens this regulation, stipulating that the above-mentioned possession restriction solely applies to shareholders who personal greater than 20 p.c of complete voting shares at a telecommunications enterprise and doesn’t apply to shareholders who personal shares of different sorts.
With regard to the telecommunications service market, Decree 163 offers particular standards to find out the State-managed telecommunications service market and telecommunications enterprises with a dominant market place on the State-managed telecommunications service market.
Accordingly, the standards for figuring out the telecommunications service market managed by the State embody three, of which two are quantitative standards: (i) an index measuring the extent of market focus of over 1,800 (with system), and (ii) the proportion of service income accounting for 10 p.c or extra of the whole income of telecommunications providers of the whole market.
In the meantime, the willpower of whether or not or not a telecommunications enterprise holds a dominant market place on a sure telecommunications service market managed by the State is predicated on the enterprise’s market share, i.e., the proportion of one of many following elements: telecommunications service income; variety of telecommunications subscribers producing visitors; variety of different service items offered over complete telecommunications service income; or complete variety of telecommunications subscribers producing visitors or complete variety of different service items offered on that telecommunications service market. A telecommunications enterprise shall be decided to have a dominant market place if it has a market share of 30 p.c or extra or has important market energy on the State-managed telecommunications service market.
A telecommunications enterprise is decided to have important market energy on the State-managed telecommunications service market if it has a market share of between 10 p.c and below 30 p.c on that telecommunications service market and falls into one of many following circumstances: (a) the whole belongings recorded within the enterprise’s stability sheet within the monetary reporting system of the earlier 12 months account for 30 p.c or extra of the whole belongings within the monetary reporting of the earlier 12 months of telecommunications enterprises on that telecommunications service market; (b) the enterprise’s North-South spine capability accounts for 30 p.c or extra of the whole North-South spine capability of telecommunications enterprises taking part in that telecommunications service market; or (c) for the telecommunications service market on the terrestrial cellular telecommunications community (terrestrial cellular telecommunications providers), along with the standards specified at factors (a) and (b) above, the enterprise can be decided to have important market energy if the variety of telecommunications service factors with a selected handle owned and established by the enterprise itself accounts for 30 p.c or extra of the whole variety of telecommunications service factors with a selected handle of telecommunications enterprises taking part within the terrestrial cellular telecommunications service market, or the speed of the inhabitants coated by the enterprise’s terrestrial cellular telecommunications community is 90 p.c or extra of the whole inhabitants of the nation.
Concerning competitors in telecommunications enterprise actions, Decree 163 has cancelled the laws associated to the dealing with of competitors circumstances in telecommunications actions and financial focus in telecommunications enterprise actions, leaving it to the legislation on competitors. Any further, financial focus actions within the area of communications not want to hunt the opinion of the road administration company and can adjust to the overall provisions of the Competitors Legislation concerning notification of financial concentrations.
Constitution capital and situations for telecommunications community deployment
Fastened-land public telecommunications networks
An enterprise making use of for a license to offer fixed-land public telecommunications providers with community infrastructure, which is a sort of fastened terrestrial public telecommunications community, with out use of radio frequency bands, should proceed to fulfill the situation on constitution capital and situation on telecommunications community deployment as prescribed in Decree 25.
Nonetheless, if the applicant makes use of radio frequency bands, the situations below Decree 163 shall be totally different from these below Decree 25. Whereas sustaining the situation on community deployment prescribed in Decree 25, Decree 163 not units a set authorized capital however requires a minimal constitution capital and, extra importantly, says that the making use of enterprise should have absolutely contributed constitution capital in accordance with the enterprise legislation.
Particularly, in case of making use of for a license for establishing a community inside a area, the enterprise should have a constitution capital of no less than VND 100 billion and commmit to investing complete capital funding of no less than VND 300 billion within the community inside the first three years after acquiring the license;
For these wishing to determine a nationwide community, this figures shall be VND 300 billion and VND 1 trillion. Nonetheless, the situation that the enterprise should decide to investing no less than VND 3 trillion in 15 years to develop the telecommunications community as prescribed within the license below Decree 15 has been abolished.
If the usage of radio frequency bands or radio frequency channels is granted via auctions or competitions for the correct to make use of radio frequencies or re-issuance of radio frequency band use licenses, the situation for deploying telecommunications networks shall be just like that for deployment of telecommunications networks when taking part in an public sale or a aggressive supply for the correct to make use of radio frequencies or making use of for re-issuance of radio frequency band use licenses in response to the legislation on radio frequencies.
Terrestrial cellular telecommunications networks
Equally to these making use of for licenses to determine fixed-land public telecommunications networks, these wishing to determine fastened terrestrial cellular telecommunications networks are not topic to authorized capital requirement however should possess a sure constitution capital degree and have absolutely contributed such constitution capital in accordance with the enterprise legislation.
For these enterprises making use of for a license to determine a terrestrial cellular telecommunications community that doesn’t use radio frequency bands (often known as digital cellular telecommunications networks), the situations are: having a minimal constitution capital of VND 300 billion and having absolutely contributed constitution capital in accordance with the enterprise legislation; committing to investing a complete funding capital of no less than VND 1 trillion within the community within the first three years after being licensed; and having a written settlement on leasing a terrestrial cellular telecommunications community. The situation that enterprises should decide to investing no less than VND 3 trillion in 15 years to develop the telecommunications community as stipulated within the license below Decree 25 has been eliminated.
As for enterprises making use of for a license to offer telecommunications providers with community infrastructure – a sort of public terrestrial cellular telecommunications community, utilizing radio frequency channels, the next situations should be met: having a minimal constitution capital of VND 20 billion and having absolutely contributed constitution capital; and committing to investing a complete funding capital of no less than VND 60 billion within the community within the first three years after acquiring the license.
If the correct to make use of radio frequency channels is granted via auctions or aggressive provides for the correct to make use of radio frequencies, the situation on telecommunications community deployment are the identical as circumstances of taking part in auctions or aggressive provides for the correct to make use of radio frequencies in accordance with the legislation on radio frequencies.
If the correct to make use of radio frequency bands is granted via auctions or aggressive provides for the correct to make use of radio frequencies, or a license to make use of radio frequencies is re-granted, the situations embody having a constitution capital of no less than VND 500 billion and having absolutely contributed constitution capital; and commiting to deploying the telecommunications community when taking part within the public sale or competive supply for the correct to make use of radio frequencies or making use of for the re-grant of the license to be used of radio frequency bands as prescribed by the legislation on radio frequencies (in lieu of a dedication to investing no less than VND 2.5 trillion within the first three years and no less than VND 7.5 trillion in 15 years to develop the telecommunications community as stipulated within the license as prescribed in Decree 25).
Satellite tv for pc fastened and satellite tv for pc cellular public telecommunications networks
For enterprises making use of for a license to offer providers with community infrastructure, which is fastened satellite tv for pc or cellular satellite tv for pc public telecommunications community, the situations are: having a constitution capital of no less than VND 30 billion and having absolutely contributed constitution capital and committing to investing a complete funding capital of no less than VND 100 billion within the community within the first three years after obtaimning the license.
Noteworthily, Decree 163 has a totally new provision on willpower of compliance with funding capital requirement, which is a part of the situation on telecommunications community deployment. Accordingly, an enterprise making use of for a license for provision of telecommunications providers with community infrastructure shall be thought to be assembly the funding capital requirement if the funding capital quantity acknowledged in its letter of dedication to fulfulling the situation on telecommunications community deployment just isn’t decrease than the corresponding minimal funding capital prescribed in Decree 163. Besides circumstances of making use of for modification or re-issuance of a telecommunications service enterprise license, an enterprise shall be deemed as assembly the requirement on funding capital if it falls into both of the next circumstances: (i) the precise quantity invested to determine the earlier telecommunications community (calculated in response to the worth on the time of funding) just isn’t decrease than the corresponding complete minimal funding capital prescribed in Decree 163; or (ii) the funding quantity acknowledged within the written dedication to implement the situations on telecommunications community deployment just isn’t decrease than the distinction between the corresponding complete minimal funding capital prescribed in Decree 163 and the quantity the enterprise has invested to determine the precise telecommunications community beforehand (calculated in response to the worth on the time of funding).
Different contents
Decree 163 additionally offers particular measures and pointers for achievement of administrative procedures within the area of telecommunications. Accordingly, enterprises making use of for grant, modification and renewal of licenses for provision of telecommunications providers, licenses for installment of telecommunications cables at sea or licenses for testing telecommunications networks and providers must ship only a single file to the Telecommunications Authority below the Ministry of Data and Communications, quite than submitting three to 5 dossiers to totally different telecommunications administration companies.
Concerning the administration of terrestrial cellular subscriber info and terrestrial cellular SIMs, beforehand, the authentication, storage, use of terrestrial cellular subscriber info and processing of terrestrial cellular SIMs with non-compliant cellular subscriber info in telecommunications service enterprise have been regulated and guided in numerous circulars and pointers; now Decree 163 has for the primary time offered particular and systematic directions on this concern.-
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The design capability of the wired telecommunications transmission line passing via Hanoi, Da Nang and Ho Chi Minh Metropolis on the identical time.
The making of a dedication to investing a sure capital quantity within the telecommunications community in a sure time period after being licensed is taken into account satisfaction of the situation on community deployment.
A area below Decree 163 embraces between two and 30 provinces and/or centrally run cities, as a substitute of between 15 and 30 provinces and/or centrally run cities as prescribed in Decree 25.
Over 30 provinces and centrally run cities.
