Dra. Angélica Noboa Pagán
As part as its legal powers to establish general policy guidelines, between March and May 2021, the Dominican Telecommunications Institute [In Spanish, Instituto Dominicano de Telecomunicaciones] (Indotel), a decentralized agency of the Dominican State, held a public consultation aiming to outline the objectives and structure of a new Information and Communications Technologies Law (“ICT Law”), to replace the current General Telecommunications Law, No. 153-98, dated May 27, 1998.
The process initiated when Nelson Arroyo, Chairman of Indotel, stated that the current law is twenty-three years old and needs to be updated. This was a preliminary process, limited to sharing a questionnaire to those interested in participating in the consultation, on certain topics that will make up a future ICT Law.
Indotel has not made public a preliminary draft of the bill. To become a draft bill, Luis Abinader, head of the Executive Power, must sign the proposed ICT Law and, using his constitutional powers, shall file it as a legislative initiative before the National Congress.
The document published by Indotel under the title “Public Consultation Document – Update and Modernization of the General Telecommunications Law – Evolution to an Information and Communications Technologies Law (ICT)” [In Spanish, Documento de consulta pública -actualización y modernización de la Ley General de Telecomunicaciones – Evolución a una Ley de Tecnologías de Información y Comunicaciones (TIC)], is signed by consultants Joelle Exarhakos and Cristhian Lizcano Ortiz, acting within the framework of the Financial Structuring and Regulatory Homogenization Program for the reduction of the digital gap in Central America of the Inter-American Development Bank (IDB).
The thematic questionnaire formulated by Indotel is preceded by a preliminary motivation that exposes the need to update the content and scope of Law No. 153-98, as well as to strengthen the regulatory policy instruments of the Dominican State, in view of the technological evolution and convergence of the markets during the past twenty years. In this sense, the consultation refers to the role of ICTs to achieve the closing of the digital gap derived from the digital transformation of the information and telecommunication services markets.
The document published by Indotel takes into consideration Decree No. 539-20, dated October 7, 2020, issued by President Luis Abinader, which declared of general interest the essential right of universal access to the latest generation broadband Internet and the productive use of ICTs. The preliminary consultation text of the organism also considers the political-regulatory advances of the Latin American region for a better management of ICTs, and other systems of laws issued by the Dominican State upon Law No. 153-98, which will be considered when drafting the preliminary bill of the future ICT Law.
Among others, it refers to laws related to consumer protection, defense of competition, electronic commerce, comprehensive data protection, cybersecurity and cybercrime, copyright, public procurement, and public-private partnerships.
Certain socioeconomic phenomena, such as the massification of Internet access, digital inequality; others resulting from market transformation, such as the provision of multiplatform services, content and applications, new business models and digital agents; as well as the need for democratic appropriation of the advantages of scientific development arising from robotics, big data and artificial intelligence, favor the principle of connectivity, as a pillar to reduce the digital gap, and thus ensuring the insertion of people and companies in the Information and Knowledge Society.
Last April, congressman Tobías Crespo, of the opposition party La Fuerza del Pueblo, filed in the Chamber of Deputies a proposal of a “Draft Bill to modify the General Law of Telecommunications No. 153-98 and to create the General Law of Information Technologies and Telecommunications”. This bill addresses the same matter of the preliminary consultation of Indotel. Unlike the regulatory agency, the congressman shared a complete text with 8 titles, 156 articles and 121 pages.
In some respects, the congressman’s proposal is like the theoretical framework presented by Indotel in its questionnaire. However, there are important differences. For instance, congressman Crespo’s bill foresees the creation of new administrative bodies: a Ministry of Telecommunications Technologies [In Spanish, Ministerio de Tecnologías de Telecomunicaciones] (MITIT) and a Superintendence of Information Technologies and Telecommunications [In Spanish, Superintendencia de Tecnologías de Información y Telecomunicaciones] (SITIT); a reduction of tariff freedom through tariff ceilings defined by the proposed ministry; and, a general mechanism for the regulation of competition, and not only limited to certain ex ante procedures as proposed in Indotel’s consultation.
Finally, it should be noted that congressman Crespo’s bill proposes that the new law shall be mandatory and of social interest, unlike Law No. 153-98 which limits such declaration to the chapter on interconnection of networks. It will be of great importance to have access to the text of the draft bill of the ICT Law that the Executive Power, headed by President Abinader, will submit to the National Congress, based on the recommendations received from Indotel and the IDB.
Review of the administrative bodies of Indotel.
The participants in the consultation were asked on their opinion regarding the competencies, functions and professionalization of the members of the Board of Directors and the Executive Management, together with other institutional improvements aimed at efficiency and effectiveness; such as the incorporation of a rule on alternation in the terms of office.
Process to grant concessions and licenses.
Contributions were requested to simplify administrative procedures, optimize response times, and eliminate market entry barriers that discourage investment. The possibility of including a flexible regulatory model to promote new business models was considered.
Universal right of access to broadband.
Through the consultation, Indotel advances that this motion will be proposed on the ICT Law together with other regulations to integrate new criteria on the destination and administration of the Telecommunications Development Fund, which will integrate public-private cooperation schemes.
Interconnection of networks.
Opinion was requested regarding the obligation to publish the reference offers of access and interconnection, previously approved by the regulator; and in turn, the competence of Indotel to regulate the access and interconnection charges under criteria of efficient costs and lease of facilities, essential installations, functions or network elements, in the absence of agreement between the companies involved in conflicts.
Use of infrastructure networks.
A consultation was made regarding the relevance of integrating approval derived from administrative silence, the sharing of facilities and, eventually, of the spectrum, to facilitate the deployment of 5G networks.
Final tariffs to users.
Indotel anticipates that it will maintain the recommendation to preserve the principle of tariff freedom, with the current exceptions provided by Law No. 153-98, one of them being the commission of anti-competitive practices.
Promotion of competition through ex ante regulation.
In this regard, Indotel launched an open question, while advancing its recommendation to strengthen the regulatory approach for the identification of relevant markets by the regulatory agency based on the development of market analysis methodologies; and, consequently, the possibility of establishing differential measures in the market in case of failures or problems of service quality, prioritizing regulatory interventions in wholesale markets, in order to guarantee fair, effective and sustainable competition conditions.
Technical management of the radio frequency
Comments were requested on the publication of annual management plans, inspection, control and surveillance measures, partial payments for assignment and renewal of rights of use, schemes to facilitate the development of secondary spectrum markets, quality of emissions and reduction of the incidence of interference, among others.
Protection of ex post competition.
Indotel advances the opinion that the ICT Law should expand Indotel’s powers to define reference markets and request information from all agents that intervene in the telecommunications and ICT markets. Furthermore, that along the same lines, the catalog of activities shall be expanded, including the elaboration of reference market analysis, the establishment of specific conditions to operators with significant power in the market, to know the future evolution of networks and services in the competition, compile information on price, coverage and quality that make effective consumers’ right to choose, compliance with ex ante obligations or ordered by Indotel for the solution of a conflict, among others. As part of the consultation, it was also asked whether it is considered appropriate that the exercise of such powers should fall on different units within the regulatory body.
Recommendations were required on the scope of consumer and user rights in the context of the digital economy, simplification of claim processes and support from the regulator in conducting quality surveys, network risk surveys, as well as disclosure of vulnerabilities from a cybersecurity perspective.
ICT/digital component of the p.
Finally, other questions were asked regarding digital transformation, e-government, digital security, and ICT use.