Government regulating Information Technologies
Date: November 05, 2003Source: Computer Crime Research Center
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... /> • Considering features of the Internet development, technical and organizational norms and rules, as well as rules and customs existing in communities of Internet operators and users and not conflicting with the Russian Federation legislation;
Next• Applying no methods of legal regulation to organizational and technological aspects of the Internet development and operation that infringe rights and interests of the person, society and state.
2. The preliminary expert examination of standard acts on regulating the Internet relations in the Russian Federation should be made with participation of representatives from public organizations of Internet operators and users.
When indicating the general and "frame" nature of the draft norms, it should be noted that the lawmaker realizes the necessity to consider norms and customs existing for a long time among Internet users and impossibility of regulating the Internet relations in an imperative way. At the same time, law experts consider it necessary to regulate them when the Internet is used to exchange information and develop relations regulated by other branches of law (first of all, the question is about the necessity of an additional regulation in connection with the use of Internet-technologies in the civil-law sphere).
The new modern law on regulating telecommunications in Ukraine is of a great interest to local telecommunication operators, state officials, foreign investors and even Ukraine's President who reminded with his Decree of December 6, 2001 of the necessity to accept the law " On telecommunications”.
Nevertheless, the Parliament could not advance in accepting this law up to now. The deputies should not be blamed for it. Experts and representatives of some interested companies passed sharp strictures on the draft last proposed by the Cabinet of Ministers and, as a result, it was defeated in its first reading last May. At the same time, deputies also turned down an alternative project [3] that had some insignificant differences from the governmental one.
Soon after that, the Supreme Rada registered one more draft introduced by a group of Profile Committee deputies [4]. However, it was too early to disregard the draft because the Profile Committee prepared the project of Resolution on elaborating a coordinated bill on the base of the Cabinet and deputy projects to consider it again in its first reading [5]. It is interesting to compare these two bills by dwelling on some of their key moments.
When comparing them, it is evident that the deputy variant is wordier. The volume was increased through a more detailed elaboration of some norms, which were given a compressed and too indistinct account in the Cabinet variant. Besides, the new bill has solved some important problems that were ignored by the governmental draft authors. The contents of some important articles and sections contain radical differences. Some of them are considered below.
Like the governmental project, the deputy variant stipulates the same two telecommunication organs of government (Ukraine's Cabinet of Ministers and corresponding Central executive authority body) and a regulatory agency (the National telecommunication commission (NTC). However, their likeness comes here to an end. If the Cabinet of Ministers assumes the whole executive and regulatory system in its project, the deputy bill follows a world practice of forming a regulatory body independent of the executive authority. According to the deputy draft, NTC is not the "central executive authority body with a special status " but independent corporate one with very large powers and its own budget formed through special funds and service payments. The President appoints Commission members with the Supreme Rada's consent for the five-year term. The unnecessary stand-by duplication of functions between the commission and executive authority bodies, as well as the telecommunication regulation on the part of the latter are excluded.
The Cabinet reserved to itself the right to determine general policy and strategy of developing the branch. The authorized central body was entrusted with performing its public administration duties of introducing this policy and strategy (preparing projects of normative-legal acts; specifying licensed activities on concrete territories, the number of licenses issued and mechanism of paying them; standardizing and certifying the equipment and services; scientific and technical maintenance; establishing an international cooperation and so forth). The deputy draft conferred on NTC the following major powers: an issuing or canceling of licenses and general sanctions, managing of their conditions, imposing of sanctions, approving of utmost tariffs, monitoring of operator activities, satisfying of user needs and observing of fair competition rules.
There is no doubt that the deputy draft model is capable of regulating the branch in a more objective, stable and professional way.
The scheme of licensing proposed by the Cabinet of Ministers can be summarized in a few words: the executive authority is entrusted with specifying certain activities subject to licensing and solving all main problems of issuing licenses (conditions, criteria, order of issuing licenses, amount of payment). The deputy bill offers a new model meeting the European Community requirements. According to it, telecommunication activities can be realized through general sanctions, individual licenses and without them. Any physical or juridical person is licensed on condition that all necessary documents on rendering the following services are submitted: fixed telephone communication (including the Internet-telephony), vehicular communication, search radio communication, tele- and broadcasting. Individual licenses issued on a competitive basis are required only for activities on assigning a number or radio frequency and/or those of a special state interest to defining their license conditions. The draft gives an exhaustive list of cases of such a special interest (for example, imposing as special duties of rendering users universal services and/or providing them with public networks on dominating and exclusive operators).
All other activities are carried out without any sanctions and licenses. The draft authors specially list some of these "other" activities (an access to the Internet, data transfer, use of telecommunication networks, etc.) to prevent from misunderstanding. Thus, the bill considerably reduces the list of services subject to licensing as compared with the Cabinet variant and protects from enlarging it for political or other reasons (for example, an item of the above presidential decree where the Cabinet is entrusted with preparing amendments to the legislation within two months that stipulate a licensing of the Internet-provider activities).
The draft specifies that licenses and sanctions are paid to cover administrative charges and it establishes norms preventing the licensing activity of NTC from the discrimination.
In spite of the progressive character of the chosen approach, some regulations of the draft should be improved. Thus, it is not clear how the service of "data transfer" requiring no license should be distinguished in a technical way from that of "Internet voice transfer of information" defined as the Internet-telephony in the draft and demanding a license. These two drafts fully ignore Ukraine's law currently in force "On licensing certain economic activities". Meanwhile, the introduction of new licensing rules should be accompanied with improving this law.
In general, the set of universal services (telephone and cable communication, wire broadcasting, inquiry ones, etc.) meets Ukraine's social and economic requirements. It would be premature to include, for example, services of an access to the Internet into this list as it was already done by some developed countries. Nevertheless, it appears that the law should provide for mechanisms of solving the problem of "giving physical and juridical persons of all property forms in Ukraine a wide access to the Internet" specified in Ukraine's President Decree of July 31, 2000.
The process of rendering universal services has a more detailed regulation when compared with the governmental bill. It provides for establishing the Universal Service Fund to partially finance their development and pay damages of operators rendering such services. In particular, the target charge from incomes of all telecommunication operators and attraction of local and foreign investments are defined as sources of the Fund formation. The procedures of forming and using the Fund were also established.
The draft classifies operators of telecommunication services (dominating, exclusive and others) and principles of their activities. The interaction between operators and interconnection between networks are regulated in a new way. The article about an operational and technical network monitoring that the government wanted to impose on "Ukrtelecom" is excluded. Approaches to the state regulation of tariffs are specified. Rights of users to telecommunication services are expanded a little. The section that should replace Ukraine's law currently in force "On radio-frequency resource " is added.
At the same time, some norms that should be reconsidered are literally copied of the Cabinet draft (for example, a duty of operators to install technical means of operative search at their own expense). As compared with the law in force "On communication», both projects restrict users' opportunities to compensate damages caused by a careless fulfillment of obligations on the part of operators. Sections devoted to technical means of telecommunication, standardization, certification and...
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