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Dimitrov, Petrov & Co.

First Steps to Establish Single Database

The number of transactions with electronic communications networks and infrastructure has significantly increased for the past years in Bulgaria. However, a single register is not yet available to provide information concerning such networks. Bulgaria, as an EU Member State is obliged to transpose Directive 2014/61/EU of the European Parliament and of the Council of May 15, 2014 on measures to reduce the cost of deploying high-speed electronic communications networks. Directive 2014/61/EU and the draft Act for its transposing provide for the establishment of single information point to integrate the necessary information concerning the use, maintenance and construction of communications networks.

By: Boyana Milcheva, boyana.milcheva@dpc.bg Pavlina Ivanova, pavlina.ivanova@dpc.bg, Nikolay Kolev, nikolay.kolev@dpc.bg
Dimitrov, Petrov & Co., Sofia

The development of information society turned electronic communications into a significant factor in Bulgarian social and public life, respectively in the commercial turnover, and the number of electronic communications operators and customers is constantly increasing. All this resulted in the necessity of accessible electronic communications networks and associated facilities – easy to construct and at a lower cost. In response to this need, in 2014 Directive 2014/61/EU of the European Parliament and of the Council of May 15, 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (Directive 2014/61/EU) was adopted, and EU Member States were given a deadline to transpose it by 01.01.2016.

In pursuance of their obligations for transposing Directive 2014/61/EU, the Bulgarian Parliament adopted on first reading the Electronic Communications Networks and Physical Infrastructure Act which sets the requirements for deployment of electronic communications networks and associated facilities. The draft Act is aimed at achieving the purposes of the Directive – to facilitate and encourage the deployment of high-speed electronic communications networks, cost reduction in the construction and maintenance of networks, better planning and reduction of administrative work and simplification of administrative procedures related to the construction, maintenance, development and modernization of the physical infrastructure for deployment of electronic communications networks.

It is the draft Electronic Communications Networks and Physical Infrastructure Act that for the first time provides for the establishment of single database (a single information point) containing up-to-date information and integrating all the necessary information concerning the use, maintenance and construction of electronic communications networks. The legislation currently contains only sporadic provisions regulating the collection and provision of information concerning electronic communications networks and facilities. There is no single register containing data of the existing communications infrastructure, planned or operational activities related to its construction, deployment or installation, as well as information on the applicable terms and procedures.

Pursuant to the draft Act, the functions of the single information point in Bulgaria shall be taken by the Minister of Transport, Information Technology and Communications or by persons authorized by the latter. The draft Act stipulates for these persons to construct and maintain a single contact point for electronic communications networks and physical infrastructure through which all the information contained in the single information point could be accessed under proportionate, non-discriminatory and transparent conditions. The procedure and conditions for providing access to such information as well as the data formats will be additionally stipulated in a sub legislative act issued by the Council of Ministers.

Pursuant to the draft Act, the single information point is to provide networks operators with access to information regarding procedures and acts concerning the deployment, maintenance, construction and use of communications networks and associated facilities, regarding the existing infrastructure, planned or operational activities related to the construction, deployment and installation, templates of  various documents, criteria and terms, and other information.

Among the significant novelties related to the procedure for construction, deployment, maintenance and improvement of communications networks in Bulgaria is the option to request permits in this procedure by electronic means. As envisaged, applications and documents thereto may be also submitted via the single information point, which can provide information on the course of the administrative procedure for granting the permit.

In addition, the single information point is envisaged to be the contact point via which network operators will have access to minimum information regarding the existing physical infrastructure of other network operators. The envisaged right to access concerns the physical infrastructure located in the region in which the respective network operator plans to deploy elements of its own communications network. The minimum information to which network operators shall have access via the single information point will include data of location and/or route of the existing physical infrastructure, type of the physical infrastructure and manner of use, name, address, email address and telephone for contact with the particular network operator that runs (manages) the physical infrastructure. In case minimum information is not provided in the single information point, it will be accessed after a written application to the respective network operator is submitted via the single information point. Access to minimum information could be refused only in case such refusal is required to ensure the networks security and integrity, the national security, public health or safety.

In case a written application is submitted, each network operator shall provide to the single information point minimum information concerning operational or planned activities related to the construction, deployment or installation related to its physical infrastructure. An application for information could be submitted by an electronic communications network operator for the purposes of negotiating agreements for coordination of activities related to deployment, maintenance or improvement of elements of electronic communications networks or construction of physical infrastructure. The requested information shall be provided within 14 days as of receipt of the application, and the network operator may as well provide it on its own initiative, without any explicit request. The draft Act envisages that upon providing information network operators shall determine a term in which electronic communications networks operators may negotiate coordination agreements. The procedure facilitates and alleviates the construction of new infrastructure and the development of the existing one. De lege ferenda, network operators may provide information concerning operational or planned activities related to construction, deployment or installation, mandatorily and without explicit request. This will ensure completeness of the information contained in the single information point and encourage the negotiating of coordination agreements.

The draft Act stipulates that the Minister of Transport, Information Technology and Communications shall collect a fee for providing of information concerning the existing infrastructure via the single information point. The fee will be determined according to a tariff to be additionally adopted by the Council of Ministers. Although it is not explicitly regulated in the draft Act, information concerning administrative procedures, templates of documents, criteria, terms, etc. is expected to be provided for free. For the purposes of performing its functions of supervising and resolving disputes, the Communications Regulation Commission will have free access to all the information accessible via the single information point.

With a view to the increased number of operators of electronic communications networks and/or services, respectively the increased number of transactions with electronic communications networks and associated facilities, the lack of a single register leads to problems in the maintenance and expansion of the communications infrastructure as well as difficulties in the construction of new infrastructure. The lack of a special register of concluded transactions with electronic communications networks and associated facilities causes difficulties in such transactions. The absence of any entries in a public register means that the owner of the communications networks may not be firmly ascertained, and this creates prerequisites for acting in bad faith as a result of which one network could be transferred more than once. This in turn could cause disputes between the different acquirers, further complications in the judicial system and difficulties in using the network, often influencing a large number of users. With a view to the substantial value of such transactions, this legal insecurity often impedes and prevents more significant investments in the electronic communications sector.

With a view to the above problems, the introduction of provisions concerning the single information point is undisputedly one of the positive legislative initiatives in Bulgaria which is directly connected to the construction and deployment of electronic communications networks and infrastructure. It is expected to alleviate to certain extent the regime for construction of electronic communications networks, to bring higher transparency in the related administrative procedure and facilitate fast and easy access to information for all interested persons. Still, it should be noted that it is of significant importance how the rules envisaged in the draft Act will be actually implemented and what will be the procedure and conditions for access to the information available in the information point. What is not covered by the scope of the draft Act, and respectively the single information point, are the transactions with electronic communications networks which will not be subject to registration in the future, as provided for in the draft Act.