TMT 2016

The TMT guide provides expert legal commentary on the key issues for businesses operating in the TMT sector. The guide covers the important developments in the most significant jurisdictions.

Last Updated October 21, 2016


Richard E Wiley is chairman of the firm and described by peers as “the godfather of the industry” and “a legend in telecommunications.” As former chair of the FCC, Wiley adds great depth to his practice and clients appreciate his extensive network in Washington, DC. Wiley is also a frequent author and lecturer on telecommunications and information law.

Jennifer D Hindin chairs the firm's satellite practice and specialises in regulatory, policy and transactional matters related to satellites, earth stations and international telecommunications. Hindin represents some of the largest and most successful operators of global fixed satellite services, mobile satellite services, direct broadcast services and satellite radio services. She is a two-time former co-chair of the Federal Communication Bar Association’s International Telecommunications Committee and an internationally recognised practitioner in the industry.

Umair Javed is an associate in the firm’s TMT practice. He counsels and advocates on behalf of a wide range of clients, including network operators, manufacturers, content producers, trade associations and others, on international and domestic telecommunications, privacy and internet issues, focusing on both specific markets and international organisations. He also has assisted a coalition of leading information and communication technology companies as a private-sector member of US delegations to UN conferences and events. .

Wiley Rein has the largest telecoms, media and technology (TMT) law practice in the USA with more than 80 attorneys and engineers engaged full time. The practice encompasses virtually all aspects of federal, state and international laws governing the telecommunications, media and technology industries. The size and experience of the practice enable the firm to handle the full scope of telecommunications, wireless, litigation, international, satellite and media issues from headline-setting, billion-dollar mergers to business disputes and regulatory initiatives. The team has extensive familiarity with the government institutions that shape and administer all manner of communications regulations and policies. Group members include individuals who have occupied high-level positions at the Federal Communications Commission (FCC), the US Department of State and the US Department of Commerce, as well as on Capitol Hill.


Overview

Regulation of the telecoms, media and technology (TMT) sector is at a crossroads. Over the past few decades, liberalisation has increased competition, mobile networks have succeeded in connecting half of the world’s population, data traffic has superseded voice traffic and is expected to continue to increase dramatically, smartphone adoption is reaching critical mass in developed markets, and Internet Protocol-based networks are proliferating. In addition, the internet has transformed the way we live, touching nearly every facet of our lives and influencing every corner of the world. 

Against this backdrop, the TMT industry is transforming. Information and communications services increasingly are being provided by transnational and multinational companies. Historically separated markets, such as telecommunications and media and voice and data, are converging and becoming a single market. Content providers and network operators are vertically integrating, forcing industry participants to rethink their role in the value chain. In many countries, spectrum allocations are failing to keep pace with wireless service demands. While in some respects the digital divide is shrinking, new separations in broadband access and speeds have emerged. Nonetheless, the TMT industry has advanced, with rapid progress in cloud-based services and with the Internet of Things promising the potential to significantly reduce costs and increase collaboration, agility and scale. As these developments make content and services more easily available to anyone and anywhere, geographic borders seemingly are becoming less relevant. Without appropriate security and privacy solutions, however, these potentially revolutionary advances could falter. 

In the face of such a rapid pace of technological change, regulators face an understandably daunting challenge. In many cases, officials are seeking to cope with the challenges of convergence and the implications of internet-related growth while at the same time reviewing the continuing viability of liberalisation and competition-based policies. This change is being expressed in many ways around the world – for example, through network neutrality rules; national and regional broadband infrastructure initiatives; spectrum reallocation efforts; a heightened focus on privacy, security and domestic consumer protection regulation; and, in some cases, an increased role of national governments and intergovernmental organisations in previously unregulated or loosely regulated markets. 

This publication is designed to serve as a guide for companies navigating the evolving and sometimes conflicting requirements of multiple sovereigns. It offers a high-level snapshot of selected features of national laws as they currently stand in 21 jurisdictions across the world. And, it also provides a concise overview of the features of TMT regulations that often are of greatest practical significance to businesses, such as licensing requirements, spectrum allocations and pre-emption of local rules. Each chapter, organised by country, draws on the detailed knowledge of local practitioners to identify the general structure of TMT regulation and ownership in a particular country, as well as particular rules for broadcasting/media, telecoms, wireless, satellite and internet/broadband services. Every chapter also examines the fundamentally important, but often overlooked, policy and regulatory issues associated with managing consumer demand for communications and data. Finally, the chapters describe technology trends and their implications for future policy and regulation. These are issues that have been and will continue to be vigorously debated because they have a crucial influence over the direction of the industry and the success of individual players.     

The purpose and experience of TMT regulation

Governments regulate industries in a variety of ways in an attempt to achieve a number of diverse goals. That said, the most fundamental objective of regulation is straightforward: to ensure that everyone has access to reasonable service at reasonable prices. Implementing this objective, however, has never been an easy task. 

In the TMT sector, the dominant narrative in global regulatory debates for the past few decades largely has been based on the twin pillars of promoting competition and increasing liberalisation. Generally analogous to the “Washington Consensus” principles that focused on a market-based approach to policy questions, the move in global telecommunications policy since the late 1980s has been away from state-run monopoly service providers towards a less regulated industry with increased private-sector competition from both domestic and international market players. The liberalisation of telecommunications markets was motivated by various factors, including:

  • the development of international trade in telecommunications services, which increasingly have been provided by multinational companies;
  • evidence that liberalised communications markets were growing and innovating faster and serving customers better;
  • the need to attract private-sector investment to expand and upgrade network infrastructure;
  • growth of wireless services, providing alternatives to fixed networks and introducing new service providers to telecommunications markets; and
  • growth of the internet, which caused data traffic to overtake voice traffic in many countries and led to the introduction of many new services.

As numerous state-owned telecommunications operators were privatised and a wave of pro-competitive and deregulatory policies swept the world, the number of national telecommunications regulatory authorities increased from 12 to over 100 around the world. Regulatory intervention was believed necessary to ensure that viable competition would emerge. Many countries concluded that the creation of a strong, effective and independent regulator was beneficial to successful liberalisation.   

Today, national regulators have considerable experience in telecommunications. Regulatory objectives have not been altered significantly in recent years. Changing circumstances have made it clear that old models for implementing the objectives need to be updated. Reforms now underway in many countries are being driven by a renewed emphasis on ensuring that services are supplied in a manner consistent with national perceptions of the public interest. 

Who regulates

An increasing number of governments have developed separate, national regulatory authorities to oversee the TMT sector. A variety of factors distinguish these authorities, such as the level of independence of the regulator, funding of the regulatory process, the scope of regulatory authority, and organisation of regulatory staff. In some countries, other government ministries or agencies also may play key roles. For example, a competition authority may have relevant authority in the TMT sector in addition to a sector-specific regulator. 

The regulatory process

Regulators undertake various responsibilities, including, among others: licensing, management of spectrum resources, access to rights of way, numbering and portability, standards and protocols, interconnection, addressing anticompetitive behaviour, price regulation, quality of service regulation, universal service, consumer protection, and privacy and security. In doing so, regulators employ a variety of direct procedures. Depending on the legal framework, they may issue various types of regulatory instruments, such as rules, decisions, orders, decrees, policies, notices or resolutions. In general, these instruments implement regulatory policies, resolve disputes or deal with other matters within the regulators’ mandate. In addition, government officials generally have the authority to investigate the actions of regulated entities and to enforce their oversight, including the power to impose sanctions and penalties for violations.