Rizek Abogados: Dominican Republic for Telecoms and Media 2017

José Alfredo Rizek Vidal and Jessica Arthur Jiménez
Rizek Abogados

Communications policy
1) Regulatory and institutional structure

Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?

General Telecommunications Law No. 153-98, the rules and regulations enacted by INDOTEL (Law No. 153-98 or the Law) constitute the main legal framework that regulates the telecommunications market of the Dominican Republic, which is overseen by the Dominican Institute of Telecommunications (INDOTEL), as the governmental agency responsible for the supervision and enforcement of the legislation.

INDOTEL is also responsible for fostering the development and implementation of telecoms under the universal service principle, guaranteeing the existence of a sustainable, loyal and effective competition regime in rendering telecoms services and overseeing an efficient use of the spectrum, by means of preparing and enforcing the rules and regulations required for the protection of a participant’s rights, as well as sanctioning their violations or non-compliance with any applicable legislation.

Regarding application of foreign ownership restrictions to communication services, Dominican legislation only subscribes to one such limitation, which is for ownership of broadband services that cannot be controlled by a foreign entity or individual. Except for broadcast services, there are no local ownership requirements or restrictions on foreign investment.

The past few years have seen the market transform through the consolidation of some of its main participants and providers of mobile and broadband access, through a foreign third-party acquisition (ie, Altice’s acquisition of Tricom and Orange). Also, expected new entrant Liberty Global is set to increase competition in the broadband and connectivity markets in late 2017.

2) Authorization/licensing regime
Describe the authorisation or licensing regime.

Under the provisions of Law No. 153-98 and its Regulation, all licences must be led by the applicants and comply with all the technical and nancial information required by the Regulation for Concessions, Inscriptions in Special Registries and Licences, as applicable. INDOTEL may grant a direct licence for the use and operation of microwave links or other shared or private services.

However, licences associated with the commercial exploitation of mobile, broadcast and other wireless services are subject, for assignment, to a tender process to be nominated by INDOTEL depending on demand or spectrum availability. In contrast, satellite services only require a special registration, which is a rather simple procedure carried out before the executive director of INDOTEL, who grants it along with the suitable up and downlink frequencies. Spectrum allocation for satellite systems follows the Region 2 (Americas) chart of the Radio Regulations (RR).

The duration for obtaining such authorizations depends on the service object of the request, as well as INDOTEL’s docket, and can vary from three months to a year. To date, authorizations have not been subject to any payment for either being granted or being renewed. However, the use of radio spectrum is subject to an annual usage fee, calculated according the bandwidth and power of the installations and networks, as well as the number of stations in service.

Also, it should be noted that article 45 of the Law creates the Contribution Towards Telecommunications Development (CDT), a 2 per cent levy included in end-user bills and over income received by all public telecommunication service providers for international traffic destined to the Dominican Republic. The CDT is the main source of INDOTEL’s financing, as well as telecommunications development projects. Moreover, pursuant to section IV of the Dominican Tax Code, telecommunications services are also subject to a 10 per cent excise tax and 18 per cent VAT.

There is a growing concern among the operators of insu cient spectrum for the deployment of suitable wireless broadband services. However, INDOTEL’s plans call for the allocation of a ‘digital dividend’ obtained from the digital switch of analogue TV signals, but those will not be available for three to ve years. Although no spectrum cap is in place or mandatory, INDOTEL did use such gure in the most recent 4G bid, and did not allow any carrier to bid for more than 40MHz.

The Contribution Towards Telecommunications Development allows for the regulator to define specific programmes that can subsidise underserved areas, and many projects have been implemented to gain an internet footprint in the country. Most of the programmes have been designed to increase the number of computer penetration and internet access, including the installation of public Wi-Fi hotspots, but the main driver in broadband growth continues to be the private sector through its investments and marketing initiatives.

3) Flexibility in spectrum use
Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable?

The radio-frequency spectrum is a public domain asset made available to the public by means of licences granted by INDOTEL. To obtain a licence of a frequency, an applicant must le a request complying with the technical and financial information required by the Regulation for Concessions, Inscriptions in Special Registries and Licences, as applicable. Licences are granted for specific frequencies or range of frequencies, and its use is subject to the allocation previously made in the International Telecommunications Union (ITU)’s RR and the National Allocation Frequency Plan.

Licences, however, can be subject to trading or sub-licensing, provided that INDOTEL approves the transaction before its execution. The agency will withhold the authorization if in any way the proposed transaction goes against the competitive regime, either by restricting competition or creating unfavorable advantages to the proposed acquirer.

To ensure a rational and eficient use of the radio-frequency spectrum, INDOTEL prepares – and the Executive Branch enacts – the National Allocation Frequency Plan, which complies with the most recent radio regulations adopted by the ITU and includes the general guidelines to be followed when assigning frequencies intended for the development of broadband services.

4) Ex-ante regulatory obligations
Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed?

There are no specific operators or markets that have been singled out by INDOTEL as subject to ‘dominant position’ that could result in certain ex-ante regulations. The Law provides that all markets are open to competition and INDOTEL has, so far, enacted general regulations that apply to all carriers. To date, there are no price controls in e ect, and article 39 of the Law calls for a price deregulation scheme in which all carriers can set out their own prices, provided INDOTEL has not intervened in a speci c market because of a lack of e ective competition.

Since no market has been labelled as non-competitive by INDOTEL, all prices are freely decided by the participating carriers. However, general provisions and regulations on accounting separation, essential facilities, mandatory interconnection and non-discriminatory prices and charges are in full force and effect, and applicable to all participants in the market notwithstanding their market share or competitive position.

5) Structural or functional separation
Is there a legal basis for requiring structural or functional separation between an operator’s network and service activities? Has structural or functional separation been introduced or is it being contemplated?

No. The Law does not provide as one of its remedies the structural separation of companies in the Dominican Republic. Although INDOTEL has broad regulatory powers, and as a competition authority can also implement specific remedies, a decision on splitting a company or imposing a functional or structural separation can create a conflict with the constitutional provisions of freedom of enterprise and private property.

6) Universal service obligations and financing
Outline any universal service obligations. How is provision of these services financed?

One of the objectives of Law 153-98, according to article 3, aims to reaffirm the principle of universal service through three mechanisms, namely: (i) the assurance of accessible telephone service to low income sectors ‘through free market operations and the utilization of the mechanisms provided for in this law’; (ii) ‘satisfying the demands of public telecommunications services under conditions of free competition’; and (iii) ‘free access to public telecommunication services networks under nondiscriminatory and transparent conditions’ toward and among all parties involved. It is important to note that the law makes no reference to broadcasting services.

As previously noted, article 45 establishes CDT, a 2 per cent levy from (i) ‘gross amounts received during the month prior to the CDT settlement of invoices issued to nal users of public telecommunication services, except for broadcasting’ and (ii) ‘amounts received by the providers of public telecommunications services during the month prior to the CTD settlement (...) except for broadcasting’, with the purpose of dedicating a specific percentage of the fund toward making telecommunications means into a universal service, in accordance with the Law and the Regulation governing the CDT, as approved under Resolution No. 086-04 of INDOTEL’s Board. In accordance with the most recent tax reform – Law No. 253-12 on the Reinforcement of the State’s Revenue Collection Capacity for Fiscal Sustainability and Sustainable Development – and through its article 21, both Tax Code and Law 153-98 dispositions were modi ed by subjecting Pay TV sevvices (CATV, IPTV, satellite or similar) to CDT payments, previously excluded since the Law de ned them as broadcast services.

7) Number allocation and portability
Describe the number allocation scheme and number portability regime in your jurisdiction.

Number portability was officially implemented on 10 September 2009 and has had a notable positive effect on competition between telecoms services providers in the country, which have had to prepare and present users with more competitive service packages, improve their customer service, as well as incorporate several value-added services to their offers to maintain a consistent customer base. There is no specific method for number allocation, but to request new NXXs the carrier must certify at least a 75 per cent to 85 per cent use of existing resources.

8) Customer terms and conditions
Are customer terms and conditions in the communications sector subject to specific rules?

The terms and conditions that should be stipulated in telecommunications service contracts entered between service providers and end users are governed by the regulations established in Law 153-98. Some of the general obligations that providers are subject to include no arbitrary or discriminatory actions against any user and non-collection of fees with respect to services that have not been delivered. All forms of unlawful practice are forbidden, as are all restrictive practices within the eld of telecommunications. Equality and transparency are the basic principles upon which such contractual terms are to be agreed. It is mandatory for carriers and service providers to allow users free access to their networks’ services according to established non-discriminatory rules and regulations, and to provide free customer assistance services.

Article 101 of the Law establishes that INDOTEL is mandated to regulate relationships between authorized telecommunications providers and users ‘guaranteeing their rights and establishing their obligations’. Consequently, a series of regulations has been issued to this end, such as: Resolution 025-05, which sets forth the Regulation for the Solution of Controversy between users and providers of Public Telecommunications Services, as recently amended by Resolution No. 124-05; and Resolution No. 026-00, which set up the Users Assistance Centre with the primary objective of assisting telecommunications services users and guiding them with respect to the rights and obligations conferred on them by current legislation.

9) Net neutrality
Are there limits on an internet service provider’s freedom to control or prioritize the type or source of data that it delivers? Are there any other specific regulations or guidelines on net neutrality?

The matter of net neutrality has not been formally addressed in the regulatory framework, although the country has been closely following the debates and changes promoted in other nations, such as the US and the EU.

10) Platform regulation
Is there specific legislation or regulation in place, and have there been any enforcement initiatives, relating to digital platforms?

No, technology is not regulated in the country, so all carriers and participants have the freedom to choose the vendor that best suits their needs, as well as to select their own service platform.

11) Next-Generation-Access (NGA) networks
Are there specific regulatory obligations applicable to NGA networks? Is there a government financial scheme to promote basic broadband or NGA broadband penetration?

There are no regulations in force for governing NGA networks, nor has the Dominican government implemented any financial programmes aimed at promoting the introduction of basic or NGA broadcasting. However, most new investments by operators have been focused on NGA networks, through extensive fibre deployment in the main cities; meanwhile, the government is seeking the promotion of subsidized inter-province bre deployment to connect those municipalities and cities left out of the private sector network expansion plans.

12) Data protection
Is there a specific data protection regime applicable to the communications sector?

Yes, Law 172-12’s primary objective is the comprehensive protection of personal data contained in archives, public registries, databanks and all other banking or technical sources of information and data processing for reporting purposes, be they public or private. It applies to ‘data of a personal nature registered in any databank that makes it susceptible to being processed and treated, and to all other modality of subsequent use of this data in either private and public fields’ in the Dominican Republic. This law also addresses sanctions for illegal access to confidential security systems of personal data, obligations to secure and protect personal data archives, requests for international transfer of personal data and regulates specifically the confidential personal data retrieved by credit bureaux – among other important dispositions.

The latter is complemented by the guidelines set forth in article 5 of the Law, which establishes that ‘all data issued through telecommunication services are confidential and inviolable’, with the exception of legal intervention subject to applicable common and stipulations set forth in applicable special laws. It further mandates that public telecommunications service providers are obligated to ‘protect such inviolability’.

13) Cybersecurity
Is there specific legislation or regulation in place concerning cybersecurity or network security in your jurisdiction?

Yes, Law 53-07 on Cyber Crimes is based on the Dominican Republic’s Constitution; and on the guarantee of human rights principles that are mandated by the various international treaties to which the country is party, namely: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights under the auspices of the United Nations and the Inter-American Convention on Human Rights. The Law prohibits the fraudulent access of registered personal information and sanctions the active subjects (legal entities or individuals, national or foreign), whether within or outside Dominican territory, that engage in unlawful access to electronic, automated, telecommunications or telematic systems storing the personal information of service providers’ clients, with the payment of an amount equivalent to one to 200 times the current minimal wage and three to 12 months’ imprisonment. The internet and its content is mainly self-regulated, except as relates to the punitive part under the said law, which also addresses improper behaviour, child pornography, service denial attacks and other forms of cybercrime, including terrorism.

14) Big data
Is there specific legislation or regulation in place, and have there been any enforcement initiatives in your jurisdiction, addressing the legal challenges raised by big data?

There is currently no specific legislation on big data in the Dominican Republic. Although the state is aware of this lack of regulation, to date no legislative initiative to address this issue has yet surfaced. Several national experts on this area have voiced the significance of regulating current big data technology at national, regional and international levels and the need to uphold the 2030 Global Agenda for Sustainable Development Goals introduced by the United Nations.

15) Data localisation
Are there any laws or regulations that require data to be stored locally in the jurisdiction?

The current legislation contains no provisions or mandate that physical or legal entities maintain a local file for the storage of personal data under their responsibility. Reiterated reference is only made with respect to the safekeeping and confidentiality obligations that must be observed whenever such information is handled. Data storage services and data centres are generally available or operating in the country, most of which o er storage and data recovery services in different jurisdictions.

16) Key trends and expected changes
Summarise the key emerging trends and hot topics in communications regulation in your jurisdiction.

There is a growing discussion about the need to update Law No. 153-98, now that is over 19 years old. A lot of its provisions are outdated and need to be brought up to date, especially regarding licensing, allocation of resources and its disciplinary regimen. INDOTEL has very recently signed an agreement with the ITU, which has committed to assist the Dominican government in its reform efforts. Such discussions are expected to take place over the next 12 or so months.

17) Regulatory and institutional structure
Summarise the regulatory framework for the media sector in your jurisdiction.

There is currently no regulatory framework in the Dominican Republic for governing media services. Nevertheless, during the past 10 years signi cance consideration has been given to the drafting of new laws for Freedom of Speech, Communication and Media; State Communications and Advertising; a General Audiovisual Law and a General Advertising Law, as well as modi cation proposals to Law 6132 on Public Speech, which was enacted in 1962. Although Law 6132 is currently in force, it must be noted that – in our view – it has become obsolete given that it only contemplates regulations relating to the press media, without regulating either the use, property or the entities in charge of regulating communication media and other branches of information technology.

18) Ownership restrictions
Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Law 153-98 as well as the Regulation on Concessions, Subscriptions and Registration of Special Licences required to provide telecommunications services in the Dominican Republic, stipulates that ‘as regards public broadcasting services...’ individuals are required to be either ‘Dominican nationals by birth or naturalised foreigners’. The latter seeks to ‘maintain control on the management of the media concessionary enterprise’. Currently, there is no restriction in our legislation that forbids or limits cross-ownership of different communication media. It is public knowledge that a few economic groups own an array of communications sources that include television channels, newspapers and radio stations.

INDOTEL, however, does need to approve any transaction that involves the change of control of broadcast companies (ie, radio, TV, cable) or the transfer of assets and frequencies. It also has the authority to analyse market conditions and consolidation, thus, having the faculty to impose specific obligations if competitiveness were to su er because of such transactions.

19) Licensing requirements
What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorizations?

The standard requirements are established under the Law and the Regulation on Concessions, Subscriptions and Registration of Special Licences required to provide telecommunications services for the entire Dominican Republic, which we have previously mentioned (ie, all licences must be led by the applicants and comply with general, legal, technical and nancial information).

20) Foreign programmes and local content requirements
Are there any regulations concerning the broadcasting
of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

There are currently no regulations concerning the broadcasting of foreign-produced programmes.

21) Advertising
How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

The current legislation of the Dominican Republic does not contain regulations on advertising and how such messages are to be transmitted through the media. However, there are general regulations in effect with respect to misleading or false advertising. These are included within the legal framework of Law 153-98 and Law 42-08 (Competition Law), which establishes penalties for misleading or false advertising. Regulations under Law 136-03 on the Protection of Children and Adolescents, as well as the General Health Law 42-01, both stipulate that publicity of alcoholic beverages and tobacco must include that its sale is forbidden to minors and that the excessive intake of these products is hazardous to health.

22) Must-carry obligations
Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

The must-carry obligations are contained in Resolution No. 160-05 of the INDOTEL Board. Article 10.1 of said regulation states that authorized cable broadcasting services will only be obligated to comply with Must-carry services in favor of television broadcasters, when such providers are holders of the corresponding licences, as required by Law or comply with a Grade B signal. In the case of the latter, the provider of radio and television broadcasting services shall compensate the cable broadcasting services operator with a maximum of: ‘(a) the costs of the equipment used for the retransmission (...), (b) the electric energy consumed by such equipment within the cable system head station, and (c) the costs of signal transportation within the cable broadcasting service network’.

In the event of any dispute, INDOTEL’s Board has broad authority to intervene and impose the must carry obligation, provided the conditions set forth above have been met by the petitioner.

23) Regulation of new media content
Is new media content and its delivery regulated differently from traditional broadcast media? How?

The matter is not regulated in the Dominican Republic. Content follows within the Freedom of Speech clause of the Constitution, so it is highly unlikely that speci c content regulations will ever be enacted.

24) Digital switchover
When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

In 2010, the Dominican government adopted the Advanced Television System Committee standard for TV digitalisation and development of digital terrestrial television (TDT). In addition, it further mandated – by presidential decree – that broadcasters be given a five-year transition to finalise its conversion from analogue to digital. To further assist in the process, the Customs Administration offered full support by facilitating equipment imports, as needed for the implementation of the digital system.

Since it was not possible to accomplish the TDT conversion – originally foreseen to take place during 2015, the President issued a new Decree – No. 291-15 – granting broadcasters an extension until 2021. INDOTEL’s authorities consider the fulfillment of this goal as one of its main objectives and asserts its commitment to ‘launch the digital start up before’ the year 2021 and to do so ‘most likely during the first semester of 2019’.

As previously explained, the Dominican government has already decided that the ‘digital dividend’ in the 700MHz frequency range, arising out of the transition to TDT, has been allocated to mobile broadband services. The assignment through a public tender and actual exploitation of these frequencies will not happen until 2019– 2020, the earliest.

25) Digital formats
Does regulation restrict how broadcasters can use their spectrum (multi-channelling, high definition, data services)?

In view of the fact that the digital switchover has not yet been implemented, there is no regulation in place to restrict the use of digital formats when providing broadcasting services.

26) Media plurality
Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

There are no regulatory provisions for media plurality in the Dominican Republic, other than the constitutional mandate on non-biased reporting and freedom of speech. There is a general awareness of the importance of plurality in communications media, given that the Dominican Association of Journalists (CDP) and other well-renowned public opinion leaders are constantly advocating more accessible and neutral media reporting. In July 2015, the CDP conducted a research study on Dominican Republic’s Media Development Indicators that was partially financed by UNESCO.

The study reaffirmed the significance of media plurality as a means of improving the quality of information broadcast to the Dominican population. In addition, the study established that media plurality is fundamental for democratic processes and legal a airs of transcendental nature. Nevertheless, it should be pointed out that – despite its geographic limitations – the Dominican Republic has a wide range of free communication and media sources, both traditional and digital, as well as a population highly educated in the use of social media.

27) Key trends and expected changes
Provide a summary of key emerging trends and hot topics in media regulation in your country.

As previously pointed out, the possibility of a reform to Law 153-98 has been analysed by several national experts. INDOTEL is currently working on and drafting new regulations (ie, infrastructure sharing). Regarding new media regulation, there are various projects in the Dominican Republic that aim to analise what would finally comprise the country’s legal framework for communication media operations, such as: (i) Freedom of Expression and Communication media; (ii) State Advertising and Communications; (iii) General Audiovisual Law; as well as (iv) modi cations to the Law on Free Access to Information. Despite the latter, the draft bills mentioned are not regarded as priorities by the Dominican Congress.

Regulatory agencies and competition law
28) Regulatory agencies

Which body or bodies regulate the communications and media sectors? Is the communications regulator separate from the broadcasting or antitrust regulator? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation?

As previously mentioned, there is no governing body in the Dominican Republic for regulating media services. The same does not hold true for broadcast services, which are regulated by Law 153-98, as well as by rules and regulations enacted by INDOTEL, along with copyright legislation.

As regards the antitrust regulator, Competition Law No. 42-08 created the National Commission for Competition Defence (ProCompetencia), which – according to article 17 of Law 42-08 – bears the primary objective to ‘promote and ensure the existence the e ective of competition and increase the economic e ciency of the products and service market’. This notwithstanding, the latter pose no con ict with respect to Law 153-98, which governs the telecommunications sector, given that the Competition Law provides that its guidelines will serve as a supplement to those economic agents that might be governed by sectoral regulations comprising special rules on competition.

According to Law 153-98, one of INDOTEL’s objectives is to ‘ensure the existence of a sustainable competition environment, reliable and e cient in the deliverance of public telecommunications services’ and consequently, it may sanction telecommunications service providers for administrative infringements, such as: competition restriction practices or any other practices that INDOTEL’s Board may deem detrimental to the principle of free service deliverance and freedom of competition. By the same token, INDOTEL’s Board may ‘issue regulations of general application and rules of speci c application, within competition rulings (...) [to] entities providing regulated public services and (...) to its users’.

Notwithstanding the authority conferred to INDOTEL under Law 153-98, Law 42-08 sets forth that when such administrative actions – be they regulations or sanction processes – are related to competition issues, they should be referred to ProCompetencia for due evaluation. A legal framework has thus been implemented that provides mechanisms to ensure consistent application in favour of free competition among the Dominican Republic’s regulated sectors. However, we are just recently beginning to see the full application of this legal framework given that, although Law 42-08 was published in 2008, it did not come into force until January 2017, upon the appointment of ProCompetencia’s first executive director.

29) Appeal procedure
How can decisions of the regulators be challenged and on what bases (merits, law, procedure etc)?

Pursuant to article 96 of Law 153-98, decisions rendered by the executive director or the board of directors of INDOTEL are subject to a reconsideration petition led by the interested party, and consequently be challenged before the Dominican Republic administrative courts, as applicable. An administrative appeal before INDOTEL can only be initiated against its board’s decisions if it is founded on any of the motives contained in article 97, namely: (i) abuse of power; (ii) insuficient motives; (iii) evident error of law; or (iv) breach of procedural rules established by current legislation.

30) Competition law developments
Describe the main competition law trends and key merger and antitrust decisions in the communications and media sectors in your jurisdiction over the past year.

In the Dominican Republic, Competition Law No. 42-08 regulates matters related to antitrust and fair competition between participants of the different markets currently operating in the country. Its article 5 explicitly indicates that any practice, action or agreement that ‘has the objective or that produces or may produce the effect of unjustified barriers in the market’ are prohibited, which serves as basis for the prior review of antitrust approval before undertaking an eventual telecoms investment. This is an analogue provision of that contained in Telecommunications Law 153-98. Since the telecommunications market has pretty much faced competition since the early 1990s, most of INDOTEL’s decisions affecting the competitive landscape date back almost 10 years, and have mostly now been transformed into general rules or regulations for general observance by every market participant.

Reproduced with permission from Law Business Research Ltd. Getting the Deal Through: Telecoms and Media 2017, (published in August 2017; contributing editors: Alexander Brown and Peter Broadhurst, Simmonds & Simmonds LLP) For further information please visit gettingthedealthrough.com