In addition, this page provide more detailed information on the interpretation principles for defining telecommunications, for example as distinct from ICT services and various services provided on the internet. Some of the services provided on the internet via broadband are regarded as telecommunications. For example provision of hardware and software, authority networks, other transmission of communications defined in the Act on Electronic Communication Services (917/2014), and content services must be kept distinct from telecommunications.
Requirements related to telecommunications
Telecommunications operators and their operations are regulated in many ways. The regulation may concern all telecommunications or only certain part of it, e.g. telephone subscriptions or cable television networks.
Requirements related to telecommunications are
- obligation to submit a notification of the operations to Traficom and the information society fee
- technical operability and information security
- preparations for disturbances and exceptional circumstances
- assistance provided to emergency services authorities and police authorities
- regulation of agreement terms and other user rights based on consumer protection
- confidentiality of communications
- promotion of competition by e.g. regulating significant market power
- ensuring of users' basic services with universal service obligations
- regulation of the use of radio frequencies.
Content is not part of telecommunications
The regulation of telecommunications operators does not concern
- content of the communications, e.g. content on websites, content of a discussion forum or provision of videos on websites is not telecommunications
- TV or radio programmes (a television or radio operator may, however, participate in the technical transmission of programme stream, meaning that this part of the operation is telecommunications)
- ICT services, such as provision of devices or software, online recording services of programmes, video-on-demand services, or provision of pay-TV packages or pay-TV cards.
- surveillance or alarm services provided via telecommunications connections, provided usually in nursing and security services, among others.
Definitions in the Act: telecommunications operator
Telecommunications regulation is applied to operations and services if they fulfil the characteristics of the definitions in the Act. Significant definitions in section 3 of the Act are telecommunications operator, communications service and network service.
When assessing whether the legislation is applicable to a certain service, the key issue is usually to assess whether the set of users is subject to any prior restriction and in which situations the service provider is considered to participate in the transfer or distribution of messages.
According to the definitions in the Act, telecommunications operator means a network operator or a communications service operator offering services to a set of users that is not subject to any prior restriction, i.e. provides public telecommunications services.
The regulation of telecommunications is technology neutral. It concerns targeted communications, such as telephone, text message, broadband and email services, and mass communications, such as cable television, IPTV, terrestrial television and radio services.
In mass communications networks, telecommunications is, for example, the maintenance and provision of terrestrial, cable and IPTV networks and the provision of cable or IPTV subscriptions. The technical transmission of programme stream and telecommunications include, for example, the synchronisation of the sound and the picture, as well as the transmission of the information on teletext television and in the electronic programme guide (EPG).
Subject to charge or free of charge
Public telecommunications can be subject to charge or free of charge. Also other than a commercial operator can be a telecommunications operator referred to in the Act because no charge requirement is laid down for public telecommunications in the Act. Thus, the regulation of telecommunications operators can concern, for example, cities or other non-commercial operators and free services provided on the internet.
Set of users not subject to any prior restriction
Public telecommunications means the provision of communications services to a set of users that is not subject to any prior restriction. The regulation of telecommunications operators does not concern e.g. employers, housing companies, schools or hotels that provide communications services to their own users. However, the regulation of corporate or association subscribers may be applied to these.
Interpretation: Traficom's interpretation of a set of users not subject to any prior restriction is narrow. The justification for the Act (HE 221/2013, the detailed justification for the definition of a telecommunications operator in section 3) states that, when assessing whether a set of users is subject to any prior restriction or not, the following aspects, among others, must be taken into account:
- nature of the network and the service;
- extent of the network and the set of users; and
- restrictive aspect of the requirements for becoming a user.
The justification for the Act states that the fact that a communications service only functions with a certain application or on a certain terminal device or a network or a service is available only in a certain geographic area does not solely make the service in question a service for a set of users subject to prior restriction.
- Application-bound communications services are typical for example in voice and instant messaging services provided on the internet. Similarly to other products, users can freely acquire the required applications.
- Terminal devices include communications services independent from mobile operators. Examples of these are instant messaging, email and text or multimedia messages.
- Communications services of network communities and the social media, in which becoming a member is unrestricted to the extent that the membership cannot solely be regarded as prior restriction of a set of users.
- Networks with a small geographic coverage or networks with a new sort of administration methods, such as WLAN networks, in which internet access service is provided. Regionally, they can be situated in a very restricted region, but if the set of users using them is unspecified, the geographic coverage does not solely make the set of users subject to any prior restriction.
Type examples of a set of users subject to prior restriction, according to the justification for the Act, are
- services provided by a company to its employees or by a school to its students
- internal communications services used by taxi centres and taxis
- a communications service that is provided by a café or a hotel and that concerns, in itself, an unspecified set of customers, but the set of user is so small that, as a whole, provision of the service cannot usually be regarded as public telecommunications.
Definitions in the Act: Communications service and network service
According to the definition in the Act, communications service means a service consisting either completely or primarily of transmitting messages in a communications network, and of transfer and transmission service in a mass communications network and interpersonal communication services.
Interpretation related to the transmission of messages: The transmission that meets the definition of a communications service is, at minimum, considered to be the management of an email server connected to the internet or the management of calls by means of IN functions. By contrast, the provision of pure peer-to-peer network software (pure P2P) is not regarded as the provision of a communications service if the messages are not routed through the device of the service provider, i.e. the service provider does not participate in the transmission of the messages.
According to the definition in the Act, network service means a service a telecommunications operator (network operator) provides comprising a communications network in its ownership or for other reasons in its possession for the purposes of transmitting or distributing messages. Communications network means a system comprising cables and devices joined to each other for the purpose of transmitting or distributing messages by wire, radio waves, optically or by other electromagnetic means. Public communications network means a communications network used to provide communications services to a set of users that is not subject to any prior restriction.
Interpretation: Not as much established application practice exists of the interpretation of a network service as does of the interpretation of a communications service. Traficom has provided guidance concerning the interpretation of a network operator and network service to different communal and local actors who construct, for example, fibre networks, as well as in some implementations involving several actors.
Primarily, a mere construction or ownership of a communications network is not considered to be public telecommunications. The operations become telecommunications when the network is provided or used for public communications services or interpersonal communication services. In its guidance, Traficom's starting point has been, in terms of assessing a telecommunications operator, that a telecommunications operator is an operator that administrates the network and exercises power of decision concerning to whom the network is provided. It is not relevant how many telecommunications operators (service provider) operate in the network.
To draw a clear line between network and service operators is sometimes difficult. On the other hand, it does not have a crucial significance except in certain obligations related to significant market power and universal service. Especially with regard to IP networks and IP-based services, drawing a line can be based on interpretations. For example in communications services provided via internet access, the provider of a communications service may possess, at minimum, nothing but the server which is used for implementing and routing on the open internet.
- decisions issued by the Court of Justice of the EU and the Supreme Administrative Court (KHO) (decision issued by the Court of Justice of the European Communities concerning iMez vs. TeliaSonera C-192/08 and KHO 2010:55, Reg.no. 177/2/07) would seem to steer, to some extent, to a restrictive interpretation of a network operator and
- it may be necessary in the interpretation to take into consideration the clarification 'between network termination points' which was added in 2009 to the definition of a public communications network in the Framework Directive. The clarification refers to the subscriber's physical termination points.