Telecommunications: The new Italian Electronic Communications Code is now in force

On December 24, 2021, Legislative Decree no. 207 of November 8, 2021 went into effect and extensively amended the Italian Electronic Communications Code (Legislative Decree no. 259/2003). By implementing this new legislation, the Italian government finally transposed in Italy Directive (EU) 2018/1972 setting forth the new European Electronic Communications Code.

The reform affects the entire telecommunications regulatory framework and makes profound changes to the electronic communications sector—understandably, as the previous EU legislation dated back to 2002.[1] Among the changes that have occurred over those two decades is the development of real-time communications methods that operate over the Internet by new players—known as the Over the Top (OTT) —creating the need for a level playing field. Moreover, the reform addresses increased global demand for connectivity, as well as the development of next generation mobile connectivity (such as 5G).

The most significant changes introduced by Legislative Decree no. 207/2021 are the following:

  • A new definition of “electronic communications services” to include new players, such as the OTTs. Under the new definition, the regulatory regime will also apply to interpersonal communication services, whether they connect to numbering resources or not, and to machine-to-machine (M2M) communications services. However, lighter obligations are provided for interpersonal communications services that do not use numbering resources.
  • A revised general authorization regime that, among other things, takes into account the new definition of electronic communications services. In particular, the decree updates the information to be included in notifications, as well as administrative fees. In line with the new European Electronic Communications Code, general authorization is not required for interpersonal communications services that do not connect to numbering resources.
  • A simplified authorization procedure for installing radio facilities.
  • The clear inclusion of Internet access services under the scope of universal service, with the Italian Communications Authority given the power to issue ad hoc obligations where broadband Internet access service cannot be provided under normal market conditions.
  • Enhanced rights for end users of electronic communications services, including enhanced transparency (for instance, regarding automatic extension of contracts and unilateral amendment of the service, as well as best rates for services), formal requirements for providing information to end users, a stronger right of withdrawal in case of unilateral amendment of the contract, and maximum duration of contracts for the provision of electronic communications services.
  • Provisions coordinating the areas overseen by the various authorities in the field of electronic communications, in particular those of the Italian Communications Authority (Autorità per le Garanzie nelle Comunicazioni—AGCom), the Italian Ministry of Economic Development (Ministero dello Sviluppo Economico—MiSE), and the Italian National Cybersecurity Agency.
  • A revised system governing operators with significant market power, including the possibility for operators to propose commitments to AGCom as conditions for access and co-investment.
  • New and higher sanctions, including sanctions up to EUR 5 million for operators that do not comply with the authorities’ orders. If an operator with significant market power is noncompliant, a sanction of up to 5% of the operator’s annual turnover may be applied.

[1] Prior to the European Electronic Communications Code, the sector was regulated by Directives 2002/19/EC (the “Access Directive”), 2002/20/EC (the “Authorization Directive”), 2002/21/EC (the “Framework Directive”), and 2002/22/EC (the “Universal Service Directive”).

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