Lex Mundi Telecommunications Regulation Multi-Jurisdictional Survey CONTACT INFORMATION Yuri Fernando Cerrato E. Alvarado y Asociados Planes de Altamira III Etapa, Semáforos Enitel Villa Fontana, 2C. al Este, 2 1/2C. al Norte. Managua (505) 2278-7708 ycerrato@alvaradoyasociados.com.ni NICARAGUA 1. What is the name and nature of the regulatory body(ies) in your jurisdiction? To which bodies (if any) are decisions appealed? The Instituto Nicaragüense de Telecomunicaciones y Correos (TELCOR) (National Institute of Telecommunications and Posts) is the regulatory body of the telecommunications and posts services in Nicaragua, it is a state institution, which stipulates the rules, technique planning, supervision, application and control of the course of law and rules regulating the installation, interconnection, operation and provision of the telecommunications and posts services. TELCOR has the administration and regulation of frequencies of radio spectrum, also the granting of concessions, licenses, permissions or certificates of registry -in accordance with the applicable law- to those companies interested in providing telecommunications and posts services or in using of radio spectrum frequencies. Regarding complaints, these are regulated by the Administrative Agreement Number 002-2005 published in the Gazette, Official Diary of Nicaragua, and Number 9 of January 13th, 2005. This Administrative Agreement stipulates that complaints can be file before the Direction of Qualifications and Attention to Operators and Users of
TELCOR by users of postal services; operators of telecommunications services and concessionaries of postal services. All the complaints must follow the legal procedure established by the administrative agreement above mentioned, which stipulates that the administrative procedure will end with the legal resolution issued by the Director of TELCOR. Once this administrative procedure ends, the party filing the complaint can proceed to use the corresponding judicial procedure before the judicial authorities. 2. Has your jurisdiction adopted the WTO Basic Telecommunications Agreement? If yes, with what exceptions, if any? Yes, it has been adopted. This information is available in the following link of the WTO: http://www.wto.org/english/tratop_e/serv_e/telecom_e/telecom_commit_exempt_list _e.htm#fntext1 3. Are operators in your jurisdiction privately or publicly/state owned? Currently, we only have the postal operator Correos de Nicaragua as a state owned. The rest of operators are private. 4. What are the primary differences between the regulation of wire line, wireless, satellite, cable and VoIP providers? In accordance with the article 8 and followings of Law 200 Ley General de Telecomunicaciones y Servicios Postales (General Law of Telecommunications and Post Services) published in the Gazette, Official Diary of Nicaragua, Number 154 of August 18th, 1995, the telecommunications services are classified in: public services, which are those essential, important and utility services; services of general interest; services of special interest, which are those offered by an operators to a determined number of users; services of particular interests and not regulated services. Depending on the classification of the services that are going to provide, the Law 200 stipulates that TELCOR will grant a concession or license or permission or authorization or to require a registry. 5. Are broadcasters regulated separately from telecoms? Telecoms do not regulate the matter of broadcasters. 6. How are satellite earth stations and submarine cable landings regulated? The provision of the communication services through satellite are regulated by the Administrative Agreement Number 02-97 published in the Gazette, Official Diary of Nicaragua, Number 74 of April 22nd, 1997.
Regarding the submarine cable landing, we do not have any specific law to regulate this matter, yet. 7. How is the radio spectrum generally regulated? Article 4 of the law of 200 above mentioned, stipulates that radio spectrum is an asset of the public dominion subject to the state s control. Additionally, its article 5 stipulates that the administration and regulation of the radio spectrum is in charge of TELCOR; therefore, it is who authorizes the radio frequencies and the granting of the respective license to operators. Also, the article 2 of the Administrative Agreement Number 01-97 Reglamento de Uso del Espectro Radioeléctrico y de los Servicios de Radiocumunicaciones (Rules of Use of Radio Spectrum and Radio communication Services) published in the Gazette, Official Diary of Nicaragua, Number 67 of April 11th, 1997, stipulates that all of those people that use the radio spectrum for radio communication in Nicaragua, including the holders of concessions, licenses, permissions or registry, are subjected to the Law 200; the Rules of such Law; to this Administrative Agreement and the respective technique normative issued by TELCOR. 8. Are any operators granted exclusivity? Decree Number 136-2004 and the Addendum to this Decree Política Sectorial y Lineamientos de Apertura del Mercado de Telecomunicaciones (Sectorial Policy and Guidelines of Opening of the Telecommunications Market) published in the Gazette, Official Diary of Nicaragua, Number 2 of January 4th, 2005 stipulates as a policy to develop in this sector, the total opening to free competition. In this sense, once the exclusivity that had been granted to ENITEL to render basic services of telecommunications (local telephony and national and international long distance) ended in accordance with the Decree above mentioned, in Nicaragua there are no exclusive operator. Also, Law 601 Ley de Promoción de la Competencia (Law of promotion of competence) published in the Gazette, Official Diary of Nicaragua, Number 206 of October 24th, 206 and its Regulation, Decree Number 79-2006 of Rules of the Law 601 published in the Gazette, Official Diary of Nicaragua, Number 10 of January 15th, 2007 prohib 9. Are anti-competitive practices subject to regulation or general competition (e.g., antitrust) laws? Yes, we have the Administrative Agreement Number 20-2005 Reglamento de Promoción y Defensa de la Competencia en el Mercado de Telecomunicaciones (Rules of the promotion and defense of the competition in the telecommunications market) published in the Gazette, Official Diary, Number 199 of October 14th, 2005.
Also, we have the Law 601 above mentioned to regulate this matter; and its Regulation, Decree Number 79-2006 of Rules of the Law 601 published in the Gazette, Official Diary of Nicaragua, Number 10 of January 15th, 2007. 10. What services have been liberalized or designated as competitive services? The Administrative Agreement 20-2005 above mentioned stipulates that the dispositions of such rules will be applicable to all the telecommunications operators regarding to: The nets and telecommunications services and their related resources used during the rendering of telecommunications services available to the public. The nets and telecommunications services and their related resources used during the performance of the interconnection and the access csto other operators; The agreements between operators; The operators conducts; The changes in the structure of the market, as a consequence of the changes in the operators property. Also, such administrative agreement stipulates which agreements are considered as anti-competitive agreements. The rest of services or practices that this administrative agreement does not stipulate as anti-competitive are considered competitive services or agreements. 11. Are there regulated tariffs or price lists? If so, for what types of services? Yes, it is the Administrative Agreement Number 003-2005 Reglamento General de Tarifas (General Rules of Tariffs) published in the Gazette, Official Diary of Nicaragua, Number 9 of January 13th, 2005. This Administrative Agreement stipulates the rules for the tariffs that operators can apply while providing communication services to final users. Such tariffs are based on costs and are applicable to the following telecommunication services: public services, which are those essential, important and utility services such as phoning service, etc; services of general interest such as cell phone, radio and television services; and services of special interest, which are those offered by an operators to a determined number of users. 12. Are there restrictions on foreign investment in any types of communications companies? If so, what are the restrictions? The law 326 Ley de Reforma a la Ley 200, Ley General de Telecomunicaciones y Servicios Postales (Reform law of the General Law of Telecommunications and Post Services) published in the Gazette, Official Diary of Nicaragua, Number 326 of December 22nd, 1999, stipulates in its article 1 that the licenses will be granted to Nicaraguan or foreign individuals or legal entities in accordance with the law 200. Also stipulates that the licenses for medios de comunicación social (social medias) only will be granted to Nicaraguan individual or legal entities; in the case of case of
shares corporation (sociedad anonima), 51% of the social capital must be at least owned by Nicaraguan nationals shareholders; the shares must be nominatives. 13. What are the approval processes for mergers and acquisitions? Do these vary by type of operator? The processes for merger and acquisitions do not vary by type of operator. This process is regulated in the Administrative Agreement Number 20-2005 above mentioned. The process stipulated in such administrative agreement has to be follow when a concentration takes place in accordance with the stipulated by the article 55 of the aforementioned administrative agreement. In accordance with its article 58 a concentration has to be notified to TELCOR before its execution or within 20 days since the agreement was made or since there was an acquisition that takes control in other operator, both cases subjected to the TELCOR s approbation. TELCOR will approve the concentration after confirm that: Neither of the parts is a dominant operator in any market; The concentration will not be major than a determined index established in this administrative agreement. Also the Law 601 above mentioned stipulates in its article 25 the obligation to notify to PROCOMPETENCIA (authority in the matter of competence) when as a result of the concentration its increase a quota equal to 25% or more of the relevant market; or when the economic agents that pretend to concentrate, have mixed gross profits more than 642,857 minimum salaries. 14. Is interconnection between carriers mandatory? Based on article 3 of the Administrative Agreement No. 004-2005 Reglamento General de Interconexión y Acceso (General Rules of Interconnection and Access) of TELCOR published on the Gazette, Official Diary of Nicaragua, Number 10 of January 14th, 2005, the interconnection and the access are obligatory and of public interest; but it is understood that the interconnection is mandatory only when a company requires from other company such interconnection to be able to operate and offer its servic 15. Are interconnection fees/rates regulated? Yes, interconnection fees are regulated.
16. Must carriers make available network components to competitors? If so, what are fees/prices based on cost, or market rates? Based on the article 17 and 18 of the Administrative Agreement No. 004-2005 above mentioned, all the operators must offer access and interconnection to other operators with the purpose of providing telecommunication services available to customers. The fees are based on costs. 17. Is there an obligation to serve all customers? If yes, is there a fund to subsidize eligible carriers? Which carriers contribute to the fund? Which carriers are eligible to receive these funds? Are broadband services subsidized or otherwise promoted through tax or other incentives? More than an obligation, the government promotes the extension of the telecommunication services to all the habitants of Nicaragua, especially to rural and poor areas. In this sense, the aforementioned Decree Number 136-2004 and its Addendum promotes universal access and the extension of the telecommunications services to the entire country. This promotion is made by TELCOR through Fondo de Inversiones de Telecomunicaciones (FITEL) (Fund of Investments in Telecommunications), which is a fund formed with money obtained from monthly paymenst made by TELCOR. Carriers are not obliged to contribute with FITEL. It does not subsidize carriers, it only finance carriers that win a tender process. Broadband services are not subsidized or promoted through tax incentives; these are promoted by FITEL financing when carriers win a respective tender process to develop a particular project. 18. Are there mandatory requirements to customer agreements (subscriptions, etc.)? Yes, there are. Law 200 stipulates in its article 77 that the rights and duties of the users have to be stipulated in the contracts agreement between these and operators; such contracts have to be approved by TELCOR. 19. Are there any general or telecommunication specific requirements as to data retention? Yes, article 21 of Decree Number 131-2004 which reformed Decree Number 19-96 of Rules of the Law 200, published in the Gazette, Official Diary of Nicaragua, Number 2 of January 4th, 2005, stipulates that services of added value such as email, voicemail, information services, teleprocessing, access to data bases and storage and sending of facsimile have to obtain the Certificate of Registration issued by TELCOR. This Certificate of Registration is granted for a period of 5 years. Also, it is important to mention that article 6 of Law 200 stipulates that the information transferred through the telecommunications services is inviolable; therefore it can not be intercepted neither interfered by other third parties. Additionally, article 10 of the Decree Number 131-2004 above mentioned stipulates
that the operators of telecommunication services must keep the confidentiality and the inviolability of such services. 20. Is number portability mandatory? If so, for which types of carriers (e.g., wireline, wireless, voice over internet protocol)? No, it is not. 21. Is equal access dialing selection mandatory? If yes, for which types of carriers? Yes, it is mandatory for those companies that provide services of basic phone and cell phone. 22. Is access or other contributions ( ADCs ) required of new entrants? Yes, they are required to comply with certain requirements stipulated in the Administrative Agreement No. 004-2005. 23. Is VoIP regulated? If yes, to what extent? No, it is not regulated in Nicaragua. 24. Are any major changes to telecommunications laws expected in the near future? Yes, there are possible changes to the telecommunications laws. It appears that the National Assembly of Nicaragua will be studying a new project of Telecommunications Law to determine if this will be approved to be applied in the near future. 25. Is resale of telecom services permitted? If yes, is this activity regulated? What is the process to become a reseller? Are foreign companies permitted to be resellers? Yes, it is permitted. This activity is not regulated, but the practice only requires that seller must be an authorized operator of telecom services. Foreign companies can be reseller, but first they have to be duly constituted in Nicaragua such as the commercial code stipulates to be able to execute the commerce in Nicaragua.