Legislative Pre-requisites for the Introduction of 4G Communications in Ukraine

Iurii Asadchev, Attorney-at-Law, LEXLIGA Law Firm

By adopting the Resolution No. 1232-р of 11 November 2015, the Ukrainian Government approved the Action Plan for the introduction of the 4th generation mobile communication system. A particular focus was placed by the Cabinet of Ministers of Ukraine (CMU) on the research work necessary to study the current distribution of radio frequency resource of Ukraine (RFR).

For this purpose, the Administrative Office of the State Service for Special Communications and Information Protection of Ukraine, the National Commission for the State Regulation of Communications and Informatization (NCSRCI), the Ministry of Finance, the Ministry of Justice, and the Ministry of Defence were authorized, until February 2017, to draft a new law “On Amending the Law of Ukraine “On Radio Frequency Resource of Ukraine”, specifically, in terms of giving definitions to such terms as “technological neutrality”, “refarming”, etc. These authorities were also instructed to jointly develop a mechanism for the allocation, distribution and use of radio frequency resource of Ukraine.

This kind of lawmaking activity should be based on the research findings as the application of the technological neutrality principle is conditioned upon the RFR re-distribution.

On 4 February 2016, in pursuance of the Resolution No. 1232-р, the NCSRCI approved a draft contract for the performance of the research work, eventually signed with the British company Analysis Mason Limited. Among other key tasks, the contractor was supposed to determine whether it was necessary to re-distribute radio frequency resource, implement compensatory measures, deliver expert opinions regarding the introduction of technological neutrality in Ukraine.

In the meantime, on 30 August 2016, people’s deputies O.I. Dachenko, R.S.Semenukha, O.O. Matuzko submitted to the parliament a draft law “On Radio Frequency Resource of Ukraine” (registration No. 5051), as well as draft laws on amending the Tax Code and the Budget Code as to create conditions for effective utilization of radio frequency resource (No. 5052, 5020, 5021).

The key innovation of the draft law lies in technological neutrality, i. e. administrative and technical principles regulating the use of radio-frequency bands, without limitations for specific radio technologies used (ways of generating, transmitting / receiving signals) and services rendered. This means, the state overtakes the obligation to create equal and transparent conditions for the development of all communications service providers. If an operator has been given a licence for radio frequencies 900 MHz and 1800 MHz, it will be able to further deploy 3G and 4G networks on their basis, without the need to participate in any additional tenders or obtain additional permits.

The draft law also allows for mobile and fixed line carriers to jointly use radio frequency resource.

Noteworthy, the executive summary does not offer any references to research findings as highlighted by the CMU Resolution No. 1232-р of 11 November 2015. Moreover, considering that the deadline fixed for the research completion is November 2016, it stands to reason that now such findings are not yet available. The RFR research is underway and scheduled to be completed in November 2016.

Having regard to the key role of the Ministry of Defence of Ukraine in radio frequency resource, as well as the importance of taking into account the findings of respective expert studies made at the level of central governmental authorities with the involvement of international professionals, the adoption of the draft law No. 5051 is too premature. Initiating the draft law in such a strategic field as radio frequency resource, thus side-stepping the approved Action Plan for the introduction of the 4th generation mobile communication system, appears to be totally unclear and unreasonable.

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