Nghị định 81/2016/NÐ-CP sửa đổi 25/2011/NĐ-CP điều kiện đầu tư kinh doanh dịch vụ viễn thông

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO. 25/2011/ND-CP OF APRIL 6, 2011, DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON TELECOMMUNICATIONS

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the November 23, 2009 Law on Telecommunications;

Pursuant to the November 26, 2014 Law on Investment;

Pursuant to the November 26, 2014 Law on Enterprises;

At the proposal of the Minister of Information and Communications,

The Government promulgates the Decree amending and supplementing a number of articles of the Governments Decree No. 25/2011/ND-CP of April 6, 2011, detailing and guiding the implementation of a number of articles of the Law on Telecommunications.

Article 1. To amend and supplement a number of articles of the Government’s Decree No. 25/2011/ND-CP of April 6, 2011, detailing and guiding the implementation of a number of articles of the Law on Telecommunications (Decree No. 25/2011/ND-CP)

1. To amend Article 4 as follows:

a/ To remove the phrase “in the form of direct or indirect investment” in Clause 1;

b/ To remove the word “direct” in Clause 2.

2. To amend and supplement Article 5 as follows:

“Article 5. Registration and verification of foreign-invested projects on commercial provision of telecommunications services

For foreign-invested projects on commercial provision of telecommunications services that need the Prime Minister’s decision on investment policy, the investment registration agency shall send a dossier to consult the Ministry of Information and Communications.”

3. To annul Clause 3 of Article 10.

4. To amend and supplement Article 13 as follows:

“Article 13. Model contract and general transaction terms on provision and use of telecommunications services

1. The provision and use of telecommunications services shall be effected on the basis of contracts and general transaction terms on provision and use of telecommunications-service entered into by telecommunications businesses and telecommunications service users.

2. Contracts and general transaction terms on provision and use of telecommunications services may be entered into orally, in writing or through specific acts.

3. For essential telecommunications services on the Prime Minister-issued list of telecommunications services requiring model contracts and general transaction terms on provision and use of services, the Ministry of Industry and Trade shall approve the registration of model contracts and general transaction terms of telecommunications businesses after reaching agreement with the Ministry of Information and Communications.

4. For telecommunications services outside the list of services referred to in Clause 3 of this Article but on the list of telecommunications services issued by the Ministry of Information and Communications which require model contracts and general transaction terms on provision and use of telecommunications services, telecommunications businesses shall register their model contracts and general transaction terms on provision and use of telecommunications services according to the process and procedures applicable to essential telecommunications services prescribed in Clause 3 of this Article with the telecommunications specialized management agency.

5. The Ministry of Information and Communications shall issue detailed regulations on minimum specialized requirements and contents, and the process and procedures for registration of model contracts and general transactions terms on provision and use of telecommunications services.”

5. To amend and supplement Article 23 as follows:

a/ To amend and supplement Clauses 1 and 2 as follows:

“1. Dossier of application for a public telecommunications network establishment license

A business applying for a telecommunications network establishment license shall send 5 dossier sets to the telecommunications specialized management agency and take responsibility for the accuracy and truthfulness of its dossier. The dossier must comprise:

a/ An application for a license, made according to Form No. 01 in the Appendix to this Decree;

b/ A valid copy, which may be a copy granted from the master register or a certified copy, of the business registration certificate or investment registration certificate for a foreign investor (or a valid copy of an equivalent valid certificate or license granted before the effective date of Law No. 67/2014/QH13 on Investment and Law No. 68/2014/QH13 on Enterprises);

c/ A copy of the business’s effective charter, which bears a certification seal of the business;

d/ A written certification of the legal capital as guided by the Ministry of Information and Communications;

dd/ A business plan for the first 5 years from the date of grant of a license, containing the following major details: market forecast and analysis; business plan: turnover: total investment and annual investment; form of investment and capital raising plan; manpower (made according to Form No. 04 in the Appendix to this Decree);

e/ A technical plan corresponding to the business plan for the first 5 years from the date of grant of a license, including the following major details: network and equipment configuration by year, including both main parts and spare parts; analysis of network and equipment capacity; capacity of transmission lines; telecommunications resources; applied technologies, standards and technical regulations; measures to ensure service quality and information safety and security (made according to Form No. 05 in the Appendix to this Decree);

g/ A written commitment to implement the license, made according to Form No. 07 in the Appendix to this Decree.

2. Dossier of application for a telecommunications service provision license

A business applying for a telecommunications service provision license shall send 5 dossier sets to the telecommunications specialized management agency and take responsibility for the accuracy and truthfulness of its dossier. The dossier must comprise:

a/ An application for a license, made according to Form No. 01 in the Appendix to this Decree;

b/ A valid copy, which may be a copy granted from the master register or a certified copy, of the business registration certificate or investment registration certificate for a foreign investor (or a valid copy of an equivalent valid certificate or license granted before the effective date of Law No. 67/2014/QH13 on Investment and Law No. 68/2014/QH13 on Enterprises);

c/ A copy of the business’s effective charter, which bears a certification seal of the business;

d/ A business plan for the first 5 years from the date of grant of a license, containing the following major details: type of service; scope of service provision; service charge rates; market forecasts and analysis; turnover; total investment and annual investment; form of investment and capital raising plan; manpower; measures to guarantee lawful rights and interests of service users in case the business terminates service provision (made according to Form No. 04 in the Appendix to this Decree);

dd/ A technical plan corresponding to the business plan for the first 5 years from the date of grant of a license, containing the following major details: telecommunications network configuration by year, including both main parts and spare parts; analysis of network and equipment capacity; capacity of transmission lines; telecommunications resources; applied technologies, standards and technical regulations; telecommunications connection; plans to ensure service quality; and measures to ensure information safety and security (made according to Form No. 05 in the Appendix to this Decree).”

b/ To amend and supplement Clause 4 as follows:

“4. Time limit and procedures for processing dossiers

a/ Within 5 working days after receiving a dossier, the telecommunications specialized management agency shall examine it and notify the business of its validity;

b/ Within 15 working days after receiving a valid dossier, the telecommunications specialized management agency shall coordinate with relevant agencies in. appraising the dossier, and grant a telecommunications service provision license to the business according to its competence prescribed in Article 18 of this Decree;

c/ Within 15 working days after receiving a valid dossier, the telecommunications specialized management agency shall coordinate with relevant agencies in appraising the dossier, and grant a public telecommunications network establishment license to the business according to its competence prescribed in Article 18 of this Decree. For the cases specified in Clause 2, Article 19 and Clause 3, Article 20 of this Decree, the business shall be granted a telecommunications license within 5 working days after it fulfills the obligation to secure the implementation of the license according to the notice of the telecommunications specialized management agency;

d/ In case of refusal to grant a license, the telecommunications specialized management agency shall issue a written reply clearly stating the reason to the business.”

c/ To amend and supplement Clause 6 as follows:

“6. Announcement of contents of a telecommunications service provision license

Within 30 days after receiving a telecommunications service provision license, a business shall have its contents specified at Points a, b, c and d, Clause 5, Article 23 of this Decree published on a printed newspaper for 3 consecutive issues or on an online newspaper and the website of the Ministry of Information and Telecommunications for 20 days.”

6. To add the following Article 23a:

“Article 23a. Conditions for grant of a telecommunications service provision license

1. The conditions for the grant of a telecommunications service provision license must comply with Article 36 of the Law on Telecommunications.

2. The conditions on organizational apparatus and manpower prescribed at Point b, Clause 1, Article 36 of the Telecommunications Law include:

a/ The business is not in the process of division, splitting, consolidation, merger, transformation, dissolution or bankruptcy under an issued decision;

b/ The business has an organizational apparatus and manpower to implement the business plan, technical plan and plan to ensure telecommunications infrastructure safety and information security.”

7. To amend and supplement Article 24 as follows:

“Article 24. Cases of compulsory modification and supplementation of licenses and notification

1. Within the validity duration of a telecommunications service provision license, its holder shall carry out procedures to request modification and supplementation of the license upon the occurrence of any of the following changes:

a/ Change of the name of the licensed business;

b/ Change of the scope of establishment of the telecommunications network or the scope of provision of telecommunications services, licensed types of services and demand for use of licensed telecommunications resources under regulations of the Ministry of Information and Communications;

c/ Request for the provision of telecommunications services not yet stated in the license, with the agency competent to license the provision of such services being the agency that has granted the current license;

d/ Stoppage of the provision of the licensed telecommunications services.

2. Within the validity duration of a telecommunication service provision license, its holder is not required to carry out procedures to request modification and supplementation of the license but shall notify the telecommunications specialized management agency of relevant information within 30 days after effecting at least one of the following changes:

a/ Change of the head office address;

b/ Change of the at-law representative;

c/ Change of the legal capital or investment capital, which must still comply with the legal capital requirement prescribed in Article 19, 20 or 21 of this Decree;

d/ Change of the capital contribution proportions among capital-contributing members, which must still comply with the requirement on foreign investment in the business and the requirement on ownership prescribed in Article 3 of this Decree.”

8. To add the following Article 24a:

“Article 24a. Procedures for modifying and supplementing a telecommunications service provision license

1. A business requesting modification and supplementation of its telecommunications service provision license shall send 3 dossier sets to the telecommunications specialized management agency and take responsibility for the accuracy and truthfulness of its dossier.

2. A dossier of request for modification and supplementation of a telecommunications service provision license for the reason of change of the name of the licensed business must comprise:

a/ A written request for modification and supplementation of the license, made according to Form No. 02 in the Appendix to this Decree;

b/ A valid copy, which may be a copy granted from the master register or a certified copy, of the business registration certificate or investment registration certificate for a foreign investor (or a valid copy of an equivalent valid certificate or license granted before the effective date of Law No. 67/2014/QH13 on Investment and Law No. 68/2014/QH13on Enterprises);

c/ A report on the implementation of the license from the date of its grant to the date of submission of the dossier, made according to Form No. 06 in the Appendix to this Decree.

3. A dossier of request for modification and supplementation of a telecommunications service provision license for the reason of expansion of the established public telecommunications network or of addition of telecommunications services to be provided must comprise:

a/ A written request for modification and supplementation of the license, made according to Form No. 02 in the Appendix to this Decree;

b/ A report on the implementation of the license from the date of its grant to the date of submission of the dossier, made according to Form No. 06 in the Appendix to this Decree;

c/ The modified and supplemented business plan and technical plan for the to-be-expanded part of the network or for the to-be-added services, made according to Form No. 04 or 05 in the Appendix to this Decree.

4. The telecommunications specialized management agency shall receive the dossier and examine its validity within 5 working days after receiving it; appraise and decide to modify and supplement the license according to its competence prescribed in Article 18 of this Decree within 15 working days after receiving a valid dossier. In case of refusal, the telecommunications specialized management agency shall issue a written reply clearly stating the reason to the requesting business.

5. The modification and supplementation of a telecommunications service provision license must satisfy the relevant licensing conditions prescribed in Article 23a of this Decree.

6. The modified and supplemented license becomes effective from the date of its grant to the date of expiration of the original license.

7. The announcement of contents of modifications and supplementations of a telecommunications service provision license must comply with Clause 6, Article 23 of this Decree.”

9. To add the following Article 24b:

“Article 24b. Extension of a telecommunications service provision license

1. A business that wishes to have its telecommunications service provision license extended shall send 3 sets of dossier of request for extension to the telecommunications specialized management agency at least 60 days before the license expires, and shall take responsibility for the accuracy and truthfulness of its dossier.

2. A dossier of request for extension of a license must comprise:

a/ A written request for extension of the license, made according to Form No. 03 in the Appendix to this Decree;

b/ A report on the implementation of the license from the date of its grant to the date of request for extension, made according to Form No. 06 in the Appendix to this Decree.

3. The telecommunications specialized management agency shall receive the dossier and examine its the validity within 5 working days after receiving it; appraise and decide to extend the license according to its competence prescribed in Article 18 of this Decree within 15 working days after receiving a valid dossier. In case of refusal, the telecommunications specialized management agency shall issue a written reply clearly stating the reason to the requesting business.

4. The consideration of the extension of a telecommunications service provision license shall be based on the concerned business’s compliance with the provisions in its license and with the telecommunications law.

5. An extended license becomes effective from the date of expiration of the old license. The validity duration of an extended license shall be decided in accordance with Point b. Clause 1, Article 38 of the Law on Telecommunications.

6. The announcement of contents of extension of a telecommunications service provision license must comply with Clause 6, Article 23 of this Decree.”

10. To add the following Article 24c:

“Article 24c. Renewal of a telecommunications service provision license

1. If a business that has been granted a telecommunications service provision license wishes to continue providing telecommunications services according to the granted license shall send a dossier of request for renewal of its license to the telecommunications specialized management agency at least 60 working days before its license expires.

2. A dossier of request for renewal of a public telecommunications service provision license must comprise the papers prescribed in Article 23 of this Decree and a report on the implementation of the license from the date of its grant to the date of request for its renewal, made according to Form No. 06 in the Appendix to this Decree;

3. The consideration of the renewal of a telecommunications service provision license must comply with the provisions on the conditions for grant of a telecommunications service provision license in Article 23a of this Decree, excluding the provision that “the business must not be in the process of separation, splitting, consolidation, merger, transformation, dissolution or bankruptcy under an issued decision,” taking into consideration the compliance with the provisions in the old license and lawful interests of service users.

4. A renewed license becomes effective from the date of expiration of the old license. The validity duration of a renewed license shall be decided in accordance with Clause 2, Article 34 of the Law on Telecommunications.

5. The announcement of contents of renewal of a telecommunications service provision license must comply with Clause 6, Article 23 of this Decree.”

Article 2. Effect

1. This Decree takes effect on July 1, 2016.

2. On the effective date of this Decree, Articles 11, 12, 17, 18, 19, 20, 21, 22, 23, 25 and 26 of Circular No. 12/2013/TT-BTTTT of May 13, 2013, of the Minister of Information and Communications, guiding the grant of telecommunications service provision licenses, cease to be effective.

Article 3. Organization of implementation

1. The Ministry of Information and Communications shall organize the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and related organizations and individuals shall implement this Decree.-

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