Telecommunications services or information services: State Council clarifies on the differences and legal framework

With the issuance of Law 1341 of 2009 (ICT Law), it was intended to resolve the legal uncertainties generated by the definitions of telecommunications services provided in Decree Law 1900 of 1990, in relation to the appearance of new services within the information society.

For years, the Ministry of Communications, later the ICT Ministry, tried to classify a large part of the new services that were emerging with the rise of the Internet and applications within the classifications of telecommunications services. However, despite the clear distinction that the ICT Law made between telecommunications services and ICT services, in terms of the applicable legal regime, the ICT Ministry has been insisting that several content and application services, despite they were not public telecommunications services, they should be considered as such and therefore comply with the obligations of telecommunications services.

In practice, this has significant effects insofar as a provider of telecommunications networks and services must pay a fee to the ICT Ministry and comply with a series of regulatory charges and obligations. In contrast, a content and application provider is subject to a non-regulated regime and does not have to assume this consideration.

Given the large number of debates, in 2017 the ICT Ministry raised a consultation with the Council of State, so that this Court could issue a concept that could shed light on the legal differences between telecommunications services and content and applications services. This concept was issued in 2018 but kept under confidentiality for four years at the request of the Government.

In recent days, this confidentiality was lifted and the content of this important concept was made known. The Council of State considered that the ICT Law established the regime for the entire ICT sector, with a general legal regime for ICT-related services (content and applications) and a differentiated public service regime with strong State intervention for Telecommunications services.

The Council of State clarified that telecommunications refer to the emission, transmission and reception of information, provided by a third party by electromagnetic means. Instead, application services refer to information processing and are different from telecommunications services.

Thus, in order to determine whether a company has the legal status of a provider of telecommunications networks and services, it must be determined whether it is responsible for the provision of telecommunications services. The person in charge is the one who undertakes to provide telecommunications networks and/or services to its users, and assumes responsibility for the provision of the same in its own name before third parties and before the authorities.

For the Council of State, the key point is the determination of whether we are facing a telecommunication and the respective responsibility of the provider on the service or if we are facing a treatment and processing of information. This is clear from the current legal and regulatory framework.

The Council of State concludes that the services and activities related to the treatment and processing of information carried out by a legal person, as a general rule, are under the general legal regime of ICT-related services, and not under the regime of telecommunications services. If in the same communication the provider provides and is responsible for both the transmission of information and the treatment and processing, these would be two services subject to different legal regimes and they would only have to pay a contribution to the State based on gross income, that is, the income received from the public telecommunications service it provides.

This important concept will allow legal certainty to be given to a large number of content and application providers that have been mistakenly considered by the authorities as providers of telecommunications, imposing charges on them that are disproportionate to the nature of their services.