5G regulation and law in Poland

On 20 December 2022 the Office of Electronic Communications (Urząd Komunikacji Elektronicznej, UKE) started a a consultation on the auction for four frequency reservations for 5G in the 3.6 GHz (3600-3800 MHz) bands. This C-band auction has been delayed for more than two years, having been announced on 6 March 2020 but cancelled less than three months later due to COVID-related restrictions. The official reason UKE gave at the time was the lack of an amendment to the National Cybersecurity System Act, which included regulations for high-risk suppliers. The amendment has yet to be passed. 

Included in the new consultation are the drafts of (i) the Auction Announcement (ii) the Auction Documentation (iii) the Draft Settlement of the Frequency Reservation Decision. Submissions were due on 31 January 2023. UKE has presented an indicative timetable for the auction, which it expects to take up to 240 days, with operators receiving new C-band frequencies around August 2023 at the earliest. 

UKE has also recently published its 2023 Activity Plan, the aims of which include providing frequencies in the 3.6 GHz band for 5G.

 The largest telecom operators – Orange, T-Mobile, Plus and Play – offer 5G services, although the frequencies they are using (2100 MHz and 2600 MHz) are currently used for 4G technology. It is thus hard to assess whether telecom companies are monetising 5G investments, given the cancellation of the first 3.6 GHz auction, early stages of the current 3.6 GHz auction and delays to larger investments.

As an example, PKN Orlen (the biggest Polish petroleum company) conducted tests of a private 5G network at its refinery in Plock and at a nearby gas stations in mid-2022. The company described these as “the first in Poland and one of the few in Europe tests of a private 5G network in industrial infrastructure”.

Exatel together with the Polish Development Fund (Polski Fundusz Rozwoju) and major domestic telecom operators (Orange Polska, T-Mobile Polska, Polkomtel and Play) were working on a business model to build a common infrastructure for the 700 MHz band. One aim noted in the pre-study (July 2020) was to ensure that a wide range of operators had access to frequencies. A summary report, which included three feasibility models for building a uniform 5G network in the 700 MHz band, was sent to the Prime Minister. 

In response, the government prepared a draft law amending the law on the national cybersecurity system and other laws. In January 2023, another version of this draft law came out. Previous versions proposed the introduction of a new company called “Polish 5G” (Spółka Polskie 5G) that would administrate and develop 5G in the 700 MHz band. However, this idea was widely criticised, mainly because the state would hold a majority stake in the company. In the current (ninth) version, the legislator has abandoned the introduction of the Polish 5G company and provided less clarity on how this band would be allocated.

There is a consultation underway on the proposed auction for four 5G frequency reservations in the 3.6 GHz (3600-3800 MHz) band. So far, the UKE has only presented an indicative timetable for the auction, which would take up to 240 days, meaning that operators would receive licences around August 2023 at the earliest.

Compared to the auction announced in March 2020, some of the conditions have changed, such as the quantitative and qualitative obligations operators must meet. For example, the 2020 auction only required 350 base stations, but now each operator would have to deploy 3,800 base stations within 36 months of receiving its decision on frequency reservation. 1,400 out of 3,800 base stations would have to be deployed in municipalities with a population of between 10,000 and 80,000 people. In terms of service quality, operators must be able to demonstrate 30/50/100 Mbps of radio link capacity and a maximum of 10 ms delay within five to seven years of the auction result, with the first quality threshold to be achieved within 12 months.

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According to the auction documentation, which is part of the consultation, the starting price for each band will be PLN 450m. The nominal price, compared to that announced at the 2020 auction, has not changed. However, the President of UKE pointed out: “the real increase in the value of the band is reflected in the quantitative and qualitative requirements” (for more details please see Q5.1 above).

In November 2020, the Council of Ministers adopted an updated version of the National Broadband Plan (Narodowy Plan Szerokopasmowy). The document sets out the government’s top digital goals for the next five years. By 2025, it expects fully developed 5G connectivity on all major communication routes and in major urban centres. According to the National Broadband Plan:

• 700 MHz bands must be distributed by 30 July 2022;
• 3.6 GHz (3600-3800 MHz) bands must be distributed by 30 July 2020;
• 26 GHz band must be distributed by 31 December 2022.

Unfortunately, none of these targets have met their deadlines. 

The 3.6 GHz auction has been re-planned multiple times, and has now gone back to the consultation stage. 

In response to a parliamentary question (4 January 2023), the Secretary of State for Digitalisation indicated: “For frequencies in the 700 MHz band, the allocation of resources is also envisaged for 2023”. However, this assumption is highly unrealistic. One of the main issues concerning this band is its susceptibility to interference from Russia, Belarus and Ukraine. In fact, the 700 MHz band is used by television in these countries. While Poland has managed to reach an agreement with Belarus and Ukraine – TV stations there no longer broadcast in the 700 MHz band – it has not reached a corresponding agreement with Russia. In view of the war in Ukraine, deliberate interference with the Polish network by Russia is likely.

UKE announced its consultation on using the 26 GHz bands and other millimetre bands for 5G in July 2020. The majority of telecom operators recommended that the band should be allocated no earlier than in 2022-2023. Most recently, in response to a parliamentary question (4 January 2023), the Secretary of State for Digitalisation indicated that “Regarding this band (26 GHz), there is currently no demand from entities operating in Poland, and full use of these frequencies is envisaged after 2023”.

The Act of 30 August 2019, which amended an Act to support the development of telecommunications networks and services, amends numerous regulations, including the Telecommunications Act, the Construction Law and the Law on Public Roads. The changes should enable the construction of telecommunications networks, inter alia, by regulating issues relating to payments for using road lanes, and in areas such as national parks and health resorts. Also, important to note is that it is now the minister for health (not the minister for the environment) who is responsible for issuing regulations on PEM limits (i.e. radiation limit values for electromagnetic fields).

Have there been any decisions regarding non-compliance with 5G concessions’ obligations?    N/A

In December 2020, the Minister of Digitalisation issued regulation on the minimum technical and organisational measures telecom operators must take to ensure 5G network security (Rozporządzenie (sejm.gov.pl). 

The Draft Settlement of the Frequency Reservation Decision, which is currently under consultation (please see Q1) includes cyber-security requirements. Frequency reservation holders will be required to assess cyber-security risks, and the impact of entities partnering on network construction and operation, by following recommendations by ENISA and the President of UKE. If a provider is deemed to be generating “high risk”, it will have to withdraw its equipment from the network for a maximum of seven years.

We are not aware of any 5G network sharing or spectrum sharing agreements in place.

Regarding the C-Band, frequency reservation holders will be selected through an auction for four 5G frequency reservations in the 3.6 GHz (3600-3800 MHz) band. According to the Auction Documentation, currently under consultation (see Q1), the auction will be conducted in two stages.

During stage I, the Commission will check that initial tenders meet the relevant conditions. Those that do will qualify for stage II.

In stage II, participants will submit bids for individual blocks of frequencies. The President of UKE will allocate frequency reservations to the selected entities. Four separate frequency reservations will be issued.
Each reservation will be valid until 31 May 2035.

The draft law of 17 January 2023 amends the law on the national cyber-security system and other laws. It includes provisions enabling authorities to exclude hardware and software suppliers from the public procurement procedure if they are deemed to present a high risk to state cybersecurity. In addition, the amendment will allow the Cybersecurity College to assess the risk of relevant hardware and software suppliers ex officio or at the request of a college president. In the event of a high risk, the national cybersecurity system entities will not be able to use the equipment, software and services of a given supplier, and any equipment already in use will have to be withdrawn within five years of the announcement. National cybersecurity system entities will, however – as clarified in the latest version of the amendment – be able to use the products identified in the decision to designate the entity as a high-risk supplier during this five-year period. This will apply even if the products were purchased prior to that decision. This is an implementation of the EU 5G Toolbox. 

Provisions concerning high-risk suppliers appeared in the first version of the draft law. In response to those proposed provisions, Huawei wrote an open letter asking for equal and fair treatment, and even contacted the European Commission (see Huawei challenges legality of 5G bans in Poland, Romania – POLITICO). The proposed changes were also criticised by others including the spokesman for Small and Medium Enterprises and business associations such as the National Chamber of Ethernet Communication. It is unclear whether the work to amend the law on the national cyber-security system will continue, especially given the need to implement the NIS 2 Directive (i.e. Directive (EU) 2022/2555 of the European Parliament and of the Council of 14 December 2022 on measures for a high common level of cybersecurity across the Union, amending Regulation (EU) No 910/2014 and Directive (EU) 2018/1972, and repealing Directive (EU) 2016/1148 (NIS 2 Directive)) into the Polish legal system.