In Denmark electronic communications networks and services are regulated by:
The definition of “a provider” in the Danish Act on Electronic Communications Networks and Services.
”A provider” is defined in the Act on Electronic Communications Networks and Services as any natural or legal person who makes products, electronic communications networks or services governed by the Act available to other parties on a commercial basis. Anyone who is encompassed by this definition is subject to the rights and obligations in the Act as well as in executive orders issued according to the Act.
Traditional telecom companies that provides internet access and/or voice telephony are the archetypical providers but the definition also encompasses businesses, organizations and authorities etc. that aren’t telecom companies, and where the provision of electronic communications networks or services are ancillary to the company’s etc. main activity.
General guidance concerning the definition of a provider of electronic communications networks and services
“Provider” is defined in the Act on Electronic Communications and Networks Section 2 (1):
Provider: Any person who makes products, electronic communications networks or services governed by this Act available to other parties on a commercial basis.
A commercial basis exists if for example a company sells or markets a product to directly or indirectly obtain a profit. Whether the activity in question is profitable or not is not relevant. If a hotel for example establishes an internet hotspot in its lobby or makes internet or voice telephony available in their rooms, free of charge, the hotel will be regarded as a provider, because the activities take place to make the hotel more desirable, and thereby to obtain a profit.
A commercial basis furthermore exists if an activity usually takes place on a commercial basis, regardless if in the actual case, the company, association or authority aims to obtain a profit. If for example a municipality rents out rooms for businesses with internet access included, the municipality will be regarded as a provider, because letting usually takes place on a commercial basis, and because the provision of internet access usually takes place to make the lease more attractive.
Registration of providers of electronic communications networks and services
No authorization is required of providers of electronic communications networks and services but all providers must register with the Telecommunications Center of the Danish National Police.
The definition of a provider and the Executive Order on the retention and storage of traffic data (…)
A number of businesses, associations and authorities regularly contact the Danish Energy Agency inquiring whether or not the definition of a provider in the telecommunications act applies to them. The inquiries are often motivated by a desire to know whether or not the business etc. in question are obliged to retain data in accordance the Executive Order on data retention. The Executive order on data retention has been in effect since September 2007 and obliges providers to end users to retain and store traffic data generated or processed in the provider’ network.
The Executive Order is managed by the Ministry of Justice, but the duty to retain and store information lie with providers of electronic communications networks and services. The definition of a provider is to be found in the Telecommunications Act hence the questions concerning the scope of the definition lies under the purview of the Danish Energy Agency. Questions concerning the scope of the duty to retain i.e. what to retain lies under the purview of the Ministry of Justice.
Questions and guidance concerning the definition of a provider
Is it of consequence whether the service in question is fixed or mobile based or an internet access service? And what about internet hotspots?
No. The type of technology used does not matter – the definition of a provider is technological neutral and does not distinguish between different technologies.
Who is the provider in a specific case? My business (f.ex. a caravan park) or the company that establishes the actual connection and provides internet access to my business?
The business that has the end user-relationship is the provider in the meaning of the Telecommunications Act. If customers pay the caravan park directly and the caravan park subsequently pays an internet access provider, the caravan park will, in regard to the customer/end user be regarded as a provider.
I provide free wifi at my café, gas station etc. – am I a provider?
Yes. When the internet connection is made available in connection with a commercial enterprise, the activity provision of internet access will be regarded as being made on a commercial basis (cf. above). The number of customers the café, gas station etc. services and whether or not the customers pay directly for internet access is not relevant in this context.
Shall the telecommunications companies ensure that some basic services are made available to all on request?
According to the Danish Act on Electronic Communications networks and- services all consumers in Denmark shall have access to basic telecom services at reasonable quality and at affordable prices. This is ensured by the so called “Universal Service Obligations”.
The Danish Energy Agency designates one or more undertakings to guarantee the provision of universal service. TDC A/S was in 1997 designated as universal service provider and is still the only company providing Universal Service Obligations. The current designation expires on 31 December 2016. The Danish Energy Agency expects in the autumn 2016 to disclose what undertaking has been designated as universal service provider from 2017 to 2022
What services are provided under the universal service?
Universal Service means that all reasonable requests for telephone services are made available to everybody in Denmark. The universal service provider shall provide the connection independently of geographical location of the end users residence or place of business. Moreover, directory enquiry services (118) and a web based text relay service for disabled end-users are made available under the Universal Service Obligations.
The universal service does not include broadband connections. Prices and provision of broadband connections are exclusively governed by market competition.
All services provided under the Universal Service Obligations till the end of 2016 are stated in the Executive Order on Universal Service Obligations from 2008.
More about the Universal Service Obligations
The new Executive Order on Universal Service Obligations states the services that will be provided under the universal service from 2017. Furthermore, the Order states how the universal service providers are designated, how the detailed provisions for the universal service are determined, requirements on the content of the contract with the end-user, regulation of prices and the possibility of getting compensated for the net costs from providing universal services.
The Executive Order on Universal Service Obligations (only available in Danish)