Communications as an essential service during COVID-19 confinement 

Since the “estado de alarma” was declared by means of Royal Decree 463/2020, telecom services have been identified as an essential service.

As this service is an essential one, it has been protected by regulation:

• Those telecom operators defined as “critical” have, according to Act 8/2011, of 28 April of the protection of critical infrastructures, special duties in order to ensure the availability of the critical telecom infrastructures for which they are responsible.
• Royal Decree 463/2020 (art. 18.2) extended these duties to those telecom operators that are not “critical” but are considered “essential” to the provision of telecom services to the population.
• Art. 18 of Royal Decree-Law 8/2020 has prohibited telecom providers from suspending their services for any reason other than the need to defend the integrity and security of their networks. Even in the case of lack of payment by clients, telecom services cannot be suspended during the confinement.
• The provider of the universal service, Telefónica, will remain as such and will be prevented from reducing the number of beneficiaries, offering poorer quality or charging a higher price.
• The employees of telecom companies identified as necessary for the provision of this essential service have been granted an exception from the general rule established by Royal Decree-Law 10/2020, of 29 March, granting a compulsory paid leave to all non-essential employees in Spain.

All the Administrative Law terms have been suspended by Royal Decree 463/2020 and by DA 8º of Royal Decree-Law; all days during the “estado de alarma” are considered non-business days and no ordinary notifications are being served.

The issuance of electronic certificates has not been suspended.

Additionally, by means of Order SND/297/2020, of 27 April 2020, the National Statistics Institute will be provided with aggregate and anonymised data regarding the geolocalisation of mobile phone users, by telecom operators. This data will refer to the period of time immediately before and during the “estado de alarma”, and will be useful to track the possible risks of contagion and to control (in an anonymised way) the public’s compliance with the public health measures adopted.

The suspension of the right to telecom portability and other consumers’ rights

Some customers are tempted to reduce costs by switching service provider (for instance, from Telefónica to MasMóvil); others are in need of more content and are tempted to change from telecom-only service providers to those offering content, optical fiber and mobile telecom services (for instance, from Orange to Telefónica). Customers have the right to do so with portability of their numbers, but portability requires substantial human and technical resources that are sorely needed elsewhere. Spanish regulation has addressed this; from the date of declaration of “estado de alarma” (14 March 2020), there has been three special regulations of the right to portability in Spain:

• Telecom operators are prohibited from launching marketing campaigns intended to obtain new customers by encouraging the switching of service provider with portability (art. 20 of Royal Decree-Law 8/2020).
• On 18 March 2020 art. 20 of Royal Decree-Law 8/2020 suspended all new portability procedures, except those already ongoing. This is justified by the need to avoid physical movement of customers to the establishments of the service providers (which are now closed) or any physical movement of the service provider’s technicians to customers’ homes. This justification could be brought into question under EU regulation because mobile phone portability does not involve the physical contact of any technician with the customer. The real reason is likely the need to reduce the obligations of already stressed telecom network technicians.
• On 1 April 2020, Royal Decree-Law 11/2020 suspended only those portability procedures that require physical presence either of telecom operator employees or of the customer. In practice, in most cases mobile telecommunications portability do not require a remarkable physical activity.
• On 5 April 2020, the regulator (CNMC) approved a new decision interpreting Royal Decree-Law 11/2020 saying that, in the case of fixed telecom services, the limit would be 50 portability decisions per telecom operator per day. In the case of mobile telecom services, the limit would be 25% of the daily limit prior to the COVID-19 crisis.

Other consumer rights have also been affected by the COVID-19 regulation. For instance, art. 21 of Royal Decree-Law 8/2020 suspended the terms for returning products purchased by consumers.

The impact of COVID-19 on the launching of 5G networks

According to European rules, the 700 MHz frequencies band should be free by 30 June 2020. TV stations in Spain which are still using this frequency band had to abandon them in order for the new 5G spectrum auction to occur.

Due to the importance of keeping the digital TV going in these difficult times and taking into account the practical problems to present content during the confinement period, TV broadcasters in Spain were told to suspend the migration plan. Therefore, the “digital dividend” will be postponed, and the new 700 MHz tender for the use of the same frequencies for 5G network deployment uses will be postponed. It had originally been planned for May/June. There is also financial reason for this postponement: telecom providers do not want to raise funds in this period of financial market disruption.

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