Decree 112-2011 (Reforms to the Telecommunications Framework Law)

To reform Article 38 and subsection g) of Article 44 of the FRAMEWORK LAW FOR THE TELECOMMUNICATIONS SECTOR, contained in Decree No. 185-95 dated October 31, 1995 and amended by Decree No. 118-97 dated August 26, 1997, which shall be read as follows:

Telecommunications in Honduras are provided under a regime of free, fair, and healthy competition. Prohibited are practices or conducts that limit or distort free competition in the provision of telecommunications services, as well as access by new operators to the market. The National Telecommunications Commission (CONATEL) has the necessary powers and authority to ensure free competition, including the following: a) Correct distortions that occur in the market; b) Approve corrective measures or actions that are necessary for prohibited practices or conducts to cease immediately. c) For the return of sums generated or collected as a result of the realization of illegal practices, and; d) Order operators to take certain actions in order to reverse the effects of the illegal practice. The corrective measures or actions that the National Telecommunications Commission (CONATEL) orders are mandatory for operators and any party participating in the illegal practice. The following are considered restrictive practices or conducts contrary to the principles of competition in the telecommunications field:

• a)

  Agreements between telecommunications service operators, decisions of associations of operators and concerted practices and parallel conduct that have the purpose or effect of preventing, restricting, or distorting competition in the telecommunications services market. Particularly those that aim to: (

  • i)

    divide the market; (

  • ii)

    set directly or indirectly the tariffs of services or other commercial conditions thereof; (

  • iii)

    set prices or tariffs that are equal or similar under dissimilar cost conditions; (

  • iv)

    associate or agree to generate a situation of joint dominant position in favor of an operator; (v) limit or control supply, the market, technical development, or investments; (vi) Limit access to the activity to potential competitors; and, (vii) others as CONATEL shall determine by regulation;

• b)

  Abuse of dominant position practices carried out by one or more operators with significant market power. In particular those that consist of: (

  • i)

    imposing directly or indirectly purchase prices, selling prices, or other transaction conditions that are not equitable; (

  • ii)

    limiting supply, the market, or technical development to the detriment of users; (

  • iii)

    applying to other operators or third parties unequal conditions for services that cause them a competitive disadvantage; (

  • iv)

    subordinating the conclusion of contracts to the acceptance of supplementary services that, by their nature or according to commercial practices, bear no relation whatsoever to the object of such contracts; and, (v) others as the National Telecommunications Commission (CONATEL) shall determine by regulation; and,

• c)

  Practices or acts of unfair competition, conduct that consists of falsifying or seriously distorting market competition conditions through unfair practices, in particular the acts of: (

  • i)

    confusion; (

  • ii)

    deception; (

  • iii)

    defamatory; (

  • iv)

    false comparison; (v) imputation; (vi) violation of industrial property; (vii) distortion in the line of intermediation; and, (viii) others as the National Telecommunications Commission (CONATEL) shall determine by regulation. In any case, the National Telecommunications Commission (CONATEL) is empowered to resolve matters within its competence that service providers submit for its consideration, including those that imply modification, transfer, and/or termination for any cause of concessions; or that in the judgment of the National Telecommunications Commission (CONATEL) imply a reform to the sectoral regulatory framework. In these cases the National Telecommunications Commission (CONATEL) must resolve petitions presented by private parties, hearing the opinion of its advisory bodies while respecting the rules of speed and efficiency, as well as the corresponding legal process.

The following are grounds that shall give rise to administrative termination of concessions:

• a)

  ...;

• b)

  ...;

• c)

  ...;

• ch)

  ...;

• d)

  ...;

• e)

  ...;

• f)

  ...;

• g)

  The participation of the concessionaire, the operating partner, or any of the shareholders or partners of the concessionaire in the capital of companies or consortiums to which other concessions for the same telecommunications services have been granted, resulting in total ownership equal to or greater than ten percent (10%), without authorization from the National Telecommunications Commission (CONATEL), which must ensure that what is established in Articles 38 and 38-A is observed at all times;

• h)

  ...;

• i)

  ...;

• j)

  ...; and, k) ....

To reform the FRAMEWORK LAW FOR THE TELECOMMUNICATIONS SECTOR, contained in Decree No. 185-95 dated October 31, 1995, by adding Article 38-A, which shall be read as follows:

Concentration operations in or between companies operating telecommunications services in the Republic of Honduras must be submitted by the parties for approval by the National Telecommunications Commission (CONATEL) in order to take effect. Among the operations that must be submitted to this procedure are the following: 1) The merger of companies; 2) The acquisition of shareholding that results in total ownership equal to or greater than ten percent (10%); 3) The acquisition or change of control of management, assignment or change of effective control, acquisition of ownership or any other right over shares or capital participations or any other act by virtue of which shares, social or civil portions are legally claimed; and, 4) Other operations as the National Telecommunications Commission (CONATEL) shall determine by regulation. In the case that the concentration operation is the acquisition of shareholding that results in total ownership less than ten percent (10%), this must be reported to the National Telecommunications Commission (CONATEL) prior to taking effect. With respect to the intended concentration operations, the National Telecommunications Commission (CONATEL) may approve them, deny them, or order conditional measures for their approval; for this purpose it must base its decision on the following criteria: 1) An analysis through which it determines whether the intended operations have or do not have effects of restricting, diminishing, damaging, or impeding free competition in the market; and, 2) Apply, in the area of telecommunications, criteria grounded in principles of free competition, economic analysis, generation of efficiency, welfare for users, and respect for their rights. In any case, the National Telecommunications Commission (CONATEL) must previously hear the opinion of the Commission for the Defense of Competition (CDPC), which must issue a ruling within twenty (20) business days following the date of the request by the National Telecommunications Commission (CONATEL); after said term, with or without the referenced opinion, the corresponding regular process must proceed. All of the above, without prejudice to the other obligations, requirements, and compliance that must be observed by both the National Telecommunications Commission (CONATEL) and the operators and parties, in accordance with what is provided by this Law, the enabling titles, laws, and other applicable regulations. Upon receipt of the request or petition for a concentration operation, the National Telecommunications Commission (CONATEL) must execute the corresponding administrative process, complying, in any case, with the studies, analyses, verifications, technical and legal opinions that in accordance with the Law and the case presented correspond, and must timely issue the appropriate administrative resolution. The National Telecommunications Commission (CONATEL) must decide, in any case, on the procedures that must be followed, establish the legal, technical, and economic conditions required so that, where applicable and if it is appropriate to authorize the intended and requested concentration operation. The National Telecommunications Commission (CONATEL) must resolve, among others, the following matters:

• 1)

  The adequacy and subsistence of the enabling titles;

• 2)

  The maintenance of obligations already fulfilled and the fulfillment of pending obligations;

• 3)

  The ownership or return of resources assigned to the interested parties (frequency blocks and numbering codes, radio-electric spectrum, and others), applicable to this end criteria of administration and control of efficient use of assigned resources, of non-hoarding, of equity in the allocation of resources among similar operators, and of not placing other competitors in a position of competitive disadvantage; and,

• 4)

  The processes and specifications of transition in the consolidation of operations, with effects on the parties, third-party operators, subscribers, and users, and on other matters as determined by the National Telecommunications Commission (CONATEL). The above in accordance with what is provided in this Law, its Regulation, the National Plan for Frequency Assignment, the National Numbering Plan, laws, and other applicable regulations. When the request or petition for a concentration operation is resolved totally or partially in a favorable manner, once the administrative resolution becomes final, and if timely modification to the enabling titles of one or both parties participating in the concentration operation is required, in the case of concessions, the National Telecommunications Commission (CONATEL) and the concessionaire company or companies will execute the procedure for modification of the respective concession contract(s) applying the contractual and legal provisions in effect for those purposes; in the case of permits, registrations, and licenses, the National Telecommunications Commission (CONATEL), ex officio, will make the modification of the corresponding enabling title(s).

To instruct the National Telecommunications Commission (CONATEL) to proceed with the review and agreement on adaptation and modification of those clauses or conditions of the current Concession Contracts, for the purpose of giving full compliance and force to what is established by this Decree. The National Telecommunications Commission (CONATEL) must present individually to the National Congress for its approval the modifications to the contracts duly executed between the parties.

This Decree shall enter into force from the day of its publication in the Official Gazette La Gaceta. Given in the city of Tegucigalpa, municipality of the Central District, in the Session Hall of the National Congress, on the twenty-fourth day of the month of June of two thousand eleven. ALBA NORA GÚNERA OSORIO PRESIDENT RIGOBERTO CHANG CASTILLO SECRETARY JARIET WALDINA PÁZ SECRETARY To the Executive Branch. Therefore: Let it be Executed Tegucigalpa, M.D.C., July 21, 2011 PORFIRIO LOBO SOSA PRESIDENT OF THE REPUBLIC MIGUEL RODRÍGO PASTOR THE SECRETARY OF STATE IN THE OFFICE OF PUBLIC WORKS, TRANSPORTATION AND HOUSING. WILLIAM CHONG WONG THE SECRETARY OF STATE IN THE OFFICE OF FINANCE. Ministry of Health AGREEMENT No. 0251 Tegucigalpa, M.D.C., March 11, 2011 THE SECRETARY OF STATE IN THE OFFICE OF HEALTH WHEREAS: The health sector reform process is based on the separation of functions under the direction of the rectory of service provision, a fundamental element that allows the establishment of the key principle of management: accountability and responsiveness, this precept constituting the basis of the conceptual and operational model of the new quality system. WHEREAS: Honduras, as a member of the International Community, and due to the demands of the population regarding the guarantee of quality and safety of health services and products, finds itself in the unavoidable situation of developing and implementing a National Health Quality System (SNCS), which provides the guidelines for its application within the framework of the health sector reform process and decentralization. WHEREAS: The Ministry of Health is currently characterized by an excess of regulations with little application or absence thereof in various areas of system management, as in quality where the limited regulation and its corresponding oversight in the public and private provision of health services is most evident. WHEREAS: The Ministry of Health has advocated for the safety and satisfaction of client/users, carrying out actions in the field of continuous quality improvement (CQI) of health services and various aspects of the health subsystem, carrying out the development of regulations that include the expected quality standards, indicators, and measurement instruments to determine their compliance, as well as, as a final product, the promotion of continuous quality improvement processes that allow for the resolution of problems through resource management, innovations, etc., at the level of service providers. WHEREAS: The Ministry of Health, within its rectory function, has the authority of standardization, planning, and coordination of all public and private activities in the field of health.