Luật Tần số vô tuyến điện sửa đổi 2022

LAW

AMENDMENTS TO SOME ARTICLES OF THE LAW ON RADIO FREQUENCIES

Pursuant to the Constitution of the Socialist Republic of Vietnam;

The National Assembly hereby promulgates the Law on Amendments to Some Articles of the Law on Radio Frequencies No. 42/2009/QH12.

Article 1. Amendments to some Articles of the Law on Radio Frequencies

1. Amendments to some points of clause 2 Article 5:

a) Point c is amended as follows:

“c) Issue, re-issue, replace, revise, extend and revoke licenses to use radio frequencies; manage charges for issuance of licenses to use radio frequencies, fees for use of radio frequencies, fees for processing of application for rights to use radio frequencies as prescribed by law;”;

...

...

...

“h) Provide training in and professional guidance on radio frequencies; manage the training of radio operators and issuance of radio operator certificates;”.

2. Amendments to some clauses of Article 11:

a) Points b and c of clause 1 are amended as follows:

“b) Frequency band planning which is a planning for allocation of one or more frequency bands for a radio communication system, prescribing the allocation of such frequency band(s) to one or more users under specific conditions.

For the frequency bands dedicated to the public land mobile communication system according to the approved planning, the allocation shall cover maximum limit of the total bandwidth that a licensed organization may use in the planned band or within a specified band group;

c) Planning for division of frequency channels which is planning for the division of a frequency band into frequency channels for a specified radio-communication service according to a certain standard, prescribing the conditions for using such frequency channels;”;

b) Clause 3 is amended as follows:

“3. The production and import of radio equipment and equipment using radio waves for use in Vietnam and the management and use of radio frequencies must conform to the radio frequency planning as prescribed by law, except for the special cases specified in clause 1 Article 11a of this Law.”.

3. Article 11a is added after Article 11 as follows:

...

...

...

1. Special cases where radio frequencies may be used against planning include exhibition, testing, research, testing of new technologies; at international events and conferences.

2. The Ministry of Information and Communications shall consider each specific case where radio frequencies and radio equipment are used as prescribed in clause 1 of this Article, together with the conditions of use.”.

4. Clause 3 is amended, clause 3a is added after clause 3 and clause 4 of Article 16 is amended as follows:

“3. The validity period of the licenses to use radio frequencies shall depend on their holder’s request but not exceed the maximum validity period of each license specified in clause 2 of this Article, except for the case specified in clause 3a of this Article and point d clause 4 Article 18 of this Law.

3a. The validity period of the license to use frequency bands issued through an auction or examination or re-issued shall be decided by the Minister of Information and Communications but not exceed the maximum validity period specified in clause 2 of this Article.

4. The Government shall elaborate on the issuance, re-issuance, replacement, revision, extension and revocation of licenses to use radio frequencies.”.

5. Clause 2 of Article 17 is amended as follows:

“2. Conform to the radio frequency planning, except for special cases specified in clause 1 Article 11a of this Law.”.

6. Article 18 is amended and Article 18a is added after Article 18 as follows:

...

...

...

1. Methods for issuance of licenses to use radio frequencies include:

a) Issuing licenses by the auction of rights to use radio frequencies which is conducted on the basis of evaluation of bid packages according to evaluation criteria such as the bidder's investment capacity, professional competence and business capacity for guaranteeing the fulfillment of commitment to run telecommunication network, and the offered bids.;

b) Issuing licenses through the examination for enjoyment of the rights to use radio frequencies which is carried out on the basis of evaluation of the examination dossier according to evaluation criteria such as the organization’s investment capacity, professional competence and business capacity for guaranteeing the fulfillment of commitment to run telecommunication network;

c) Issuing licenses in person to use radio frequencies by way of considering the licensing application on a first-come-first-served basis provided the application is satisfactory.

2. The method for issuing licenses through an auction shall apply to the following frequency bands and channels:

a) Frequency bands used to establish public land mobile communication network;

b) Frequency bands and frequency channels used to establish other public land mobile communication network which shall be decided by the Prime Minister at the request of the Minister of Information and Communications on the basis of the development of the domestic telecommunications market and international practices on licensing of these frequency bands and frequency channels.

3. The method of issuing licenses through examination applicable to frequency bands and frequency channels specified in clause 2 of this Article shall be adopted when a new technology is applied to a large-scale network coverage for a certain period of time or when a new organization is needed to participate in the market to promote competition in telecommunications markets.

The Prime Minister shall decide the frequency bands and frequency channels licensed through examination at the request of the Minister of Information and Communications.

...

...

...

a) Frequency bands and channels other than those specified in clause 2 of this Article;

b) Frequency bands and channels specified in clause 2 of this Article used for the purposes of testing of network and telecommunications services, special cases specified in clause 1 Article 11a of this Law;

c) Frequency bands and channels specified in clause 2 of this Article when allocated in an emergency case under regulations of law provided that the validity period of the license does not exceed 03 months or when re-issued as prescribed in Article 20a of this Law;

d) In special case, the frequency bands specified in clause 2 of this Article allocated to state-owned enterprises in direct service of national defence and security purposes for a period of more than 03 years with a view to economic development associated with performance of the national defence and security tasks.

The Ministry of National Defense and Ministry of Public Security shall formulate a scheme for use of frequency bands for economic development in combination with defense and security tasks performance, collect comments from the Ministry of Information and Communications and the Ministry of Public Security on the scheme formulated by the Ministry of National Defense and from the Ministry of National Defense on the scheme formulated by the Ministry of Public Security so as to submit it to the Prime Minister for approval before the Ministry of Information and Communications issue the license.

The scheme must not affect national defence and security; ensure safety and projection of state secrets; fair competition in the telecommunications market; specify national defence and security tasks assigned to enterprises; define the number of frequencies serving national defense and security tasks that account for a basic percentage of the total number of frequencies to be licensed.

03 months before the expiry date of the license, the Ministry of National Defense and Ministry of Public Security shall assess the efficiency in using the allocated frequencies and request the Prime Minister to consider deciding to terminate or continue to implement the scheme for a period of no more than 12 years to form a basis for the Ministry of Information and Communications to extend the license.

5. The Government shall elaborate on this Article.

Article 18a. Conditions for participation in auction and examination for enjoyment of rights to use radio frequencies and commitments to run telecommunications network

...

...

...

a) Satisfy all conditions specified in points a, d, dd and e clause 2 Article 19 of this Law;

b) Be eligible for being issued with the license to establish telecommunications using frequency bands and channels corresponding to those put up for auction or examination in accordance with regulations of law on telecommunications;

c) Have fulfilled all financial obligations regarding telecommunications and radio frequencies under regulations of law;

d) Have the commitments to run telecommunications network as prescribed in clauses 2 and 3 of this Article.

2. A commitment to run telecommunications network shall contain:

a) Total capital for investment in the network or number of radio frequency stations to be operated;

b) Coverage area by population or by geographical area;

c) Official date of providing telecommunications services from the licensing date;

d) Quality of telecommunication services;

...

...

...

3. According to the regulations laid down in clause 2 of this Article, the Minister of Information and Communications shall decide the number of commitments, specific requirements for each commitment to run telecommunication network with respect to each frequency band and channel put up for auction or examination or re-allocated.

4. Any organization violating the commitment to run telecommunications network specified in point a or point b clause 2 of this Article shall have its rights to use radio frequencies partially suspended with respect to the allocated frequency band. The fee for processing of application for rights to use radio frequencies accrued/paid during the suspension period will not be refunded.

5. The Government shall elaborate on this Article.”.

7. Points b, c and d clause 2 of Article 19 are amended as follows:

“b) Obtain a telecommunications license under the law on telecommunications for organizations applying for a license to use radio frequencies to establish a telecommunications network;

c) Obtain a news agency permit or reserve the right to broadcast radio or television programs under law;

d) Have a feasible plan for use of radio frequencies conforming to the radio frequency planning or have a feasible plan for use of radio frequencies regarding the special case specified in clause 1 Article 11a of this Law;”.

8. Article 20 is amended and Article 20a is added after Article 20 as follows:

“Article 20. Issuance of licenses to use frequency bands

...

...

...

2. The entities specified in clause 1 of this Article shall be issued with a license directly if all conditions set out in points a, b, d, dd and e clause 2 Article 19 of this Law are met.

In the case of license re-issuance prescribed in point d clause 4 Article 18 of this Law, all conditions set out in points a, b, d, dd and e clause 2 Article 19 of this Law shall be met and a decision on scheme approval issued by the Prime Minister shall be obtained.

In the case of license re-issuance, the regulations enshrined in Article 20a of this Law shall be complied with.

3. Any entity specified in clause 1 of this Article shall be issued with a license by an auction or examination for enjoyment of the rights to use radio frequencies if:

a) It has won the auction or passed the examination for enjoyment of the rights to use radio frequencies;

b) It is possessing a license to establish telecommunications network using the frequency bands or frequency channels mentioned in a).

Article 20a. Re-issuance of licenses to use frequency bands

1. Re-issuance of a license to use frequency bands means a holder of the license to use frequency bands being permitted to keep using radio frequencies with respect to the entire previously allocated frequency bands upon the expiry of the license to use frequency bands.

2. The rights to use frequency bands shall be re-granted in the case where the entire previously allocated frequency bands are relevant to the frequency bands divided under the frequency band planning applicable at the time when the license to use frequency bands expires.

...

...

...

4. Conditions for re-issuance of a license to use frequency bands:

a) Satisfy all conditions specified in points a, b, d, dd and e clause 2 Article 19 of this Law;

b) Have fulfilled all financial obligations regarding telecommunications and radio frequencies under regulations of law with respect to the previously allocated frequency bands or frequency channels to be re-allocated;

c) Sufficiently and punctually pay the fee for processing of application for rights to use radio frequencies and fee for use of radio frequencies with respect to the frequency bands or frequency channels to be re-allocated as prescribed by law;

d) Have the commitments to run telecommunications network with respect to the frequency bands or frequency channels to be re-allocated as prescribed in clauses 2 and 3 of this Article.

5. Within 30 days before the remaining 6-month validity period of the license to use frequency bands, the applicant for re-issuance of the license to use frequency bands shall submit an application to the Ministry of Information and Communications.

The Ministry of Information and Communications shall re-issue the license to use frequency bands 30 days before the expiry date of the issued license; in case of rejection of the application, a written explanation shall be provided.

6. The license to use frequency bands which is re-issued upon the expiry of the license may be extended as prescribed in clause 1 Article 22 of this Law.

7. The license to use frequency bands shall not be re-issued if the frequency bands or frequency channels are allocated for the purpose of testing of network and telecommunications services or allocated in an emergency case and allocated as prescribed in clause 1 Article 11a and point d clause 4 Article 18 of this Law.”.

...

...

...

“Article 22. Extension, revision and replacement of licenses to use radio frequencies; discontinuance of radio frequencies

1. A license to use radio frequencies entities shall be extended according to the licensing principles specified in Article 17 of this Law and the following regulations:

a) Every holder of the licenses to use radio frequencies shall discharge all obligations specified in each corresponding license;

b) The remaining validity period of the license shall be at least 30 days in the case of the license to use radio frequencies and radio equipment, 60 days in the case of the license to use frequency bands and 90 days in the case of the license to use radio frequencies and satellite orbit;

c) The validity period of an extended license shall not exceed that of the telecommunications license or news agency permit or shall be appropriate to the right to broadcast radio or television programs under law;

d) The total duration of the initial and extended licenses must not exceed the maximum permissible duration of each type of corresponding license to use radio frequencies; if the duration of the initially issued license is already equal to the maximum permissible duration, it must not be extended;

dd) Obtain the Prime Minister's approval decision in the case where the license is issued as prescribed in point d clause 4 Article 18 of this Law.

2. A license to use radio frequencies entities shall be revised according to the licensing principles specified in Article 17 of this Law and the following regulations:

a) The license to use radio frequencies remains effective;

...

...

...

c) The revision to the license shall be made in conformity with the regulations enshrined in Articles 19, 20, 20a and 21 of this Law with respect to each corresponding license;

3. The replacement of the license to use radio frequencies shall be carried out in the case where the license is lost or damaged.

4. Radio frequencies shall be discontinued at the request of an organization or individual as follows:

a) If the organization or individual obviates the need for using radio frequencies, they shall submit a written request for discontinuance of radio frequencies to the Ministry of Information and Communications;

b) For the issued license not associated with the commitment to run telecommunications network, the fee for using radio frequencies and fee for processing of application for rights to use radio frequencies paid for the remaining validity period of the license (expressed as whole months) shall be refunded to the organization or individual discontinuing radio frequencies as prescribed by law if the license remains effective for at least 30 days following the date of the written request submitted to the Ministry of Information and Communications.

c) For the issued license associated with the commitment to run telecommunications network, the fee for using radio frequencies and fee for processing of application for rights to use radio frequencies which have been paid shall not be refunded to the organization or individual discontinuing radio frequencies.

5. If the radio frequencies are discontinued as prescribed in Article 12 of this Law, the fee for using radio frequencies and fee for processing of application for rights to use radio frequencies paid for the remaining validity period of the license (expressed as whole months) shall be refunded to the organization or individual discontinuing radio frequencies as prescribed by law from the date on which the Ministry of Information and Communications issues a revocation decision.”.

10. Some points and clauses of Article 23 are amended as follows:

a) Points dd, e and g are amended and point h is added after point g of clause 1 as follows:

...

...

...

e) Failure to implement the regulations specified in the license in reality within 02 years from the date of issue, except for the case specified in point h of this clause;

g) Revocation of the telecommunications license or news agency permit or the right to broadcast radio or television programs;

h) Failure to correct the violation against the commitment to run telecommunications network after the period of partial suspension of the rights to use radio frequencies.”.

b) Clause 2 is amended and clause 3 is added after clause 2 as follows:

“2. 01 year after the date on which the license to use radio frequencies is revoked as prescribed in points b, c, d and dd clause 1 of this Article but the violation is not serious enough for criminal liability, if the consequences have been remedied and all the conditions for license issuance specified in this Law have been met, the organization or individual may be issued with a license to use radio frequencies.

3. The fee for using radio frequencies and fee for processing of application for rights to use radio frequencies shall not be refunded to the organization or individual whose license to use radio frequencies is revoked as prescribed in clause 1 of this Article.

11. Article 24 is amended as follows:

“Article 24. Transfer of rights to use radio frequencies

1. The holder of the license to use frequency bands issued by an auction is entitled to transfer the rights to use radio frequencies to another organization 05 years after the date of issuing the license to use radio frequencies.

...

...

...

2. Conditions for transfer of rights to use radio frequencies:

a) The transferee of the rights to use radio frequencies must be eligible to be issued with the license to establish telecommunications network which is appropriate to the transferred frequency bands or channels under regulations of law on telecommunications, licensing conditions set out in points a, d, dd and e clause 2 Article 19 of this Law and must discharge all obligations of the transferor;

b) The total bandwidth permitted for use by the transferee of the rights to use radio frequencies after receiving the transferred radio frequencies must not exceed the limit on the total bandwidth that an organization is permitted to use as specified in the frequency band planning;

c) Parties to the transfer of the rights to use radio frequencies shall protect rights and legitimate interests of telecommunications service users under the signed telecommunications service contract.

3. According to the conditions set out in clause 2 of this Article, the Ministry of Information and Communications shall consider granting approval for the transfer; issue the license to use radio frequencies to the transferee of the rights to use radio frequencies after the transfer is done.

4. Parties to the transfer of the rights to use radio frequencies shall fulfill tax obligations as prescribed by law on taxation.

5. The Government shall elaborate on this Article.”.

12. Article 31 is amended as follows:

“Article 31. Fees for use of radio frequencies, charges for issuance of licenses to use radio frequencies and fees for processing of application for rights to use radio frequencies

...

...

...

The amount of fees payable shall be determined in a manner that basically covers costs, takes into account the State's socio-economic development policies from time to time, and ensures fairness, publicity, transparency and equality on the basis of their intended use; extent to which the radio frequency spectrum is occupied; coverage; extent of use of frequency bands and areas where radio frequencies are used.

The collection, payment, management and use of fees and charges related to radio frequencies shall comply with regulations of law on fees and charges.

2. Holders of the licenses to use frequency bands with respect to the frequency bands and frequency channels prescribed in clause 2, clause 3 and point c clause 4 Article 18 of this Law must pay fees for processing of application for rights to use radio frequencies.

3. State-owned enterprises in direct service of national defence and security purposes which are licensed to use radio frequencies with a view to economic development associated with performance of the national defence and security tasks as prescribed in point d clause 4 Article 18 of this Law are obliged to pay fees for use of radio frequencies and fees for processing of application for rights to use radio frequencies with respect to the number of radio frequencies used for socio-economic development so as to ensure the principle of fairness between state-owned enterprises in direct service of national defence and security purposes with other telecommunications enterprises licensed to use radio frequencies on the same frequency bands.

4. Fees for processing of application for rights to use radio frequencies shall be paid to the state budget. The Government shall elaborate on the amount and methods for collection, payment, management and use of fees for processing of application for rights to use radio frequencies.”.

13. Clauses 1 and 2 of Article 32 are amended as follows:

“1. Any direct operator of radio equipment in the maritime or aeronautical mobile service or amateur radio service shall have the radio operator certificate, except for the case where he/she has an equivalent certificate prescribed by law or treaty to which the Socialist Republic of Vietnam is a signatory.

2. The Government shall elaborate on the conditions and procedures for recognizing an organization to be eligible to receive radio frequency training or radio operator certificate in the maritime or aeronautical mobile service or amateur radio service; elaborate on the radio operator certificate, eligible entities, conditions and procedures for issuance and revocation of radio operator certificates and recognition of foreign radio operator certificate, except for the case specified in clause 3 of this Article.”.

14. Some points and clauses of Article 42 are amended as follows:

...

...

...

“c) Approve the result of international cooperation in radio frequencies and orbit satellites;

d) Inspect and notify the International Telecommunication Union of the registration of radio frequencies and satellite orbits of foreign countries that are likely to affect Vietnam's satellite system.”;

b) Point e is added after point dd of clause 3 as follows:

“e) Inspect and notify the Ministry of Information and Communications of the result of inspection of applications for registration of radio frequencies and satellite orbits of foreign countries announced by the International Telecommunication Union which are likely to affect satellites issued with the license to use radio frequencies and satellite orbits.”.

15. Clauses 2 and 3 of Article 45 are amended as follows:

“2. If the Ministry of National Defense and Ministry of Public Security wish to use radio frequencies for national defence and security purposes other than those separately allocated, the Ministry of Information and Communications shall consider granting approval, except for the frequency bands and channels specified in clauses 2 and 3 Article 18 of this Law which shall be allocated as prescribed in clause 1 of this Article.

3. Cases where there is a situation directly affecting sovereignty and national security, follow the instructions below:

a) The Ministry of National Defense and Ministry of Public Security are entitled to decide the use of radio equipment and the use of radio frequencies other than those allocated for national defence and security purposes and notify the Ministry of Information and Communications;

b) If it is possible to cause harmful interference to radio frequencies and equipment of the Ministry of National Defense and Ministry of Public Security, the Ministry of Information and Communications shall notify organizations and individuals so as for them to discontinue radio frequencies and equipment until the end of the situation specified in this clause.”.

...

...

...

a) Point a is amended as follows:

“a) Prescribed the management and use of radio frequencies allocated for national defence and security purposes ensuring that the radio frequencies are used in an effective and economical manner for their intended purposes and in conformity with the radio frequency planning;”;

b) Point e is added after point dd as follows:

“e) Direct and inspect state-owned enterprises in direct service of national defence and security purposes which are licensed as prescribed in point d clause 4 Article 18 with respect to their implementation of the scheme approved by the Prime Minister, other regulations of this Law and other relevant regulations of law.”.

17. Words, phrases and clauses are added to, replaced and removed from the following Articles:

a) The phrase “quy hoạch phát triển viễn thông quốc gia” (“national telecommunications development planning”) in clause 7 of Article 10 is replaced with the phrase “quy hoạch hạ tầng thông tin và truyền thông quốc gia, tránh tích tụ” (“information infrastructure and national communication planning, avoid accumulation”);

b) The phrase “cơ quan quản lý chuyên ngành tần số vô tuyến điện” (“specialized agency in charge of radio frequencies”) in clause 4 of Article 12 is replaced with the phrase “Bộ Thông tin và Truyền thông” (“Ministry of Information and Communications”);

c) The phrase “Bộ trưởng Bộ Thông tin và Truyền thông” in point b clause 1 of Article 19, clause 3 of Article 25 and clause 3 of Article 26 is replaced with the phrase “Chính phủ” (“Government”);

d) The phrase “hoạt động ở cự ly ngắn, có công suất hạn chế,” (“operating at short distances and having limited capacity,”) is removed from point a clause 1 of Article 27;

...

...

...

e) The phrase “, thiết bị điện, điện tử, thiết bị ứng dụng sóng vô tuyến điện” (“, electric devices, electronic devices and equipment using radio waves”) is added after the phrase “thiết bị vô tuyến điện” (“radio equipment’) in clause 3 of Article 39;

g) The phrase “Bộ trưởng Bộ Thông tin và Truyền thông chủ trì phối hợp với Bộ trưởng Bộ Xây dựng, Bộ trưởng Bộ Quốc phòng, Bộ trưởng Bộ Công an” (“The Minister of Information and Communications shall cooperate with the Minister of Construction, Minister of National Defense and Ministry of Public Security”) in clause 2 of Article 40 is replaced with the phrase “Chính phủ” (“Government”);

h) The phrase “theo quy định tại Điều 44 của Luật này” (“as prescribed in Article 44 of this Law”) is removed from point d clause 1 of Article 43;

i) The phrase “trình Thủ tướng Chính phủ phê duyệt các nội dung” (“submit to the Prime Minister for approval of contents”) is added before the phrase “sau đây” (“as follows”) in clause 2 of Article 46;

k) Clause 3 of Article 8 and clause 3 of Article 19 are abrogated.

Article 2. Amendments to some Articles of relevant laws

1. Section 228 is added after section 227 of Appendix IV List of conditional business lines promulgated together with the Law on Investment No. 61/2020/QH14 amended by the Law No. 72/2020/QH14, Law No. 03/2022/QH15, Law No. 05/2022/QH15 and Law No. 08/2022/QH15 as follows:

“Provide training to radio operators and issue radio operator certificates”.

2. The phrase “, tần số vô tuyến điện” (“, radio frequencies”) is added after the phrase “phòng, chống tác hại của rượu, bia” (“prevention and control of harmful effects of alcoholic beverages”) in clause 1 Article 63 of the Law on Penalties for Administrative Violations No. 15/2012/QH13 amended by the Law No. 54/2014/QH13, Law No. 18/2017/QH14 and Law No. 67/2020/QH14.

...

...

...

1. This Law comes into force from July 01, 2023, except for the case specified in clause 2 of this Article.

2. Regulations on provision of training to radio operators and issuance of radio operator certificates laid down in this Law come into force as of July 01, 2024.

Article 4. Grandfather clauses

1. Any license to use radio frequencies issued before the effective date of this Law may be used until its expiry. Any radio operator certificate issued before July 01, 2024 may be used until its expiry.

2. Any holder of the license to use frequency bands which is issued to establish public land mobile communication network but expires before September 06, 2023 may have its license extended as prescribed in Article 16 of the Law on Radio Frequencies No. 42/2009/QH12 and points a, b and c clause 1 Article 22 of the Law on Radio Frequencies No. 42/2009/QH12 amended by clause 9 Article 1 of this Law until September 15, 2014 and is not required to pay the fee for processing of application for the rights to use radio frequencies for the extension period.

3. Any holder of the license to use frequency bands which is issued to establish public land mobile communication network but expires before September 16, 2024 is not required to pay the fee for processing of application for the rights to use radio frequencies until the expiry date written on such license and shall not have its license extended, except for the case specified in clause 2 of this Article.

4. The Ministry of Information and Communications shall notify the frequency band planning with respect to the frequency bands allocated to the organizations specified in clauses 2 and 3 of this Article before August 01, 2023. The number of frequency bands considered being re-allocated but sharing the same radio frequencies according to the license to use frequency bands issued before the effective date of this Law may be re-allocated depending on their current use.

5. The provision of training to radio operators and issuance of radio operator certificates shall continue to be carried out under the Law on Radio Frequencies No. 42/2009/QH12 until June 30, 2024./.

This Law is adopted by the 15th National Assembly of Socialist Republic of Vietnam on this 09th of November 2022 during its 4th session.

...

...

...

CHAIRMAN OF THE NATIONAL ASSEMBLY




Vuong Dinh Hue