Telecom regulation

On regulation of the telecommunication in Denmark, definition and guidance on the term "provider" and the universal service obligation.

Definition of a provider

The term “a provider” is defined in Section 2 (1) of the Danish 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, organisations and authorities etc. that are not 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

A commercial basis, see above, 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. 

For example, if a hotel 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.

For example, if 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.

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 Agency for Digital Government 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 with the Executive Order on data retention. The Executive order on data retention has been in effect since September 2007 (latest amended in 2022) and obliges providers to end users to retain and store traffic data generated or processed in the provider's network.

The Executive Order on data retention is managed by the Ministry of Justice, but the duty to retain and store information lies with providers of electronic communications networks and services. The definition of a provider is to be found in the Act on Electronic Communications Networks and Services, hence the questions concerning the scope of the definition lie under the purview of the Agency for Digital Government. Questions concerning the scope of the duty to retain data i.e. what data to retain lie under the purview of the Ministry of Justice. 

Questions and guidance concerning the definition of a provider

Bindings to a specific service provider or network

Bindings to a specific service provider

Providers of electronic communications networks or services shall ensure that the contract with a consumer does not contain terms that bind the consumer to the contract for more than six months.

For end-users that are microenterprises, small enterprises or not-for-profit organisations, the commitment period shall not exceed 24 months unless they have explicitly agreed to waive this.

There is no telecom regulation on the duration of commitment periods in contracts between telecom providers and businesses.

Bindings to a specific network

Providers of telecommunications terminal equipment used for mobile communications services shall ensure that consumers are not committed, e.g. by SIM locks, to using a specific electronic mobile communications network for a period of more than six months.

“SIM lock” means that the phone can only be used in connection with a specific operators SIM card.

The prohibition against binding to use a particular electronic mobile communication network applies not only to SIM lock, but also to other kinds of binding to an electronic communication network. In a specific case of Wi-Fi routers in cars, the router was equipped with an eSIM. It was possible to buy internet access via a display in the car. However, it was not possible, via the display or in any other way, to get internet access services on this equipment from other service providers than a pre-selected provider. The Agency for Digital Government made a decision that this was in violation of, of the executive order on end-users rights, section 7 (2).

Universal Service Obligations