- Office of Electronic Communications

The position of the President of UKE regarding the 5G auction

On April 28, 2020, a government bill was submitted to the Sejm to amend certain acts on protective measures in connection with the spread of the SARS-CoV-2 virus (Sejm Print No. 344). In view of the queries of telecommunications undertakings and media representatives, the President of UKE informs that the changes included in the draft have not been consulted with the UKE.

Taking into account the authority of UKE and the credibility of the ongoing 5G auction, it is necessary to address claims appearing in public that the 5G auction should be annulled due to legal doubts arising in connection with its suspension by the President of UKE, as well as due to the omission of requirements for the security and integrity of the telecommunications network in the draft.

The auction announced on March 6, 2020 for 4 frequency bookings in the 3.6 GHz band is being conducted in accordance with applicable law and has been prepared in a manner that guarantees the timely implementation of objectives of the Digital Agenda for Europe. Cybersecurity issues of 5G networks were also considered during the preparation of the auction.

Suspension of dates in the auction

On April 16, 2020, the President of UKE published information about the suspension of the time limit for the submission of initial auction bids, which was not made based on a discretionary decision of the body, but directly pursuant to Art. 15zzs paragraph 1 point 10 of the amendment made on March 31, 2020 to the Act of  March 2, 2020 on special solutions related to the prevention, counteracting and eradication of COVID-19, other infectious diseases, and crisis situations caused by them (Journal of Laws 2020 item 364, as amended) ("Anti-COVID Act"). According to the cited provision,

"[During] the state of epidemic emergency or the state of epidemic announced due to COVID, the course of procedural and judicial deadlines in (...):

10) other proceedings conducted on the basis of acts

- are not commenced, and any ongoing proceedings are suspended for this period".

The auction is a proceeding based on the Telecommunications Law, therefore the referred provision applies to it. The suspension of procedural time limits in proceedings applies to all time limits, including those specified by an exact date (such as the final date for submitting initial bids in the auction). The suspension of the deadline for submitting initial bids in the auction was in accordance with the law and did not require any changes to the auction documentation.

During the period from March 31, 2020, the suspension of dates in the auction in accordance with the law, explanations of the auction documentation, and preliminary bids were published. Based on paragraph 7 of the abovementioned provision, during the suspension of the time limits, both the authority and the party may perform actions in the proceedings, and these actions are effective.

Cyber ​​security in the auction

In the course of work on the preparation of the auction procedure, the President of UKE asked the Minister of Digital Affairs about the intention to include cyber security requirements in the auction documentation. On October 31, 2019, the Minister of Digital Affairs sent a negative response to the President of UKE, indicating that operators will have to meet the requirements of the law in this respect (i.e. regulations to Article 175d and 176a of the Telecommunications Law), which will be issued with vacatio legis correlated with the 5G network development plan.

The President of UKE shares the position of the Minister of Digital Affairs of October last year, and indicates that the issue of cybersecurity should be regulated at the level of legal regulations, and not booking decisions regarding unit frequency bands.

Changing the government's position at this stage and relating the security and integrity requirements of the telecommunications network to the already announced auction indicates the need to plan and carry out the distribution process from the beginning, which excludes the possibility of achieving the objectives of the European Digital Agenda using the 3.6 GHz band in 2020. This confirms the content draft regulations which introduce the possibility of annulling the auction due to non-compliance with security requirements from December 21, 2020, i.e. 10 days before the expiry of the first of the deadlines specified in the Agenda.

Despite the delays introduced by the anti-COVID Act of March this year, launching 5G in the 3.6 GHz band in 2020 would be possible, for which it is sufficient to repeal Art. 15zzs of this Act, provided for in the draft submitted to the Sejm. On the other hand, cybersecurity issues can be regulated in due time at the level of legal provisions (including the above-mentioned ordinances, for which the legislative process is still ongoing), in line with earlier declarations of the Ministry of Digital Affairs.