DLA Piper Intelligence

Telecommunications
Laws of the World

Overview of legal landscape

Democratic Republic of the Congo
Democratic Republic of the Congo

The philosophy behind Act n° 013-2002 of 16 October 2002 on Telecommunication in the Democratic Republic of Congo lies in a redefinition of the monopoly system by introducing and defining competition rules for the part of the market open to competition.

Last modified 5 Oct 2016
Overview
Democratic Republic of the Congo

The philosophy behind Act n° 013-2002 of 16 October 2002 on Telecommunication in the Democratic Republic of Congo lies in a redefinition of the monopoly system by introducing and defining competition rules for the part of the market open to competition.

Last modified 5 Oct 2016
Laws and regulations

The primary legislation governing telecoms in the DRC is Act n° 013-2002 of 16 October 2002. This Act sets out the framework to own, install and operate telecommunication installations in the DRC.

In addition to Act n° 013-2002, several decrees on telecoms have been enacted by the Post and Telecommunications Regulatory Authority (l’Autorité de régulation de la poste et des Télécommunications) and the Minister of Postal Services, Telecommunications and New Technologies of Information and Communication (le Ministre des Postes, Télécommunications et Nouvelles technologies de l'information et de la communication). 

Last modified 5 Oct 2016
Regulatory bodies

The following bodies regulate telecoms in the DRC: 

The Post and Telecommunications Regulatory Authority (ARPTC)

This Authority was created by the Act n°014-2002 of 16th October 2002 and consists of a board and an administration.  

The main purposes of this authority are:

  • Ensuring that telecoms providers comply with all laws, regulations and conventions related to postal services and telecommunications
  • Managing all concession applications
  • Issuing, suspending or revoking licences
  • Receiving statements, establishing the specifications to be met in order to obtain licences, ensuring that telecoms providers comply with their obligations and determining the number of new operators which may obtain concession or a licence
  • Defining the interconnectivity principles and setting the pricing for public services rendered by postal and telecommunications services

The ARPTC is located at the following address:

ARPTC, 30 juin Boulevard, Gécamines Building, Gombe/ Kinshasa. 

Minister of Postal Services, Telecommunications and New Technologies of Information and Communication

According to Articles 6 and 7 of Act n° 013-2002 of 16 October 2002, the Minister's tasks include:

  • Developing and proposing to the government the general policy to guide the development of telecommunications
  • Deciding on the police and administrative regulations of telecoms and setting related taxes
  • Ensuring that all networks that provide telecommunication services to the public are interconnected

The Office of the Minister is located in Kinshasa. To our knowledge, it does not have a website yet.

Last modified 5 Oct 2016
Regulated activities

Pursuant to Article 18 of Act n° 013-2002 of 16 October 2002, telecommunication services comprise a wide range of activities, which include: 

  • The supplying of telephone services between fixed points and the supplying of the telex service
  • The installation and operation of radio networks, including cellular networks, that aim to provide a public telecommunications service
  • The installation of telecommunications networks open to the public using other means of transmission
  • The installation of a standalone network whose endpoints are separated by more than 300 meters and whose links have a capacity equal to or greater than 2.1 megabits per second
  • Value-added services including live data processing, data recording and database direct research, electronic data interchange, e-mail and voice mail
Last modified 5 Oct 2016
Registration / licensing

Pursuant to Article 17 of Act n° 013-2002 of 16 October 2002, there are three operating regimes applicable to telecommunication services and activities: 

The concession regime 

This regime concerns concessions granted to provide telecommunications services as public services and comprises solely of the following:

  • The supplying of telephone services between fixed points and the supplying of the telex service
  • The installation and operation of radio networks, including cellular networks, that aim to provide a public telecommunications service
  • The installation of telecommunications networks open to the public using other means of transmission

An operating licence is granted to the legal entity that has obtained a concession.

The authorisation regime 

The authorisation regime applies to telecommunications services other than those mentioned above, and that solely use Hertz frequencies.

The declaration regime

This regime applies to telecommunications services other than those mentioned in the other two regimes.  These include the following:

  • The publication of a list of subscribers to public networks
  • The installation or operation of a ground station for direct transmission
Last modified 5 Oct 2016
Establishment

Pursuant to Article 19 of Act n° 013-2002 of 16 October 2002, a telecoms provider holding an operating licence must first be a limited liability company in the DRC. At least 30% of the share capital of this company must be held by Congolese natural persons or legal entities.

Moreover, in practice, the ARPTC requires that any person or entity wishing to provide telecommunications services must be registered in the Democratic Republic of Congo before launching such services.

Last modified 5 Oct 2016
Interconnection/roaming

With regards to the interconnection (of networks), the ARPTC’s Decision n°016/ARPTC/CLG/2006 of 23 June 2006 on the definition of interconnectivity principles provides some freedom regarding interconnection matters. 

The operator or telecommunications service provider wishing to establish an interconnection may make a request to that end, to the operator concerned. 

Nevertheless, the interconnection agreement must be communicated to ARPTC for review after being signed by the parties. This formality may require the concerned operators to make amendments to the aforementioned agreement to comply with the regulation on telecommunications.

With regards to tariff regulations, the following laws apply:

  • Decision n° 006/ARPTC/CLG/2015 of 27 February 2015 of the Post and Telecommunications Regulatory Authority’s Board relating to the definition of telecommunications services’ tariff principles in the DRC.  This text only applies to voice services, defines and the tariff principles applicable to telecoms operators of public networks
  • Decision n° 068/ARPTC/CLG/2013 of 25 September 2013 of the Post and Telecommunications Regulatory Authority’s Board, which sets out interconnection rates from 2013 to 2017 
  • Decision n° 007/ARPTC of 28 February 2011 of the Post and Telecommunications Regulatory Authority’s Board, which sets out interconnection rates

There is no legal framework with regards to roaming. It is noteworthy to mention the Ministerial Order cab/vpn/min/pntc/lkng/vx/023/2012 of 8 March 2012 relating to the fight against telecommunication fraud in the DRC, which may have an impact on roaming issues.

Last modified 5 Oct 2016
Consumer protection

There is no specific legislation in the DRC regarding consumer protection. 

Pursuant to the decision n° 006/ARPTC/CLG/2015 of 27 February 2015 relating to the definition of tariff principles for telecommunications services, telecommunications services rates are freely set by operators in compliance with cost-based principles. 

In addition, they have to comply with the principles of transparency, objectivity and non-discrimination.

The Ministerial Order of 08 March 2012 relating to the fight against telecommunication fraud in the DRC is also noteworthy.

Last modified 5 Oct 2016
Taxes and fees

Operators are subject to an income tax of 35% specified in Act n° 69/009 of 10 February 1969 relating to income taxes, as amended and restated to date.

Operators are also required to pay various taxes and duties pursuant to the Interdepartmental Order of 5 July 2014 relating to the rates of duties, taxes and charges to be collected by the Ministry of Postal services, Telecommunications and New Technologies of Information and Communication. 

Last modified 5 Oct 2016
Enforcement

The main sanctions and penalties are:

Criminal sanctions

Fines and/or imprisonment. Subject to the type of breach, the minimum and maximum fines listed in the law are comprised between 5,000 CDF and 100,000 CDF, whereas the imprisonment period is a minimum of 15 days and a maximum of 6 months.

Suspension or withdrawal

The concession authorisation or any other title granted by the Regulatory Authority with administrative recourse to the Minister may be suspended or withdrawn.

Administrative penalties

The Ministerial Order of 8 March 2012 relating to the fight against telecommunications fraud in the DRC contains further sanctions, such as those available under the applicable criminal and telecom law such as criminal sanctions, suspension or withdrawal of the concession authorisation or any other title granted, or administrative penalties. The Ministerial Order indicates that administrative sanctions within its scope are comprised between 10 and 100 million CDF and a daily penalty payment between 1000 and 1 million CDF. 

It is worth noting that pursuant to Article 68 of Act n° 013-2002 of 16 October 2002, as a principle, breaches in telecommunication matters may be resolved by way of settlement.

In other words, the operator in breach may negotiate with the ARPTC and pay a settlement fine, the rates of which are reviewed periodically by the Minister of Postal Services, Telecommunications and New Technologies of Information and Communication (see Interdepartmental Order of 5 July 2014 relating to the rates of duties, taxes and charges to be collected by the Ministry of Postal services, Telecommunications and New Technologies of Information and Communication).

As an illustration, please find a chart of such settlement fines below. 

Operative event

Rates (CDF)

Unauthorised possession, installation and operation

100 to 150% of the deed cost

Non-payment of the tax related to the possession of an operating licence

10 to 20% of the amount

Non-payment of the probate tax

100 to 200% of the probate cost

Absence to declare (turnover, point of receipt, number of subscribers, etc.)    

50 to 100% of the amount eluded

False statement (turnover, point of receipt, number of subscribers, etc.)

50 to 100% of the amount eluded

Late filling of the statement concerning the turnover, point of receipt,
number of subscribers, etc.

47.170,00 per day of delay

 

Last modified 5 Oct 2016
Contacts
Serge Nawej
Serge Nawej
Lawyer
T +32 2 500 1689
Florence Guthfreund-Roland
Florence Guthfreund-Roland
Avocat à la Cour and Partner
T +33 1 40 15 25 08
Last modified 5 Oct 2016