The Constitutional Court endorses the constitutionality of the General Telecommunications Law

The Plenary Session of the Constitutional Court rejects the unconstitutionality appeal filed by the Generalitat of Catalonia against several articles of this law.

The Plenary Session of the Constitutional Court has issued a ruling in the unconstitutionality appeal filed by the Generalitat of Catalonia against articles 34.3, 5 and 6; 35.4 and 7; 65; 69.j).6; and, by connection, 73 and 74, of Law 9/2014, of May 9, General Telecommunications, rejecting the appeal, with the exception of the declaration of unconstitutional and null, a subsection of the fifth paragraph of article 34.6 of the Law, relating to a specific regulation of a term.

The Judgment of the Plenary Session of the Constitutional Court issued on February 4, 2016, which resolves the unconstitutionality appeal filed by the Generalitat of Catalonia on February 5, 2015, indicates in the background that the appeal divided the challenged precepts into two blocks: the first made up of articles 34.3, 5 and 6; 35.4 and 7 and 45.4 of the General Telecommunications Law, which, in the opinion of the appellant, violated the exclusive powers of the Generalitat over territorial planning, landscape and urban planning (articles 149.1 and 5 of the Statute of Autonomy of Catalonia); and a second block of appealed precepts that includes articles 65, 69.j).6 and, by connection, 73 and 74 that infringed its jurisdiction over the regulation and control of the audiovisual media (article 146 of the Statute of Autonomy).

After recalling the constitutional doctrine in relation to cases of concurrence of sectoral powers (telecommunications), of state ownership and titles of a transversal or horizontal nature (urban planning, territorial planning), of autonomous ownership, the Court points out in relation to the first block of precepts that it does not see a limitation that violates said autonomous powers in matters of urban planning and planning.

Nor does the Court find unconstitutionality in the articles of the second block of challenged precepts, 65 and 69.j).6. and by connection, 73 and 74, the highest constitutional body concluding that “the autonomous powers over social media do not include the inspection, control and protection of the use of the public radio domain unrelated to the social media users of the same, their enabling titles and the contents disseminated.”

However, the Court declares unconstitutional and void the subsection of the fifth paragraph of article 34.6 of the Law, paragraph relating to the deployment or installation plan of the public electronic communications network, which will be deemed approved if the competent public administration has not issued an express resolution. The Court considers it necessary in this case to establish the general rule of positive silence to guarantee the functioning of the system, eliminating the uncertainty associated with the lack of response. However, it does not support the setting of the specific two-month period given for the approval of the plans, contained in the subsection “two months after their presentation”, which is considered to violate the competence of the Generalitat in matters of administrative procedure.

The law also promotes administrative simplification, eliminating licenses and authorizations and eliminating unnecessary administrative burdens and introduces measures that allow access to the networks of operators from other sectors such as gas, electricity or transport under equitable, non-discriminatory, neutral and cost-oriented conditions.

On the other hand, it reinforces the coordination of User Rights by establishing a procedure to resolve possible disputes through a Bilateral Commission established for this purpose. It also reinforces control of the public radio domain and modifies other legal texts such as Law 34/2002 of July 11, on Information Society Services and Electronic Commerce, introducing clarifications on cookies.