Position of the President of UKE on the obligation to provide Anonymous Call Rejection service (ACR) imposed on the provider of services over public mobile networks under Article 171 2(3) of the Polish Telecommunications Act (TA) of 16 July 2004 (Polish Journal of Laws [Dz. U.] no. 171, item 1800, with further amendments).
Following problems with the provision in Poland of ACR service over public mobile networks, the President of UKE presents below her position.
Under Article 8(3) of the e-Privacy Directive1 Member States of the European Union are obliged to ensure the implementation of ACR service. The service consists in rejecting calls originated by subscribers and end-users who use elimination of presentation of calling-line identification. The Directive enables the called subscriber to reject incoming calls in case the presentation of the calling line identification has been eliminated by the calling end-user or subscriber.
The European Telecommunications Standards Institute (ETSI) was entrusted with drawing up a detailed description of the ACR service. As a result of initial works, the following ETSI standards were published in 2000: ETSI EN 301 798 V1.1.1 (2000-10) called Service and Protocols for Advanced Networks (SPAN); Anonymous Call Rejection (ACR) Supplementary Service; Service description. In the first chapter of the document in question (the Scope) ETSI indicated that the ACR service applies to publicly available telecommunications networks, e.g. PSTN and ISDN and that there are two types of solutions:
The document refers only to "network-based solution".
Ad 1. The network based solution is a service offered as a part of public network functionality for all incoming calls in which the calling-line identification service is not available because of Calling Line Identification Restriction (CLIR). An important feature of the ACR service provided in the form of the network based solution is that no setting-up of a call with end-user device takes place, and consequently the called user is not informed about the call attempt and its rejection (chapter 4 - users' needs). The user originating the call, however is informed by special notice that the call was rejected because the ACR service was in use (chapter 5 - service definition). The call is rejected regardless of whether the calling line is busy or not.
Ad. 2. The user based solution is a service which is offered as a part of the device functionality of the called end-user; either for all incoming calls or for incoming calls specified by the end user. For the above mentioned categories of incoming calls the calling-line identification service is not available as a result of CLIR service.
In 2002 the Directive on privacy and electronic communications was amended by Directive 2002/58/EC of the Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive) - (OJ UE.L.02.201.37). The latter stipulates that the ACR service shall be provided in the form of a network-based solution or a user-based solution while ensured by the service provider. In the new EU telecommunications package dated 2009 the provisions of the Article 8 of 2002/58/EC Directive remain unchanged as far as the ACR service is concerned.
In Poland the obligation to provide the end-user with the possibility to use the ACR service consisting in rejecting anonymous incoming calls was implemented under Article 171 2 (3) of the Telecommunications Act [TA] of 16 July 2004 (Journal of Laws [Dz. U.] no. 171, 1800, with further amendments), which transposes relevant provisions of Directive 2002/58/EC. In accordance with the Article 171, 2(3) of the TA, the provider of services over public telephone network which allows calling line identification presentation, shall ensure, by way of simple means, that the called subscriber has the possibility to eliminate calling line identification presentation for incoming calls and where such presentation is available before commencing the incoming call, also the possibility to block incoming calls from a subscriber or a user who has eliminated calling line identification presentation.
It has to be clarified that the essence of the ACR service consists in the possibility to reject only those incoming calls to which the end user applied the CLIR service. Moreover, the ACR service shall be provided by operators additionally to the CLIR service. In practice, the lack of number presentation of an incoming call may have two reasons in connection with the ACR service:
Having analyzed offers of mobile network operators, the President of UKE came to the conclusion that all operators in Poland provide CLIP (Calling Line Identification Presentation) and CLIR services. Two mobile networks operators have reported that they provide the ACR services in the form of a network-based solution and the others, including MVNO, provide the ACR services in the form of a "red receiver" (the call without number presentation is rejected by a subscriber).
Taking into account of the above-mentioned situation, as well as the assessment of the implementation of the unconditional obligation to provide the ACR service in public mobile networks in Poland, the President of UKE came to the conclusion that the obligation is not fulfilled in line with the Article 171 2(3) of the TA. The President of UKE informs all interested parties that the service defined under Article 171 2(3) should be provided in the form of a network-based solution or a user-based solution ensured by the service provider by means of applications made available to end users using terminals with operational systems.
"Red receiver" does not constitute the fulfillment of an obligation to provide the ACR service.
It should be mentioned that the recent amendment of a subscriber definition in the TA means that the ACR service shall be available to all end-users of mobile networks operators (including pre-paid users). Bearing this in mind, activation and deactivation of the ACR service should be possible by different channels - not only via Call Center but also by means of access codes.
1 Directive 97/66/EC of the European Parliament and of the Council of 15 December concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ L 24 dated 30 January 1998)