Law Amending and Supplementing Certain Articles of the Radio Frequency Law No. 09/2022/QH15

LAW

AMENDMENTS AND SUPPLEMENTS TO CERTAIN ARTICLES OF THE LAW ON RADIO FREQUENCY

On the basis of the Constitution of the Socialist Republic of Vietnam;

The National Assembly promulgates the Law amending and supplementing certain articles of the Law on Radio Frequency No. 42/2009/QH12.

Article 1. Amending and supplementing certain articles of the Law on Radio Frequency

1. Amending and supplementing certain points of Clause 2, Article 5 as follows:

a) Amending and supplementing Point c as follows:

"c) Issuing, reissuing, changing, amending, supplementing, extending, revoking radio frequency usage licenses; managing license issuance fees for radio frequency usage, radio frequency usage fees, and payment for radio frequency usage rights according to the provisions of the law;"

b) Amending and supplementing Point h as follows:

"h) Training and guiding radio communication business; managing training and issuing radio operator certificates;"

2. Amending and supplementing some Clauses of Article 11 as follows:

a) Amend and supplement Points b and c of Clause 1 as follows:

"b) Band planning is the division of bands into one or more band blocks for a specific type of radio communication system and stipulating the allocation of those bands to one or more organizations under specific conditions.

For bands planned for terrestrial public mobile communication systems, the allocation must include the maximum total bandwidth that an organization may be licensed to use within the planned band or within a defined group of bands;

c) Frequency channel planning is the division of a band into frequency channels for a specific type of radio communication business according to a certain standard and stipulating the conditions for using those frequency channels;"

b) Amend and supplement Clause 3 as follows:

"3. The production, importation of radio communication equipment, radio wave application equipment for use in Vietnam, and the management and use of radio frequencies must comply with the radio frequency planning as provided by law, except in special cases as specified in Clause 1, Article 11a of this Law."

3. Supplementing Article 11a after Article 11 as follows:

"Article 11a. Special cases for using radio frequencies outside the planning

1. Special cases for using radio frequencies outside the radio frequency planning include use for exhibition, testing, research, new technology trials; use in international events, international conferences.

2. The Ministry of Information and Communications shall consider granting permits for each specific case of using frequencies and radio communication equipment as specified in Clause 1 of this Article, along with usage conditions."

4. Amending and supplementing Clause 3, adding Clause 3a after Clause 3, and amending and supplementing Clause 4 of Article 16 as follows:

"3. The validity period of radio frequency usage licenses issued upon request from organizations or individuals shall not exceed the maximum validity period specified in Clause 2 of this Article, except in cases as specified in Clause 3a of this Article and Point d of Clause 4 of Article 18 of this Law.

3a. The validity period of band usage licenses issued through auction, examination, or reissued by the Minister of Information and Communications shall not exceed the maximum validity period specified in Clause 2 of this Article.

4. The Government shall provide detailed regulations on the issuance, reissuance, change, amendment, supplementation, extension, and revocation of radio frequency usage licenses."

5. Amend and supplement Clause 2 of Article 17 as follows:

"2. In compliance with the radio frequency planning, except in special cases as specified in Clause 1 of Article 11a of this Law."

6. Amending and supplementing Article 18 and adding Article 18a after Article 18 as follows:

"Article 18. Methods of issuing radio frequency usage licenses

1. Methods of issuing radio frequency usage licenses include:

a) Issuing licenses through auction of radio frequency usage rights based on evaluation of bidding documents according to criteria including investment capacity, technical expertise, business operations ensuring implementation of commitments for network deployment, and bid prices submitted by organizations;

b) Issuing licenses through examination of radio frequency usage rights based on evaluation of examination documents according to criteria including investment capacity, technical expertise, business operations ensuring implementation of commitments for network deployment by organizations;

c) Directly issuing licenses for radio frequency usage rights based on review of license application documents according to the principle that organizations or individuals submitting complete and compliant applications first will be considered for issuance first.

2. The auction method applies to the following bands and frequency channels:

a) Bands for establishing terrestrial public mobile communication networks;

b) Bands and frequency channels for establishing other terrestrial public communication networks as decided by the Prime Minister based on the proposal of the Minister of Information and Communications, taking into account the development of the domestic telecommunications market and international practices regarding licensing of such bands and frequency channels.

3. The examination method applies to the bands and frequency channels specified in Clause 2 of this Article when there is a need to widely deploy new technologies over a certain period or when there is a need for new organizations to enter the market to promote competition in telecommunications activities.

The Prime Minister decides on the bands and frequency channels to be licensed through examination based on the proposal of the Minister of Information and Communications.

4. The direct issuance method applies to the following bands and frequency channels:

a) Bands and frequency channels not included in the bands and frequency channels specified in Clause 2 of this Article;

b) Bands and frequency channels specified in Clause 2 of this Article when used for network and telecommunications service testing, or in special cases as specified in Clause 1 of Article 11a of this Law;

c) Bands and frequency channels specified in Clause 2 of this Article when issued in emergency situations according to the law with a license validity period not exceeding three years, or when reissued according to Article 20a of this Law;

d) In special cases, bands specified in Clause 2 of this Article may be granted to state-owned enterprises directly serving national defense and security purposes for a period not exceeding three years to develop economic activities in conjunction with national defense and security tasks.

d) In cases of special circumstances, the frequency band prescribed in Clause 2 of this Article shall be granted to state-owned enterprises directly serving national defense and security for a period not exceeding three years to develop the economy in conjunction with national defense and security tasks.

The Ministry of National Defense and the Ministry of Public Security are responsible for drafting plans to use frequency bands for economic development combined with defense and security tasks, seeking opinions from the Ministry of Information and Communications on plans drafted by the Ministry of National Defense, and opinions from the Ministry of National Defense on plans drafted by the Ministry of Public Security, to submit to the Prime Minister for approval before the Ministry of Information and Communications issues permits.

The plan must ensure that it does not affect national defense and security; state secrets' safety and protection; fair competition in telecommunications activities; clearly define defense and security tasks assigned to enterprises; determine the amount of frequencies serving defense and security tasks accounting for a basic proportion of the total frequencies requested for permission.

Three months before the permit expires, the Ministry of National Defense and the Ministry of Public Security shall organize an assessment of the effectiveness of the use of allocated frequency bands and report to the Prime Minister for consideration and decision to stop or continue implementing the plan for no more than twelve years, serving as the basis for the Ministry of Information and Communications to extend the permit.

5. The Government shall provide detailed regulations on this matter.

Article 18a. Conditions for participating in auctioning, bidding for the right to use radio frequencies and commitments to deploy telecommunications networks

1. Conditions for participating in auctioning, bidding for the right to use radio frequencies include:

a) Meeting the conditions stipulated at points a, d, đ, and e of Clause 2 of Article 19 of this Law;

b) Having the necessary conditions to be granted a license to establish a telecommunications network using the corresponding frequency band or channel according to the provisions of the Telecommunications Law;

c) Completing all financial obligations related to telecommunications and radio frequencies as prescribed by law;

d) Committing to deploying the telecommunications network as provided for in Clauses 2 and 3 of this Article.

2. Commitments to deploy telecommunications networks include the following contents:

a) Total investment capital in the network or the number of radio transmitters to be deployed;

b) Coverage area calculated based on population or geographic region;

c) Official service provision date counted from the licensing date;

d) Quality of telecommunications services;

đ) Telecommunications service coverage expansion.

3. Based on the provisions of Clause 2 of this Article, the Minister of Information and Communications decides the number of commitment contents and specific requirements for each deployment commitment of telecommunications networks for each frequency band or channel subject to auctioning, bidding, or reissuance.

4. Organizations violating the deployment commitments for telecommunications networks as stipulated at point a or point b of Clause 2 of this Article will have their partial rights to use radio frequencies suspended for a period without being refunded the fees or charges for the suspended radio frequencies during the suspension period.

5. The Government shall specify detailed regulations for this Article.

7. Amend and supplement points b, c, and d of Clause 2 of Article 19 as follows:

"b) Hold a telecommunications license in accordance with the Telecommunications Law for organizations applying for a license to use radio frequencies to establish a telecommunications network;

c) Hold a press operation license or have the right to broadcast radio and television programs in accordance with the law;

d) Have a feasible plan for using radio frequencies consistent with the radio frequency planning or a feasible plan for using radio frequencies for special cases as stipulated in Clause 1 of Article 11a of this Law;"

8. Amend and supplement Article 20 and add Article 20a after Article 20 as follows:

"Article 20. Issuance of Frequency Band Usage Permit

1. The subjects eligible for issuance of the permit are organizations legally operating in Vietnam.

2. Organizations specified in Clause 1 of this Article that directly obtain the permit must meet the conditions stipulated in Points a, b, d, đ, and e of Clause 2, Article 19 of this Law. In cases where the permit is issued according to Point d, Clause 4, Article 18 of this Law, such organizations must also satisfy the conditions stipulated in Points a, b, d, đ, and e of Clause 2, Article 19 of this Law and have a Prime Minister's Decision approving the project.

In cases where the permit is renewed according to Article 20a of this Law.

3. Organizations specified in Clause 1 of this Article that obtain the permit through frequency auction or selection must meet the following conditions:

a) Winning the frequency auction or selection for the right to use radio frequencies;

b) Having a telecommunications network establishment permit using the frequency band, channel of the won auction or selection for the right to use radio frequencies.

Article 20a. Renewal of Frequency Band Usage Permit

1. Renewal of the frequency band usage permit is the act of allowing an organization that has been granted a frequency band usage permit to continue using radio frequencies for the entire previously allocated frequency band when the previous permit expires.

2. The frequency band for which the right to use radio frequencies is renewed must be consistent with the frequency band planning applied at the time the previous frequency band usage permit expires, provided all previously allocated frequency bands comply with the frequency band planning.

3. At least three years before the frequency band usage permit expires, the Ministry of Information and Communications must notify the organization that has been granted the frequency band usage permit about the frequency band planning applied at the time the frequency band usage permit expires.

4. Conditions for renewal of the frequency band usage permit include:

a) Meeting the conditions stipulated in Points a, b, d, đ, and e of Clause 2, Article 19 of this Law;

b) Completing all financial obligations related to telecommunications and radio frequencies according to the law for the previously allocated frequency band, channel of frequencies proposed for renewal;

c) Paying the full amount of the fee for the right to use radio frequencies and the radio frequency usage fee for the proposed frequency band, channel of frequencies for renewal according to the law on time;

d) Committing to deploy a telecommunications network for the proposed frequency band, channel of frequencies for renewal in accordance with Clause 2 and Clause 3, Article 18a of this Law.

5. Within thirty days before the six-month period during which the frequency band usage permit remains valid, an organization wishing to renew the frequency band usage permit must submit a request to the Ministry of Information and Communications.

The Ministry of Information and Communications is responsible for issuing the renewed frequency band usage permit to the organization at least thirty days before the expiration date of the previously issued permit; if it does not issue the permit, it must respond in writing and provide specific reasons.

6. A renewed frequency band usage permit that expires according to the term stated in the permit will be considered for extension according to Clause 1, Article 22 of this Law.

7. No renewal of the frequency band usage permit shall be granted for frequency bands, channels of frequencies allocated for testing telecommunications networks and services, those allocated under emergency provisions of the law, and those allocated according to Clause 1, Article 11a, and Point d, Clause 4, Article 18 of this Law.

9. Amend and supplement Article 22 as follows:

"Article 22. Extension, amendment, supplementation, replacement of frequency usage permits; cessation of radio frequency usage

1. The extension of radio frequency usage permits must be based on the permit issuance principles stipulated in Article 17 of this Law and the following provisions:

a) Organizations and individuals granted radio frequency usage permits must fully perform the obligations prescribed for each type of permit.

b) The remaining validity period of the permit must be at least 30 days for frequency and radio equipment usage permits, 60 days for band usage permits, and 90 days for frequency and satellite orbit usage permits.

c) The validity period of the extended permit shall not exceed the validity period of telecommunications permits, press operation permits, or broadcasting rights as prescribed by law.

d) The total duration of the initial issuance and subsequent extensions of the permit shall not exceed the maximum duration prescribed for each type of radio frequency usage permit; if the initial issuance period equals the maximum prescribed duration for the corresponding permit, it shall not be extendable.

đ) There must be a Prime Minister's approval decision for cases issued according to point d, Clause 4, Article 18 of this Law.

2. Amendments and supplements to radio frequency usage permits must be based on the permit issuance principles stipulated in Article 17 of this Law and the following provisions:

a) The radio frequency usage permit remains valid.

b) Organizations and individuals granted radio frequency usage permits must fully perform the obligations prescribed for each type of permit.

c) Any amendments and supplements to the permit must comply with the provisions of Articles 19, 20, 20a, and 21 of this Law for each type of permit.

3. Replacement of radio frequency usage permits shall be carried out in cases where the permit is lost or damaged.

4. Cessation of radio frequency usage upon request of organizations and individuals is regulated as follows:

a) Organizations and individuals no longer requiring radio frequency usage must submit a written request to the Ministry of Information and Communications to cease using the radio frequency.

b) For permits issued without a commitment to deploy telecommunications networks, organizations and individuals ceasing to use radio frequencies will be refunded the radio frequency usage fees and the frequency usage right fees paid for the remaining validity period of the permit (rounded to the nearest month) under the law if the permit remains valid for at least 30 days from the date the Ministry of Information and Communications receives the written request.

c) For permits issued with a commitment to deploy telecommunications networks, organizations and individuals ceasing to use radio frequencies will not be refunded the radio frequency usage fees and the frequency usage right fees paid.

5. In cases of cessation of radio frequency usage as prescribed in Article 12 of this Law, organizations and individuals will be refunded the radio frequency usage fees and the frequency usage right fees paid for the remaining validity period of the permit (rounded to the nearest month) under the law from the date the Ministry of Information and Communications decides to revoke the permit.

10. Amend and supplement some points and clauses of Article 23 as follows:

a) Amend and supplement points đ, e, g, and add point h after point g of Clause 1 as follows:

"đ) Failure to pay the radio frequency usage fee or the frequency usage right fee as prescribed by law within 12 months from the due date notified by the specialized frequency management agency;

e) Failure to implement the contents stipulated in the permit in reality within two years from the date of issuance of the permit, except in cases provided for in point h of this clause;

g) When the telecommunications permit, press operation permit, or broadcasting rights are revoked;

h) Failure to rectify violations related to commitments to deploy telecommunications networks after the suspension period of part of the frequency usage rights."

b) Amend and supplement Clause 2 and add Clause 3 after Clause 2 as follows:

"2. After one year from the date of revocation of the radio frequency usage permit pursuant to points b, c, d, and đ of Clause 1 of this Article but before reaching the level of criminal liability, if the consequences have been remedied and the conditions for obtaining a permit under this Law are met, organizations and individuals may be considered for issuance of a radio frequency usage permit.

3. Organizations and individuals whose radio frequency usage permits are revoked pursuant to Clause 1 of this Article shall not be refunded the radio frequency usage fees and the frequency usage right fees."

11. Amend and supplement Article 24 as follows:

"Article 24. Transfer of Radio Frequency Usage Rights
1. An organization granted a license to use frequency bands through auction may transfer radio frequency usage rights to another organization five years from the date of receiving the frequency band usage license. Organizations granted licenses to use frequency bands through examination or direct allocation shall not be allowed to transfer radio frequency usage rights.

2. Conditions for transferring radio frequency usage rights include:

a) The organization receiving the transfer of radio frequency usage rights must meet the conditions for obtaining a telecommunications network establishment license appropriate to the frequency band and channel being transferred, in accordance with the Telecommunications Law, and the licensing conditions stipulated in points a, d, đ, and e of Clause 2, Article 19 of this Law, and must assume all obligations of the transferring organization;

b) The total bandwidth permitted for use by the organization receiving the transfer of radio frequency usage rights shall not exceed the limit on total bandwidth that an organization is permitted to use as specified in the frequency band planning;

c) Parties involved in the transfer of radio frequency usage rights shall ensure the rights and legitimate interests of telecommunications service users according to the telecommunications service usage contracts already concluded.

3. Based on the conditions stipulated in Clause 2 of this Article, the Ministry of Information and Communications shall consider and approve the transfer; issue a frequency band usage license to the organization receiving the transfer of radio frequency usage rights after the transfer has been completed.

4. Parties involved in the transfer of radio frequency usage rights shall fulfill their tax obligations in accordance with the laws on taxation.

5. The Government shall provide detailed regulations for this Article.

12. Amend and supplement Article 31 as follows:

"Article 31. Fees for Using Radio Frequencies, Licensing Fees for Using Radio Frequencies, and Payment for Granting Radio Frequency Usage Rights

1. Organizations and individuals granted a license to use radio frequencies must pay fees for using radio frequencies and licensing fees for using radio frequencies.

The fee level is determined fundamentally to cover costs, taking into account the State's economic and social development policies during each period, ensuring fairness, transparency, and equality based on the purpose of use; the extent of radio frequency spectrum occupation; coverage range; the degree of frequency use within the band and the area of radio frequency usage.

The collection, payment, management, and use of fees and licensing fees for radio frequencies shall be carried out in accordance with the laws on fees and licensing fees.

2. Organizations granted a license to use frequency bands for the frequency bands and channels specified in Clauses 2, 3, and point c of Clause 4, Article 18 of this Law must pay the fee for granting radio frequency usage rights.

3. State-owned enterprises directly serving national defense and security, which are licensed to use radio frequencies to develop the economy in conjunction with national defense and security tasks as stipulated in point d of Clause 4, Article 18 of this Law, have the obligation to pay fees and the fee for granting radio frequency usage rights for the amount of radio frequencies used for economic development, ensuring fairness between state-owned enterprises directly serving national defense and security and other telecommunications enterprises granted radio frequency usage rights on the same band.

4. The fee for granting radio frequency usage rights shall be paid into the State budget. The Government shall provide detailed regulations on the level of collection, methods of collection, payment, management, and use of the fee for granting radio frequency usage rights.

13. Amend and supplement Clause 1 and Clause 2 of Article 32 as follows:

"1. Individuals directly operating mobile maritime, mobile aviation, and amateur radio equipment must hold a radio operator certificate, except where they already possess an equivalent certificate as provided for by law or international treaties to which the Socialist Republic of Vietnam is a party.

2. The Government shall provide detailed regulations on the conditions and procedures for recognizing organizations qualified to train and issue radio operator certificates for mobile maritime, mobile aviation, and amateur radio operations; specify radio operator certificates, target groups, conditions, and procedures for issuing, revoking, and recognizing foreign radio operator certificates, except as provided for in Clause 3 of this Article."

14. Amend and supplement some points and clauses of Article 42 as follows:

a) Amend and supplement point c and add point d after point c of Clause 2 as follows:

"c) Approve the results of international cooperation on radio frequencies and satellite orbits;
d) Inspect and notify the International Telecommunication Union about foreign registrations of radio frequencies and satellite orbits that could affect Vietnam’s satellite systems;"

b) Add point e after point đ of Clause 3 as follows:

"e) Inspect and report to the Ministry of Information and Communications the results of inspections of foreign registrations of radio frequencies and satellite orbits published by the International Telecommunication Union that could affect satellites already granted radio frequency usage licenses and satellite orbits."

15. Amend and supplement Clause 2 and Clause 3 of Article 45 as follows:

"2. In cases where the Ministry of National Defense or the Ministry of Public Security requests the use of radio frequencies for national defense and security purposes outside the allocated frequencies, the Ministry of Information and Communications shall consider and approve, except for the frequency bands and channels specified in Clauses 2 and 3 of Article 18 of this Law, which must be allocated according to the provisions of Clause 1 of this Article.

3. In cases where there is a situation directly affecting sovereignty and national security, the following measures shall be taken:

a) The Ministry of National Defense and the Ministry of Public Security have the authority to decide on the use of radio equipment and the use of radio frequencies outside the allocated frequencies for national defense and security purposes and shall inform the Ministry of Information and Communications.

b) If there is a possibility of harmful interference with the radio frequencies and radio equipment of the Ministry of National Defense and the Ministry of Public Security, the Ministry of Information and Communications shall notify organizations and individuals to cease using the radio frequencies and radio equipment until the situation specified in this clause ends.

16. Amend and supplement some points of Clause 1, Article 46 as follows:

Amend and supplement point a as follows:

"a) Provide for the management and use of allocated radio frequencies serving national defense and security purposes to ensure efficient, economical, purposeful use, and compliance with the national radio frequency planning;"

b) Supplement point e following point d as follows:

"e) Direct, inspect, and audit state-owned enterprises directly serving national defense and security that have been licensed under point d, Clause 4, Article 18 regarding the implementation of approved projects;"

17. Amend, replace, and abolish terms, phrases, clauses at some articles as follows:

a) Replace the phrase "national telecommunications development planning" with the phrase "national information and communication infrastructure planning, avoiding accumulation" in Clause 7, Article 10;

b) Replace the phrase "specialized frequency management agency" with the phrase "Ministry of Information and Communications" in Clause 4, Article 12;

c) Replace the phrase "Minister of Information and Communications" with the word "Government" in point b, Clause 1, Article 19, Clause 3, Article 25, and Clause 3, Article 26;

d) Omit the phrase "operating at short range, with limited power," in point a, Clause 1, Article 27;

đ) Supplement the phrase "; inspect foreign radio frequency registrations and satellite orbits" after the word "satellite" in Clause 8, Article 30;

e) Supplement the phrase ", electrical and electronic equipment, radio wave application equipment" after the phrase "radio equipment" in Clause 3, Article 39;

g) Replace the phrase "The Minister of Information and Communications shall take the lead in coordinating with the Ministers of Construction, National Defense, and Public Security" with the word "Government" in Clause 2, Article 40;

h) Omit the phrase "as provided for in Article 44 of this Law" in point d, Clause 1, Article 43;

i) Supplement the phrase "submitting to the Prime Minister for approval of the contents" before the phrase "set forth below" in Clause 2, Article 46;

k) Abolish Clause 3, Article 8 and Clause 3, Article 19.

Article 2. Amend and supplement some articles of related laws

1. Supplement Item 228 following Item 227 of Appendix IV List of Industries and Business Fields Subject to Investment Conditions issued together with the Investment Law No. 61/2020/QH14 which has been amended and supplemented by some articles according to Law No. 72/2020/QH14, Law No. 03/2022/QH15, Law No. 05/2022/QH15, and Law No. 08/2022/QH15 as follows:
"Training and issuing radio operator certificates".

2. Supplement the phrase ", radio frequencies" after the phrase "preventing the harms of alcohol and beer" in Clause 1, Article 64 of the Administrative Violations Handling Law No. 15/2012/QH13 which has been amended and supplemented by some articles according to Law No. 54/2014/QH13, Law No. 18/2017/QH14, and Law No. 67/2020/QH14.

Article 3. Effectiveness

1. This Law takes effect from July 1, 2023, except as provided for in Clause 2 of this Article.

2. The provisions on training and issuing radio operator certificates in this Law take effect from July 1, 2024.

Article 4. Transitional Provisions

1. Radio frequency usage licenses granted before this Law comes into effect shall continue to be valid until their expiration date as stated in the license. Radio operator certificates issued before July 1, 2024, shall remain valid until their expiration date as stated in the certificate.

2. Organizations that have been granted spectrum licenses to establish public mobile terrestrial telecommunications networks whose usage period expires before September 6, 2023, may be considered for extension according to Article 16 of the Radio Frequency Law No. 42/2009/QH12 and points a, b, c of Clause 1, Article 22 of the Radio Frequency Law No. 42/2009/QH12, amended and supplemented according to Clause 9 of Article 1 of this Law, up to September 15, 2024, without having to pay for the right to use radio frequencies during the extended period.

3. Organizations that have been granted spectrum licenses to establish public mobile terrestrial telecommunications networks whose usage period expires before September 16, 2024, shall not have to pay for the right to use radio frequencies until their expiration date as stated in the license and will not be eligible for extension, except as provided for in Clause 2 of this Article.

4. The Ministry of Information and Communications shall announce the spectrum planning for the spectra granted to organizations as stipulated in Clauses 2 and 3 of this Article before August 1, 2023. For blocks of spectra that are being reconsidered for reissue and share the same radio frequencies as those granted before this Law took effect, they may be reconsidered for reissue based on the current usage status.

5. Training and issuing radio operator certificates shall continue to be carried out according to the provisions of the Radio Frequency Law No. 42/2009/QH12 until June 30, 2024.

This Law was passed by the National Assembly of the Socialist Republic of Vietnam, the 15th term, fourth session, on November 9, 2022.