CHAMBERS

BRAZIL
PERU

Global Practice Guides

TMT

LAW & PRACTICE:

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Contributed by Mattos
Montezuma
Filho,&Veiga
PortoFilho, Marrey Jr. e Quiroga

The Law Law

& Practice
provide easily accessible information on
Peru
&sections
Practice
navigating the legal system when conducting business in the jurisdiction. Leading lawyers explain local law and practice at key transactional
Contributed
by of doing business.
stages and
for crucial aspects

Montezuma & Porto

TRENDS
DOING BUSINESS
& DEVELOPMENTS:
IN PERU: NATIONAL:

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Contributed
Campos Mello
Advogados
Chambers by
& Partners
employ
a large team of full-time researchers (over

140) in their London office who interview thousands of clients each

The Trends & Developments sections give an overview of current
year. This section is based on these interviews. The advice in this section
trends and developments in local legal markets. Leading lawyers anais based on the views of clients with in-depth international experience.
lyse particular trends or provide a broader discussion of key developments in the jurisdiction.

2016

TRENDS & DEVELOPMENTS: NORTH EAST:

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Contributed by Queiroz Cavalcanti Advocacia

The Trends & Developments sections give an overview of current

trends and developments in local legal markets. Leading lawyers analyse particular trends or provide a broader discussion of key developments in the jurisdiction.

DOING BUSINESS IN BRAZIL:

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Chambers & Partners employ a large team of full-time researchers (over

140) in their London office who interview thousands of clients each
year. This section is based on these interviews. The advice in this section
is based on the views of clients with in-depth international experience.

PERU
LAW & PRACTICE:

p.3

Contributed by Montezuma & Porto

The Law & Practice sections provide easily accessible information on

navigating the legal system when conducting business in the jurisdiction. Leading lawyers explain local law and practice at key transactional
stages and for crucial aspects of doing business.

Law & Practice PERU

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

Law & Practice

Contributed by Montezuma & Porto

CONTENTS
1. General Structure of TMT Regulation and
Ownership
p.5
1.1 Statutes, Laws and Legislation
p.5
1.2 Government Ministries, Regulatory Agencies
and Privatised Entities
p.5
1.3 Developing Rules and Adopting Policies
p.5
1.4 Ownership of Telecoms Media Technology
Industries
p.6
1.5 Limits on Participation
p.6
1.6 Restrictions on Foreign Ownership or Investment p.6
1.7 World Trade Organization Membership
p.6
1.8 Appellate Process
p.6
1.9 Annual or Recurring Fees
p.6
2. Broadcasting/Media
p.7
2.1 Important Companies
p.7
2.2 Requirements for Obtaining a Licence
/Authorisation to Provide Services
p.7
2.3 Typical Term for a Licence/Authorisation to
Provide Services
p.7
2.4 Transfer of Licences/Authorisations to Other
Entities
p.7
2.5 Spectrum Allocation
p.8
2.6 Restrictions on Common Ownership
p.8
2.7 Content Requirements and Regulations
p.8
2.8 The Difference in Regulations Applicable to
Broadcasting Versus Cable
p.8
2.9 Transition from Analogue to Digital Broadcasting p.8
2.10 Extent to which Local Government Regulation
is Pre-Empted
p.8
3. Telecoms
p.8
3.1 Important Companies
p.8
3.2 Requirements for Obtaining a Licence/Authorisation
to Provide Services
p.8
3.3 Transfer of Telecoms Licences/Authorisations to
other Entities
p.9
3.4 Regulations for Network-to-Network
Interconnection and Access
p.9
3.5 Accounting, Functional and Legal Separation p.9
3.6 Provisions for Access to Public and Private Land p.9

3.7 Rules which Govern the Use of Telephone

Numbers
p.9
3.8 Regulation of Retail Tariffs
p.9
3.9 Rules to Promote Service in Underserved Areas p.9
3.10 Extent to which Local Government Regulation
of Telecom Service is Pre-Empted
p.10
4. Wireless
p.10
4.1 Important Companies
p.10
4.2 General Requirements for Obtaining a Licence
/Authorisation to Provide Wireless Services p.10
4.3 Transfer of Wireless Licences/Authorisations to
Other Entities
p.10
4.4 Spectrum Allocation
p.10
4.5 Procedures to Identify and Assign Spectrum
Among Competitors
p.11
4.6 Unlicensed Spectrum Uses
p.11
4.7 Government Policy/Regulation to Promote Next
Generation Mobile Services
p.11
4.8 Price Regulation for Mobile Services
p.11
4.9 Regulation of Government and Commercial
Wireless Uses
p.11
4.10 Extent to which Local Government Regulation
of Wireless Service is Pre-Empted
p.11
5. Satellite
5.1 Important Companies
5.2 General Requirements for Obtaining a Licence
/Authorisation to Provide Satellite Service
5.3 Transfer of Satellite Licences/Authorisations to
other Entities
5.4 Spectrum Allocation to Satellite Service
5.5 International Telecommunication Union
Membership
5.6 Provision of Service by Foreign-Licenced
Satellites
5.7 Milestone and Due Diligence Deadlines
6. Internet/Broadband
6.1 Important Companies
6.2 Regulation of Voice Over IP Services

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PERU Law & Practice

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

6.3 Interconnection and Access Regulatory Conditions

to IP-Based Networks
p.12
6.4 Net Neutrality Requirements
p.12
6.5 Government Regulation of Internet/Broadband p.12
6.6 Over-the-Top Internet-based Providers
p.12
6.7 Extent that Local Government Regulation of
Internet/Broadband Service is Pre-Empted
p.12
7. Privacy
p.12
7.1 Government Access to Private Communications p.12
7.2 Use of Encryption Technology
p.13
7.3 Liability of TMT Companies for Content
Carried Over Their Networks
p.13
7.4 Obligation of TMT Companies to Block Access
to Certain Sites or Content
p.13
7.5 Obligation of TMT Companies to Retain
Customer Data
p.13
7.6 Prohibition of Unsolicited Communications p.13
8. Future
8.1 Status and Process of Convergence
8.2 Changes to Statutes, Laws or Legislation
8.3 Changes to Government Ministries, Regulatory
Agencies or Privatised Entities
8.4 Identification and Assignation of Additional
Spectrum

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Law & Practice PERU

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

Montezuma & Porto is a TMT boutique law firm established in 2012. Although a young firm, its commitment,
integrity and knowledge in its core practice areas enables
it to compete with mature and established law firms in the
market. Clients range from multinational companies to

emerging start-ups developing industry-leading technologies. The firms core practices within the TMT sector are telecommunications, media and technology law (regulatory
and transactional), Internet and digital enterprises, privacy
and general legal advice.

Authors
Oscar Montezuma Panez is a partner and
has extensive experience in regulatory
matters related to telecommunications and
technology law including digital signatures, electronic money and domain
names. Oscar has developed consistent
experience in the implementation of the privacy and data
protection legal framework. Oscar has published numerous articles covering different aspects of TMT law.

Jos Miguel Porto is a partner of the firm

and has broad international and crossborder experience dealing with major
telecom and IT and technology-related
transactions, including: telecommunications infrastructure collocations and tower
sale leasebacks, financings (syndicated facilities, export
financings and vendor financings), mergers and acquisitions, complex licensing transactions and other IT and
technology procurement and outsourcing arrangements.

1. General Structure of TMT Regulation

and Ownership

sory Agency for Private Investment in Telecommunications

(hereinafter OSIPTEL) is the telecommunications agency
entrusted with the role of further developing and enforcing
regulation on interconnection agreements, tariffs, competition and consumer protection, amongst others.

1.1 Statutes, Laws and Legislation

The main legal and regulatory framework in Peru consists

of the following:
Broadcasting and Media: Radio and Television Act (Law No
28278) and complimentary regulations (Supreme Decree No
005-2015-MTC).
Telecommunications, Wireless, Satellite and Internet and
Broadband: Telecommunications Act (Supreme Decree No
013-93-TCC) and complementary regulations (Supreme Decree No 20-2007-MTC).

1.2 Government Ministries, Regulatory Agencies

and Privatised Entities

The Ministry of Transportation and Communications (hereinafter the Ministry) is accountable for the development
and promotion of policies and regulation in connection with
telecommunications infrastructure. The Ministry issues authorisations and licences (concesiones) for the provision of
public and private telecommunication services in the country and manages spectrum usage and allocation and numbering resources. In addition to the Ministry, the Supervi-

1.3 Developing Rules and Adopting Policies

Regulation in the Telecom, Media and Technology sectors is

mainly developed by the Congress and the regulators (either
OSIPTEL or the Ministry) of Transportation and Communications. The process is further described below:
Congress: any member of Congress, the President, any interested entity of the Executive Branch or any citizen may
submit a bill to Congress. The bill is then delivered to a specific Committee within the Congress. The proposed bill is
discussed at the applicable Congress Committee and upon
approval it is passed to Congress for debate and approval
among all congressmen. Upon approval by the Congress
Plenary, the bill is submitted to the President for approval.
The President has veto rights over bills approved by Congress. Once the President approves a bill, the bill is thereafter
passed into Law.
Executive: in addition to Congress, the Ministry and OSIPTEL (the telecom regulators) can develop complementary

PERU Law & Practice

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

regulations in their respective fields of competency and

develop specific public policies within the Telecom Media Technology industry. Customarily, regulators will prepublish any project that they may want to implement for
stakeholders to provide comments, then they will hold a
public hearing and thereafter, issue those complementary
regulations.

1.4 Ownership of Telecoms Media Technology

Industries

The industry was privatised in 1994 where the state-owned

companies were privatised and the States stake in those
state-owned companies was sold, through a public auction
to Telefnica. The Broadcasting/Media industry is essentially
privatised, although the state still owns a relevant local television and radio channel. The Technology industry has always been privatised.

1.5 Limits on Participation

The Telecom Media Technology industry is open for competition. In the case of television, broadcasters are not entitled
to hold (in their own name) more than 30% of the available
frequencies in the same band and within the local area, and
in the case of radio, broadcasters cannot hold more than 20%
of the available frequencies in the same band and within a
local area. Wireless telecommunications are also subject to
certain spectrum caps; no company can have more than 60
MHz collectively in the 800 MHz, 900 MHz and 1900 MHz
bands and there is also a limit of 40 MHz for the 1,7/2,1 GHz
band. There are additional restrictions for the allocation of
the 824-849 MHz and 869-894 Mhz bands, which are divided into the following ranges: Band A: 824-835 MHz and
869-880 MHz, 845-846,5 MHz and 890-891,5 MHz; Band
B: 835-845 MHz and 880-890 MHz, 846,5-849 MHz and
891,5-894 MHz; no concessionaire can hold the A and B
bands. The Ministry may adopt a cap policy for any other
band assigned to a wireless service.

1.6 Restrictions on Foreign Ownership or

Investment

To be legally capable to offer broadcasting services (radio

and television) the interested party must apply for an authorisation, permit or licence before the Ministry. Both an
authorisation and a licence can be granted only to a natural
person with Peruvian nationality or to a legal entity incorporated in Peru. Regarding telecommunication services, all
services are rendered in free competition. For the rendering
of certain telecommunications services that require a concession or registration, the concessionaire or registrant may
be required to incorporate an entity in Peru and in other
instances may provide the services through foreign entities
(typically, satellite services). When rendering telecommunications services through a foreign entity, that foreign entity
must register an attorney-in-fact (either of Peruvian nation-

ality or with a Peruvian valid residence) with a legal address

before the Ministry.

1.7 World Trade Organization Membership

Peru has been a member of the World Trade Organization

since 1 January 1995 and has been a GATT Contracting
Party since 7 October 1951. Peru has the following commitments regarding telecommunications:
the installation and operation of a private network requires
the prior granting of a special authorisation;
the supply of telephone services based on making call attempts within the country in order to obtain a call-back
with a dial tone from networks stemming from a basic telecommunications network located outside the country is
not permitted;
it prohibits the interconnection services between private
networks;
the number of concessionaires can be restricted due to
technical reasons; and
the rental service of private circuits for long-distance is
considered a form of exploitation of carrier services.
No exemptions are scheduled for telecommunication
services.

1.8 Appellate Process

The decisions of the regulatory authorities may be challenged through a (a) constitutional remedy (writ of amparo), (b) contentious administrative complaint or (c) an
arbitration. The writ of amparo seeks protection against the
infringement of constitutionally protected rights and should
be filed within 60 business days from the time the act was
disputed. The contentious administrative complaint must be
initiated within three months after the notification of the final and binding administrative decision issued by the public
administration, although there are certain exceptions to this
rule. The objective of the appellate process before the judiciary (either through an amparo or contentious administrative
complaint) allows for the judicial review of the regulators
acts or omissions. The arbitration procedures derive from
the concession agreement (customarily including an arbitration clause) and the free trade agreements entered into by
the Peruvian Government (customarily aimed at protecting
foreign investments).

1.9 Annual or Recurring Fees

A spectrum usage fee (canon) must be paid by any titleholder of a transmitter or a receiving radioelectric station.
Calculation varies significantly, depending on the service to
be provided but is estimated by applying certain percentages
on the Peruvian Tax Unit (approximately USD1,283) taking
as a basis the number of radio stations, the capacity of the
system, and the number of mobile devices, amongst other
things. In addition to the payment of spectrum usage fees,

Law & Practice PERU

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

each concessionaire must pay: (i) a one-time concession fee

equivalent to 0.25% of the initial investment under the concession agreement and (ii) for each Registered Service: (a)
Exploitation Contribution: 0,5% of the annual gross accrued
and collected income, (b) FITEL (Telecommunications Investment Fund) Contribution: 1% of the annual gross accrued and collected income and (c) OSIPTEL Contribution:
is not to exceed 1% of the annual gross accrued and collected
income excluding Value Added Taxes.

personal information, criminal records and a sworn statement to confirm that they have not been barred from contracting with the government and are not affected by the
limitations mentioned on the Radio and Television Act, for
each partner, shareholder, associate, legal adviser, manager,
attorney in fact and all national or foreign directors.

2. Broadcasting/Media

Through public auctions:

2.1 Important Companies

The main television broadcasting networks are Compaa

Peruana de Radiodifusion S.A. (America Televisin), Compaia Latinoamericana de Radiodifusin S.A. (Latina Televisin), Andina de Radiofusin S.A.C. (ATV) and the stateowned company Instituto Nacional de Radio y Televisin
del Per (TV Peru). In the radio broadcasting market there
are two relevant entities: Grupo RPP and Corporacin Radial del Per (CRP). The relevant programme producers are
Media Networks (a branch of Grupo Telefonica), Compaa
Peruana de Radiodifusion S.A. (America Televisin), Compaia Latinoamericana de Radiodifusin S.A. (Latina Televisin), Andina de Radiofusin S.A.C. (ATV) and the stateowned company Instituto Nacional de Radio y Televisin del
Per (TV Peru). Finally, in the cable television market the
most important companies are Telefonica del Peru, Directv
and Claro.

2.2 Requirements for Obtaining a Licence/

Authorisation to Provide Services

The rendering of broadcasting services requires an authorisation. The process to obtain an authorisation to provide
broadcasting services can be obtained: (i) upon request to
the Ministry (where spectrum demand is lower than spectrum available); or (ii) through public auctions (where spectrum demand is higher than spectrum available).
Upon request to the Ministry: the interested party must submit to the Ministry the following:
a technical project;
geographical plans;
a payment of PEN355 (approximately USD114); and
payment for a publication in the official gazette of Peru.
If the requesting party is a legal entity, they must also provide
the following:
a copy of the deed of incorporation,
a certificate of good standing of power of the attorney,
a sworn statement describing the company composition
and percentage of control of each partner,

The Ministry has a maximum of 120 business days in which

to grant or deny the authorisation.

the process to obtain an authorisation through a public

auction is governed by the auction rules.

2.3 Typical Term for a Licence/Authorisation to

Provide Services

The typical term of a broadcasting authorisation is for ten

years and is subject to ten-year renewals. The term available
in which to obtain an authorisation to provide broadcasting services, or its renewal, is 120 business days. There is
a cost of PEN426 (approximately USD137) to apply for a
renewal as well as the publication costs in the official gazette.
If the requesting party is a legal entity, it must also provide
a sworn statement of not having modified the shareholding
structure and a certificate of good standing of the power of
the attorney-in-fact. It is also necessary to provide basic personal information, criminal records and a sworn statement
to confirm that they have not been banned from contracting with the government or qualifying within the limitations
mentioned on the Radio and Television Act, for each partner, shareholder, associate, legal adviser, manager, attorney
in fact and all national or foreign directors.

2.4 Transfer of Licences/Authorisations to Other

Entities

The transfer of Broadcast/Media authorisations and licences

are not subject to any specific antitrust approval before any
specialised antitrust agency. The rights relating to Broadcasting/Media services can be assigned to third parties provided
that the following conditions are met:
an interval of at least two years must have passed since the
start of the authorisation;
the new shareholders must not be deemed to have been
in any situation that would not allow them to obtain an
authorisation or licence; and
the Ministry must grant its prior approval.
The Ministry has 90 business days to grant or deny any assignment request; if there is no resolution after this time has
elapsed, the request will be deemed automatically approved.
In the event of any change of control (through merger or
share transfer), the changes in the corporate structure must
be notified to the Ministry for it to evaluate whether the new

PERU Law & Practice

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

shareholders may be entitled to hold the licence/authorisation. In this eventuality the Ministry will have a 30 business
day period in which to decide whether to approve a licence
or authorisation following the change of control, otherwise
the change of control will be automatically approved.

2.5 Spectrum Allocation

The broadcasting spectrum has been allocated in the following bands: 535-1705 KHz, 3200-3400 KHz, 4750-4995 KHz,
505-5060 , 5900-6200 KHz, 7300-7400 KHz, 9400-9775
KHz, 11600-12100 KHz, 13570-13870 KHz, 15100-15800
KHz, 17480-17900 KHz, 18900-19020 KHz, 21450-21850
KHz, 25670-26100 KHz, 54-72 MHz, 76-108 MHz, 174-2016
MHz, 470-608 MHz, 614-746 MHz, 1452-1492 MHz, 25202670 MHz, 12,2-12,7 GHz, 17,3-17,8 GHz, 40,5-42,5 GHz.

2.6 Restrictions on Common Ownership

Broadcasters cannot hold more than 20% of the available

frequencies in the same band within a local area. There are
no specific restrictions on common ownership amongst
Broadcasting/Media companies and companies providing
other Telecom Media Technology services.

2.7 Content Requirements and Regulations

The Radio and Television Act establishes some regulations

applicable to the Broadcasting/Media industry contents.
Those services must respect fundamental rights as well as
constitutional principles. In addition, there are family programming restrictions in which the service must avoid all
violent, obscene, sexual, or any other kind of content that
may affect family values. Any programme outside the family
schedule must include a prior warning, written and verbal,
informing whether the content is acceptable for people who
are more than 14 years old, or only for adults (more than
18 years old).

2.8 The Difference in Regulations Applicable to

Broadcasting Versus Cable

Cable services are regulated differently from Broadcasting

services. Cable services fall under the regulation of the Telecommunications Act (not the Radio and Television Act) and
are therefore subject to different obligations. For example,
no programming regulation is applicable to cable services
as opposed to broadcasting services.

2.9 Transition from Analogue to Digital

Broadcasting

Peru is in the process of transitioning from analogue to digital broadcasting. For this process, the Peruvian territory has
been divided into four main regions (where territory one
is the most populated region - composed of Lima and Callao) and territory four (the least populated). The time-line
to start digital transmissions for Territory one commenced
in the second quarter of 2014 through to the first quarter of
2014 for Territory four. The analogue shutdown is expected

to occur as follows: Territory one in the fourth quarter of

2020; Territory two in the fourth quarter of 2022; Territory
three in the fourth quarter of 2024 and Territory four as yet
undefined.

2.10 Extent to which Local Government Regulation

is Pre-Empted

The regulation of Broadcasting and Media services can be

issued only by Congress or the Executive. Local regulations
in broadcasting and media can only address infrastructure
deployments and there is no overlap between the local and
national regulation. In the event of an overlap between local and national regulation in connection to network deployments, the local regulations will pre-empt the national
regulation.

3. Telecoms

3.1 Important Companies

Based on OSIPTELs publications, the most important companies in the Telecom industry in Peru are Movistar (Telefnica), Claro, Entel and Bitel.

3.2 Requirements for Obtaining a Licence/

Authorisation to Provide Services

The rendering of public telecommunications services requires a concession. The process to obtain a concession to
provide public telecom services can be obtained upon request and requires the carrier to submit to the Ministry:
a technical project of the telecommunications service(s)
authorised by a chartered engineer;
forward-looking estimated investments for the first five
years and estimated aggregate investments for the first year;
a bond equivalent to 15% of the aggregate estimated investments ensuring operations commencement (only when
the concession area includes Lima and Callao);
payment for the publication of the concession grant on the
official gazette El Peruano;
a copy of the deed of incorporation;
power of attorney of the applicable attorney-in-fact;
a sworn statement to the effect that they have not been
barred from contracting with the government and do not
fall within any of the limitations mentioned on the Telecommunications Act and complementary regulation; and
a copy of the record entry of the company that attests that
the amount of the share capital is at least PEN38,500.00
(approximately USD12,400).
There is no cost for applying for a concession to provide
telecom services and the deadline for the concession is approximately 80 days. After the publication of the Ministry
decision granting the concession, the operator must sign the
concession agreement within a term of 60 business days. The

Law & Practice PERU

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

term of the concession agreement is for 20 years from the

signing of the contract.

require mandatory functional or legal separation of entities

when providing more than one telecommunications service.

3.3 Transfer of Telecoms Licences/Authorisations

to other Entities

3.6 Provisions for Access to Public and Private

Land

The transfer of a telecom concession is not subject to any

specific antitrust approval before any particular specialised
antitrust agency. Telecom concessions may be assigned in
whole or in part, directly or indirectly (through a merger
transaction), provided that prior approval from the Ministry
and, where such an assignment might raise competition concerns, the Ministry is entitled to request that the OSIPTEL
issue an opinion in connection with the proposed merger or
assignment; this opinion, although not binding on the Ministry, will allow the Ministry to support or reject any telecom
concession assignment consent. Where there is a change of
control, and that change of control affects 10% or more of
the shares or quotas of the concessionaire, the concessionaire
is required to inform the Ministry of any such changes of
control, and any publicly traded concessionaire is required
to inform the Ministry, on a quarterly basis, of any shareholding representing more than 5% of the capital structure.

3.4 Regulations for Network-to-Network

Interconnection and Access

Interconnection regulations provide that an operator can

request interconnection services to other carriers and carriers cannot unjustifiably deny interconnection to other carriers. Upon the receipt of an interconnection request, the
parties will have a 60-day negotiation period to close an interconnection agreement and, if the parties cannot reach an
interconnection agreement within that negotiation period,
the term can be extended for 60 additional days. Upon the
execution of any mutually agreed interconnection agreement, the parties are to file any such agreements to the
OSIPTEL for its approval and comments. OSIPTEL should
approve interconnection agreements within 30 days. If the
parties cannot reach an interconnection agreement within
the negotiation period, the requesting party may request the
OSIPTEL to issue an interconnection mandate, to be issued
within 30 days of the interconnection request, in which case
OSIPTELs mandate will address all interconnection provisions (including technical, economical or legal aspects of
the interconnection). All interconnection agreements and
interconnection mandates are to be filed and registered in
the Registry of Interconnection Agreements.

3.5 Accounting, Functional and Legal Separation

Telecommunications carriers providing two or more telecommunications services must keep separate the accounting
for each service in the event that the carriers gross income
(excluding VAT) in each year, for the two previous years, exceeds 1% of the total revenue generated in the telecom market. Besides accounting separation, there are no rules that

Any public licensed carrier and registered tower companies

have the right to use public land, for free, for the deployment, maintenance and upgrading of telecommunications
networks.

3.7 Rules which Govern the Use of Telephone

Numbers

The Ministry is responsible for the allocation and administration of numbering resources in Peru. There are specific
regulations for the allocation of telephone numbers in Peru
and the use of numbering resources is subject to the Fundamental Technical Numbering Plan (Plan Tcnico Fundamental de Numeracin). Access to numbering resources is
restricted to licensees and mobile virtual network operators.
Telephone numbers for mobile services are allocated on a
nationwide basis, whilst numbering for fixed services is allocated at a geographical level (per departamento). There are
also regulations in place that allow for numbering portability
between fixed and mobile service providers.

3.8 Regulation of Retail Tariffs

Retail prices for telecommunications services are not regulated in Peru, with the exception that Telefonica has regulation under its concession agreement on certain fixed services. Although retail prices are not regulated, carriers have
an obligation to register their retail tariffs before the SIRT
(Sistema de Informacin de Registro de Tarifas) managed
by the OSIPTEL.

3.9 Rules to Promote Service in Underserved Areas

The law of the creation of the Telecommunications Investments Fund (hereinafter FITEL) (Law No 28900) establishes that the FITEL will invest exclusively in telecommunication services in rural or underserved areas with their
funds. Those funds are made up of:
FITEL Contribution from carriers (ie 1% of all the annual
gross accrued and collected income, excluding interconnection fees and VAT);
a canon percentage (spectrum usage fees) not to exceed
20% of all canon fees collected;
resources transferred to FITEL by the public treasury;
financial revenues generated by FITEL;
allowances, donations and transfers from national or foreign people or companies; and
others determined by law.

PERU Law & Practice

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

3.10 Extent to which Local Government Regulation

of Telecom Service is Pre-Empted

The regulation of Telecom services can only be issued by

Congress or the Executive. Local regulations in telecom services can only address infrastructure deployments. Congress
has issued Law No 29022 that provides for an automatic
process to be followed before the Municipalities to deploy
telecommunications infrastructure. Law No 29022 and its
regulations pre-empt any local regulations that are inconsistent with Law No 29022 and its regulations.

4. Wireless

4.1 Important Companies

Based on OSIPTELs latest market research analysis, the

main wireless carriers in Peru (by market share, based on the
number of active lines) are: Movistar (54.4%), Claro (39.2%),
Entel (5.4%) and Bitel (1%).

4.2 General Requirements for Obtaining a Licence/

Authorisation to Provide Wireless Services

The rendering of public wireless services requires a concession. The process to obtain a concession to provide public
wireless services can be obtained: (a) upon request to the
Ministry (where spectrum demand is lower than spectrum
available); or (b) through public auctions (where spectrum
demand is higher than spectrum available).
Upon request to the Ministry: to obtain a concession to provide wireless services, the concessionaire must submit to the
Ministry the following:
a technical project of the wireless service (if the coverage
area includes Lima and/or Callao, the technical project
must include a locality outside of Lima or Callao to provide the wireless service during the term of the wireless
concession);
forward-looking estimated investments for the first five
years and estimated aggregate investments for the first year;
a bond equivalent to 15% of the aggregate estimated investments ensuring operations commencement (only when
the concession area includes Lima and Callao);
a payment for the publication of the concession grant on
the official gazette El Peruano;
a copy of the deed of incorporation;
power of attorney of the applicable attorney-in-fact;
a sworn statement confirming that they have not been
barred from contracting with the state and do not fall
within any of the limitations mentioned on the Telecommunications Act and complementary regulation; and
a copy of the record entry of the company that attests that
the amount of the share capital is equivalent to or more
than PEN38,500.00.

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There is no cost for applying for an authorisation to get the

grant to provide wireless services, and the deadline for the
concession is approximately 80 days. After the publication of
the Ministry decision granting the concession, the operator
must sign the concession agreement within 60 business days.
The term of the concession agreement is for 20 years from
the signing of the contract.
Through public auctions: the process to obtain a concession
through a public auction is governed by the auction rules.

4.3 Transfer of Wireless Licences/Authorisations to

Other Entities

The transfer of wireless concessions is not subject to any specific antitrust approval before a specialised antitrust agency.
Wireless concessions may be assigned in whole or in part, directly or indirectly (through a merger transaction), provided
that prior approval is obtained from the Ministry and, where
such an assignment might raise competition concerns, the
Ministry may request that the OSIPTEL issue an opinion in
connection with the proposed merger or assignment; this
opinion, although not binding on the Ministry, will allow the
Ministry to support or reject any telecom licence assignment
consent. Where there is a change of control, and that change
of control affects 10% or more of the shares or quotas of the
concessionaire, the concessionaire is required to inform the
Ministry of those changes of control, and any publicly traded
licensee is required to inform the Ministry, on a quarterly
basis, of any shareholding representing more than 5% of the
capital structure.

4.4 Spectrum Allocation

Although it is not exclusive and there are limitations regarding satellite, aeronautic and maritime wireless service,
the spectrum allocated to wireless service, divided into
bands, is the following: 14-19.95 KHz, 20.05-90 KHz, 110160 KHz, 325-525 KHz, 1705-1800 KHz, 1850-2495 KHz,
2505-3200 KHz, 3400-3500 KHz, 3750-4750 KHz, 50605900 KHz, 6200-7000 KHz, 7400-9040 KHz, 10005-10100
KHz, 10150-11400 KHz, 12230-13360 KHz, 13410-13570
KHz, 13870-14000 KHz, 14350-14990 KHz, 16360-17410
KHz, 17900-18030 KHz, 18168-18900 KHz, 19680-19800
KHz, 20010-21000 KHz, 22000-22855 KHz, 23000-24890
KHz, 25010-25550 KHz, 26100-28000 KHz, 29700- 50000
KHz, 72-73 MHz, 74.6-74.8 MHz, 75.2-76 MHz, 117.975144 MHz, 148-174 MHz, 216-220 MHz, 225-328.6 MHz,
335.4-400.05 MHz, 400.15-430 MHz, 440-470 MHz, 608614 MHz, 746-960 MHz, 1427-1559 MHz, 1610-1690 MHz,
1700-2690 MHz, 3300-4200 MHz, 4400-5000 MHz, 51505350 MHz, 5470-5725 MHz, 5850-8500 MHz, 10450-10680
MHz, 10.7-13.25 GHz, 14-15.35 GHz, 17.7-23.6 GHz, 25.2531.3 GHz, 36-47 GHz, 47.2-51.4 GHz, 54.25-58.2 GHz, 5964 GHz, 65-74 GHz.

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Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

4.5 Procedures to Identify and Assign Spectrum

Among Competitors

The Ministry is in charge of managing spectrum allocations

which are included in the National Plan of Frequency Allocations (PNAF). Access to spectrum depends on availability and demand, so essentially, where demand is lower
than spectrum availability any carrier may request the spectrum assignment upon request to the Ministry. However,
where demand for spectrum outweighs its availability, access to spectrum is subject to public auctions. Customarily,
spectrum in Lima and Callao is subject to public auctions
and certain spectrum bands are auctioned on a nationwide
basis, regardless of spectrum demand for certain areas (for
instance, the most commercial wireless bands are assigned
on a nationwide basis).

4.6 Unlicensed Spectrum Uses

Spectrum usage does not require a concession or permit for

equipment for which:
transmission power does not exceed 10 milliwatts and operates in the 2400-2483,5 MHz and 5725-5850 MHz bands
(this equipment cannot be used to render public telecommunications services, other than in the 2400-2483,5 MHz
and 5725-5850 MHz bands);
transmission power does not exceed 500 milliwatts and operates in the 462,550-462,725 MHz and 467,550-467,725
MHz bands (this equipment cannot be used to render public telecommunications services); and
transmission power does not exceed 100 milliwatts and
operates in the 2400-2483,5 MHz, 5150-5250 MHz and
5725-5850 MHz bands (this equipment cannot be used in
open spaces and will cause cause harmful interferences to
other public concessionaires).

4.7 Government Policy/Regulation to Promote

Next Generation Mobile Services

The telecommunications framework in Peru is directed at

regulating services, not technologies; therefore, regulation
has been technology-agnostic and in most cases there are
no regulations promoting the introduction of any next-generation services. Despite technology-agnostic regulations,
the recent AWS and 700 Mhz band auctions provide for the
awarded carriers to deploy LTE or other technologies that
might be more efficient for spectrum usage. Spectrum regulations also promote the efficient use of spectrum; however,
there are no mandatory regulations promoting or requiring
any network upgrades to next-generation mobile services.

4.8 Price Regulation for Mobile Services

Peru has adopted the calling-party pays framework (endusers pay for calls they make) and each mobile network operator is subject to wholesale, differentiated and regulated
rates for ending calls in their respective networks. Movistar
and Claro charge USD0.0176 per minute to other mobile

network operators ending calls on their respective network,

whilst Entel and Bitel charge USD0.0325 per minute (and
will be subject to a further adjustment down to USD0.0201
per minute in December 2017).

4.9 Regulation of Government and Commercial

Wireless Uses

The Armed Forces and the Police do not require any permit,
concession or licence from the Ministry to install or operate any wireless telecommunications network. They are not
subject to the jurisdiction of the Ministry or OSIPTEL. The
spectrum usage by the armed forces and the police must,
however, be consistent with the PNAF and primarily regulated by the regulations enacted by the Joint Chiefs of Staff
of the Armed Forces.

4.10 Extent to which Local Government Regulation

of Wireless Service is Pre-Empted

The regulation of wireless services can only be issued by

Congress or the Executive. Local regulations in wireless
services can only address infrastructure deployments. Congress has issued Law No 29022 that provides for an automatic process to be followed before the Municipalities to
deploy telecommunications infrastructure. Law No 29022
and its regulations pre-empt any local regulations that are
inconsistent with Law No 29022 and its regulations.

5. Satellite

5.1 Important Companies

The main satellite service providers in Peru are Intelsat, Eutelsat, SES, Inmarsat and Embratel.

5.2 General Requirements for Obtaining a Licence/

Authorisation to Provide Satellite Service

The Peruvian legal framework for the rendering of satellite

services is twofold:
the space segment subject to international law, specifically,
ITU Regulations, Decisions 654 and related regulations,
form the Andean Community of Nations (ACN) and the
Supreme Decree No 022-2005-MTC; and
the earth segment, subject to the Peruvian Telecommunications Law. Satellite operators may provide capacity services
in Peru upon completion of a registration procedure before
the Ministry in the Registry of Satellite Capacity Operators
(Registro de Proveedores de Capacidad Satelital). Prior to
obtaining any registration before the Ministry, any satellite
operator is to obtain an authorisation and a registration
from the Andean Satellite List (Lista Andina Satelital) before the ACN. ACN authorisations are valid for 30 years
(with five-year renewals) and registrations before the Ministry are valid for a renewable period of 15 years. The filing
to obtain the registration before the Ministry is free and is
deemed automatically approved upon submission.

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PERU Law & Practice

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

5.3 Transfer of Satellite Licences/Authorisations to

other Entities

Registrations before the Ministry or the ACN are non-assignable. Therefore, any changes in the satellite ownership
will require an amendment to the applicable registrations
before the ACN and the Ministry.

5.4 Spectrum Allocation to Satellite Service

The C-Band (4-8 GHz), Ku-Band (12-18 GHz) and Ka-Band

(26.5-40 GHz) have been assigned in Peru for the provision
of satellite services.

5.5 International Telecommunication Union

Membership

Peru is a member state of the International Telecommunications Union and has placed a satellite network filing for the
satellite named PERU-SAT01 with a year of nomination in
2014.

5.6 Provision of Service by Foreign-Licenced

Satellites

Prior to rendering any satellite services in Peru, all foreign

licensed satellite operators are to follow the prescribed authorisation and registration procedures before the ACN
and the Ministry. Registration alone by any satellite operator before the Ministrys registry does not grant the ability
to install and operate any telecommunications network in
Peru. Therefore, any network element such as an earth station will require a radioelectric installation and operation
permit and spectrum allocation, for which a carrier licence
will be required to be obtained from the Ministry.

5.7 Milestone and Due Diligence Deadlines

According to Peruvian Law, satellite operators are not subject to any milestones or other due diligence deadlines for
the construction and launch of satellites.

6. Internet/Broadband
6.1 Important Companies

The Internet/broadband market in Peru is highly concentrated, with Telefnica (fixed and mobile access) and Claro
(fixed and mobile access) being the main participants.

6.2 Regulation of Voice Over IP Services

Voice over IP services are regulated as voice services (regardless of the technology deployed, since regulation is technology-agnostic in Peru). Therefore, the rendering of such
services might either require a concession or a value-added
registry, depending on the network topology.

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6.3 Interconnection and Access Regulatory

Conditions to IP-Based Networks

Interconnection and access regulatory conditions are applicable to IP-based networks if they require the termination
of traffic or calls in the public telecommunications network.

6.4 Net Neutrality Requirements

Net neutrality is regulated under Law No 29904 and it provides that ISPs cannot arbitrarily block, interfere with, discriminate against or restrict the right of any user to use an
application or protocol, regardless of their origin, destination, nature or property. OSIPTEL is in the process of drafting complementary regulation that remains critical for the
definition of which type of activities require compliance with
net neutrality principles.

6.5 Government Regulation of Internet/Broadband

The National fibre-optic backbone network project (Law No

29904) is intended to provide internet service to 6,411 locations via 31,000 km of fibre.

6.6 Over-the-Top Internet-based Providers

OTT providers are not subject to licensing requirements or

other regulations under the telecommunications regulation
in order to provide services in the Peru.

6.7 Extent that Local Government Regulation of

Internet/Broadband Service is Pre-Empted

The regulation of Internet and broadband services can only

be issued by Congress or the Executive. Local regulations
in broadband and internet services can only address infrastructure deployments. Congress has issued Law No 29022
that provides for an automatic process to be followed before
the Municipalities to deploy telecommunications infrastructure. Law No 29022 and its regulations pre-empt any local
regulations that are inconsistent with Law No 29022 and its
regulations.

7. Privacy

7.1 Government Access to Private

Communications

According to the Constitution, any interception of private

communications requires a prior court order. However, this
year the government issued a Decree (Legislative Decree
No 1182) allowing the police to access phone location data
without a prior court order and to demand that local ISPs
and telephone companies retain communications and location details for up to three years. Additional regulation issued after this Decree (Legislative Decree No 1218) compels
transportation companies and commercial establishments to
perform video surveillance, retain the recordings and make
them available for immediate delivery to the Public Prosecutor or the Police. No prior court order is required. A similar
obligation derives from Legislative Decree No 1219 requir-

Law & Practice PERU

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

ing any public officer or person to collaborate with the Police and provide them, immediately and without court order,
with any image, video, audio or any recording that may be
considered evidence for fighting delinquency.

7.2 Use of Encryption Technology

Even though there are no mandatory specific legal requirements governing the use of encryption technology for Telecom Media Technology providers, the Data Protection
Act (Law No 29733) (the Data Protection Act) and the
Directive for the protection of secrecy of communications,
Ministerial Resolution No 111-2009-MTC-03, (the Directive) provides that database titleholders must implement
security measures and recommend implementation of access controls, security and data encryption, amongst other
things. The Data Protection Act and the Directive suggest
that operators follow the Peruvian Technical Standard NTPISO/IEC 1779 2007 EDI and ITUs Recommendation E.408
on security measures for telecommunications networks respectively.

7.3 Liability of TMT Companies for Content

Carried Over Their Networks

Telecoms Media Technology companies are not liable for

content carried over their network unless they have contributed to any copyright infringement as determined by a court
or have not complied with local regulations (ie regulations
on childrens programming in the case of television broadcasting). In the case of Internet Service Providers (ISP), the
Peru-USA Free Trade Agreement (FTA) provides an ISP liability exemption rule that mirrors the US Digital Millennium Copyright Act (DMCA). According to this regime, the
ISP must take immediate action once an alleged infringement has been reported in order to benefit from the safe
harbour exemption. This provision within the Peru-USA
FTA is pending implementation.

7.4 Obligation of TMT Companies to Block Access

to Certain Sites or Content

Unless provided for by a court order, Telecoms Media Technology companies are not obliged to block access to content
or file-sharing activities. In fact, in the case of ISP they are
obliged to comply with net neutrality rules.

7.5 Obligation of TMT Companies to Retain

Customer Data

Telecom companies are obliged to retain customer data and

keep it confidential for up to three years.

7.6 Prohibition of Unsolicited Communications

The following acts are applicable to unsolicited communications:

Data Protection Act,

Anti Spam Act (Law No 28493) and their specific regulation (Supreme Decree No 031-2005-MTC) (Anti Spam
Regulation) and
the Directive of the National Do Not Call Registry (Registro Gracias...no insista) (Directive No 005-2009/CODINDECOPI) (the Do not call directive).
All these regulations apply to unsolicited communications
like e-mails, text messages and calls sent without the authorisation of the personal data owner. The Data Protection
Act regulates the use of the data before and after collection,
providing that its use and retention requires prior express
authorisation from the personal data owner. Anti Spam Regulation is only applicable to unsolicited commercial e-mails.
Companies and operators are entitled to send commercial
e-mails given that they comply with special legal requirements such as considering the word publicidad (advertisement) in the emails subject and provide an unsubscribe
option. Do not call directive is applicable to companies or
operators that send text messages or e-mails and make calls
with the purpose to offer their products and services to the
general public. Companies should target, call or send e-mails
to those numbers and email addresses registered in the National Do Not Call Registry.

8. Future

8.1 Status and Process of Convergence

Efforts are still being made by operators to provide convergent services. Consistent and uniform policies are still
required by the government for the promotion of network
deployment and converged services.

8.2 Changes to Statutes, Laws or Legislation

Congress has been very active in promoting diverse regulations in the Technology industry, such as cybercrime, online
child pornography, intellectual property, data protection and
drone usage matters. This tendency is expected to increase in
the coming years. In the Telecom and Media industry there
is currently a bill in the Congress intended to amend the
Telecommunications Act.

8.3 Changes to Government Ministries, Regulatory

Agencies or Privatised Entities

The National Council for Competitiveness (CNC) has been

actively promoting the creation of a government entity to
be in charge of promoting and enforcing a national digital
agenda on communications. One proposal is to divide the
current Ministry of Transportation and Communications
into two entities: the Ministry of Transportation and the
Ministry of Communications. The latter will be converted
into a Ministry of Information Technology and Communications, following the Colombian model. A second proposal
is to create an Information Society Agency (different from a

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PERU Law & Practice

Contributed by Montezuma & Porto Authors: Oscar Montezuma Panez, Jos Miguel Porto

Ministry) specialising in digital matters (as in the Uruguayan

model). Both proposals are still under evaluation.

8.4 Identification and Assignation of Additional

Spectrum

The Peruvian Government, through Proinversion (the Agency for the Promotion of Private Investment), has launched
the public action of the 700Mhz band. In addition, the regulators are currently reviewing a filing for the resale by Telefonica to Claro of 10MHz of Telefonicas 40Mhz in the AWS
Band A (1710-1730 MHz and 2110-2130 MHz); however,
the final decision from the regulator is still pending.

Montezuma & Porto

Av. Primavera N 517,
Of. 405 San Borja
Lima
Peru 41

Tel: +51 1 7110001

Web: www.myplegal.com

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