CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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1) Digicel (St. Lucia) Limited (a company registered under the laws of St. Lucia) 2) Digicel (SVG) Limited (a company registered under the laws of St. Vincent & the Grenadines) 3) Digicel Grenada Limited (a company registered under the laws of Grenada) 4) Digicel (Barbados) Limited (a company registered under the laws of Barbados) 5) Digicel Cayman Limited (a company registered under the laws of the Cayman Islands) 6) Digicel (Trinidad & Tobago) Limited (a company registered under the laws of Trinidad & Tobago) 7) Digicel (Turks & Caicos) Limited (a company registered under the laws of Turks & Caicos) 8) Digicel Limited (a company registered under the laws of Bermuda) |
Claimants |
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- and - |
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1) Cable & Wireless Plc 2) Cable & Wireless (West Indies) Limited 3) Cable & Wireless Grenada Limited (a company registered under the laws of Grenada) 4) Cable & Wireless (Barbados) Limited (a company registered under the laws of Barbados) 5) Cable & Wireless (Cayman Islands) Limited (a company registered under the laws of the Cayman Islands) 6) Telecommunications Services of Trinidad & Tobago Limited (a company registered under the laws of Trinidad & Tobago) |
Defendants |
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Lord Grabiner QC, Mr Edmund Nourse & Mr Conall Patton (instructed by Slaughter and May) for the Defendants
Hearing dates: 5th-8th, 11th-15th, 18th-22nd May, 2nd-5th, 8th-12th, 15th-19th , 22nd , 24th – 26th, 29th – 30th June, 1st – 3rd , 6th – 10th , 13th, 15th – 17th, 20th – 24th , 27th – 30th July, 5th – 9th , 12th – 16th , 19th, 20th October, 16th, 17th, 19th, 20th, 23rd – 27th and 30th November 2009.
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Crown Copyright ©
Heading | Paragraph |
MAIN JUDGMENT | |
PART 1: GENERAL MATTERS | |
THE CASE IN OUTLINE | 1 |
THE ISSUES | 9 |
JURISDICTION | 21 |
THE APPLICABLE LAW | 22 |
THE CLAIMANTS | 24 |
THE DEFENDANTS | 35 |
THE PROCEDURAL HISTORY | 44 |
LIBERALISATION | 50 |
INTERCONNECTION | 53 |
CONTRACTUAL INTERCONNECTION | 56 |
PHYSICAL INTERCONNECTION | 60 |
REGULATION OF INTERCONNECTION | 67 |
THE EVIDENCE | 70 |
THE DOCUMENTS | 71 |
THE CLAIMANTS' WITNESSES | 78 |
THE DEFENDANTS' WITNESSES | 82 |
THE EXPERTS | 90 |
PART 2: ST LUCIA | |
INTRODUCTION | 98 |
THE LEGISLATION | 102 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 159 |
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 186 |
CWWI'S LICENCE | 188 |
WERE THERE BREACHES OF THE LEGISLATION? | 198 |
JOINT TORTS AND CONSPIRACY | 201 |
DAMAGES | 214 |
LIMITATION | 219 |
THE RESULT IN ST LUCIA | 222 |
PART 3: ST VINCENT AND THE GRENADINES | |
INTRODUCTION | 223 |
THE LEGISLATION | 228 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 231 |
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 235 |
CWWI'S LICENCE | 237 |
WERE THERE BREACHES OF THE LEGISLATION? | 245 |
JOINT TORTS AND CONSPIRACY | 248 |
DAMAGES | 251 |
THE RESULT IN ST VINCENT AND THE GRENADINES | 254 |
PART 4: GRENADA | |
INTRODUCTION | 255 |
THE LEGISLATION | 259 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 261 |
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 264 |
C&W GRENADA'S LICENCE | 266 |
WERE THERE BREACHES OF THE LEGISLATION? | 274 |
JOINT TORTS AND CONSPIRACY | 277 |
DAMAGES | 281 |
THE RESULT IN GRENADA | 284 |
PART 5: BARBADOS | |
INTRODUCTION | 285 |
THE LEGISLATION | 288 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 349 |
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 353 |
WERE THERE BREACHES OF THE LEGISLATION? | 355 |
JOINT TORTS AND CONSPIRACY | 357 |
DAMAGES | 364 |
THE RESULT IN BARBADOS | 367 |
PART 6: CAYMAN ISLANDS | |
INTRODUCTION | 368 |
THE LEGISLATION | 372 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 392 |
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 408 |
C&W CAYMAN'S LICENCE | 411 |
WERE THERE BREACHES OF THE LEGISLATION? | 420 |
JOINT TORTS AND CONSPIRACY | 422 |
DAMAGES | 426 |
THE RESULT IN CAYMAN ISLANDS | 429 |
PART 7: TRINIDAD AND TOBAGO | |
INTRODUCTION | 430 |
THE LEGISLATION | 432 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 475 |
WERE THERE BREACHES OF THE LEGISLATION? | 476 |
DAMAGES | 479 |
THE RESULT IN TRINIDAD & TOBAGO | 483 |
PART 8: TURKS AND CAICOS ISLANDS | |
INTRODUCTION | 485 |
THE LEGISLATION | 491 |
ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 512 |
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 524 |
CWWI'S LICENCE | 526 |
THE MEMORANDUM OF UNDERSTANDING | 535 |
WERE THERE BREACHES OF THE LEGISLATION? | 547 |
WERE THERE BREACHES OF THE MEMORANDUM OF UNDERSTANDING? | 550 |
JOINT TORTS AND CONSPIRACY | 552 |
DAMAGES | 560 |
THE RESULT IN TURKS AND CAICOS ISLANDS | 564 |
PART 9: THE OVERALL RESULT | 566 |
ANNEX A: ST LUCIA | A |
THE ECTEL TREATY | 1 |
THE TELECOMMUNICATIONS ACT 2000 | 5 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002 | 18 |
THE LICENCES | 21 |
THE FACTS | 29 |
ANNEX B: ST VINCENT AND THE GRENADINES | B |
THE ECTEL TREATY | 1 |
THE TELECOMMUNICATIONS ACT 2001 | 3 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002 | 16 |
THE LICENCES | 19 |
THE FACTS | 27 |
ANNEX C: GRENADA | C |
THE ECTEL TREATY | 1 |
THE TELECOMMUNICATIONS ACT 2000 | 3 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003 | 16 |
THE LICENCES | 21 |
THE FACTS | 28 |
ANNEX D: BARBADOS | D |
THE TELECOMMUNICATIONS ACT 2001 | 1 |
THE FAIR COMPETITION ACT 2002 | 13 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003 | 17 |
THE LICENCES | 19 |
THE FACTS | 28 |
ANNEX E: CAYMAN ISLANDS | E |
THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY LAW 2002 | 1 |
THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY (INTERCONNECTION AND INFRASTRUCTURE SHARING) REGULATIONS 2003 | 11 |
THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY (DISPUTE RESOLUTION) REGULATIONS 2003 | 15 |
THE AGREEMENT WITH THE GOVERNMENT | 17 |
THE LICENCES | 23 |
THE FACTS | 28 |
ANNEX F: TRINIDAD AND TOBAGO | F |
THE TELECOMMUNICATIONS ACT 2001 | 1 |
THE PROTECTION AGAINST UNFAIR COMPETITION ACT 1996 | 9 |
THE CONCESSIONS | 15 |
THE FACTS | 21 |
THE CLAIMANTS' ALLEGATIONS | 267 |
ANNEX G: TURKS AND CAICOS ISLANDS | G |
THE TELECOMMUNICATIONS ORDINANCE 2004 | 1 |
THE INTERCONNECTION AND ACCESS TO TELECOMMUNICATIONS FACILITIES REGULATIONS 2005 | 8 |
THE LICENCES | 17 |
THE FACTS | 27 |
ANNEX H: ACTIONABILITY OF STATUTORY OBLIGATIONS: THE LEGAL PRINCIPLES | H |
ANNEX I: CONPIRACY TO INJURE BY UNLAWFUL MEANS: THE LEGAL PRINCIPLES | I |
THE TORT OF CONSPIRACY | 1 |
UNLAWFUL MEANS | 3 |
UNLAWFUL ACTS | 4 |
MEANS / INSTRUMENTALITY | 70 |
COMBINATION | 72 |
INTENTION | 79 |
HONEST BELIEF | 86 |
Mr Justice Morgan:
PART 1: GENERAL MATTERS
THE CASE IN OUTLINE
THE ISSUES
JURISDICTION
THE APPLICABLE LAW
THE CLAIMANTS
THE DEFENDANTS
PROCEDURAL HISTORY
LIBERALISATION
INTERCONNECTION
CONTRACTUAL INTERCONNECTION
PHYSICAL INTERCONNECTION
REGULATION OF INTERCONNECTION
THE EVIDENCE
THE DOCUMENTS
THE CLAIMANTS' WITNESSES
THE DEFENDANTS' WITNESSES
THE EXPERTS
"The negotiation process and incentives
65. As noted above, the prevailing model for interconnection negotiations as reflected in the WTO Reference Paper, the EU Directives and the APEC Principles is one where the incumbent operator is obliged to provide interconnection to an entrant in a timely fashion. This model relies upon direct negotiations between the parties, commonly with the backdrop of a RIO and of general principles for interconnection either set out in legislation or prescribed by the national regulator. Should the negotiations fail, either party may request the regulator to intervene. The form of intervention may include a direction from the regulator to resume negotiations or to complete negotiations within a prescribed period, or alternatively, or as well as, mediation, arbitration, or a regulatory determination of the matters in dispute.
66. Faced with a legal obligation to interconnect, coupled with obligations to negotiate in good faith and to provide interconnection in a timely fashion, an incumbent fixed network operator providing both wholesale access services and retail services has an incentive to comply with those obligations and to avoid losing influence over the negotiation process as a result of a compliance failure. In addition, where governments are committed to market liberalization, as in the territories, incumbent operators face a material reputational risk if they should fail to achieve physical and contractual interconnection with credible entrants . [Footnote: In my experience, it is common for entrants to actively use the media and to lobby politicians and officials with complaints concerning the pace of interconnection negotiations.]
67. An interconnection agreement contains many terms that are likely to be uncontroversial. There are however terms with significant commercial implications, discussed earlier in this report. To the extent that these key commercial terms have not been predetermined by a regulatory decision or a published reference interconnection offer, both parties will wish to make offers and to try to maximize their commercial positions.
68. As I have noted above, generally, the most difficult commercial issue to be resolved in contractual interconnection is the charge to be made by a terminating operator to the originating operator for the termination of a call. I am instructed that in each of the territories, there were three main termination rates to be negotiated: termination on the relevant Cable & Wireless fixed network of a call from a Digicel mobile customer to a Cable & Wireless fixed customer (fixed termination); termination on the relevant Cable & Wireless mobile network of a call from a Digicel mobile customer to a Cable & Wireless mobile customer or vice versa (mobile-to-mobile termination); and termination on the Digicel mobile network of a call from a Cable & Wireless fixed customer to a Digicel mobile customer (fixed-to-mobile termination). [Footnote: I am instructed that in each of the territories, Cable & Wireless offered only interconnection with its fixed network. As a result, calls from a Digicel mobile customer to a Cable & Wireless mobile customer would transit the fixed network before termination on the Cable & Wireless mobile network. Calls originating from a Cable & Wireless mobile customer to a Digicel mobile customer would be handled in the same manner and would transit the Cable & Wireless fixed network before presentation to Digicel for termination.]
69. The fixed termination rate will compensate the fixed network operator for the use of the fixed network in terminating an inbound call. The mobile-to-mobile and fixed-to-mobile termination rates will compensate the terminating mobile operator for the use of the mobile network in terminating an inbound mobile or fixed call. Mobile-to-mobile and fixed-to-mobile termination rates are commonly the same, absent regulatory intervention, as both call types make the same use of the terminating mobile network. The two types of mobile termination rate are typically significantly higher than the fixed termination rate, reflecting the higher unit cost of call carriage on a mobile network in comparison to a fixed network.
70. I would expect that where a mobile operator seeks interconnection with a fixed operator providing termination both on the fixed network and on its own mobile network, agreement on each termination rate and on the relativities between those rates would be seen as of major importance by all parties. I refer in this regard to the discussion of call charging at paragraphs 41.5-41.12 of this report.
71. Within the scope of its legal obligations, to the extent that it is permitted to do so by the regulatory regime, an incumbent operator has an incentive to maximize its bargaining position and to use the time allowed for negotiation. There are two reasons for this.
72. First, as a response to the incentive of the entrant to shorten the negotiating period and therefore to accelerate market entry. This incentive reflects the potential benefits of market entry at a time that is favourable to the entrant, such as prior to an important marketing period, or prior to the potential entry of other competitors. It also reflects the benefit of earlier revenues to offset set-up costs. It would be rational for an incumbent operator to use the incentive of the entrant to conclude negotiations by withholding agreement on issues where an improved outcome from the perspective of the incumbent may be available.
73. Second, entry will inevitably reduce the market share of the incumbent operator and will probably lead to a reduction in retail margins as price competition erodes monopoly rents. The length of the bargaining process determines the monopoly rents retained by the incumbent operator. The incumbent operator has a weak incentive to support interconnection for the opportunity to receive interconnection revenue, but this is typically outweighed by the benefits of later competitor market entry. Competition will usually also expand the market through the introduction of pricing and service differentiation to target under-served potential users. Again though, it would be rational for an incumbent operator to seek to retain its market dominance and monopoly rents for as long as possible within the requirements of the law and the regulatory framework.
74. With a regulatory backstop, however, both parties will have an incentive to avoid regulatory intervention, since this will lead to uncertain pricing outcomes. For the entrant, intervention by the regulator remains preferable to a failure to reach a negotiated agreement. The trade-off between the incentive of the incumbent operator to preserve its monopoly position for as long as possible and that of the entrant to refer a dispute to the regulator is the middle ground that will generally result in an agreed, rather than a regulated, outcome.
75. Referral of a dispute over interconnection terms generally does not 'stop the clock' on continuing negotiations. The parties are able to continue to negotiate until the regulator has issued a final decision on the interconnection terms. This allows either party the opportunity to improve its position in the negotiations as the regulator's range of possible outcomes becomes more apparent during the regulatory process.
76. Rather than taking over a dispute referred to it, the regulator may in some jurisdictions require that the parties continue to negotiate for a fixed period after the dispute has been referred. In these circumstances, the party that has the opportunity to make the last offer before the deadline, which may be either the incumbent operator or the entrant, has the stronger bargaining position. However, if the regulator instead sets a minimum bargaining period before it will consider the dispute, the incentive of the incumbent operator is to use that entire period and therefore to gain the monopoly profits. There is then no downside for the incumbent operator in the referral to the regulator so long as the parties retain the option to negotiate post-referral.
77. In summary, where an incumbent operator is under an obligation to provide interconnection, and to negotiate in good faith and in a timely manner, the incentives faced by the parties are as follows:
77.1 The incumbent operator will prefer to comply with its obligations rather than be in breach, with both reputational risk and the risk of losing influence over the negotiation as a result of regulatory intervention;
77.2 Both parties will aim to achieve the best possible outcomes on key commercial terms, particularly related to interconnection rates for each network;
77.3 The incumbent operator will have an incentive to use the negotiating space allowed to it by the regulatory regime, both to achieve better outcomes in the interconnection terms and to preserve monopoly rents for as long as possible;
77.4 The entrant will have an incentive to shorten the negotiating period to accelerate market entry;
77.5 With a regulatory backstop, both parties have an incentive to avoid regulatory intervention, but the entrant has a greater incentive to request intervention if it appears that negotiations may fail;
77.6 Once the regulator has intervened, there is an incentive for the parties to continue negotiations if possible, shaped by the narrowing of options as the regulator's preferences become apparent;
77.7 If the regulator sets a minimum bargaining period before it will consider the dispute, the incumbent operator has an incentive to use that full period to maximize the monopoly rents or to otherwise achieve an improved commercial outcome."
PART 2: ST LUCIA
INTRODUCTION
THE LEGISLATION IN SLU
"Subject to subsection (5), a telecommunications provider who operates a public telecommunications network shall not refuse, obstruct, or in any way impede another telecommunications provider from making an interconnection with his or her telecommunications network."
The first question
The second question
"No person shall enter into any interconnection agreement, implement or provide interconnection service without first submitting the proposed agreement to the Commission for its approval, which approval shall be in writing."
The third question
The fourth question
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
(1) for whose benefit was the statute or the regulations passed?
(2) if the statute or regulations were passed to benefit public and private interests, which was the primary object?
(3) for whose benefit was the particular provision enacted?
(4) if the particular provision was passed to benefit both public and private interests, which was the primary object?
(5) has the duty been expressed in terms which make it suitable for actionability?
(6) what is the class of persons who might suffer harm as a result of a breach of duty?
(7) does the expected harm take the form of economic loss or damage to the person or damage to property?
(8) on what type of person is the duty imposed – is it a public authority or a private entity?
(9) does the statute or the regulations impose a sanction for breach of duty: the sanction may be a criminal sanction or something else, such as the suspension or revocation of a benefit?
(10) how adequate is the sanction imposed?
(11) does the statute or the regulations provide a means of enforcement of the duty?
(12) if so, does the omission to provide for a right to claim damages point to an intention not to allow a claim to damages?
(13) do the means of enforcement raise questions of discretion or policy with the result that actionability in the courts would or might proceed on a different basis?
(14) how adequate are the means of enforcement?
(15) overall, having regard to the above and any other relevant matters, what did the legislature intend as regards actionability of a breach of duty?
"Where a breach of this Act or licence has been committed by a person other than an individual any individual including a public officer who at the time of the breach was director, manager, supervisor, partner or other similarly responsible individual, may be found individually liable for that breach if,
(a) having regard to the nature of his of St Lucia or her functions;
(b) and his or reasonable ability to prevent that breach;
the breach was committed with his consent or connivance or he or she failed to exercise reasonable diligence to prevent the breach."
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS?
CWWI'S LICENCE
6.4 The Licensee shall not engage in any activities, whether by act or omission, which have, or are intended to or likely to have, the effect of unfairly preventing, restricting or distorting competition in any market for the Licensed Services as specified in Regulations issued by the Minister.
6.5 Without limiting the generality of clause 6.4 above, any such act or omission shall include:
6.5.1 any abuse by the Licensee, either independently or with others, of a dominant position; or
6.5.2 entering into any contract or engaging in any concerted practice with any other party;
where the effect of the conduct defined in clauses 6.5.1 and 6.5.2 is, or is likely to be, a substantial lessening of competition in that or any other market."
WERE THERE BREACHES OF THE LEGISLATION?
JOINT TORTS AND CONSPIRACY
DAMAGES
LIMITATION
THE RESULT IN ST LUCIA
PART 3: ST VINCENT AND THE GRENADINES
INTRODUCTION
THE LEGISLATION
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE PURPOSES OF THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS?
CWWI'S LICENCE
WERE THERE BREACHES OF THE LEGISLATION?
JOINT TORTS AND CONSPIRACY
DAMAGES
THE RESULT IN ST VINCENT AND THE GRENADINES
PART 4: GRENADA
INTRODUCTION
THE LEGISLATION
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS?
C&W GRENADA'S LICENCE
WERE THERE BREACHES OF THE LEGISLATION?
JOINT TORTS AND CONSPIRACY
DAMAGES
THE RESULT IN GRENADA
PART 5: BARBADOS
INTRODUCTION
THE LEGISLATION
"A carrier shall provide, on request from any other carrier, interconnection services to its public telecommunications network for the purpose of supplying telecommunication services in accordance with the provisions of sub section (2)."
"28(1) A person who wishes to interconnect with the telecommunications network of a telecommunications provider shall so request that provider in writing giving sufficient information as is reasonably required by a provider to allow for a response to the requests.
(2) Where an RIO is in effect with respect to an interconnection provider, and the person seeking interconnection accepts the terms and conditions set out in the RIO, the parties shall sign an agreement in accordance with those terms and conditions of the RIO within 90 days of the receipt of the request.
(3) Where a person requests an interconnection pursuant to subsection (1) on terms other than those of the RIO that is in effect in relation to the interconnection provider, the parties shall negotiate in good faith to reach an agreement on the terms and conditions of the interconnection; and the negotiations shall commence within 30 days of the receipt of the written request.
(4) A request for interconnection to a public telecommunications network may be refused by an interconnection provider for the following reasons:
(a) for the protection of the
(i) safety of a person;
(ii) security of the network;
(iii) integrity of the network; or
(b) the difficult technical and engineering nature of the interconnection.
(5) Where there is a refusal by the provider under sub section (4), the person seeking interconnection may refer that refusal to the Commission for review."
"Abuse of dominant position.
16. (1) Subject to subsection (4), the abuse by an enterprise of a
dominant position which the enterprise holds is prohibited.
(2) For the purposes of this Act, an enterprise holds a dominant
position in a market if, by itself or together with an affiliated
company, it occupies such a position of economic strength as will
enable it to operate in the market without effective competition from
its competitors or potential competitors.
(3) An enterprise abuses a dominant position if it impedes the
maintenance or development of effective competition in a market and
in particular, but without prejudice to the generality of the foregoing,
if it
(a) restricts the entry of any enterprise into that or any other
market that supplies or is likely to supply a substitute for the
good or service supplied in that market;
(b) prevents or deters any enterprise from engaging in competi-
tive conduct in that or any other market;
(c) eliminates or removes any enterprise from that or any other
market;
(d) directly or indirectly imposes unfair purchase or selling prices
that are excessive, unreasonable, discriminatory or predatory;
(e) limits production of goods or services to the prejudice of
consumers;
(f) makes the conclusion of agreements subject to acceptance by
other parties of supplementary obligations which by their
nature, or according to commercial usage, have no connection
with the subject of such agreements;
(g) engages in exclusive dealing, market restriction or tied
selling; or
(h) uses any other measure unfairly in its trading operations that
allows it to maintain dominance.
(4) An enterprise shall not be treated as abusing a dominant
position
(a) if it is shown that its behaviour was exclusively directed to
improving the production or distribution of goods or to
promoting technical or economic progress and consumers were
allowed a fair share of the resulting benefit;
(b) the effect or likely effect of its behaviour in the market is the
result of its superior competitive performance; or
(c) by reason only that the enterprise enforces or seeks to enforce
any right under or existing by virtue of any copyright, patent,
registered design or trademark except where the Commission
is satisfied that the exercise of those rights
(i) has the effect of lessening competition substantially in a
market; and
(ii) impedes the transfer and dissemination of technology."
"(i) deliberately and/or unreasonably abusing its dominant position in the telecommunications market in Barbados in breach of section 16(1) of the Fair Competition Act 2002; and/or
(ii) deliberately and/or unreasonably conspiring combining agreeing or arranging with another person to unduly restrict or injure competition in breach of section 34(1) of the Fair Competition Act 2002."
"by impeding, obstructing and/or delaying interconnection C&W restricted and prevented Digicel's entry into the telecommunications market in Barbados and limited the telecommunications services available to the public in contravention of inter alia sections 16(1) and 16(3)(a),(b),(e)and (h) of the Fair Competition Act 2002 respectively. Digicel does not yet know exactly how C&W dealt with its own mobile operation and therefore reserves the right to allege other abuses of dominance as may be supported in evidence in these proceedings. Further details in the response relate to evidence."
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS?
WERE THERE BREACHES OF THE LEGISLATION?
JOINT TORTS AND CONSPIRACY
DAMAGES
THE RESULT IN BARBADOS
PART 6: CAYMAN ISLANDS
INTRODUCTION
THE LEGISLATION
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS?
C&W CAYMAN'S LICENCE
"Any conduct on the part of one or more licensees which amounts to the abuse of a dominant position in a market for ICT networks or ICT services is prohibited if it may affect trade within the Cayman Islands".
WERE THERE BREACHES OF THE LEGISLATION?
JOINT TORTS AND CONSPIRACY
DAMAGES
THE RESULT IN THE CAYMAN ISLANDS
PART 7: TRINIDAD AND TOBAGO
INTRODUCTION
THE LEGISLATION
"(1) In addition to the acts and practices referred to in sections 5 to 9, any act or practice, in the course of industrial or commercial activities, that is contrary to honest practices shall constitute an act of unfair competition.
(2) Any person damaged or likely to be damaged by an act of unfair competition shall be entitled to the remedies obtainable under the civil law of Trinidad and Tobago".
(3) This section and sections 5 to 9 shall apply independently of, and in addition to, any legislative provisions protecting inventions, industrial designs, trademarks, literary and artistic works and other intellectual property subject matter."
"Whatever may be the position in some criminal or other contexts (see, for instance, Reg. v Ghosh [1982] QB 1053), in the context of the accessory liability principle acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another's property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour. In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others' property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries. Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless."
"The Judge stated the law in terms largely derived from the advice of the board given by Lord Nicholls of Birkenhead in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378. In summary, she said that liability for dishonest assistance requires a dishonest state of mind on the part of the person who assists in a breach of trust. Such a state of mind may consist in knowledge that the transaction is one in which he cannot honestly participate (for example, a misappropriation of other people's money), or it may consist in suspicion combined with a conscious decision not to make enquiries which might result in knowledge: see Manifest Shipping Co Limited v Uni-Polaris Insurance Co Limited [2003] 1 AC 469. Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree."
"(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.
(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.
(3) The following in particular shall be prohibited:
1. all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor.
2. false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;
3. indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods."
"Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee. But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trademark."
"The court also gave guidance on the meaning of "honest practices etc". It did not go down the route suggested to us by [counsel]. On the contrary it said that "the condition of honest practices constitutes in substance the expression of a duty to act fairly in relation to legitimate interests of the trademark owner" (para.[23]). The test is for the national court to carry out an overall assessment of all the circumstances – and in particular to assess whether the defendant "might be regarded as unfairly competing with the proprietor of the trade mark"(para. [26])."
"… the test is objective and one of simple causation – if the defendant in fact caused significant deception, albeit innocently, there is no defence. He must pay for the damage he unwittingly caused. The position for the past is the same as for the future."
"So the real question is, whether the use in the comparative lists is "in accordance with honest practices in industrial or commercial matters". Quite obviously if people are or are likely to be deceived by the use then the use would not be honest. And that must be so even if there is a real likelihood that the use actually made, although it would not deceive the defendants' actual customers (e.g. market traders), would lead to deception of significant numbers of ultimate consumers. If what you do, to your actual or constructive knowledge, will lead or is likely to lead to deception of someone down the chain, you yourself will not be acting in accordance with an honest practice".
"This makes sense, since the wording of the proviso to article 12 appears to reflect article 10 bis (2) of the Paris Convention for the Protection of Industrial Property, which provides "any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition."
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
WERE THERE BREACHES OF THE LEGISLATION?
DAMAGES
THE RESULT IN TRINIDAD AND TOBAGO
PART 8: THE TURKS AND CAICOS ISLANDS
INTRODUCTION
THE LEGISLATION
ARE BREACHES OF THE LEGISLATION ACTIONABLE?
ARE BREACHES OF THE LEGISLATION "UNLAWFUL MEANS" FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS?
CWWI'S LICENCE
"Without limiting the generality of clause 13.4 above, any act or omission which leads, or is likely to lead, to a substantial lessening of competition in the market for any telecommunications network or telecommunications service is prohibited. The Commission will issue Guidelines describing, or may otherwise determine, what constitutes a substantial lessening of competition and the procedures for assessing it."
THE MEMORANDUM OF UNDERSTANDING
"Cable and Wireless (West Indies) Ltd ("C&W") and Digicel (Turks and Caicos) Ltd, ("Digicel") ("C&W" and "Digicel" are each hereinafter also referred to as the "Party" and collectively, as the "Parties") agreed to commence and complete the physical and technical interconnection necessary to interconnect their respective networks in the Turks and Caicos Islands immediately and ahead of signing of an interconnect agreement. This work includes but is not limited to:
(a) ordering the required interconnect equipment and fiber and C&W notifying, within one week of its having ordered the interconnection equipment, Digicel of the type of such equipment;
(b) undertaking, at the same time as ordering the interconnection equipment, all civil works associated with, installation of and testing of fiber link(s) and C&W informing, on at least a weekly basis, Digicel of the current location of the interconnection equipment and its date of delivery to C&W in TCI;
(c) commence installing the interconnection equipment within one week of the date of delivery to C&W, and commence commissioning and testing the interconnection equipment and the links within one week of completion of installation.
Digicel agrees to pay C&W the sum of US $90,000 as a deposit, to cover fifty to sixty percent (50-60%) of C&W's estimated costs associated with the civil works and equipment required to achieve physical and technical interconnection. This deposit shall be applied by C&W (once the Interconnect Agreement is executed) to the once-off charges set out in the Tariff Schedule of the Interconnect Agreement, and owed by Digicel to C&W for the civil works and equipment. Any surplus difference between the deposit and the once-off charges will be refunded. Any short fall will be invoiced to, and paid by, Digicel in accordance with the terms of the Interconnect Agreement.
In accordance with sub-section 25(1) of the Telecommunications Ordinance and paragraph 15(2)(a) of the Interconnection Regulations, Digicel shall be responsible for paying to C&W the full costs of the civil works and equipment, including but not limited to the items listed in (a) through (c) above, necessary to complete the physical and technical interconnection of C&W and Digicel networks. While the Parties agree to be bound by the terms of this Agreement, this Agreement is subject to any decision or instruction of the Turks and Caicos Islands Telecommunication Commission concerning in particular section 25.1 of the Telecommunications Ordinance 2004 and/or section 15.2 of the Interconnection Access to Telecommunication and Facilities Regulations.
Digicel agrees not to use the interconnection equipment and links for the exchange of traffic between the Digicel and C&W networks prior to the execution of the Interconnect Agreement, except for the purpose of testing the equipment and the links.
If you are in agreement with these terms, please sign below and return this letter along with the above mentioned payment to the above address as soon as possible in order for the parties to proceed with physical and technical interconnection. In signing this letter agreement, you acknowledge the receipt and sufficiency of the consideration given, and agree to be bound by the terms herein stated."
WERE THERE BREACHES OF THE LEGISLATION?
WERE THERE BREACHES OF THE MEMORANDUM OF UNDERSTANDING?
JOINT TORTS AND CONSPIRACY
DAMAGES
THE RESULT IN TURKS AND CAICOS ISLANDS
PART 9: THE OVERALL RESULT
ANNEX A – ST LUCIA
THE ECTEL TREATY | 1 |
THE TELECOMMUNICATIONS ACT 2000 | 5 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002 | 18 |
THE LICENCES | 21 |
THE FACTS | 29 |
THE ECTEL TREATY
The Governments of the Contracting States,
DESIROUS of creating a competitive environment for telecommunications in the
Contracting States:
CONSCIOUS that the benefits of universal telecommunications services should
be realised by the people of the Contracting States:
DETERMINED to provide affordable, modern, efficient, competitive, and
universally available telecommunications services to the people of the
Contracting States:
CONVINCED that a liberalised and competitive telecommunications sector is
essential for the future economic and social development of the Contracting
States:
RECOGNISING that a harmonised and co-ordinated approach by the Contracting
States is required to achieve a liberalised and competitive telecommunications
sector:
HAVE AGREED AS FOLLOWS:
For the purposes of this Treaty,
…
"Contracting States" means the Commonwealth of Dominica, Grenada,
Saint Christopher and Nevis, Saint Lucia, Saint Vincent and The
Grenadines, and any State which becomes a party to this Treaty by
virtue of Article 22;
…
"ECTEL" means the Eastern Caribbean Telecommunications Authority
established by this Treaty;
…
"frequency authorisation" means an authorisation granted by the Minister
to use radio frequencies in connection with the operation of a
network or the provision of services under an individual license or
class license or otherwise;
"individual licence" means a telecommunications licence issued to a
particular person on terms specific to that person;
…
"telecommunications" means any form of transmission emission, or
reception of signs, signals, text images and sounds, or other
intelligence of any nature by wire, radio, optical or other
electromagnetic system;
"telecommunications licence" means a licence issued to a
telecommunications provider for the operation of a
telecommunications network or the provision of
telecommunications services;
"telecommunications provider" means a person who is licensed to operate
a telecommunications network or to provide telecommunications
services;
"telecommunications services" means services provided by a
telecommunications provider;
…
"universal service" includes:
(a) public voice telephony to the population of a Contracting
State;
(b) Internet access to the population of a Contracting State;
(c) telecommunications services to schools, hospitals and
similar institutions and to the disabled and physically
challenged;
(d) the promotion of telecommunications services so as to
ensure that as wide a range of people as possible share in
the freedom to communicate by having access to efficient
and modern telecommunications at an affordable cost;
…
ARTICLE 2
Establishment of the Eastern Caribbean Telecommunications Authority
By this Treaty the Contracting States establish for and among themselves the
Eastern Caribbean Telecommunications Authority (hereinafter called ECTEL).
ARTICLE 3
General Obligations
1. The Contracting States undertake to put in place all appropriate measures,
including the enactment of an appropriate legal and regulatory framework to
promote the purposes of this Treaty, the performance of their obligations under
this Treaty, the implementation of the decisions of the Council and other matters
for the efficient and effective operations of ECTEL.
2. The Contracting States undertake to put in place in their respective jurisdictions a
Telecommunications regulatory body to be known as the National
Telecommunications Regulatory Commission which shall co-ordinate and liaise
with ECTEL.
ARTICLE 4
Purposes of ECTEL
1. The major purposes of ECTEL shall be to promote-:
(a) open entry, market liberalisation and competition in
telecommunications of the Contracting States;
(b) harmonised policies on a regional level for telecommunications of the
Contracting States;
(c) a universal service, so as to ensure the widest possible access to
telecommunications at an affordable rate by the people of the Contracting
States and to enable the people of the Contracting States to share
in the freedom to communicate over an efficient and modern
telecommunications network;
(d) an objective and harmonised regulatory regime in telecommunications of
the Contracting States;
(e) fair pricing and the use of cost-based pricing methods by
telecommunications providers in the Contracting States;
(f) fair competition practices by discouraging anti-competitive practices by
telecommunications providers in the Contracting States;
(g) the introduction of advanced telecommunications technologies and an
increased range of services in the Contracting States;
(h) increased penetration of telecommunications in the Contracting States;
(i) the overall development of telecommunications in the Contracting States;
(j) national consultations in the development of telecommunications.
2. To advance the purposes of ECTEL the Contracting States undertake to -:
(a) collaborate and co-ordinate with each other and with ECTEL;
(b) take all appropriate measures for ensuring implementation of the policy
and recommendations of ECTEL;
(c) meet the financial and other commitments under this Treaty to ensure the
efficient operations of ECTEL.
ARTICLE 11
Licences and Frequency Authorisations
1. The Contracting States agree that -:
(a) each application made in a Contracting State for an individual licence
shall be submitted to ECTEL for its review and recommendation in order
to ensure compliance with ECTEL's technical and financial requirements
and this Treaty;
(b) an application for a class licence in a Contracting State shall be submitted
to the relevant licensing authority in the Contracting State;
(c) an application for a licence solely for the purposes of telecommunications
services in a Contracting State shall be submitted to the relevant licensing
authority in the Contracting State;
(d) an application for a frequency authorisation in a Contracting State shall be
submitted to ECTEL;
(e) ECTEL shall manage the spectrum on behalf of the Contracting States.
2. The Contracting States undertake to ensure that the following matters are taken
into account in the granting of a licence:
(a) the promotion of the objective of universal service so that the largest
possible number of persons may share in the freedom to communicate
over an efficient and modern telecommunications network at affordable
prices;
(b) the protection of the interests of subscribers, purchasers and other users of
telecommunications services, particularly with respect to privacy;
(c) the promotion of competition among providers of telecommunications
services;
(d) the promotion of research, development and introduction of new
telecommunications services and telecommunications technology;
(e) the encouragement of local investment in telecommunications;
(f) the safeguarding of the public interest and national security;
(g) the development of human resources through training and transfer of
technology.
ARTICLE 13
Settlement of Disputes between Licencees
1. In the event of a dispute between licencees, a Contracting State may-
(a) refer the matter to ECTEL for an opinion; or
(b) with the consent of the licencees, refer the matter to ECTEL for
mediation.
2. Upon receipt of a reference for an opinion from a Contracting State, ECTEL shall
review the facts and the questions of law presented and, within thirty days of
receipt of the reference, provide an opinion and a recommendation for the
resolution of the dispute.
3. Where further information is required to provide an opinion or recommendation
ECTEL shall within ten days of the receipt of the reference, request the
Contracting State to supply the further information required by a date specified by
ECTEL.
4. ECTEL shall, within thirty days of receiving the further information or
documentation required, provide the opinion and recommendation accordingly to
the Contracting State or where the information is not provided ECTEL shall
provide the opinion within thirty days of the specified date.
5. Upon request of a reference for mediation ECTEL shall, in consultation with the
licencees, ensure early commencement of the mediation and on conclusion
provide the Contracting State and licencees with a report.
THE TELECOMMUNICATIONS ACT 2000
3.— (1) The principal object of this Act is to give effect to the
purposes of the Treaty and to regulate the telecommunications sector in
Saint Lucia.
(2) Without limiting the generality of subsection (1) the objects of
this Act are to ensure —
(a) open entry, market liberalisation, and competition in telecommunications;
(b) policies and practices in relation to the management of telecommunications
are in harmony with those of ECTEL;
(c) the operation of a universal service regime so as to ensure the
widest possible access to telecommunications at an affordable
rate by the people of Saint Lucia in order to enable them to
share in the freedom to communicate over an efficient and
modern telecommunications network;
(d) fair pricing and the use of cost-based pricing methods by telecommunications
providers in Saint Lucia;
(e) fair competition practices by telecommunications providers;
(f) the introduction of advanced telecommunications technologies
and an increased range of services;
(g) the public interest and national security are preserved;
(h) the application of appropriate standards in the operation of telecommunications;
(i) the overall development of telecommunications in the interest
of the sustainable development of Saint Lucia.
"interconnection" means the connection of two or more separate
telecommunication systems, networks, links, nodes, equipment,
circuits and devices involving a physical link or interface.
…
"telecommunications" means any form of transmission, emission,
or reception of signs, text, images and sounds or other
intelligence of any nature by wire, radio, optical or other
electromagnetic means;
"telecommunications facilities" means any facility, apparatus or other
thing that is used or capable of being used for telecommunications
or for any operation directly connected with
telecommunications, and includes a transmission facility;
"telecommunications network" means any wire, radio, optical, or
other electromagnetic system used to route, switch, or
transmit telecommunications;
"telecommunications provider" means a person who is licensed
under this Act to operate a telecommunications network or to
provide telecommunications services;
"telecommunications services" means services provided by means
of telecommunications facilities and includes the provision in
whole or in part of telecommunications facilities and any
related equipment, whether by sale, lease or otherwise, or
such other services as may be prescribed by the Minister
from time to time;
…
(2) Except so far as the contrary intention appears, an expression
that is used both in this Act and in the Treaty (whether or not a particular
meaning is assigned to it by the Treaty ) has in this Act the same meaning
as in the Treaty.
7.— (1) The Minister may grant —
(a) an individual licence;
(b) a class licence;
(c) a frequency authorisation in respect of a licence; or
(d) a special licence.
(2) Where the Minister fails to grant to an applicant a licence or
frequency authorisation he or she shall give that applicant his or her
reasons for that decision in writing.
(3) The Minister, on receipt of a recommendation from ECTEL
shall by notice published in the Gazette, specify the telecommunications
networks and services that are subject to an individual licence, a class
licence or a frequency authorisation.
(4) In the exercise of his or her powers the Minister shall consult
with the Commission.
(5) The Minister shall wherever practicable in the exercise of his or
her powers —
(a) adopt the form, document, process and subsidiary legislation as
recommended by ECTEL; and
(b) implement policy and recommendations proposed by ECTEL.
Establishment of Commission
8.— (1) There is established a Commission under the general
direction and control of the Minister to be known as the National
Telecommunications Regulatory Commission.
(2) The Commission shall consist of not less than three and not
more than five commissioners, all of whom shall be appointed by the
Minister on such terms and conditions as he or she may specify in their
instruments of appointment.
(3) The Minister shall appoint one of the commissioners to be the
Chairperson.
…
Functions of Commission
12.— (1) The functions of the Commission are to —
(a) advise the Minister on the formulation of national policy on
telecommunications matters with a view to ensuring the
efficient, economic and harmonised development of the telecommunication
and broadcasting services and radio
communications of Saint Lucia;
(b) ensure compliance with the Government's international
obligations on telecommunications;
(c) be responsible for technical regulation and the setting of
technical standards of telecommunications and ensure compatibility
with international standards;
(d) plan, supervise, regulate and manage the use of the radio
frequency spectrum in conjunction with ECTEL, including the
assignment and registration of radio frequencies to be used by
all stations operating in Saint Lucia or on any ship, aircraft,
vessel, or other floating or airborne contrivance or spacecraft
registered in Saint Lucia;
(e) regulate prices for telecommunications services;
(f) advise the Minister in all matters related to tariffs for telecommunications
service;
(g) collect all fees prescribed and any other tariffs levied under
this Act or Regulations;
(h) receive and review applications for licences and advise the
Minister accordingly;
(i) monitor and ensure that licensees comply with the conditions
attached to their licences;
(j) review proposed interconnection agreements by telecommunications
providers and recommend to the Minister whether or
not he should approve such agreements;
(k) investigate and resolve any dispute relating to interconnections
or sharing of infrastructure between telecommunications
providers;
(l) investigate and resolve complaints related to harmful interference;
(m) monitor anti-competitive practices in the telecommunications
sector and advise the national body responsible for the
regulation of anti-competitive practices accordingly;
(n) maintain a register of licensees and frequency authorisation
holders;
(o) provide the Minister with such information as he may require
from time to time;
(p) undertake in conjunction with other institutions and entities
where practicable, training, manpower planning, seminars and
conferences in areas of national and regional importance in
telecommunications;
(q) report to and advise the Minister on the legal, technical,
financial, economic aspects of telecommunications, and the
social impact of telecommunications;
(r) manage the universal service fund;
(s) perform such other functions as are prescribed.
(2) In the performance of its functions the Commission shall where
necessary, consult and liaise with ECTEL.
Powers of Commission
13.— (1) The Commission shall have the power to do all things
necessary or convenient to be done for or in connection with the performance
of its functions.
(2) Without limiting the generality of subsection (1), the
Commission has the power to —
(a) acquire information relevant to the performance of its
functions including whether or not a person is in breach of a
licence, frequency authorisation or this Act;
(b) require payment of fees;
(c) initiate legal proceedings against a licensee or authorised
frequency holder for the purposes of compliance;
(d) hold public hearings pertaining to its functions;
(e) sit as a tribunal;
(f) do anything incidental to its powers.
…
Commission to provide guidelines
15.— (1) The Commission may, on the recommendation of ECTEL,
provide guidelines as to the cost and pricing standards on which the
reasonableness of the rates, terms and conditions of interconnections
will be determined, and on other matters as prescribed.
(2) Guidelines determined by the Commissioner under subsection
(1) shall be Available to the public at the office of the Commission during
business hours or made available to a person on payment of the
prescribed fee.
(3) The Commission may give written directions to a licensee or
frequency authorisation holder in connection with the performance of its
functions or to implement the guidelines of the Commission.
Commission to investigate complaints
16.— (1) The Commission shall investigate a complaint by a person
who is aggrieved by the actions or conduct of a telecommunications
provider in respect of a decision against that person.
(2) The Commission shall investigate a complaint only where that
person has first sought redress for the complaint from that telecommunications
provider and that complaint has not been amicably resolved.
Disputes between licensees
17.— (1) The Commission, when presented with a dispute between
licensees requiring an interpretation of licences, frequency authorisations
or regulations, shall refer the matter to ECTEL with a request that ECTEL
provide the Commission with an opinion, or with the consent of the licensees
refer the matter to ECTEL for mediation or arbitration and in
keeping with the provisions of the Treaty.
(2) The Commission shall take account of the opinion and recommendation
of ECTEL in resolving the relevant dispute.
Dispute resolution
18.— (1) The Commission shall, wherever practicable, apply
conciliation, mediation, and alternative dispute resolution techniques in
resolving disputes
(2) For the following purposes the Commission is hereby
established as a telecommunications tribunal —
(a) to hear and determine disputes between licensees of telecommunications
services;
(b) to hear and adjudicate disputes between licensees and the
public involving alleged breaches of the Act or regulations, or
licences or frequency authorisations;
(c) to hear and determine complaints by subscribers relating to
rates payable for telecommunications services;
(d) to hear and determine claims by a licensee for a change in
rates payable for any of its services;
(e) to hear and determine objections to agreements between
licensees;
(f) of its own motion or at the instance of the Minister, to review
and determine the rate payable for any telecommunications
service;
(g) to hear and determine complaints between licensees and
members of the public.
(3) The tribunal under subsection (2) shall comprise the chairperson
and two other Commissioners nominated for the purpose by the Chairperson.
(4) Where a Commissioner withdraws from any proceedings on a
matter before the Commission on account of interest, illness or otherwise,
the Commission shall not be disqualified for the transaction of
business by reason of such vacancy among its members, save that in the
case of an equality of votes the Chairperson shall have a casting vote.
Hearing of matter by Commission
19.— (1) The Commission shall expeditiously hear and inquire into
and investigate any matter which is before it, and in particular shall hear,
receive and consider statements, arguments and evidence made, presented
or tendered —
(a) by or on behalf of any complainant;
(b) by or on behalf of the telecommunications licensee or provider;
(c) on behalf of the Minister.
(2) The Commission shall determine the periods that are reasonably
necessary for the fair and adequate presentation of the matter by the
respective parties thereto and the Commission may require those
matters to be presented within the respective periods so determined.
(3) The Commission may require evidence or arguments to be presented
in writing and may decide the matters upon which it will hear oral
evidence or arguments.
(4) All matters brought before the Commission shall be determined
by a majority of the members thereof.
(5) Any party to a matter brought before the Commission shall be
entitled as of right to appeal to the Court of Appeal from any judgement,
order or award of the Commission.
Appearance
20. Every party to a matter shall be entitled to appear at the hearing
thereon, and may be represented by an attorney or any other person who
in the opinion of the tribunal is competent to assist such person in the
presentation of the matter.
Powers of Commission when sitting as a tribunal
21.— (1) The Commission shall have powers to:
(a) issue summons to compel the attendance of witnesses;
(b) examine witnesses on oath, affirmation or otherwise; and
(c) compel the production of documents.
(2) Summons issued by the Commission shall be under the hand of
the Chairperson.
(3) Sections 64, 65, 66 and 67 shall apply in respect of the
commission when sitting as a tribunal.
Awards
22. In addition to the powers conferred on the Commission under
section 13, the Commission may, in relation to any matter brought before
it —
(a) make provisional or interim orders or awards relating to the
matters or part thereof, or give directions in pursuance of the
hearing or determination;
(b) dismiss any matter or part of a matter or refrain from further
hearing or from determining the matter or part thereof if it appears
that the matter or part thereof is trivial or vexatious or
that further proceedings are not necessary or desirable in the
public interest;
(c) order any party to pay costs and expenses, including expenses
of witnesses, as are specified in the order;
(d) generally give all such directions and do all such things s are
necessary or expedient for the expeditious and just hearing and
determination of the matter.
Review by Commission
23. The commission may review, vary or rescind its decisions or
order made by it; and where a hearing is required before that decision or
order is made, the decision or order shall not be suspended or revoked
without a further hearing.
Directions by the Minister
24. The Minister may give directions to the Commission of a policy
nature, and the Commission shall comply with those directions.
Prohibition on engaging in services without a licence
29. — (1) A person shall not establish or operate a telecommunications
network or provide a telecommunications service without
a licence.
(2) Where a frequency authorisation is necessary for or in relation
to the operation of a telecommunications network or a telecommunications
service, a person shall not operate that network or service without
that authorisation.
(3) A person who wishes to land or operate submarine cables within
the territory of Saint Lucia for the purpose of connecting to a telecommunications
network shall first obtain a licence, in addition to any other
approvals, licences or permits required under the law in force in Saint
Lucia.
(4) A person who contravenes subsection (1) or (2) or (3) commits
an offence and shall be liable on indictment to a fine not exceeding one
million dollars or to imprisonment for a period not exceeding ten years.
Procedure of grant of individual licence
30.— (1) An applicant for an individual licence shall submit his
application in the prescribed form to the Commission for consideration
by ECTEL, together with the prescribed fee.
(2) The Commission shall immediately transmit the application to
ECTEL, for its review and recommendation.
(3) On receipt of the recommendation from ECTEL, the
Commission shall transmit the application together with ECTEL's
recommendation to the Minister for consideration of the grant of an
individual licence.
(2) Where in the absence of an invitation to tender in respect of
telecommunications network or service there is only one applicant the
Commission shall submit the application to ECTEL for its review and
recommendation;
Content of individual licence
31.— (1) The Minister may, in granting the individual licence, include
all or any of the terms and conditions specified in Part 1 of the Second
Schedule.
(2) An individual licence shall include the terms and conditions
specified in Part 2 of the Second Schedule.
Grant of individual licence
32.— (1) The Minister shall, before granting an individual licence,
take into account —
(a) the purposes of the Treaty ;
(b) the recommendation of ECTEL;
(c) whether the objective of universal service will be promoted
including the provision of public telephony services sufficient to
meet reasonable demand at affordable prices;
(d) whether the interests of subscribers, purchasers and other
users of telecommunications services will be protected;
(e) whether competition among telecommunications providers of
telecommunications services will be promoted;
(f) whether research, development and introduction of new telecommunications
services will be promoted;
(g) whether foreign and domestic investors will be encouraged to
invest in telecommunications;
(h) appropriate technical and financial requirements;
(i) whether the public interest and national security interests will
be safeguarded;
(j) such other matters as are prescribed.
(2) The Minister shall not grant an individual licence unless ECTEL
recommends accordingly.
…
Suspension and revocation of licences and authorisation
41.— (1) The Minister may suspend or revoke a licence, or vary a
term and condition of that licence if it is not a statutory term or condition
by a notice in writing served on the licensee.
(2) The Minister may suspend, revoke or refuse to renew a licence
where —
(a) the radio apparatus or station in respect of which the licence
was granted interferes with a telecommunication service provided
by a person to whom a licence is already granted for that
purpose;
(b) the licensee contravenes this Act;
(c) the licensee fails to observe a term or condition specified in his
or her licence;
(d) the licensee is in default of payment of the licence or renewal
fee or any other money owed to the Government;.
(e) ECTEL recommends the suspension or revocation;
(f) the suspension or revocation is necessary for reasons of national
security or the public interest.
(3) Before suspending or revoking a licence under subsection (2),
the Minister shall give the licensee one month notice in writing of his or
her intention to do so, specifying the grounds on which it proposes to
suspend or revoke the licence, and shall give the licensee an
opportunity —
(a) to present his or her views;
(b) to remedy the breach of the licence or term and condition; or
(c) to submit to the Minister within such time as the Minister may
specify, a written statement of objections to the suspension or
revocation of the licence,
which the Minister shall take into account before reaching a decision.
(4) This section also applies with any necessary modification to a
frequency authorisation holder.
Provision of universal service
43.— (1) The Minister may, on the recommendation of ECTEL,
include as a condition in the licence of a telecommunications provider a
requirement to provide universal service, except that such requirement
shall be carried out in a transparent, non-discriminatory and
competitively neutral manner.
(2) A telecommunications provider who is required by its licence to
provide universal service to any person shall do so at such price and with
the quality of service specified in the licence.
…
Interconnection and infrastructure sharing
46.— (1) Subject to subsection (5), a telecommunications provider
who operates a public telecommunications network shall not refuse,
obstruct, or in any way impede another telecommunications provider from
making an interconnection with his or her telecommunications network.
(2) A telecommunications provider who wishes to interconnect with
the telecommunications network of another telecommunications provider
shall make a request to that other telecommunications provider in
writing.
(3) A telecommunications provider to whom a request for interconnection
is made, shall, in writing, respond to the request within a
period of four weeks from the date of the request.
(4) A telecommunications provider in granting a request pursuant to
subsection (3) shall agree, with the person making the request, the date
the interconnection shall be effected.
(5) A telecommunications provider to whom a request for interconnection
is made may in his response refuse that request in writing on
reasonable technical grounds only.
(6) A telecommunications provider on receipt of a refusal for interconnection
may refer that refusal to the Commission for review and
possible dispute resolution.
(7) A telecommunications provider providing an interconnection
service in accordance with this section shall impose reasonable cost based
rates, and such other reasonable terms and conditions as the
Commission may, on the recommendation of ECTEL, determine.
(8) Any interconnection service provided by a telecommunications
provider pursuant to the provisions of subsection (7) above shall be on
terms which are not less favourable than:
(a) those of the provider of the interconnection service;
(b) the services of non-affiliated suppliers; or
(c) the services of the subsidiaries or affiliates of the provider of
the interconnection service.
(9) No telecommunications provider shall, in respect to any rates
charged for interconnection services provided to another telecommunications
provider, vary the rates on the basis of the type of customers to
be served, or on the type of services that the telecommunications
provider requesting the interconnection services intends to provide.
Interconnection agreements
47.— (1) No person shall enter into any interconnection agreement,
implement or provide interconnection service without first submitting the
proposed agreement to the Commission for its approval, which approval
shall be in writing.
(2) Interconnection agreements between telecommunications
providers shall be in writing, and copies of the agreements shall be kept
in a public registry maintained by the Commission for that purpose and
open to public inspection during normal working hours.
(3) The Commission shall, after consulting ECTEL, prepare,
publish, and make available copies of the procedures to be followed by
the telecommunications providers when negotiating interconnection
agreements.
Cost of interconnection
48.— (1) The cost of establishing any interconnection to the telecommunications
network of another telecommunications provider shall
be borne by the telecommunications provider requesting the interconnection.
(2) The cost referred to in subsection (1) shall be based on costoriented
rates that are —
(a) reasonable and arrived at in a transparent manner having
regard to economic feasibility; and
(b) sufficiently unbundled such that the provider requesting the
interconnection service does not have to pay for network
components that are not required for the interconnection
service to be provided.
Infrastructure sharing
49. Sections 46, 47 and 48 shall apply to infrastructure sharing,
mutatis mutandis.
Access to towers sites and underground facilities
50.— (1) Where access to telecommunications towers, sites and
underground facilities is technically feasible, a telecommunications
provider ( in this section referred to as the first provider) must, upon
request, give another telecommunications provider (in this section
referred to as the second provide) access to —
(a) a telecommunications tower owned or operated by the first
provider; or
(b) a site owned, occupied or controlled by the first provider;
(c) an eligible underground facility owned or operated by the first
carrier;
for the sole purpose of enabling the second provider to install a facility
for use in connection with the supply of a telecommunications service.
(2) A telecommunications provider, in planning the provision of
future telecommunications services, must co-operate with other telecommunications
providers to share sites and eligible underground facilities.
(3) Access to sites, towers or eligible underground facilities shall,
mutatis mutandis, be on such terms as set out in sections 46 to 48 above;
and —
(a) on such terms and conditions as are agreed between
providers; or
(b) failing agreement as determined by the Commission.
Appointment of inspectors
54.— (1) The Commission may by instrument in writing appoint
inspectors for the purposes of this Act.
(2) The Commission shall furnish each inspector with an identity
card containing a photograph of the holder which he or she shall produce
on request in the performance of his functions.
(3) An inspector may investigate any complaint or conduct
concerning an allegation of a breach of the Act, licence or frequency
authorisation.
…
Parties eligible to seek orders for forfeiture or injunction relief
58. The court may, on application of the Commission or an
interested party—
(a) make an order for forfeiture of any equipment used for the
commission of the offence; and
(b) grant an order restraining a person from engaging in activities
contrary to this Act.
Liability of public and private officials
72. Where a breach of this Act or licence has been committed by a
person other than an individual any individual including a public officer
who at the time of the breach was director, manager, supervisor, partner
or other similarly responsible individual, may be found individually liable
for that breach if,
(a) having regard to the nature of his of Saint Lucia or her
functions;
(b) and his or reasonable ability to prevent that breach;
the breach was committed with his consent or connivance, or he or she
failed to exercise reasonable diligence to prevent the breach.
…
Regulations
74.— (1) The Minister may make Regulations to give effect to this
Act.
(2) Without limiting the generality of sub-section (1), the Minister
may make Regulations providing, in particular, for or in relation to —
(a) forms and procedures in respect of the grant of a licence or a
frequency authorisation;
(b) matters relating to the provision of universal service and the
management of the Universal Service Fund;
(c) the type of terminal equipment to be connected to a public telecommunications
network;
(d) interconnection between telecommunications providers, and the
sharing of infrastructure by telecommunications providers;
(e) interconnection agreements;
(f) matters relating to the allocation of numbers among the telecommunications
providers;
(g) stoppage or interception of telecommunications;
(h) management of the spectrum;
(i) adopting industry codes of practice, with or without
amendment;
(j) the procedure and standards relating to the submission, review
and approval by the Commission of telecommunications
tariffs;
(k) the control, measurement and suppression of electrical interference
in relation to the working of telecommunications
apparatus;
(l) matters of confidentiality including on the part of all persons
employed in or in anyway connected with the maintenance and
working of any telecommunications network or telecommunications
apparatus;
(m) public inspection of records of the Commission;
(n) procedures for the treatment of complaints;
(o) procedures for dispute resolution;
(p) matters for which guidelines are to be issued by the
Commission;
(q) matters relating to the quality of telecommunications services;
(r) technical regulation and setting of technical standards;
(s) fees, including the amount and circumstances in which they
are payable;
(t) conduct of public hearings;
(u) private networks and VSATS;
(v) cost studies and pricing models.
(w) submarine cables and landing rights;
(x) registration and management of Domain Names
(3) Where ECTEL recommends regulations for adoption for the
purpose of the Agreement the Minister shall take all reasonable steps to
ensure their promulgation.
1. Licences and frequency authorisations granted under this Act may
contain any or all of the following conditions:
(a) the networks and services which the licensee or authorisation holder
is and is not entitled to operate and provide, and the networks to
which the network of the licensee or authorisation holder can be
connected;
(b) the duration of the licence or authorisation;
(c) the build-out of the network and geographical and subscriber targets
for the provision of the relevant services;
(d) the use of radio spectrum;
(e) the provision of services to rural or sparsely populated areas or other
specified areas in which it would otherwise be uneconomical to
provide services;
(f) the provision of services to the blind, deaf, physically and medically
handicapped and other disadvantaged persons;
(g) the interconnection of the licensee's network with those of other
operators;
(h) the sharing of telecommunications infrastructure;
(i) prohibitions of anti-competitive conduct;
(j) the allocation and use by the licensee of numbers; and
(k) provision of universal service.
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002
…
"interconnecting operator" means a public telecommunications network
operator who requests interconnection from another public
telecommunications network operator under the Act;
"interconnection capacity" means the ability to provide interconnection;
"interconnection provider" means a public telecommunications network
operator who receives a request to provide interconnection under the Act;
"dominant interconnection provider" means an interconnection provider
designated by the Commission as a dominant interconnection provider
under regulation 9;
"point of interconnection" means the point or points of interconnection where
the exchange of telecommunications between the telecommunications
network of an interconnection provider and the telecommunications
network of an interconnecting operator takes place;
…
"reference interconnection offer" means a document setting out the terms on
which the telecommunications provider proposes to offer
interconnection services and that includes a description of the
interconnection and other services offered to interconnecting operators
and specifies the charges and other terms and conditions on which those
services are offered (and "reference interconnection offer provider" shall
have a corresponding meaning);
…
Notice of request
4. (1) An interconnecting operator shall notify the Commission of any
request for interconnection by forwarding two copies of the written request to the
Commission, one of which shall be addressed to ECTEL.
(2) A request for interconnection shall contain at least the following
information:
(a) a copy of the licence of the interconnecting operator;
(b) the services with respect to which interconnection is sought; and
(c) any other information as specified in the RIO or reasonably
required in order for the telecommunications provider to respond
to that request.
Equal responsibility
5. An interconnection provider and an interconnecting operator shall act in a
manner that enables interconnection to be established as soon as reasonably
practicable.
Non-discrimination transparency
6. (1) In providing interconnection, an interconnection provider shall act in
accordance with the following principles:
(a) interconnection shall be provided on non-discriminatory terms
and conditions including charges and quality of service;
(b) interconnection shall be provided to interconnecting operators
under no less favourable terms and of no less favourable quality
as the inter-connection provider provides similar services for
itself; and
(c) an interconnection provider shall provide on request information
reasonably necessary to interconnecting operators considering
inter-connection, in order to facilitate the conclusion of any
agreements.
(2) The information provided shall include planned changes for
implementation within the next 6 months following a request, unless otherwise agreed
by the Commission.
Confidentiality
7. (1) A person shall not knowingly communicate, or allow access to
information received from a telecommunications provider in respect of
interconnection, except to the extent authorised by the telecommunications provider
in writing, or by the Act.
(2) Notwithstanding any law, an interconnection provider shall not be
required, in connection with any legal proceedings, to produce any statement or other
record containing information referred to in sub-regulation (1), or to give evidence
relating to it, unless the proceedings relate to the enforcement of this Act.
…
Dominant interconnection provider
9. The Commission shall, acting on the recommendation of ECTEL, by
notice published in the Gazette, designate as a dominant telecommunications provider
in respect of a particular telecommunications market or markets in Saint Lucia if the
Commission or ECTEL has determined that, after a public consultation process, with
respect to that telecommunications provider:
(a) possesses significant market power with respect to the market or
markets for telecommunications services in Saint Lucia; and
(b) it is in the long-term interests of consumers of
telecommunications services in Saint Lucia that the service be so
designated.
…
Burden of proof
11. The burden of providing that interconnection rates are reasonable
cost-oriented rates shall lie with the inter-connection provider.
Rate structure
12. (1) The interconnection rates shall be imposed in a transparent manner
and shall identify clearly:
(a) charges for interconnection services; and
(b) the contribution to the interconnection provider's access deficit.
(2) Charges for interconnection services shall be cost-oriented, where
"cost-oriented" means those charges shall be no higher than the fully allocated cost of
providing that service and no lower than the total service long-run incremental cost of
providing that service.
(3) Services other than interconnection services provided to an
interconnecting operator shall be provided at a rate not exceeding the best retail prices
minus avoidable costs of the dominant interconnection provider provided that such
prices are not less than the total service long-run incremental cost of the dominant
interconnection provider.
Reference
13. (1) Each dominant interconnection provider shall publish a reference
interconnection offer.
(2) The reference interconnection offer provider may set different tariffs,
terms and conditions for different interconnection services, where such differences
can be objectively justified and do not result in the unfair distortion of competition.
(3) The reference interconnection offer provider shall apply the
appropriate interconnection tariffs, terms and conditions when providing
interconnection for its own services or those of its affiliates, subsidiaries or partners.
(4) The charges of the reference interconnection offer shall be
sufficiently unbundled to ensure that the inter-connecting operator requesting
interconnection is not required to pay for services not related to the service requested.
(5) Interconnection rates set out in the reference interconnection offer
shall be cost-oriented.
Points of interconnection
14. An interconnection provider shall offer interconnection services at any
technically feasible point of its telecommunications network, upon request by an
interconnecting operator, which shall pay for the investment operations and
maintenance expenses of the facilities necessary to reach the point or points of
interconnection within the network of the interconnection provider.
…
Form and contents of agreement
16. (1) All interconnection agreements and reference interconnection offers
must be in writing and the following matters shall be specified in those agreements
except where a particular matter is irrelevant to the specific form of the
interconnection requested:
(a) access to ancillary, supplementary and advanced services;
(b) adequate capacity and service levels including the remedies for
any failure to meet those service levels;
(c) a provision that deals with regulatory change, including
determinations by the Commission;
(d) duration and renegotiation of interconnection agreements;
(e) forecasting, ordering, provisioning and testing procedures;
(f) dispute resolution procedures;
(g) geographical and technical characteristics and locations of the
points of interconnection;
(h) information handling and confidentiality provisions;
(i) intellectual property rights;
(j) measures anticipated for avoiding interference or damage to the
networks of the parties involved or third parties;
(k) national and international appropriate indexes for service quality;
(l) procedures in the event of alterations being proposed to the
network or service offerings of one of the parties;
(m) provisions for the formation of appropriate working groups to
discuss matters relating to interconnection and to resolve any
disputes;
(n) if appropriate, provision of infrastructure sharing and
identification of collocation and their terms;
(o) provision of network information;
(p) technical specifications and standards;
(q) terms of payment, including billing and settlement procedures;
(r) the maintenance of end-to-end quality of service;
(s) the procedures to detect and repair faults, as well as an estimate of
acceptable average indexes for detection and repair times;
(t) the scope and description of the interconnection services to be
provided;
(u) the technical characteristics of all the main and auxiliary signals
to be transmitted by the system and the technical conditions of the
interfaces;
(v) transmission of Calling Line Identity, where available to be
transmitted;
(w) ways and procedures for the supply of other services that the
parties agree to supply to each other, such as operation,
administration, maintenance, emergency calls, operator assistance,
automated information for use, information on directories, calling
cards and intelligent network services;
(x) any other relevant issue; and
(y) the obligations and responsibilities of each party in the event that
inadequate or defective equipment is connected to their respective
networks.
(2) Public network operators shall make available to interested parties,
proposed interconnection agreements or reference interconnection offers.
Connectivity
17. (1) An interconnection agreement shall include provision for any-to-any
connectivity to allow each end-user of that network to communicate with each other
end-user of public telecommunications services, regardless of whether the end-users
are connected to the same, or different, networks.
(2) An interconnection agreement shall include provision for the
suspension, termination or amendment of the agreement in the event of:
(a) conduct that is illegal or interferes with the obligations of the
telecommunications provider, under the relevant licence, Act or
Regulations;
(b) requirements that are not technically feasible;
(c) health or safety problems;
(d) requirements for space that is unavailable; or
(e) circumstances that pose an unreasonable risk to the integrity or
security of the network or services of the telecommunications
provider, from which the sharing arrangement is requested.
(3) An interconnection agreement shall include a provision to allow for
the suspension of interconnection where it is necessary to deal with a material
degradation of the telecommunications network or services.
Non-inclusion
18. An interconnection agreement shall not contain any provision which has
the effect of:
(a) imposing any unfair or discriminatory penalty or disadvantage
upon a person in the exercise of the person's right to be provided
with interconnection;
(b) precluding or frustrating the exercise of a person's rights or
privileges afforded under the Act or Regulations; and
(c) preventing a licensee from lawfully providing an interconnection
service to another telecommunications provider.
Amendment of agreement
19. (1) The parties to an interconnection agreement may amend or modify an
agreement which has been approved by the Commission by:
(a) giving not less than 20 days written notice prior to the effective
date of the amendment or modification; and
(b) submitting a copy of the proposed amendment or modification to
the Commission.
(2) Notwithstanding any provision of the agreement, no interconnection
provider shall terminate an interconnection agreement for breach of that agreement
unless:
(a) the interconnection provider has given the interconnecting
operator a written notice stating the breach, and providing for a
period of not less than 3 months during which time the breach
may be cured; and
(b) the interconnecting operator has failed to remedy the breach
within the notice period; and
(c) if the services provided under the Agreement are essential
services, the Commission, after due notice, has consented to the
termination provided that, in the case of an interconnection
agreement that provides both essential and other services, only
termination with respect to those essential services shall be so
restricted.
Procedures for application
20. (1) The parties shall submit a written application of a proposed
interconnection agreement to the Commission at least 30 working days prior to the
proposed effective date of the agreement.
(2) The Commission shall approve the proposed interconnection
agreement if it is satisfied that the proposed interconnection agreement is consistent
with:
(a) any reference interconnection offer in force;
(b) where no reference interconnection offer is in force, the principles
of interconnection set out in Section 6 of these Regulations.
(3) The Commission shall consult with ECTEL for its advice and
recommendations concerning the application, before determining whether to approve
the proposed interconnection agreement.
(4) The Commission may request additional information from the parties
to a proposed interconnection agreement where it considers it necessary to further
evaluate the terms, conditions and charges contained in the proposed inter-connection
agreement.
(5) If the Commission notifies the parties that it does not consider that
the proposed interconnection agreement is consistent with the principles set out in
regulation 6, the interconnection provider and the inter-connecting operator shall
negotiate and submit a revised proposed interconnection agreement to the
Commission, within a reasonable time, having regard to the matters being the subject
of the Commission's request.
(6) Where the Commission does not request additional information or
modifications, or rule on the agreement within 30 days of receiving an application for
the approval or renewal of the agreement, or 10 days, in the case of an agreement
revised in accordance with sub-regulation (5), the Commission shall approve the
agreement.
Interconnection not permitted
21. A party shall not negotiate or propose to enter into an interconnection
agreement where the Commission determines and rules that:
(a) the law prohibits the interconnection;
(b) the interconnection would endanger life or safety, or damage the
property or impair the quality of the services of the party
providing the interconnection;
(c) the licence issued to the party from whom the interconnection is
requested, exempts it from the obligation to interconnect;
(d) the licence issued to the party requesting interconnection does not
authorise the telecommunications services for which
interconnection is requested;
(e) the requested interconnection is not technically feasible; or
(f) the proposed interconnection is contrary to the law or the public
interest.
…
Dispute resolution
28. (1) Where an interconnection provider and an interconnecting operator
are unable, after having negotiated in good faith for a reasonable period, to agree the
terms and conditions of an interconnection agreement, either party may request the
assistance of the Commission in resolving the dispute.
(2) The Commission, in responding to a request for assistance, may
choose to take one or more of the following actions:
(a) act as arbitrator of that dispute; or
(b) appoint a mediator to that dispute; or
(c) direct the parties to commence or continue interconnection
negotiations.
(3) Where the Commission appoints a mediator, it may direct that
payment of the mediator's reasonable costs and expenses are paid for by the relevant
parties to the dispute.
(4) Where the parties cannot agree on a date upon which to commence
negotiations, the Commission shall be empowered to compel both parties to
commence negotiations by a prescribed date.
(5) The Commission may, if requested by either party, set a time limit
within which negotiations on interconnection are to be completed and any such
direction shall set out the steps to be taken if agreement is not reached within the time
limit.
Role of parties to dispute
29. (1) The complaining party shall submit to the Commission a clear and
reasoned statement of the issues in dispute, as well as any issues on which there is
agreement.
(2) The opposing party shall respond to the complaint within 30 days and
shall state the reasons for its position including any statutory or regulatory
justification for that position.
Fairness in dispute resolution
30. (1) When a compliant has been referred to the Commission it shall take
steps to resolve the dispute:
(a) as promptly as practicable, having regard to the matters in dispute;
(b) preserving any agreements between the parties over issues that are
not in dispute; and
(c) consistent with sub-regulation (2) below.
(2) When acting as an arbitrator, the Commission or ECTEL shall
attempt to achieve a fair balance between the legitimate interests of the parties to the
dispute, and have regard to the circumstance including the following:
(a) whether the proposed ruling promote the long-term interests of
consumers of telecommunications services in Saint Lucia;
(b) the interests of persons who have rights to use the
telecommunications networks concerned;
(c) the economically efficient operation of a telecommunications
network or the provision of a telecommunications service.
Disconnection of networks
31. (1) Any dispute between parties of an interconnection agreement shall
not cause the partial or total disconnection of the relevant network except in
accordance with regulation 17.
(2) Notwithstanding sub-regulation (1), the Commission may decide that
partial or total disconnection is necessary and so advise the parties.
(3) Whenever the Commission takes action in accordance with
sub-regulation (2), it shall recommend and instruct that preliminary measures are
applied to minimise any negative effects on the users of one or both networks.
Guidelines for resolving dispute
32. In exercising its duties under regulation 30, the Commission shall take
into account the:
(a) availability of technically and commercially viable alternatives to
the interconnection requested;
(b) desirability of providing users with a wide range of
telecommunications services;
(c) interests of the users;
(d) nature of the request, in relation to the resources available to meet
the request;
(e) need to maintain a universal service;
(f) need to maintain the integrity of the public telecommunications
network and the interoperability of services;
(g) promotion of competition;
(h) public interest;
(i) regulatory obligations or constraints imposed on any of the
parties; and
(j) her (sic) relevant and appropriate consideration.
…
THE LICENCES
THE FACTS
ANNEX B – ST VINCENT & THE GRENADINES
THE ECTEL TREATY | 1 |
THE TELECOMMUNICATIONS ACT 2001 | 3 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002 | 16 |
THE LICENCES | 19 |
THE FACTS | 27 |
THE ECTEL TREATY
THE TELECOMMUNICATIONS ACT 2001
"interconnection" means the connection of two or more separate telecommunication systems, networks, links, nodes, equipment, circuits and devices involving a physical link or interface;
…
"telecommunications" means any form of transmission, emission or reception of signs, text, images and sounds or other intelligence of any nature by wire, radio, optical or other electromagnetic means;
"telecommunications facilities" includes a transmission facility, any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications;
"telecommunications network" means any wire, radio, optical, or other electromagnetic system used to route, switch, or transmit telecommunications;
"telecommunications provider" means a person who is licensed under this Act to operate a telecommunications network or to provide telecommunications services;
"telecommunications services" means services provided by means of telecommunications facilities, the provision in whole or in part of telecommunications facilities and any related equipment, whether by sale, lease or otherwise or such other services as may be prescribed by the Minister from time to time;
(2) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Treaty (whether or not a particular meaning is assigned to it by the Treaty) has in this Act the same meaning as in the Treaty.
(1) The Minister shall ensure that in the administration
of this Act –
(a) the purposes of the Treaty are effected;
(b) the telecommunications sector in the State is regulated.
(2) Without limiting the generality of subsection (1) the Minister shall in particular ensure –
(a) open entry, market liberalisation, and competition in telecommunications;
(b) policies and practices in relation to the management of telecommunications are in harmony with those of ECTEL;
(c) the operation of a universal service regime so as to ensure the widest possible access to telecommunications at an affordable rate by the people of the State and in order to enable them to share in the freedom to communicate over an efficient and modern telecommunications network;
(d) fair pricing and the use of cost-based pricing methods by telecommunications providers in the State;
(e) fair competition practices by telecommunications providers;
(f) the introduction of advanced telecommunications technologies and an increased range of services;
(g) that the public interest and national security are preserved;
(h) the application of appropriate standards in the operation of telecommunications:
(i) the overall development of telecommunications in the interest of the sustainable development of the State.
(1) The Minister may on application grant –
(a) an individual licence;
(b) a class licence;
(c) a frequency authorisation in respect of a licence; or
(d) a special licence.
(2) Where the Minister fails to grant a licence or frequency authorisation he shall give the applicant his reasons for that decision in writing.
(3) The Minister, on receipt of a recommendation from ECTEL shall by notice published in the Gazette, specify the telecommunications networks and services that are subject to an individual licence, a class licence or a frequency authorisation.
(4) In the exercise of his powers the Minister shall consult with the Commission.
(5) The Minister shall wherever practicable in the exercise of his powers –
(a) adopt the form, document, process and subsidiary legislation as recommended by ECTEL; and
(b) implement policy and recommendations proposed by ECTEL.
Establishment of National Telecommunication (sic) Regulatory Commission
6. (1) There is established a Commission under the
general direction and control of the Minister to be known as the National
Telecommunications Regulatory Commission.
(2) The Commission shall consist of not less than three and not more than five Commissioners, all of whom shall be appointed by the Minister by instrument in writing on such terms and conditions as he may specify.
(3) The Minister shall appoint one of the Commissioners to be the Chairperson.
…
Functions of Commission
10. (1) The functions of the Commission are to –
(a) advise the Minister on the formulation of national policy on telecommunications matters with a view to ensuring the efficient, economic and harmonised development of the telecommunication and broadcasting services and radio communications of the State;
(b) ensure compliance with the Government's international obligations on telecommunications;
(c) be responsible for technical regulation and the setting of technical standards of telecommunications and ensure compatibility with international standards;
(d) plan, supervise, regulate and manage the use of the radio frequency spectrum in conjunction with ECTEL, including the assignment and registration of radio frequencies to be used by all stations operating in the State or on any ship, aircraft, vessel or other floating or airborne contrivance or spacecraft registered in the State;
(e) regulate prices for telecommunications services;
(f) advise the Minister in all matters related to tariffs for telecommunications services;
(g) collect all fees prescribed and any other tariffs levied under this Act or regulations;
(h) receive and review applications for class licences and advise the Minister accordingly;
(i) monitor and ensure that licensees comply with the conditions attached to their licences;
(j) review proposed interconnection agreements by telecommunications providers and recommend to the Minister whether or not he should approve such agreements;
(k) investigate and resolve any dispute relating to interconnections or sharing of infrastructure between telecommunications providers;
(l) investigate and resolve complaints related to harmful interference;
(m) monitor anti-competitive practices in the telecommunications sector and advise the national body responsible for the regulation of anti-competitive practices accordingly;
(n) maintain a register of licensees and frequency authorisation holders;
(o) provide the Minister with such information as he may require from time to time;
(p) undertake in conjunction with other institutions and entities where practicable, training, manpower planning, seminars and conferences in areas of national and regional importance in telecommunications;
(q) report to and advise the Minister on the legal, technical, financial, economic aspects of telecommunications and the social impact of telecommunications;
(r) manage the universal service fund;
(s) perform such other functions as are prescribed.
(2) In the performance of its functions the Commission shall consult and liaise with ECTEL.
Powers of Commission
11. (1) The Commission may do all things necessary or
convenient to be done for or in connection with the performance of its functions.
(2) Without limiting the generality of subsection (1), the Commission may –
(a) acquire information relevant to the performance of its functions including whether or not a person is in breach of a licence, frequency authorisation or this Act;
(b) require payment of fees;
(c) initiate legal proceedings against a licensee or authorised frequency holder for the purposes of compliance;
(d) hold public hearings pertaining to its functions;
(e) do anything incidental to its powers;
(f) sit as a tribunal.
…
Commission to provide guidelines
13. (1) The Commission may, on the recommendation of
ECTEL provide guidelines as to the cost and pricing standards on which
the reasonableness of the rates, terms and conditions of interconnections will be determined and on other matters as prescribed.
(2) Guidelines determined by the Commission under subsection (1) shall be available to the public at the office of the Commission during business hours or made available to a person on payment of the prescribed fee.
(3) The Commission may give written directions to a licensee or frequency authorisation holder in connection with the performance of its functions or to implement the guidelines of the Commission.
Commission to investigate complaints
14. (1) The Commission shall investigate a complaint by a
person who is aggrieved by the actions or conduct of a
telecommunications provider in respect of a decision against that person.
(2) The Commission shall investigate a complaint only where that person has first sought redress for the complaint from the telecommunications provider and that complaint has not been amicably resolved.
Disputes between licensees
15. (1) The Commission, when presented with a dispute
between licensees requiring an interpretation of licences frequency
authorisations or regulations, shall refer the matter to ECTEL with a request that ECTEL provide the Commission with an opinion, or with the consent of the licensees refer the matter to ECTEL for mediation or arbitration and in keeping with the provisions of the Treaty.
(2) The Commission shall take account of the opinion and recommendation of ECTEL in resolving the relevant dispute.
Dispute resolution
16. (1) The Commission shall, wherever practicable, apply
conciliation, mediation and alternative dispute resolution techniques in resolving disputes.
(2) For the following purposes the Commission is hereby established as a telecommunications tribunal –
(a) to hear and determine disputes between licensees of telecommunications services;
(b) to hear and adjudicate disputes between licensees and the public involving alleged breaches of the Act or regulations or licences or frequency authorisations;
(c) to hear and determine complaints by subscribers relating to rates payable for telecommunications services;
(d) to hear and determine claims by a licensee for a change in rates payable for any of its services;
(e) to hear and determine objections to agreements between licensees;
(f) of its own motion or at the instance of the Minister, to review and determine the rate payable for any telecommunications service;
(g) to hear and determine complaints between licensees and members of the public.
(3) The tribunal established under subsection (2) shall comprise the chairperson and two other Commissioners nominated for the purpose by the Chairperson.
(4) Where a Commissioner withdraws from any proceedings on a matter before the Commission on account of interest, illness or otherwise, the Commission shall not be disqualified for the transaction of business by reason of such vacancy among its members, save that in the case of an equality of votes the Chairperson shall have a casting vote.
Hearing by Commission
17. (1) The Commission shall expeditiously hear and
inquire into and investigate any matter which is before it, and in particular shall hear, receive and consider statements, arguments and evidence made, presented or tendered –
(a) by or on behalf of any complainant;
(b) by or on behalf of the telecommunications licensee or provider;
(c) on behalf of the Minister.
(2) The Commission shall determine the periods that are reasonably necessary for the fair and adequate presentation of any matter by the respective parties involved and the Commission may require those matters to be presented within the respective periods so determined.
(3) The Commission may require evidence or arguments to be presented in writing and may decide the matters upon which it will hear oral evidence or arguments.
(4) All matters brought before the Commission shall be determined by a majority of the members thereof.
(5) Any party to a matter brought before the Commission shall be entitled as of right to appeal to the Court of Appeal from any judgement, order or award of the Commission.
Appearance
18. Every party to a matter shall be entitled to appear at the hearing thereon, and may be represented by an attorney or any other person who in the opinion of the tribunal is competent to assist such person in the presentation of the matter.
Powers of Commission sitting as tribunal
19. (1) The Commission shall have powers to –
(a) issue summons to compel the attendance of
.witnesses;
(b) examine witnesses on oath, affirmation or otherwise; and
(c) compel the production of documents.
(2) Summons issued by the Commission shall be under the hand of the Chairperson.
(3) Sections 62, 63, 64 and 65 shall apply in respect of the commission when sitting as a tribunal.
Awards
20. In addition to the powers conferred on the Commission under section 11, the Commission may, in relation to any matter brought before it –
(a) make provisional or interim orders or awards relating to the matter or part thereof or give directions in pursuance of the hearing or determination;
(b) dismiss any matter or part of a matter or refrain from further hearing or from determining the matter or part thereof if it appears that it is trivial or vexatious or that further proceedings are not necessary or desirable in the public interest;
(c) order any party to pay costs and expenses, including expenses of witnesses, as are specified in the order;
(d) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.
Review by Commission of its decision
21. The commission may review, vary or rescind any decision
or order made by it and where a hearing is required before that decision or
order is made, the suspension or revocation shall take place without a
further hearing.
Directions by Minister
22. The Minister may give directions to the Commission as regards policy, and the Commission shall comply with those directions.
Prohibition on engaging in telecommunications services without licence
27. (1) A person shall not establish or operate a telecommunications network or provide a telecommunications service
without a licence.
(2) Where a frequency authorisation is necessary for or in relation to the operation of a telecommunications network or a telecommunications service, a person shall not operate that network or service without that authorisation.
(3) A person who wishes to land or operate submarine cables within the territory of the State for the purpose of connecting to a telecommunications network shall first obtain a licence, in addition to any other approvals, licences or permits required under the laws of the State.
(4) A person who contravenes subsection (1), (2) or (3) commits an offence and is liable on indictment to a fine not exceeding one million dollars or to imprisonment for a period not exceeding ten years.
Procedure for grant of individual licence
28. (1) An applicant for an individual licence shall submit
his application in the prescribed form to the Commission for consideration
by ECTEL, together with the prescribed fee.
(2) The Commission shall immediately transmit the application to ECTEL, for its review and recommendation.
(3) On receipt of the recommendation from ECTEL, the Commission shall transmit the application together with ECTEL's recommendation to the Minister for consideration of the grant of an individual licence.
(4) Where in the absence of an invitation to tender in respect of telecommunications network or service there is only one applicant the Commission shall submit the application to ECTEL for its review and recommendation;
Grant of individual licence Second Schedule
29. (1) The Minister may, in granting the individual
licence, include all or any of the terms and conditions specified in Part 1 of the Second Schedule.
(2) An individual licence shall include the terms and conditions specified in Part 2 of the Second Schedule.
Content of individual licence.
30. (1) The Minister shall, before granting an individual
licence, take into account –
(a) the purposes of the Treaty ;
(b) the recommendation of ECTEL;
(c) whether the objective of universal service will be promoted including the provision of public telephony services sufficient to meet reasonable demand at affordable prices;
(d) whether the interests of subscribers, purchasers and other users of telecommunications services will be protected;
(e) whether competition among telecommunications providers of telecommunications services will be promoted;
(f) whether research, development and introduction of new telecommunications services will be promoted;
(g) whether foreign and domestic investors will be encouraged to invest in telecommunications;
(h) appropriate technical and financial requirements;
(i) whether the public interest and national security interests will be safeguarded;
(j) such other matters as are prescribed.
(2) The Minister shall not grant an individual licence unless ECTEL recommends accordingly.
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Suspension and revocation of licences and authorisations
38. (1) The Minister may suspend or revoke a licence, or
vary a non-statutory term and condition of that licence by a notice in
writing served on the licensee.
(2) The Minister may suspend, revoke or refuse to renew a licence where –
(a) the radio apparatus or station in respect of which the licence was granted interferes with a telecommunication service provided by a person to whom a licence is already granted for that purpose;
(b) the licensee contravenes this Act;
(c) the licensee fails to observe a term or condition specified in his licence;
(d) the licensee is in default of payment of the licence or renewal fee or any other money owed to the Government;.
(e) ECTEL recommends the suspension or revocation;
(f) the suspension or revocation is necessary for reasons of national security or the public interest.
(3) Before suspending or revoking a licence under subsection (2), the Minister shall give the licensee two months notice in writing of his intention to do so, specifying the grounds on which he proposes to suspend or revoke the licence, and shall give the licensee an opportunity –
(a) to present his views;
(b) to remedy the breach of the licence or the terms and conditions; or
(c) to submit to the Minister within such time as the Minister may specify, a written statement of objections to the suspension or revocation of the licence,
which the Minister shall take into account before reaching a decision.
(4) This section also applies with any necessary modification to a frequency authorisation holder.
Provision of universal service
41. (1) The Minister may, on the recommendation of
ECTEL, include as a condition in the licence of a telecommunications provider a requirement to provide universal service, except that such requirement shall be carried out in a transparent, non-discriminatory and competitively neutral manner.
(2) A telecommunications provider who is required by its licence to provide universal service to any person shall do so at such price and with the quality of service specified in the licence.
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Interconnection and infrastructure sharing.
44. (1) Subject to subsection (4), a telecommunications
provider who operates a public telecommunications network shall not
refuse, obstruct, or in any way impede another telecommunications provider from making an interconnection with his telecommunications network.
(2) A telecommunications provider –
(a) who wishes to interconnect with the telecommunications network of another telecommunications provider shall so request of that provider in writing;
(b) to whom a request for interconnection is made, shall, in writing, respond to the request within a period of four weeks from the date it is made to him;
(c) in acceding within four weeks to the request for interconnection shall nominate the time as agreed to by both parties in which the interconnection shall be effected;
(d) to whom a request for interconnection is made may in his response refuse that request in writing on reasonable technical grounds only;
(e) on receipt of a refusal for interconnection may refer that refusal to the Commission for review and possible dispute resolution;
(f) providing an interconnection service in accordance with this section shall impose reasonable cost based rates, and such other reasonable terms and conditions as the Commission may, on the recommendation of ECTEL, determine.
(3) Any interconnection service provided by a telecommunications provider pursuant to the provisions of subsection (6) shall do so on terms which are not less favourable than –
(a) those of the provider of the interconnection service;
(b) the services of non-affiliated suppliers; or
(c) the services of the subsidiaries or affiliates of the provider of the interconnection service.
(4) A telecommunications provider shall not in respect to any rates charged by him for interconnection services provided by him to another telecommunications provider, vary the rates on the basis of the type of customers to be served, or on the type of services that the telecommunications provider requesting the interconnection services intends to provide.
Interconnection agreements.
45. (1) A person shall not enter into any interconnection
agreement, implement or provide interconnection service without first
submitting the proposed agreement to the Commission for its approval, which approval shall be in writing.
(2) Interconnection agreements between telecommunications providers shall be in writing, and copies of the agreements shall be kept in a public registry maintained by the Commission for that purpose and open to public inspection during normal working hours.
(3) The Commission shall, after consulting ECTEL, prepare, publish, and make available copies of the procedures to be followed by the telecommunications providers when negotiating interconnection agreements.
Cost of interconnection.
46. (1) The cost of establishing any interconnection to the
telecommunications network of another telecommunications provider shall be borne by the telecommunications provider requesting the interconnection.
(2) The cost referred to in subsection (1) shall be based on cost-oriented rates that are reasonable and which are arrived at in a transparent manner having regard to economic feasibility and sufficiently unbundled such that the supplier of the interconnection service does not have to pay for network components that are not required for the interconnection service to be provided.
Infrastructure sharing.
47. Sections 46, 47 and 48 shall apply to infrastructure sharing,
mutatis mutandis.
Access to towers sites and underground facilities.
48. (1) Where access to telecommunications towers, sites
and underground facilities is technically feasible, a telecommunications
provider shall, upon request, give another telecommunications provider
who so requests access to any telecommunications tower owned or operated by him, or any to a site owned ,occupied or controlled by him, or to an eligible underground facility owned or operated by the first carrier, for the sole purpose of enabling the second provider to install a facility for use in connection with the supply of a telecommunications service.
(2) A telecommunications provider, in planning the provision of future telecommunications services, shall co-operate with other telecommunications providers to share sites and eligible underground facilities.
(3) Access to sites, towers or eligible underground facilities pursuant to this section shall, mutatis mutandis, be on such terms as set out in sections 46 to 48, and otherwise on such terms and conditions as are agreed between providers or failing agreement, as determined by the Commission.
Appointment of inspectors
52. (1) The Commission may by instrument in writing
appoint inspectors for the purposes of this Act.
(2) The Commission shall furnish each inspector with an identity card containing a photograph of the holder which he shall produce on request in the performance of his functions.
(3) An inspector may investigate any complaint or conduct concerning an allegation of a breach of the Act, licence or frequency authorisation.
Parties eligible to seek orders for forfeiture or injunctive relief
56. The court may, on application of the Commission or an
interested party –
(a) make an order for forfeiture of any equipment used for the commission of an offence; and
(b) grant an order restraining a person from engaging in activities contrary to this Act.
Liability of public and private officials
70. Where a breach of this Act or licence has been committed
by a corporation any individual who at the time of the breach was director,
manager, supervisor, partner or other similarly responsible individual of that corporation including a public official, may be found individually liable for that breach if, having regard to the nature of his functions and his reasonable ability to prevent that breach, the breach was committed with his consent or connivance or he failed to exercise reasonable diligence to prevent the breach.
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Regulations
72. (1) The Minister may make regulations to give effect to the provision of this Act.
(2) Without limiting the generality of subsection (1), the Minister may in particular make regulations providing for or in relation to –
(a) forms and procedures in respect of the grant of a licence or a frequency authorisation;
(b) matters relating to the provision of universal service and the management of the Fund;
(c) the type of terminal equipment to be connected to a public telecommunications network;
(d) interconnection between telecommunications providers, and the sharing of infrastructure by telecommunications providers;
(e) interconnection agreements;
(f) matters relating to the allocation of numbers among the telecommunications providers;
(g) stoppage or interception of telecommunications;
(h) management of the spectrum;
(i) adopting industry codes of practice with or without amendment;
(j) the procedure and standards relating to the submission, review and approval by the Commission of telecommunications tariffs;
(k) the control, measurement and suppression of electrical interference in relation to the working of telecommunications apparatus;
(l) matters of confidentiality including confidentiality on the part of all persons employed in or in anyway connected with the maintenance and working of any telecommunications network. or telecommunications apparatus;
(m) public inspection of records of the Commission;
(n) procedures for the treatment of complaints;
(o) procedures for dispute resolution;
(p) matters for which guidelines are to be issued by the Commission;
(q) matters relating to the quality of telecommunications services;
(r) technical regulation and setting of technical standards;
(s) fees, including the amount and circumstances in which they are payable;
(t) conduct of public hearings;
(u) private networks and VSATS;
(v) cost studies and pricing models;
(w) submarine cables and landing rights;
(x) registration and management of Domain Names
(3) Where ECTEL recommends regulations for adoption for the purpose of the Agreement the Minister shall take all reasonable steps to ensure their promulgation.
1. Licences and frequency authorisations granted under this Act may contain any or all of the following conditions:
(a) the networks and services which the licensee or authorisation holder may or may not operate and provide, and the networks to which the network of the licensee or authorisation holder can be connected;
(b) the duration of the licence or authorisation;
(c) the build-out of the network and geographical and subscriber targets for the provision of the relevant services;
(d) the use of radio spectrum;
(e) the provision of services to rural or sparsely populated areas or other specified areas in which it would otherwise be uneconomical to provide services;
(f) the provision of services to the blind, deaf, physically and mentally handicapped and other disadvantaged persons;
(g) the interconnection of the licensee's network with those of other operators;
(h) the sharing of telecommunications infrastructure;
(i) prohibitions of anti-competitive conduct;
(j) the allocation and use by the licensee of numbers; and
(k) the provisions of universal service.
THE TELECOMMUNIATIONS (INTERCONNECTION) REGULATIONS 2002
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"interconnecting operator" means a public network operator who requests interconnection from another public network operator under section 44 of the Act;
"interconnection capacity" means the ability to provide interconnection;
"interconnection provider" means a public network operator who receives a request to provide interconnection under section 44 of the Act;
"dominant interconnection provider" means an interconnection provider designated by the Commission as a dominant interconnection provider under regulation 8 of these Regulations;
"point of interconnection" means the point or points of interconnection where the exchange of telecommunications between the telecommunications network of an interconnection provider and the telecommunications network of an interconnecting operator takes place;
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"reference interconnection offer" means a document setting out the terms on which the telecommunications provider proposes to offer interconnection services and that includes a description of the interconnection and other services offered to interconnecting operators and specifies the charges and other terms and conditions on which those services are offered (and "reference interconnection offer provider" shall have a corresponding meaning).
Notice of request
3. (1) An interconnecting operator shall notify the Commission of any request for interconnection by forwarding two copies of the written request to the Commission, one of which shall be addressed to ECTEL.
(2) A request for interconnection shall contain at least the following information:
(a) a copy of the licence of the interconnecting operator;
(b) the services with respect to which interconnection is sought; and
(c) any other information as specified in the reference interconnection offer or reasonably required in order for the telecommunications provider to respond to that request.
Equal responsibility
4. An interconnection provider and an interconnecting operator shall act in a manner that enables interconnection to be established as soon as reasonably practicable.
Non- discrimination and transparency
5. (1) In providing interconnection, an interconnection provider shall act in accordance with the following principles:
(a) interconnection shall be provided on non-discriminatory terms and conditions including charges and quality of service;
(b) interconnection shall be provided to interconnecting operators under no less favourable terms and of no less favourable quality as the inter- connection provider provides similar services for itself; and
(c) an interconnection provider shall provide on request information reasonably necessary to inter-connecting operators considering interconnection, in order to facilitate the conclusion of any agreements.
(2) The information provided shall include planned changes for implementation within the next six months following a request, unless otherwise agreed by the Commission.
Confidentiality
6. (1) A person shall not knowingly communicate, or allow access to information received from a telecommunications provider in respect of interconnection, except to the extent authorised by the telecommunications provider in writing, or by the Act.
(2) Notwithstanding any law, an interconnection provider shall not be required, in connection with any legal proceedings, to produce any statement or other record containing information referred to in sub-regulation (1), or to give evidence relating to it, unless the proceedings relate to the enforcement of the Act and its Regulations.
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Dominant interconnection provider
8. The Commission shall, acting on the recommendation of ECTEL, by Notice published in the Gazette, designate as a dominant telecommunications provider in respect of a particular telecommunications market or markets in Saint Vincent and the Grenadines if the Commission has determined that, after a public consultation process, with respect to that telecommunications provider
(a) it possesses significant market power with respect to the market or markets for telecommunications services in Saint Vincent and the Grenadines; and
(b) it is in the long-term interests of consumers of telecommunications services in Saint Vincent and the Grenadines that the service be so designated.
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Burden of proof
10. The burden of proving that interconnection rates are reasonable cost-oriented rates shall lie with the inter-connection provider.
Rate structure
11. (1) The interconnection rates shall be imposed in a transparent manner and shall identify clearly
(a) charges for interconnection services; and
(b) the contribution to the interconnection provider's access deficit, where applicable.
(2) Charges for interconnection services shall be cost-oriented, where "cost-oriented" means those charges shall be no higher than the fully allocated cost of providing that service and no lower than the total service long-run incremental cost of providing that service.
(3) Services other than interconnection services provided to an interconnecting operator shall be provided at a rate not exceeding the best retail prices minus avoidable costs of the dominant interconnection provider provided that the prices are not less than the total service long-run incremental cost of the dominant interconnection provider.
Reference interconnection offer
12. (1) Each dominant interconnection provider shall publish a reference interconnection offer.
(2) The reference interconnection offer provider may set different tariffs, terms and conditions for different inter-connection services, where the differences can be objectively justified and do not result in the unfair distortion of competition.
(4) The reference interconnection offer provider shall apply the appropriate interconnection tariffs, terms and conditions when providing interconnection for its own services or those of its affiliates, subsidiaries or partners.
(5) The charges of the reference interconnection offer shall be sufficiently unbundled to ensure that the inter-connecting operator requesting interconnection is not required to pay for services not related to the service requested.
(6) Interconnection rates set out in the reference inter-connection offer shall be cost-oriented.
Points of interconnection
13. (1) An interconnection provider shall offer interconnection services at any technically feasible point of its telecommunications network, upon request by an interconnecting operator, which shall pay for the investment, operations and maintenance expenses of the facilities necessary to reach the point or points of interconnection within the network of the interconnection provider.
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Form and contents of agreement
15. (1) All interconnection agreements and reference interconnection offers must be in writing and the following matters shall be specified in those agreements except where a particular matter is irrelevant to the specific form of the interconnection requested:
(a) access to ancillary, supplementary and advanced services;
(b) adequate capacity and service levels including the remedies for any failure to meet those service levels;
(c) a provision that deals with regulatory change, including determinations by the Commission;
(d) duration and renegotiation of interconnection agreements;
(e) forcasting, ordering, provisioning and testing procedures;
(f) dispute resolution procedures;
(g) geographical and technical characteristics and locations of the points of interconnection;
(h) information handling and confidentiality provisions;
(i) intellectual property rights;
(j) measures anticipated for avoiding interference or damage to the networks of the parties involved or third parties;
(k) national and international appropriate indexes for service quality;
(l) procedures in the event of alterations being proposed to the network or service offerings of one of the parties;
(m) provisions for the formation of appropriate working groups to discuss matters relating to interconnection and to resolve any disputes;
(n) if appropriate, provision of infrastructure sharing and identification of co-location and their terms;
(o) provision of network information;
(p) technical specifications and standards;
(q) terms of payment, including billing and settlement procedures;
(r) the maintenance of end-to-end quality of service;
(s) the procedures to detect and repair faults, as well as an estimate of acceptable average indexes for detection and repair times;
(t) the scope and description of the interconnection services to be provided;
(u) the technical characteristics of all the main and auxiliary signals to be transmitted by the system and the technical conditions of the interfaces;
(v) transmission of Calling Line Identity, where available to be transmitted;
(w) ways and procedures for the supply of other services that the parties agree to supply to each other, such as operation, administration, maintenance, emergency calls, operator assistance, automated information for use, information on directories, calling cards and intelligent network services;
(x) any other relevant issue; and
(y) the obligations and responsibilities of each party in the event that inadequate or defective equipment is connected to their respective networks.
(3) Public network operators shall make available to interested parties, proposed interconnection agreements or reference interconnection offers
Connectivity
16. (1) An interconnection agreement shall include provision for any-to-any connectivity to allow each end-user of that network to communicate with each other end-user of public telecommunications services, regardless of whether the end-users are connected to the same, or different, networks.
(2) An interconnection agreement shall include provision for the suspension, termination or amendment of the agreement in the event of
(a) conduct that is illegal or interferes with the obligations of the telecommunications provider, under the relevant licence, Act or Regulations;
(b) requirements that are not technically feasible;
(c) health or safety problems;
(d) requirements for space that is unavailable; or
(e) circumstances that pose an unreasonable risk to the integrity or security of the network or services of the telecommunications provider, from which the sharing arrangement is requested.
(3) An interconnection agreement shall include a provision to allow for the suspension of interconnection where it is necessary to deal with a material degradation of the telecommunications network or services.
Non-inclusion
17. An interconnection agreement shall not contain any provision that has the effect of
(a) imposing any unfair or discriminatory penalty or disadvantage upon a person in the exercise of the person's right to be provided with interconnection;
(b) precluding or frustrating the exercise of a person's rights or privileges afforded under the Act or Regulations; and
(c) preventing a licensee from lawfully providing an interconnection service to another telecommunications provider.
Amendment of agreement
18. (1) The parties to an interconnection agreement may amend or modify an agreement that has been approved by the Commission by
(a) giving not less than thirty days written notice prior to the effective date of the amendment or modification; and
(b) submitting a copy of the proposed amendment or modification to the Commission.
(2) Notwithstanding any provision of the agreement, no interconnection provider shall terminate an interconnection agreement for breach of that agreement unless
(a) the interconnection provider has given the interconnecting operator a written notice stating the breach, and providing for a period of not less than three months during which time the breach may be cured; and
(b) the interconnecting operator has failed to remedy the breach within the notice period; and
(c) if the services provided under the Agreement are essential services, the Commission, after due notice, has consented to the termination (except that, in the case of an interconnection agreement that provides both essential and other services, only termination with respect to those essential services shall be so restricted).
Procedures for application
19. (1) The parties shall submit a written application of a proposed interconnection agreement to the Commission at least thirty working days prior to the proposed effective date of the agreement.
(2) The Commission shall approve the proposed inter-connection agreement if it is satisfied that the proposed interconnection agreement is consistent with
(a) any reference interconnection offer in force;
(b) the principles of interconnection set out in regulation 5, where no reference interconnection offer is in force.
(3) The Commission shall consult with ECTEL for its advice and recommendations concerning the application, before determining whether to approve the proposed inter-connection agreement.
(4) The Commission may request additional information from the parties to a proposed interconnection agreement where it considers it necessary to further evaluate the terms, conditions and charges contained in the proposed inter-connection agreement.
(5) If the Commission notifies the parties that it does not consider that the proposed interconnection agreement is consistent with the principles set out in regulation 5, the interconnection provider and the inter-connecting operator shall negotiate and submit a revised proposed interconnection agreement to the Commission, within a reasonable time, having regard to the matters being the subject of the Commission's request.
(6) If the Commission does not request additional information or modifications, or rule on the agreement within thirty days of receiving an application for the approval or renewal of the agreement (or ten days, in the case of an agreement revised in accordance with subregulation (5)), the Commission shall approve the agreement.
Interconnection not permitted
20. A party shall not negotiate or propose to enter into an interconnection agreement where the Commission determines and rules that
(a) the law prohibits the interconnection;
(b) the interconnection would endanger life or safety, or damage the property or impair the quality of the services of the party providing the interconnection;
(c) the licence issued to the party from whom the interconnection is requested, exempts it from the obligation to interconnect;
(d) the licence issued to the party requesting interconnection does not authorise the telecommunications services for which interconnection is requested;
(e) the requested interconnection is not technically feasible; or
(f) the proposed interconnection is contrary to the law or the public interest.
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Dispute resolution
27. (1) If an interconnection provider and an interconnecting operator are unable, after having negotiated in good faith for a reasonable period, to agree the terms and conditions of an interconnection agreement, either party may request the assistance of the Commission in resolving the dispute.
(2) The Commission, in responding to a request for assistance, may choose to take one or more of the following actions:
(a) act as arbitrator of that dispute; or
(b) appoint a mediator to that dispute; or
(c) direct the parties to commence or continue interconnection negotiations.
(3) If the Commission appoints a mediator, it may direct that payment of the mediator's reasonable costs and expenses are paid for by the relevant parties to the dispute.
(4) If the parties cannot agree on a date when negotiations should commence, the Commission shall be empowered to compel both parties to commence negotiations by a prescribed date.
(5) The Commission may, if requested by either party, set a time limit within which negotiations on interconnection are to be completed, and the direction shall set out the steps to be taken if an agreement is not reached within the time limit.
Role of parties to dispute
28. (1) The complaining party shall submit to the Commission a clear and reasoned statement of the issues in dispute, as well as any issues where there is agreement.
(2) The opposing party shall respond to the complaint within thirty days and shall state the reasons for its position including any statutory or regulatory justification for that position.
Fairness in dispute resolution
29. (1) When a complaint has been referred to the Commission it shall take steps to resolve the dispute
(a) as promptly as practicable, having regard to the matters in dispute;
(b) preserving any agreements between the parties over issues that are not in dispute; and
(c) consistent with sub-regulation (2)
(2) When acting as an arbitrator, the Commission or ECTEL shall attempt to achieve a fair balance between the legitimate interests of the parties to the dispute, and have regard to the following factors (which does not limit the factors that may be considered):
(a) whether the proposed ruling promotes the long-term interests of consumers of telecommunications services in Saint Vincent and the Grenadines
(b) the interests of persons who have rights to use the telecommunications networks concerned;
(c) the economically efficient operation of a telecommunications network or the provision of a telecommunications service.
Disconnection of networks
30. (1) A dispute between parties of an interconnection agreement shall not cause the partial or total disconnection of the relevant network except in accordance with regulation 16.
(2) Notwithstanding sub-regulation (1), the Commission may decide that partial or total disconnection is necessary and so advise the parties.
(3) Whenever the Commission takes action in accordance with sub-regulation (2), it shall recommend and instruct that preliminary measures are applied to minimise any negative effects on the users of one or both networks.
Guidelines for resolving dispute
31. In exercising its duties under regulation 29, the Commission shall take into account
(a) the availability of technically and commercially viable alternatives to the interconnection requested;
(b) the desirability of providing users with a wide range of telecommunications services;
(c) the interests of the users;
(d) the nature of the request in relation to the resources available to meet the request;
(e) the need to maintain a universal service;
(f) the need to maintain the integrity of the public telecommunications network and the interoperability of services;
(g) promotion of competition;
(h) the public interest;
(i) regulatory obligations or constraints imposed on any of the parties; and
(j) any other relevant and appropriate consideration.
THE LICENCES
THE FACTS
ANNEX C – GRENADA
THE ECTEL TREATY | 1 |
THE TELECOMMUNICATIONS ACT 2000 | 3 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003 | 16 |
THE LICENCES | 21 |
THE FACTS | 28 |
THE ECTEL TREATY
THE TELECOMMUNICATIONS ACT 2000
(1) The principal object of this Act is to give effect to the purposes of the Treaty and to regulate the telecommunications sector in Grenada.
(2) Without limiting the generality of subsection (1) the objects of
this Act are to ensure------
(a) open entry, market liberalisation, and competition in telecommunications;
(b) that policies and practices in relation to the management of telecommunications are in harmony with those of ECTEL.
(c) the operation of a universal service regime so as to ensure the widest possible access to telecommunications at an affordable rate by the people of Grenada in order to enable them to share in the freedom to communicate over an efficient and modern telecommunications network;
(d) fair pricing and the use of cost-based pricing methods by telecommunications providers in Grenada;
(e) fair competition practices by telecommunications providers;
(f) the introduction of advanced telecommunications technologies and an increased range of services;
(g) that the public interest and national security are preserved;
(h) the application of appropriate standards in the operation of telecommunications;
(i) the overall development of telecommunications in the interest of the sustainable development of Grenada.
"interconnection" means the connection of two or more separate telecommunication systems, networks, links, nodes, equipment, circuits and devices involving a physical link or interface;
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"telecommunications" means any form of transmission, emission, or reception of signs, text, images and sounds or other intelligence of any nature by wire, radio, optical or other electromagnetic means;
"telecommunications facilities" means any facility, apparatus or other thing that is used or capable of being used for telecommunications or for any operation directly connected with telecommunications, and includes a transmission facility;
"telecommunications network" means any wire, radio, optical, or other electromagnetic system used to route, switch, or transmit telecommunications;
"telecommunications provider" means a person who is licensed under this Act to operate a telecommunications network or to provide telecommunications services;
"telecommunications services" means services provided by means of telecommunications facilities and includes the provision in whole or in part of telecommunications facilities and any related equipment, whether by sale, lease or otherwise, or such other services as may be prescribed by the Minister from time to time;
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(2) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Treaty (whether or not a particular meaning is assigned to it by the Treaty) has in this Act the same meaning as in the Treaty.
(1) The Minister may grant----
(a) an individual licence;
(b) a class licence;
(c) a frequency authorization in respect of a licence; or
(d) a special licence
(2) Where the Minister fails to grant to an applicant a licence or frequency authorisation he shall give that applicant his reasons for that decision in writing
(3) The Minister, on receipt of a recommendation from ECTEL shall by notice published in the Gazette, specify the telecommunications networks and services that are subject to an individual licence, a class licence or a frequency authorisation.
(4) In the exercise of his powers the Minister shall consult with the Commission.
Establishment of Commission
7-----...1) There is established a Commission under the general direction and control of a Minister to be known as the National Telecommunications Regulatory Commission.
(2) The Commission shall consist of not less than three and not more than five Commissioners, all of whom shall be appointed by the Minister on such terms and conditions as he may specify in their instruments of appointment.
(3) The Minister shall appoint one of the Commissioners to be the Chairperson.
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Functions of Commission
11----- (1) The functions of the Commission are to--
(a) advise the Minister on the formulation of national policy on telecommunications matters with a view to ensuring the efficient, economic and harmonised development of the telecommunication and broadcasting services and radio communications of Grenada;
(b) ensure compliance with the Government of Grenada's international obligations on telecommunications;
(c ) be responsible for technical regulation and the setting of technical standards of telecommunications and ensure compatibility with international standards;
(d) plan, supervise, regulate and manage the use of the radio frequency spectrum in conjunction with ECTEL, including the assignment and registration of radio frequencies to be used by all stations operating in Grenada or on any ship, aircraft, vessel, or other floating or airborne contrivance or spacecraft registered in Grenada
(e) regulate prices for telecommunications services;
(f) advise the Minister in all matters related to tariffs for telecommunications service;
(g) collect all fees prescribed and any other tariffs levied under this Act or regulations;
(h) receive and review applications for class licences and advise the Minister accordingly;
(i) monitor and ensure that licensees comply with the conditions attached to their
licences;
(j) review proposed interconnection agreements by telecommunications providers and
recommend to the Minister whether or not he should approve such agreements;
(k) investigate and resolve any dispute relating to interconnections or sharing of infrastructure between telecommunications providers;
(l) investigate and resolve complaints related to harmful interference;
(m) monitor anti-competitive practices in the telecommunications sector and advise the national body responsible for the regulation of anti-competitive practices accordingly;
(n) maintain a register of licensees and frequency authorisation holders;
(o) provide the Minister with such information as he may require from time to time;
(p) undertake in conjunction with other institutions and entities where practicable, training, man power planning, seminars and conferences in areas of national and regional importance in telecommunications;
(q) report to and advise the Minister on the legal, technical, financial, economic aspects of telecommunications, and the social impact of telecommunications;
(r) manage the universal service fund;
(s) perform such other functions as are prescribed.
(2) In the performance of its functions the Commission shall consult and liaise with ECTEL.
Powers of Commission
12.-(1) The Commission shall have the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2) Without limiting the generality of subsection (1), the Commission has the power to----
(a) acquire information relevant to the performance of its functions including whether or not a person is in breach of a licence, frequency authorisation or this Act;
(b) require payment of fees;
(c) initiate legal proceedings against a licensee or authorised frequency holder for the purposes of compliance;
(d) hold public hearing pertaining to its functions;
(e) do anything incidental to its power;
(f) sit as a tribunal
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Commission to provide guidelines
14.----(1) The Commission may, on the recommendation of ECTEL, provide guidelines as to the cost and pricing standards on which the reasonableness of the rates, terms and conditions of interconnections will be determined, and on other matters as may be prescribed.
(2) Guidelines determined by the Commission under subsection (1) shall be available to the public at the office of the Commission during business hours or made available to a person on payment of the prescribed fee.
(3) The Commission may give written directions to a licensee or frequency authorization holder in connection with the performance of its functions or to implement the guidelines of the Commission.
Commission to investigate complaints
15.---- (1) The Commission shall investigate a complaint by a person who is aggrieved by the actions or conduct of a telecommunications provider in respect of a decision against that person.
(2) The Commission shall investigate a complaint only where that person has first sought redress for the complaint from the telecommunications provider and that complaint has not been amicably resolved.
Dispute between licensees
16------(1) The Commission, when presented with a dispute requiring an interpretation of licences, frequency authorizations or regulations, shall refer the matter to ECTEL with a request that ECTEL provide the Commission with an opinion, or with the consent of the licensees refer the matter to ECTEL for mediation or arbitration and in keeping with the provisions of the Treaty.
(2) The Commission shall take account of the opinion and recommendation of ECTEL in resolving the relevant dispute.
Dispute resolution
17.----- (1) The Commission shall, wherever practicable, apply conciliation, mediation, and alternative dispute resolution techniques in resolving disputes.
(2) For the following purposes the Commission is hereby established as a telecommunications tribunal-
(a) to hear and determine disputes between licensees of telecommunications services;
(b) to hear and adjudicate disputes between licensees and the public involving alleged breaches of the Act or regulations; or licences or frequency authority
(c) to hear and determine complaints by subscribers relating to rates payable for telecommunications services;
(d) to hear and determine claims by a licensee for a change in rates payable for any of its services;
(e) to hear and determine objections to agreements between licensees;
(f) of its own motion or at the instance of the Minister, to review and determine the rate payable for any telecommunications service;
(g) to hear and determine complaints between licensees and members of the public.
(3) The tribunal under subsection (2) shall comprise the chairperson and two other Commissioners nominated for the purpose by the Chairperson.
(4) Where a Commissioner withdraws from any proceedings on a matter before the Commission on account of interest, illness or otherwise, the Commission shall not be disqualified for the transaction of business by reason of such vacancy among its members, save that in the case of an equality of votes the Chairperson shall have a casting
vote.
Hearing of matters by Commission
18.----- (1) The Commission shall expeditiously hear and inquire into and investigate any matter which is before it, and in particular shall hear, receive and consider statements, arguments and evidence made, presented or tendered
(a) by or on behalf of any complainant;
(b) by or on behalf of the telecommunications licensee or
provider;
(c) on behalf of the Minister
(2) The Commission shall determine the periods that are reasonably necessary for the fair and adequate presentation of the matter by the respective parties thereto and the Commission may require those matters to be presented within the respective periods so determined.
(3) The Commission may require evidence or arguments to be presented in writing and may decide the matters upon which it will hear oral evidence or arguments.
(4) All matters brought before the Commission shall be determined by a majority of the members thereof.
(5) Any party to a matter brought before the Commission shall be entitled as of right to appeal to the Court of Appeal from any judgement, order or award of the Commission.
Appearance
19. Every party to a matter shall be entitled to appear at the hearing thereon, and may be represented by an attorney or any other person who in the opinion of the tribunal is competent to assist such person in the presentation of the matter.
Powers of Commission when sitting as a tribunal
20--- (1) The Commission shall have powers to----
(a) issue summons to compel the attendance of witnesses;
(b) examine witnesses on oath, affirmation or otherwise; and
(c) compel the production of documents.
(2) Summones issued by the Commission shall be under the hand of the Chairperson.
(3) Sections 63,64,65 and 66 shall apply in respect of the Commission when sitting as a tribunal.
Awards
21.. In addition to the powers conferred on the Commission under section 12, the Commission may, in relation to any matter brought before it----
(a) make provisional or interim orders or awards relating to the matters or part thereof, or give directions in pursuance of the hearing or determination.
(b) dismiss any matter or part of a matter or refrain from further hearing or from determining the matter or part thereof if it appears that the matter or part thereof is trivial or vexatious or that further proceedings are notnecessary or desirable in the public interest;
(c) order any party to pay costs and expenses, including expenses of witnesses, as are specified in the order; and
(d) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.
Review by Commission
22. The commission may review, vary or rescind its decisions or order made by it; and where a hearing is required before that decision or order is made, the decision or order shall not be suspended or revoked without a further hearing.
Directions by The Minister
23. The Minister may give directions to the Commission of a policy nature, and the Commission shall comply with those directions.
Prohibition of engaging in telecommunications without a licence
28.---- (1) A person shall not establish or operate a telecommunications network or provide a
telecommunications service without a licence.
(2) Where a frequency authorisation is necessary for or in relation to the operation of a telecommunications network or a telecommunications service, a person shall not operate that network or service without that authorisation.
(3) A person who wishes to land or operate submarine cables within the territory of Grenada for the purpose of connecting to a telecommunications network shall first obtain a licence, in addition to any other approvals, licences or permits required under the laws of Grenada.
(4) A person who contravenes subsection (1) or (2) or (3) commits an offence and shall be liable on indictment to a fine of not exceeding one million dollars or to imprisonment for a period not exceeding ten years.
Procedure for grant of an individual licence
29.--- (1) An applicant for an individual licence shall submit his application in the prescribed form to the Commission.
(2) The Commission shall immediately transmit the application to ECTEL, for its review and recommendation.
(3) On receipt of the recommendation from ECTEL, the Commission shall transmit the application together with ECTEL's recommendation to the Minister for consideration of the grant of an individual licence.
(4) Where in the absence of an invitation to tender in respect of telecommunications network or service there is only one applicant the Commission shall submit the applicant to ECTEL for its review and recommendations;
Content of individual licence Second Schedule
30.--- (1) The Minister may, in "granting the individual licence, include all or any of the terms and conditions specified in Part 1 of the Second Schedule.
(2) An individual licence shall include the terms and conditions specified in Part 2 of the Second Schedule.
Grant of individual licence
31.----- (1) The Minister shall, before granting an individual license,
take into account-----
(a) the purpose of the Treaty;
(b) the recommendation of ECTEL;
(c) whether the objective of universal service will be promoted including the provision of public telephony services sufficient to meet reasonable demand at affordable prices;
(d) whether the interests of subscribers, purchasers and other users of telecommunications services will be protected;
(e) whether competition among telecommunications providers of telecommunications services will be promoted;
(f) whether research, development and introduction of new telecommunications services will be promoted;
(g) whether foreign and domestic investors will be encouraged to invest in telecommunications;
(h) appropriate technical and financial requirements;
(i) whether the public interest and national security interests will be safeguard;
(j) Such other matters as are prescribed
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Suspension and revocation of licences and authorisation
39.----(1) The minister may suspend or revoke a licence, or vary a term and condition of that licence if it is not a statutory. term or condition by a notice in writing served on the licensee.
(2) The Minister may suspend, revoke or refuse to renew a licence where
(a) the radio apparatus or station in respect of which the licence was granted interferes with a telecommunication service provided by a person to whom a licence is already granted for that purpose;
(b) the licensee contravenes this Act;
(c) the licensee fails to observe a term or condition specified in his licence;
(d) the licensee is in default of payment of the licence or renewal fee or any other money owed to the Government;
(e) ECTEL recommends the suspension or revocation;
(f) The suspension or revocation is necessary for reasons of national security or the public interest.
(3) Before suspending or revoking a licence under subsection (2), the Minister shall give the licensee two months notice in writing of his intention to do so, specifying the grounds on which it proposes to suspend or revoke the licence, and shall give the licensee an opportunity-
(a) to present his views;
(b) to remedy the breach of the licence or term and condition; or
(c) to submit to the Minister within such time as the Minister may specify, a written statement of objections to the suspension or revocation of the licence,
which the Minister shall take into account before reaching a decision.
(4) This section also applies with any necessary modification to a frequency authorization holder.
Provision of universal service
42. ---(1)The Minister may include as a condition in the licence of a telecommunications provider a requirement to provide universal service, except that such requirement shall be carried out in a transparent, non-discriminatory and competitively neutral manner.
(2) A telecommunications provider who is required by its licence to provide universal service to any person shall do so at such price and with the quality of service specified in the licence.
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Interconnection and infrastructure sharing
45.----- (1) Subject to subsection (5), a telecommunications provider who operates a public telecommunications network shall not refuse, obstruct, or in any way impede another telecommunications provider from making an interconnection with his telecommunications network.
(2) A telecommunications provider who wishes to interconnect with the telecommunications network of another telecommunications provider shall so request that provider in writing.
(3) A telecommunications provider to whom a request for interconnection is made, shall, in writing, respond to the request within a period of four weeks from the date it is made to him.
(4) A telecommunications provider in acceding within four weeks to the request for interconnection shall nominate the time as agreed to by both parties in which the interconnection shall be effected.
(5) A telecommunications provider to whom a request for interconnection is made may in his response refuse that request in writing on reasonable technical grounds only.
(6) A telecommunications provider on receipt of a refusal for interconnection may refer that refusal to the Commission for review and possible dispute resolution.
(7) A telecommunications provider providing an interconnection service in accordance with this section shall impose reasonable cost based rates, and such other reasonable terms and conditions as the Commission may determine.
(8) Any interconnection service provided by a telecommunications provider pursuant to the provision of subsection (7) above shall be on terms which are not less favourable than:
(a) those of the provider of the interconnection service;
(b) the services of non-affiliated suppliers; or
(c) the services of the subsidiaries or affiliates of the provider of the interconnection service.
(9) No telecommunications provider shall; in respect to any rates charged by him for interconnection services provided by him to another telecommunications provider, vary the rates on the basis of the type of customers to be served, or on the type of services that the telecommunications provider requesting the interconnection services intends to provide.
Interconnection agreements
46.----- (1) No person shall enter into any interconnection agreement, implement or provide interconnection service without first submitting the proposed agreement to the Commission for its approval, which approval shall be in writing.
(2) Interconnection agreements between telecommunications providers shall be in writing, and copies of the agreements shall be kept in a public registry maintained by the Commission for that purpose and open to public inspection during normal working hours.
(3) The Commission shall prepare, publish, and make available copies of the procedures to be followed by the telecommunications providers when negotiating interconnection agreements.
Cost of interconnection
47.----- (1) The cost of establishing any interconnection to the telecommunications network of another telecommunications provider shall be borne by the telecommunications provider requesting the interconnection.
(2) The cost referred to in subsection (1) shall be based on cost-oriented rates that are reasonable and arrived at in a transparent manner having regard to economic feasibility, and sufficiently unbundled such that the supplier of the interconnection service does not have to pay for network components that are not required for the interconnection service to be provided.
Infrastructure sharing
48. Sections 45, 46 and 47 shall apply to infrastructure sharing, mutates mutandis (sic)
Access to towers, sites and underground facilities
49.----- (1) Where access to telecommunications towers, sites and facilities is technically feasible, a telecommunications provider (the first provider) must, upon request, give another telecommunications provider (the second provider) access to a telecommunications tower owned or operated by the first provider, or to a site owned, occupied or controlled by the first provider, or to an eligible underground facility owned or operated by the first carrier, for the sole purpose of enabling the second provider to install a facility for use in connection with the supply of a telecommunications service.
(2) A telecommunications provider, in planning the provision of future telecommunications services, must co-operate with other telecommunications providers to share sites and eligible underground facilities.
(3) Access to sites, towers or eligible underground facilities pursuant to this section shall, mutatis mutandis,be on such terms as set out in sections 45 to 47 above, and otherwise on such terms and conditions as are agreed between providers or, failing agreement as determined by the Commission.
Appointment of Inspectors
53.----- (1) The Commission may by instrument in writing appoint inspectors for the purpose of this Act.
(2) The Commission shall furnish each inspector with an identity card containing a photograph of the holder which he shall produce on request in the performance of his functions.
(3) An inspector may investigate any complaint or conduct concerning an allegation of a breach of the Act, licence or frequency authorisation.
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57. The Court may, on application of the Commission or an
interested party,
(a) make an order for forfeiture of any equipment used for the commission of the offence; and
(b) grant an order restraining a person from engaging in activities contrary to this Act.
Liability of public private official
71. Where a breach of this Act or licence has been committed by a person (other than an individual) any individual who at the time of the breach was director, manager, supervisor, partner or other similarly responsible individual, including a public official, may be found individually liable for that breach if, having regard to the nature of his functions and his reasonable ability to prevent that breach, the breach was committed with his consent or connivance or he failed to exercise reasonable diligence to prevent the breach.
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Regulations
73.---- (1) The Minister may make regulations to give effect to this Act.
(2) Without limiting the generality of subsection (1), the Minister may make regulations providing, in particular, for or in relation to---
(a) forms and procedures in respect of the grant of a licence or a frequency authorization;
(b) matters relating to the provision of universal service and the management of the Universal Service Fund;
(c) the type of terminal equipment to be connected to a public telecommunications network;
(d) interconnection between telecommunications providers, and the sharing of infrastructure by telecommunications providers;
(e) interconnection agreements;
(f) matters relating to the allocation of numbers among the telecommunications providers;
(g) stoppage or interception of the telecommunications;
(h) management of the spectrum;
(i) adopting industry codes of practice, with or without amendments;
(j) the procedure and standards relating to the submission. review and approval by the Commission of telecommunications tariffs;
(k) the control, measurement and suppression of electrical interference in relation to the working of telecommunications apparatus;
(l) matters of confidentiality including on the part of all persons employed in or in anyway connected with the maintenance and working of any telecommunications network, or telecommunications apparatus;
(m) public inspection of records of the Commission;
(n) procedures for the treatment of complaints;
(o) procedures for dispute resolution;
(p) matters for which guidelines are to be issued by the Commission;
(q) matters relating to the quality of telecommunications services;
(r) technical regulation and setting of technical standards;
(s) fees, including the amount and circumstances in which they are payable;
(t) conduct of public hearings;
(u) private networks and VASTS;
(v) cost studies and pricing models;
(w) submarine cables and landing rights;
(x) registration and management of domain names;
(3) Where ECTEL recommends regulations for adoption for the purpose of the Agreement the Minister shall take all reasonable steps to ensure their promulgation.
Licences and frequency authorisations granted under this Act may contain any or all of the following conditions:
(a) the networks and services which the licensee or authorisation holder is and is not entitled to operate and provide, and the networks to which the network of the licensee or authorisation holder can be connected;
(b) the duration of the licence or authorization
(c) the build-out of the network and geographical and subscriber targets for the provision of the relevant services;
(d) the use of radio spectrum;
(e) the provision of services to rural or sparsely populated areas or other specified areas in which it would otherwise be uneconomical to provide services;
(f) the provision of services to the blind, deaf, physically and mentally handicapped and other disadvantaged persons;
(g) the interconnection of the licensee's network with those of other operators;
(h) the sharing of telecommunications infrastructure;
(i) prohibitions of anti-competitive conduct;
(j) the allocation and use by the licensee of numbers; and
(k) provision of universal service.
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003
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"interconnecting operator" means a public network operator who requests interconnection from another public network operator under section 45 of the Act;
"interconnection capacity" means the ability to provide interconnection;
"interconnection provider" means a public network operator who receives a request to provide interconnection under section 45 of the Act;
"dominant interconnection provider" means an interconnection provider designated by the Commission as a dominant interconnection provider under regulation 9;
"point of interconnection" means the point or points of interconnection where the exchange of telecommunications between the telecommunications network of an interconnection provider and the telecommunications network of an interconnecting operator takes place;
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"reference interconnection offer" (RIO) means a document that sets out the terms on which the telecommunications provider proposes to offer interconnection services, that includes a description of the interconnection and other services offered to interconnecting operators and that specifies the charges and other terms and conditions on which those services are offered (and "reference interconnection offer provider" shall have a corresponding meaning).
4. Notice of request.
(1) An interconnecting operator shall notify the Commission of any request for interconnection by forwarding to the Commission 2 copies of the written request, one of which shall be addressed to ECTEL.
(2) A request for interconnection shall contain at least the following information_
(a) a copy of the licence of the interconnecting operator; or a certificate from the Commission declaring that the interconnecting operator is duly licenced and indicating the type of licence(s) held.
(b) the services with respect to which interconnection is sought; and
(c) any other information reasonably required in order for the telecommunications provider to respond to that request.
5. Equal responsibility.
An interconnection provider and an interconnecting operator shall act in a manner that enables interconnection to be established as soon as is reasonably practicable.
6. Non-discrimination and transparency.
(1) In providing interconnection, an interconnection provider shall act in accordance with the following principles_
(a) interconnection shall be provided on non-discriminatory terms and conditions including charges and quality of service;
(b) interconnection shall be provided to interconnecting operators on no less favourable terms and of no less favourable quality than those on which the interconnection provider provides similar services for itself; and
(c) an interconnection provider shall provide on request information reasonably necessary to interconnecting operators considering interconnection, in order to facilitate the conclusion of any agreements.
(2) The information provided shall include planned charges for implementation within the next 6 months following a request, unless otherwise agreed by the Commission.
7. Confidentiality.
(1) A person shall not knowingly communicate, or allow access to, information received from a telecommunications provider in respect of interconnection, except to the extent authorized by the telecommunications provider in writing, or by the Act.
(2) An interconnection provider does not need, in connection with any legal proceedings, to produce any statement or other record containing information referred to in paragraph (1), or to give evidence relating to it, unless the proceedings relate to the enforcement of the Act.
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9. Dominant interconnection provider.
(1) The Commission, acting on the recommendation of ECTEL, shall by notice in the Gazette designate a dominant telecommunications provider in respect of a particular telecommunications market or markets in Grenada.
(2) In the interim period between the promulgation of these regulations and declaration of dominance by the Commission, the incumbent telecommunications provider in Grenada shall be deemed to be dominant.
(3) A telecommunications provider can only be designated under paragraph (1) if_
(a) the Commission or ECTEL has determined, after a public consultation process, that the telecommunications provider possesses significant market power with respect to the market or markets for telecommunications services in Grenada; or
(b) it is in the long-term interests of consumers of telecommunications services in Grenada that the provider be so designated.
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11. Burden of proof.
The burden of proving that interconnection rates are reasonably cost-oriented rates shall lie with the interconnection provider.
12. Rate structure.
(1) The interconnection rates shall be imposed in a transparent manner and must identify clearly the charges for interconnection services;
(2) Charges for interconnection services shall be cost-oriented and appropriately apportioned.
13. Reference interconnection offer.
(1) Each dominant interconnection provider shall publish a reference interconnection offer.
(2) The reference interconnection offer provider shall set different tariffs, terms and conditions for different interconnection services, if such differences can be objectively justified and do not result in the unfair distortion of competition.
(3) The reference interconnection offer provider shall apply the appropriate interconnection tariffs, terms and conditions when providing interconnection for its own services or those of its affiliates, subsidiaries or partners.
(4) The charges of the reference interconnection offer shall be sufficiently unbundled to ensure that the interconnecting operator requesting interconnection is not required to pay
for services not related to the service requested.
(5) Interconnection rates set out in the reference interconnection offer shall be cost-oriented.
(6) The Commission shall have the authority to ensure that a reference interconnection offer is cost oriented and compliant with the laws and regulations.
14. Points of interconnection.
(1) An interconnection provider shall offer interconnection services at any technically feasible point of its telecommunications network, upon request by an interconnecting operator.
(2) The interconnecting operator shall pay for the investment, operations and maintenance expenses of the facilities necessary to reach the point or points of interconnection within the network of the interconnection provider, and these facilities shall become part of the network of the interconnecting operator who shall be entitled to receive compensation for any use of his facility or network by the interconnection provider.
(3) Where the network of an interconnection provider needs to be upgraded to facilitate interconnection, whether wholly or partly, the interconnecting operator shall be entitled to undertake the upgrading or improvement of the interconnection provider's network and to receive compensation for the works through credits or discounts or through any other form agreed upon, providing that the interconnection provider is unable or unwilling to undertake the upgrading of his network in a cost efficient and timely manner.
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16. Form and contents of agreement.
(1) All interconnection agreements and reference interconnection offers shall be in writing and the following matters shall be specified in those agreements unless a particular matter is irrelevant to the specific form of the interconnection requested_
(i) access to ancillary, supplementary and advanced services;
(ii) adequate capacity and service levels including the remedies for any failure to meet those service levels;
(iii) a provision that deals with regulatory change, including determinations by the
Commission;
(iv) duration and renegotiation of interconnection agreements;
(v) forecasting, ordering, provisioning and testing procedures;
(vi) dispute resolution procedures;
(vii) geographical and technical characteristics and locations of the points of interconnection;
(viii) information handling and confidentiality provisions;
(ix) intellectual property rights;
(x) measures anticipated for avoiding interference or damage to the networks of the parties involved or third parties;
(xi) national and international appropriate indexes for service quality;
(xii) procedures in the event of alterations being proposed to the network or service offerings of one of the parties;
(xiii) provisions for the formation of appropriate working groups to discuss matters relating to interconnection and to resolve any disputes;
(xiv) if appropriate, provision of infrastructure sharing and identification of collocation and their terms;
(xv) provision of network information;
(xvi) technical specifications and standards;
(xvii) terms of payment, including billing and settlement procedures;
(xviii) the maintenance of end-to-end quality of service;
(xix) the procedures to detect and repair faults, as well as an estimate of acceptable average indexes for detection and repair times;
(xx) the scope and description of the interconnection services to be provided;
(xxi) the technical characteristics of all the main and auxiliary signals to be transmitted by the system and the technical conditions of the interfaces;
(xxii) transmission of Calling Line Identity, where available to be transmitted;
(xxiii) ways and procedures for the supply of other services that the parties agree to supply to each other, such as operation, administration, maintenance, emergency calls, operator assistance, automated information for use, information on directories, calling cards and intelligent network services;
(xxiv) any other relevant issue; and
(xxv) the obligations and responsibilities of each party in the event that inadequate or defective equipment is connected to their respective networks.
(3) Public network operators shall make available to interested parties any proposed interconnection agreements or reference interconnection offers.
17. Connectivity.
(1) An interconnection agreement shall include provision for any-to-any connectivity to allow each end-user of a network to communicate with each other end-user of public telecommunications services, regardless of whether the end-users are connected to the same, or different, networks.
(2) An interconnection agreement shall include provision for the suspension, termination or amendment of the agreement in the event of_
(a) conduct that is illegal or interferes with the obligations of the telecommunications provider under the relevant license, Act or Regulations;
(b) requirements that are not technically feasible;
(c) health or safety problems;
(d) requirements for space that is unavailable; or
(e) circumstances that pose an unreasonable risk to the integrity or security of the network or services of the telecommunications provider from which the sharing arrangement is requested.
(3) An interconnection agreement shall include a provision to allow for the suspension of interconnection if it is necessary to deal with a material degradation of the telecommunications network or services. Any such suspension must be sanctioned by the Commission.
18. Non-inclusion.
An interconnection agreement shall not contain any provision which has the effect of_
(a) imposing any unfair or discriminatory penalty or disadvantage upon a person in the exercise of the person's right to be provided with interconnection;
(b) precluding or frustrating the exercise of a person's rights or privileges afforded under the Act or Regulations; or
(c) preventing a licensee from lawfully providing an interconnection service to another telecommunications provider.
19. Amendment of agreement.
(l) The parties to an interconnection agreement may amend or modify an agreement which has been approved by the Commission by_
(a) submitting a copy of the proposed amendment or modification to the Commission for its approval;
(b) Any such amendment shall be submitted to the Commission at least 30 days prior to the requested date of implementation.
(2) Notwithstanding any provision of the agreement, no interconnection provider shall terminate an interconnection agreement for breach of that agreement unless_
(a) the interconnection provider has given the interconnecting operator a written notice stating the breach, and providing for a period of not less than 3 months during which the breach can be cured;
(b) the interconnecting operator has failed to remedy the breach within the notice period; and
(c) if the services provided under the Agreement are essential services, the Commission, after due notice, has consented to the termination (provided that, in the case of an interconnection agreement that provides both essential and other services, only termination with respect to those essential services may be so restricted).
20. Procedures for application.
(1) The parties shall submit a written application of a proposed interconnection agreement to the Commission not less than 30 working days prior to the proposed effective date of the agreement.
(2) The Commission shall approve the proposed inter-connection agreement if it is satisfied that the proposed interconnection agreement is consistent with_
(a) any reference interconnection offer in force that is cost oriented and compliant with the Laws and Regulations
(b) where no such reference interconnection offer is in force, the principles of interconnections set out in Regulation 6 of these Regulations
(3) The Commission shall consult ECTEL for its advice and recommendations concerning the application, before determining whether to approve the proposed interconnection agreement.
(4) The Commission may request additional information from the parties to a proposed interconnection agreement if it considers it necessary to further evaluate the terms, conditions and charges contained in the proposed interconnection agreement.
(5) If the Commission notifies the parties that it does not consider that the proposed interconnection agreement is consistent with the principles set out in Regulation 6 of these Regulations, the interconnection provider and the interconnecting operator shall negotiate and submit a revised proposed interconnection agreement to the Commission, within a reasonable time, having regard to the matters which are the subject of the Commission's request.
(6) If the Commission does not request additional information or modifications, or rule on the agreement within 30 days of receiving an application for the approval or renewal of the agreement (or 10 days, in the case of an agreement revised in accordance with paragraph (5)), the parties may refer the matter to the Minister for his consideration.
21. Interconnection not permitted.
A party shall not negotiate or propose to enter into an interconnection agreement if the Commission rules that_
(a) the law prohibits the interconnection;
(b) the interconnection would endanger life or safety, or damage the property or impair the quality of the services of the party providing the interconnection;
(c) the licence issued to the party from whom the interconnection is requested exempts it from the obligation to interconnect;
(d) the licence issued to the party requesting interconnection does not authorize the telecommunications services for which interconnection is requested;
(e) the requested interconnection is not technically feasible; or
(f) the proposed interconnection is contrary to the law or the public interest.
…
28. Dispute resolution.
(1) If an interconnection provider and an interconnecting operator are unable, after having negotiated in good faith for a reasonable period as determined by the Commission, to agree the terms and conditions of an interconnection agreement, either party may request the assistance of the Commission in resolving the dispute.
(2) The Commission, in responding, to a request for assistance, may take one or more of the following actions_
(a) act as arbitrator of that dispute;
(b) appoint a mediator to that dispute;
(c) direct the parties to commence or continue interconnection negotiations.
(3) If the Commission acts as an arbitrator or appoints a mediator, it may direct that payment of reasonable costs and expenses be made by the relevant parties to the dispute.
(4) Where the parties cannot agree on a date upon which to commence negotiations, the Commission shall be empowered to compel both parties to commence negotiations by a specified date.
(5) The Commission may, if requested by either party, set a time limit within which negotiations on interconnection are to be completed. Any such direction shall set out the steps to be taken if agreement is not reached within the time limit. The steps may include the imposition of an interim interconnection agreement by the Commission.
(6) A person who delays or refuses to implement:
(a) the steps (including any interim agreement) set down by the Commission under Regulation 28(5); or
(b) an approved interconnection agreement;
commits an offence and is liable on summary conviction to a fine of two hundred and fifty thousand dollars ($250,000.00) per day for every day the breach remains in effect.
29. Role of parties in dispute.
(1) The complaining party shall submit to the Commission a clear and reasoned statement of the issues in dispute, as well as any issues on which there is agreement.
(2) The opposing party shall respond to the complaint within 30 days if the dispute is in respect of an agreement in force or within 10 days in respect of an agreement being negotiated, and shall state the reason for its position including any statutory or regulatory justification for that position.
30. Fairness in dispute resolution. (1) When a complaint has been referred to the Commission it shall take steps to resolve the dispute_
(a) as promptly as practicable, having regard to the matters in dispute;
(b) preserving any agreements between the parties over issues that are not in dispute; and
(c) consistent with paragraph (2) below.
(2) When acting as an arbitrator, the Commission shall attempt to achieve a fair balance between the legitimate interests of the parties to the dispute, and have regard to the following factors (which do not limit the factors that may be considered)_
(a) whether the proposed ruling promotes the long-term interests of consumers of telecommunications services in Grenada;
(b) the interests of persons who have rights to use the telecommunications networks concerned;
(c) the economically efficient operation of a telecommunications network or provision of a telecommunications service.
31. Disconnection of networks. (1) Any dispute between parties to an interconnection agreement shall not cause the partial or total disconnection of the relevant network except in accordance with regulation 17.
(2) Notwithstanding paragraph (1), the Commission shall decide that partial or total disconnection is necessary and so advise the parties.
(3) Whenever the Commission takes action in accordance with paragraph (2), it shall recommend and instruct that preliminary measures are applied to minimize any negative effects on the users of one or both networks.
32. Guidelines for resolving dispute.
In performing its duties under regulation 30, the Commission shall take into account the_
(a) availability of technically and commercially viable alternatives to the interconnection requested;
(b) desirability of providing users with a wide range of telecommunications services;
(c) interests of the users;
(d) nature of the request in relation to the resources available to meet the request;
(e) need to maintain a universal service;
(f) need to maintain the integrity of the public telecommunications network and the interoperability of services;
(g) need for promotion of competition;
(h) public interest;
(i) regulatory obligations or constraints imposed on any of the parties; and
(j) any other relevant and appropriate consideration.
…
THE LICENCES
THE FACTS
"The Parties recognise that rates for Incoming International Calls to a Mobile may need to be adjusted from time to time pursuant to negotiations between the Parties, including to take into account international settlement rates, but for the avoidance of doubt, will only be adjusted in a manner that ensures that the rates for Incoming International Calls to a Mobile remain reciprocal."
"In recognition of the fact that C&W and C&W Grenada and Digicel STL, Digicel SVG and Digicel Grenada are associated companies and that the parties agreed to link the negotiation of the modification of the STL agreement and SVG agreement with the good faith negotiations of the Grenada agreement;"
ANNEX D – BARBADOS
THE TELECOMMUNICATIONS ACT 2001 | 1 |
THE FAIR COMPETITION ACT 2002 | 13 |
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003 | 17 |
THE LICENCES | 19 |
THE FACTS | 28 |
THE TELECOMMUNICATIONS ACT 2001
"carrier" means a person who has been granted a licence by the Minister pursuant to this Act to own and operate a public telecommunications network;
…
"interconnection" means the linking of public telecommunications networks to allow users of one licensed carrier to communicate with users of another licensed carrier;
"interconnection provider" means a carrier that provides an interconnection service;
"interconnection service" means a service provided as part of the obligation to provide interconnection under Part VI;
…
"licence" means a licence referred to in this Act;
"licensee" means a person who is the holder of a valid licence granted under this Act;
"mobile telecommunications network" means a telecommunications network used for the provision of mobile telecommunications services that
(a) permits a user to have access to the services irrespective of the location of the user via different mobile base facilities during the provision of a single call known as an "inter-cell hand-over"; and
(b) does not require physical contact between the network and the customer equipment;
"mobile telecommunications service" means a telecommunications service consisting of the emitting, transmitting, switching, conveying or receiving of messages within, into or from Barbados by means of a mobile telecommunications network;
"network termination point" means the point of connection forming part of a telecommunications network designated by a carrier for connection by a customer of customer equipment to that carrier's network;
"person" includes an individual, a partnership, an unincorporated organisation, a Government or Government agency;
…
"service provider" means a person granted a licence by the Minister pursuant to this Act to provide telecommunications services to the public;
…
4. Powers and duties of Minister.
(1) The Minister shall have responsibility for the management and regulation of telecommunications in Barbados.
(2) In furtherance of his powers and duties under subsection (1), the Minister shall
(a) develop and review telecommunications policies for the promotion of the objects of this Act;
(b) publish the policies referred to in paragraph (a) as determined in accordance with this Act;
(c) ensure compliance with the Crown's international obligations with respect to telecommunications;
(d) issue licences in respect of the provision of telecommunications services;
(e) determine the category of telecommunications services that are to be subject to regulation;
(f) specify the policy to be applied to each category of telecommunications services;
(g) maintain a register of each category of licences issued under this Act;
(h) monitor and ensure compliance with the terms and conditions that are applicable to each licensee;
(i) specify the interconnection policy;
(j) plan, manage and regulate the use of spectrum in Barbados or between Barbados and elsewhere;
(k) plan, manage and regulate numbering in Barbados in accordance with the National Numbering Plan specified in section 50; and
(l) inform the public about matters related to telecommunications.
5. Delegation
The Minister may by instrument in writing delegate to any public officer such of the Minister's powers and duties as the Minister considers necessary; but such delegation shall not prevent the Minister from exercising any of his powers or duties.
6. Functions of Commission.
(1) The Commission shall
(a) enforce the policies established by the Minister pursuant to this Act;
(b) exercise its regulatory functions in respect of telecommunications in accordance with this Act, the Fair Trading Commission Act and the Utilities Regulation Act;
(c) be responsible for the regulation of competition between all carriers and service providers in accordance with this Act to ensure that the interests of consumers are protected; and
(d) establish and administer mechanisms for the regulation of prices in accordance with this Act, the Fair Trading Commission Act and the Utilities Regulation Act.
…
8. Powers of Commission.
(1) The Commission shall exercise its powers and perform its functions consistently with the purposes and objects of this Act and any law implementing the telecommunications policy objectives of Barbados.
(2) The Commission shall ensure that service providers provide telecommunications services and charge rates in accordance with this Act, the Utilities Regulation Act and the Fair Trading Commission Act.
9. Minister, Commission to refrain from acting.
Where the Minister or the Commission is satisfied on the basis of evidence presented to the Minister or the Commission, as the case may be, that the market is sufficiently competitive to ensure that the interests of consumers are protected, the Minister or the Commission shall refrain from exercising their respective functions in respect of the rate-setting mechanism referred to under Part VIII by giving notice to that effect.
10. General licensing requirements in respect of public telecommunications.
(1) No person shall
(a) own or operate a telecommunications network without a carrier licence issued in accordance with this Part;
(b) provide telecommunications services to the public without a service provider licence issued in accordance with this Part;
(c) use spectrum for the purpose of
(i) operating any telecommunications network; or
(ii) providing a telecommunications service
without a spectrum licence issued in accordance with Part IX
(d) distribute, lease, trade, offer for sale, sell or import for sale any prescribed telecommunications apparatus or radiocommunications apparatus without a dealer's licence issued in accordance with Part XI; or
(e) own or operate a VSAT without a VSAT licence issued in accordance with the provisions of this Act.
(2) Subsection (1) shall not apply to facilities used solely
(a) for non-commercial purposes by the Barbados Defence Force or the Royal Barbados Police Force; or
(b) as part of an electricity distribution network that does not provide telecommunications services.
11. Application for licence.
(1) An application for the grant, renewal or modification of a licence under this Part must
(a) be made in the form prescribed;
(b) contain such information as the regulations prescribe; and
(c) be accompanied by the prescribed fee.
(2) An applicant for a licence under this Part shall be required to satisfy the Minister that
(a) the applicant will comply with all interconnection obligations, universal service obligations, licence limitations, network build-out requirements and any other such obligations imposed by this Act for the type of telecommunications network or telecommunications service in respect of which the applicant seeks a licence;
(b) all legal requirements for the holding of the licence have been complied with;
(c) the applicant possesses the technical qualifications necessary to fully perform the obligations attached to the licence for which the applicant is applying; and
(d) the applicant satisfies the financial requirements, as imposed by the Minister, to construct and operate the telecommunications network or to provide the telecommunications services associated with the licence for which the applicant is applying.
(3) The Minister shall refuse an application for a licence under this Part where
(a) that application does not meet the requirements specified in subsections (1) and (2); or
(b) the application is otherwise contrary to the Act or any law.
12. Grant of licence.
(1) In determining whether to grant a licence under this Part, the Minister shall consider
(a) whether an applicant
(i) is a person of fit and proper character;
(ii) is, or is affiliated with, an undischarged bankrupt; and
(iii) has had a licence revoked or is affiliated with a person who has had a licence revoked; and
(b) any other matter that he considers relevant.
(2) The Minister may grant to an applicant under this Part
(a) a carrier licence for the ownership and operation of a telecommunications network; or
(b) a service provider licence for the provision of telecommunications services,
where the Minister is satisfied that the applicant has complied with the provisions of section 11 and that the applicant satisfies the required criteria referred to in subsection (1).
(3) The Minister is not mandated to grant a licence to any applicant.
…
14. Conditions for the granting of a licence.
(1) Any licence granted under this Part is subject to the following conditions:
(a) the licensee shall operate a telecommunications network or provide the telecommunications services specified in the licence only for the period specified in the licence and only in the manner explicitly authorised by the licence;
(b) the licensee shall not assign or otherwise transfer the licence nor the right granted by the licence except in accordance with this Part;
(c) the licensee shall comply with the requirements specified under section 11; and
(d) the licensee shall adhere to any other conditions deemed reasonably necessary to achieve the objects of this Act.
(2) The conditions of a licence referred to in subsection (1) shall not be varied otherwise than in accordance with this Act.
…
16. Duration of licences.
A licence granted under this Part
(a) shall be for the period specified in the licence and except for a carrier licence, shall not be granted for a period longer than 25 years; and
(b) may be revoked or suspended in accordance with this Act.
17. Renewal of licences.
(1) Where an application for renewal of a licence under section 11 is made, the Minister may refuse to renew that licence if the licensee is or has engaged in conduct that materially contravenes this Act or any regulations made under this Act.
(2) Where the Minister has reasonable grounds for not renewing a licence under subsection (1), he shall inform the licensee by written notice as soon as practicable of his intention not to renew the licence.
(3) A licensee referred to under subsection (2) shall be given 30 days to make written submissions to the Minister in respect of the refusal.
(4) The Minister shall consider any written submissions made under subsection (3) and shall inform the licensee within 7 days of the receipt of the submissions of his decision on the matter.
…
19. Suspension or revocation
(1) The Minister may suspend or revoke a licence granted under this Part where
(a) the licensee contravenes this Act;
(b) the licensee fails to observe a term or condition specified in the licence;
(c) the licensee is in default of payment of any licence fee prescribed; or
(d) the suspension or revocation is necessary in the interest of national security or in the public interest.
(2) Where the Minister has reasonable grounds for believing that a licence granted under this Act ought to be suspended or revoked, the Minister shall, before suspending or revoking the licence, give the licensee 60 days notice in writing of his intention to do so, specifying the date and the grounds on which he proposes to suspend or revoke the licence; and shall give the licensee an opportunity
(a) to make written submissions in respect of those grounds;
(b) to remedy the breach of the licence or a term or condition of
the licence; or
(c) to submit to the Minister, within 30 days of the receipt of the
notice, or such longer time as the Minister may specify, a
written statement of objections to the suspension or
revocation of the licence which the Minister shall take into
account before reaching a decision.
(3) The suspension or revocation of a licence referred to in
subsection (2) shall take effect on the date specified by the Minister in
the notice referred to in that subsection or such other date as the
Minister specifies.
…
25. Interconnection by carriers.
(1) A carrier shall provide, on request from any other carrier, interconnection services to its public telecommunications network for the purpose of supplying telecommunications services in accordance with the provisions of subsection (2).
(2) Interconnection services referred to in subsection (1) shall
(a) be offered at points, in addition to network termination points offered to the end-users, subject to the payment of charges that reflect the cost of construction of any additional facilities necessary for interconnection;
(b) be on terms that are transparent and non-discriminatory;
(c) in respect of the interconnection charges and service quality of the interconnection services, be no less favourable than similar services provided by the interconnection provider for
(i) its own purposes;
(ii) any non-affiliate service supplier of the carrier;
(iii) a subsidiary of the carrier; or
(iv) for similar facilities so provided;
(d) be made available in a timely fashion;
(e) be offered at charges that are cost-oriented;
(f) be offered in such a way as to allow the requesting carrier to select the services required and not require the carrier to stand the cost of network components, facilities or services that are not required or have not been requested by that carrier; or
(g) allow for end-users of public telecommunications services to exchange telecommunications with other users of similar services regardless of the carrier to which the end-user is connected.
(3) A carrier shall provide interconnection to its network
(a) on such reasonable terms and conditions as the interconnecting parties agree through commercial negotiations;
(b) consistent with an approved Reference Interconnection Offer; or
(c) where there is no agreement between the parties, on such terms and conditions as the Commission determines in accordance with section 29 applying the principles established under this Act, and under any approved Reference Interconnection Offer.
26. Reference Interconnection Offer.
(1) A dominant carrier shall file with the Commission a Reference Interconnection Offer, also referred to in this Act as an "RIO", that sets out the terms and conditions upon which other licensed carriers will be permitted to interconnect with the interconnection provider's public telecommunications network.
(2) The terms and conditions referred to under subsection (1) may include the following:
(a) a description of interconnection services to be provided;
(b) terms of payment, including billing procedures;
(c) location of points of interconnection;
(d) technical standards for interconnection;
(e) processes for the testing and establishment of interconnection;
(f) interconnection charges;
(g) the procedure in event of alterations being proposed to the network or services, of services to be offered by one of the parties;
(h) access to ancillary services;
(i) traffic forecasting and network management;
(j) maintenance and quality of interconnection services;
(k) the duration of the RIO;
(l) limitation of liability;
(m) indemnity;
(n) dispute resolution procedures; and
(o) confidentiality in relation to certain aspects of the agreement.
(3) In this Part "dominant carrier" means a carrier that the Minister determines to be dominant based on that carrier not being effectively constrained by competitive forces in a particular telecommunications market and such other criteria as the Minister prescribes.
27. Approval of Reference Interconnection Offer.
(1) The RIO shall not take effect unless approved in writing by the Commission.
(2) Where the Commission considers that the RIO or any part of the RIO is inconsistent with the principles of interconnection as set out in section 25(2), the Commission may refuse to approve the RIO or a part of the RIO outlining the inconsistency and giving reasons for its decisions.
(3) In deciding whether to approve or refuse an RIO the Commission shall
(a) consult with the carrier providing the RIO and any other carriers likely to seek interconnection to that carrier's network; and
(b) have regard to
(i) the interconnection principles set out in section 25;
(ii) the interconnection policy specified by the Minister under paragraph (i) of subsection (2) of section 4;
(iii) the need to promote competition;
(iv) the long-term interests of end-users; and
(v) the submissions, whether oral or written, of the carriers providing and seeking interconnection.
(4) Where the Commission approves an RIO of a carrier or part of that RIO then it shall make a declaration as to the approval specifying the date on which the approval takes effect.
(5) Where the Commission refuses the RIO of a carrier or part of that RIO, the Commission shall consult with the carrier in order to resolve the inconsistency with the interconnection principles referred to in section 25; and the carrier may amend the RIO to remedy the inconsistency.
(6) Where the Commission is satisfied that an amendment of an RIO by a carrier pursuant to subsection (5) satisfies the interconnection principles referred to in section 25, it shall approve the amended RIO and the carrier shall file the amended RIO with the Commission.
28. Requests for interconnection.
(1) A person who wishes to interconnect with the telecommunications network of a telecommunications provider shall so request that provider in writing giving sufficient information as is reasonably required by a provider to allow for a response to the requests.
(2) Where an RIO is in effect with respect to an interconnection provider, and the person seeking interconnection accepts the terms and conditions set out in the RIO, the parties shall sign an agreement in accordance with those terms and conditions of the RIO within 90 days of the receipt of the request.
(3) Where a person requests an interconnection pursuant to subsection (1) on terms other than those of the RIO that is in effect in relation to the interconnection provider, the parties shall negotiate in good faith to reach an agreement on the terms and conditions of the interconnection; and the negotiations shall commence within 30 days of the receipt of the written request.
(4) A request for interconnection to a public telecommunications network may be refused by an interconnection provider for the following reasons:
(a) for the protection of the
(i) safety of a person;
(ii) security of the network;
(iii) integrity of the network; or
(b) the difficult technical and engineering nature of the interconnection.
(5) Where there is a refusal by the provider under subsection (4), the person seeking interconnection may refer that refusal to the Commission for review.
29. Interconnection agreements.
(1) Where pursuant to subsection (3) of section 28 a person who requests interconnection and an interconnection provider agree on the terms and conditions of interconnection, that agreement shall be filed with the Commission within 30 days of the date of the agreement for the Commission's approval.
(2) The Commission may in respect of any agreement filed with it under subsection (1)
(a) approve the agreement in writing; or
(b) require parties to the agreement to vary the filed agreement
(i) to comply with interconnection principles set out in section 25; or
(ii) if it considers that the interconnection agreement unfairly discriminates against other carriers or is otherwise unlawful.
(3) Any direction for variation under subsection (2) shall be issued within 30 days of an interconnection agreement having been filed with the Commission.
(4) Where parties to an interconnection agreement have failed to vary the agreement at the request of the Commission pursuant to subsection (2), the Commission may, having regard to the matters specified in subsections (1) and (2) of section 31, make an order stating the amendment that is to be made to the interconnection agreement to ensure that the agreement is consistent with this Part.
(5) An interconnection provider may limit or terminate its agreement to offer interconnection services or may cease to offer those services
(a) in the interest of protecting the integrity of its telecommunications network;
(b) in the interest of protecting the safety of any person; or
(c) where the other party to the agreement fails to comply with the terms of the agreement.
(6) Where the interconnection provider takes any action pursuant to subsection (5), in respect of the agreement, the other party to the agreement may refer the matter to the Commission for review.
(7) Where the other party to the agreement refers the matter to the Commission for review under subsection (6), and the Commission determines that matter in favour of the other party, the other party may seek compensation for any financial loss incurred that resulted from the decision by the interconnection provider.
…
31. Interconnection disputes.
(1) Any dispute that arises between parties in respect of the negotiating of an interconnection agreement may be referred to the Commission in writing for resolution by either party to the negotiations where
(a) all reasonable efforts have been made by the parties to resolve the dispute; and
(b) the parties have negotiated in good faith.
(2) In determining a dispute pursuant to subsection (1), the Commission shall have regard to
(a) what is a fair balance between the legitimate interests of the parties;
(b) the interconnection principles established under section 25;
(c) any regulatory obligations or constraints imposed under this Act, the Fair Trading Commission Act and the Utilities Regulation Act on any of the parties pursuant to this Act;
(d) the desirability of stimulating innovative offers in the market;
(e) the desirability of providing consumers with a wide range of telecommunications services;
(f) the availability of technically and commercially available alternatives to the interconnection requested;
(g) the need to maintain the integrity of the public telecommunications network and the interoperability of telecommunications services;
(h) the nature of the request in relation to the resources available to meet the request;
(i) the relative market positions of the parties;
(j) the promotion of competition in Barbados;
(k) the Reference Interconnection Offer of the interconnection provider; and
(l) the interconnection policy specified by the Minister in accordance with paragraph (i) of section 4(2).
(3) The Commission shall conduct any proceedings in respect of dispute resolution referred to it under subsection (1) in camera unless the parties otherwise agree; but the decision taken by the Commission shall be published subject to any requirement for confidentiality under this Act or any other enactment.
(4) The decision of the Commission under subsection (3) in respect of the terms and conditions of an interconnection agreement that are the subject of the dispute shall be consistent with
(a) those terms and conditions which have been agreed on by the parties and are not in dispute; and
(b) the terms of any RIO that is in effect with respect to that interconnection provider.
(5) The provisions of this section in respect of dispute resolution apply in respect of
(a) pre-contract interconnection disputes; and
(b) disputes referred to the Commission under the terms of an interconnection agreement.
35. (1) The Commission shall prescribe a charge to be known as
"an access deficit charge" to be paid by all carriers and service
providers interconnecting to the service.
(2) The Commission shall establish guidelines in writing for
determining the amount of the access deficit charge.
37. Definitions.
(1) For the purposes of this Part, "provider" means a service provider that provides a regulated service under this Act.
(2) "A regulated service" means a service designated by the Minister as a service in respect of which the Commission or the Minister approves the rates of the service in the manner referred to in section 38.
38. The rates to be charged by a provider are those set in accordance with the provisions of this Part, the Utilities Regulation Act and the Fair Trading Commission Act.
39. (1) The Commission shall establish a mechanism for the setting of rates to be charged by a provider in accordance with the provisions of this Act, the Fair Trading Commission Act and the Utilities Regulation Act.
(2) Subject to this Act, the rates referred to under subsection (1) shall be such as to facilitate the policy of market liberalisation and competitive pricing.
(3) Subject to this Act, the Minister shall at such time as is specified under this Act and after consultation with the Commission require that the Commission use an incentive-based rate-setting mechanism to establish the rates to be charged by a provider.
(4) The incentive-based rate-setting mechanism referred to under subsection (3) shall be established by the Commission in the manner prescribed; and the Commission shall monitor and ensure compliance with the mechanism.
(5) The Commission shall regulate the rates to be charged by a provider in respect of regulated services only where
(a) there is one provider providing that service; and
(b) the Minister finds as a question of fact under subsection (6)
(i) there is a dominant provider; or
(ii) the market is not sufficiently competitive.
(6) The Minister shall, after consulting with the Commission, determine by way of policies or rules established by him for the purpose, as a question of fact whether
(a) a provider is a dominant provider; or
(b) the market is or is not sufficiently competitive.
(7) Section
(a) 36 of the Utilities Regulation Act shall not apply in respect of telecommunications; and
(b) 37 of the Utilities Regulation Act shall not apply in respect of utility services provided by service providers or carriers that are licensed under this Act.
70. The Minister may suspend or revoke a licence and in addition,
may apply to the Court under section 72 if the Minister first
determines that a person has
(a) knowingly made false statements in an application for a
licence or in any statement of fact made to the Minister;
(b) knowingly failed to provide information or evidence that would
have warranted the denial of an original application for a
licence;
(c) wilfully or repeatedly failed to comply with the terms of a
licence including the taking of such action as to have the effect
of impacting negatively on the universal service obligation;
(d) wilfully or repeatedly violated, or wilfully or repeatedly failed
to observe,
(i) any provision of this Act; or
(ii) any rule, regulation, or order made under this Act;
(e) violated or failed to observe any prohibition order;
(f) provided a telecommunications service beyond the scope of a
service provider licence or without such a licence;
(g) engaged in bypass;
(h) operated a telecommunications network without a carrier
licence; or
(i) failed to submit payments in a timely manner in connection
with the Universal Service Fund.
71. (1) The Minister, in exercising his powers under this Part,
shall have regard to
(a) the nature and extent of the conduct giving rise to the
application;
(b) the nature and extent of any loss suffered by any person as a
result of the default;
(c) the circumstances of the default; and
(d) any previous determination against the offending person.
(2) Prior to the taking of any action under this Part, the Minister
must consider any relevant circumstances, including the
(a) resources available to the licensee or affected persons or
entities;
(b) continued economic viability of the licensee or affected
persons or entities; and
(c) behaviour of the competitors of the licensee or affected
persons or entities.
72. Application to Court.
(1) Where the Court is satisfied upon an application by the Minister that any person
(a) has contravened the obligations under or any prohibitions in this Act; or
(b) has failed to comply with any Rules made by the Minister under this Act or any order issued by the Minister requiring a person to comply with that order,
the Court may
(A) grant an injunction restraining the alleged offending person from engaging in prohibited conduct notwithstanding that the Minister is conducting an investigation under this Part; and
(B) order the offending person to pay to the Crown such pecuniary penalty as it thinks fit.
(2) The Court, in exercising its powers under subsection (1), shall have regard to
(a) the nature and extent of the default;
(b) the nature and extent of any loss suffered by any person as a result of the default;
(c) the circumstances of the default; and
(d) any previous determination against the offending person.
73. Civil proceedings.
Where a person suffers financial loss or damage to property as a result of another person's
(a) contravention of any of the obligations or prohibitions imposed by this Act;
(b) aiding, abetting, counselling or procuring the contravention of any provision under this Act;
(c) inducing by threats, promises, or otherwise the contravention of any provision under this Act;
(d) being party to any contravention of any provision under this Act; or
(e) conspiring with any other person to contravene any provision under this Act,
there is payable to that other person by the person in default such reasonable amount as is agreed between the parties or, failing agreement, as is determined by a court of competent jurisdiction.
…
75. Inspectors.
(1) The Minister may by instrument in writing appoint inspectors to
(a) investigate any complaint or conduct concerning an allegation of a contravention of this Act or a licence issued under this Act; and
(b) monitor the telecommunications and radiocommunications services.
(2) The Minister shall furnish each inspector with a certificate of authority containing a photograph of the inspector, which the inspector shall produce on request in the performance of his functions.
(3) A complaint referred to in subsection (1) shall be made in writing in such form as the Minister prescribes.
(4) Within 14 days of the receipt of a complaint made under subsection (1), an inspector shall investigate the complaint unless satisfied that
(a) the complaint is
(i) trivial, frivolous or vexatious; or
(ii) not made in good faith; or
(b) the complainant does not have locus standi in the matter.
(5) Before commencing an investigation under subsection (1), an inspector shall inform the alleged offender of the matter to be investigated and shall not make a finding adverse to the alleged offender or the complainant unless the inspector has given that person the opportunity to make oral or written submissions about the matter to which the investigation relates.
(6) The inspector shall submit a report on the results of every investigation to the Minister; and shall make a copy of that report available to the complainant or the alleged offender as the case may be, where that person is adversely affected by the results of the investigation.
(7) An inspector may on his own motion or upon complaint, investigate harmful interference with telecommunications.
78. Unlicensed telecommunications network and service.
(1) A person who
(a) establishes, maintains or operates a telecommunications network without a licence;
(b) provides or offers a telecommunications service without a licence; or
(c) contravenes the conditions of a relevant licence or the provisions of this Act,
commits an offence and is liable on conviction on indictment to a fine of $500 000 or to imprisonment for a term of 5 years and in the case of a continuing offence to a fine of $10 000 for each day or part thereof that the offence continues.
104. Review by Minister
(1) Any person who is aggrieved by a decision of the Minister under this Act may file within 14 days of being notified of that decision, an application for a review of the decision.
(2) An application for a review of a decision under subsection (1) shall be in the form and manner prescribed.
(3) The filing of an application for a review under subsection (1) does not operate as a stay of the decision unless the Minister so provides.
(4) The Minister may on a review of his decision confirm, modify or reverse the findings of his prior decision or any part of that decision; and, where a hearing is required before that decision is reviewed, the decision shall not be reviewed without a further hearing.
(5) The Minister shall on an application made to him pursuant to subsection (1) have regard to relevant considerations.
105. Review by Commission.
(1) A person aggrieved by a decision of the Commission under this Act may file an application for a review within 14 days following the notification of the Commission's decision.
(2) An application for a review of a decision under subsection (1) shall be in the form and manner prescribed.
(3) The filing of an application for review does not
(a) operate as a stay of the decision, unless the Commission so provides; or
(b) preclude an appeal from the Commission's decision to the High Court.
(4) The Commission, on review, may confirm, modify or reverse the findings of its prior decision or any part of that decision.
(5) The Commission shall on an application made to it pursuant to subsection (1) have regard to relevant considerations.
106. Appeal.
Part V of the Fair Trading Commission Act shall apply in respect of decisions of the Commission under this Act.
110. Power to make regulations, rules and orders.
(1) The Minister may make such rules, regulations and orders as may be required under this Act, including regulations prescribing
(a) forms and procedures in respect of the grant of licences under the Act;
(b) terms and conditions to be contained in licences;
(c) licence fees;
(d) licence application fees;
(e) matters relating to interconnection policy;
(f) matters related to universal service and the funding of universal service;
(g) management of spectrum;
(h) the determination of dominance in relation to regulation of rates charged for telecommunications services;
(i) approvals and certification of customer equipment and wiring;
(j) the certification of technicians;
(k) technical standards for customer equipment;
(l) numbering;
(m) matters relating to radiocommunications;
(n) the treatment of confidential information; and
(o) anything that is by this Act authorised or required to be prescribed.
(2) Regulations made pursuant to the Act
(a) may prescribe penalties for offences committed under those regulations; and
(b) are subject to negative resolution.
(3) The Minister, in making regulations under paragraph (e) of subsection (1), may consult with the Commission, the carriers and such other persons as he deems necessary before doing so.
(4) The Commission may, in accordance with this Act make regulations governing the exercise of its powers with respect to interconnection and shall consult with the Minister and carriers before issuing the regulations.
THE FAIR COMPETITION ACT 2002
Abuse of dominant position.
16. (1) Subject to subsection (4), the abuse by an enterprise of a
dominant position which the enterprise holds is prohibited.
(2) For the purposes of this Act, an enterprise holds a dominant
position in a market if, by itself or together with an affiliated
company, it occupies such a position of economic strength as will
enable it to operate in the market without effective competition from
its competitors or potential competitors.
(3) An enterprise abuses a dominant position if it impedes the
maintenance or development of effective competition in a market and
in particular, but without prejudice to the generality of the foregoing,
if it
(a) restricts the entry of any enterprise into that or any other
market that supplies or is likely to supply a substitute for the
good or service supplied in that market;
(b) prevents or deters any enterprise from engaging in competi-
tive conduct in that or any other market;
(c) eliminates or removes any enterprise from that or any other
market;
(d) directly or indirectly imposes unfair purchase or selling prices
that are excessive, unreasonable, discriminatory or predatory;
(e) limits production of goods or services to the prejudice of
consumers;
(f) makes the conclusion of agreements subject to acceptance by
other parties of supplementary obligations which by their
nature, or according to commercial usage, have no connection
with the subject of such agreements;
(g) engages in exclusive dealing, market restriction or tied
selling; or
(h) uses any other measure unfairly in its trading operations that
allows it to maintain dominance.
(4) An enterprise shall not be treated as abusing a dominant
position
(a) if it is shown that its behaviour was exclusively directed to
improving the production or distribution of goods or to
promoting technical or economic progress and consumers were
allowed a fair share of the resulting benefit;
(b) the effect or likely effect of its behaviour in the market is the
result of its superior competitive performance; or
(c) by reason only that the enterprise enforces or seeks to enforce
any right under or existing by virtue of any copyright, patent,
registered design or trademark except where the Commission
is satisfied that the exercise of those rights
(i) has the effect of lessening competition substantially in a
market; and
(ii) impedes the transfer and dissemination of technology.
Action in relation to abuse of dominant position.
17. (1) Where the Commission has reason to believe that an
enterprise that has a dominant position in a market has abused or is
abusing that position, the Commission may conduct an investigation
into the matter.
(2) Where the Commission finds that an enterprise has abused or
is abusing a dominant position, the Commission shall prepare a report
indicating the practices that constitute the abuse and shall
(a) notify the enterprise of its finding accompanied by a copy of
the report; and
(b) direct the enterprise to cease the abusive practice within a
specified period.
Finding of abusive practice.
18. (1) Where the Commission finds that the abusive practice
constitutes tied selling, the Commission, by notice in writing, shall
direct the enterprise concerned to discontinue that practice.
(2) Subject to subsection (4), the Commission shall act in
accordance with subsection (3) if it finds that exclusive dealing or
market restriction is likely to
(a) impede entry into or expansion of an enterprise in the market;
(b) impede the introduction of goods into or expansion of sales of
goods or the provision of services in the market; or
(c) have any other exclusionary effect in the market,
with the result that competition is or is likely to be lessened
substantially.
(3) The Commission may direct the supplier referred to in sub-
section (2) to discontinue engaging in market restriction or exclusive
dealing and require that supplier to take such other action as, in the
Commission's opinion, is necessary to restore or stimulate
competition in relation to the supply of goods or services in the
market.
(4) The Commission shall not take action under this section where,
in its opinion, exclusive dealing or market restriction is or will be
engaged in only for a reasonable period of time to facilitate entry of
new goods or a new supplier of goods or services into a market.
(5) This section shall not apply in respect of exclusive dealing or
market restriction between or among affiliated companies.
Action to restrain competition.
34. (1) No person shall conspire, combine, agree or arrange with
another person to
(a) limit the facilities for transporting, producing, manufacturing,
storing or dealing in any goods or supplying any service;
(b) prevent, limit or lessen, the manufacture or production of any
goods to enhance unreasonably the price thereof;
(c) lessen unduly competition in the production, manufacture,
purchase, sale, supply, rental or transportation of any goods;
(d) lessen, limit or prevent competition in the provision of
insurance on persons concerned in or property related to the
production, storage, transportation or dealing in any good or
the provision of services;
(e) otherwise unduly restrain or injure competition.
(2) Nothing in subsection (1) applies to a case where the arrange-
ments are related to the introduction or maintenance of
(a) standards for products or for the quality of service that are
reasonably necessary for the protection of the public;
(b) standards of competence and integrity that are required
(i) in the practice of a trade or profession relating to the
service; or
(ii) in the collection and dissemination of information
relating to the service.
Civil liability.
44. (1) Every person who engages in conduct that constitutes
(a) a contravention of any of the obligations or prohibitions
imposed in Part III, IV or VI;
(b) aiding, abetting, counselling or procuring the contravention of
any provision referred to in paragraph (a);
(c) the inducing by threats, promises or otherwise, of the
contravention of any provision;
(d) being knowingly concerned in or party to any contravention
referred to in paragraph (a); or
(e) conspiring with any other person to contravene any
provision referred to in paragraph (a),
is liable in damages for any loss caused to any other person by such
conduct.
(2) An action under subsection (1) may be commenced at any time
within 3 years from the time when the cause of action arose.
THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003
3. The general principles of interconnection are those set out in the
Barbados Interconnection Policy published in the Daily Nation Newspaper
on 11 July, 2003.
4. No person shall be granted interconnection unless that person
holds a valid licence for
(a) the operation of a public telecommunications network; and
(b) the provision of telecommunications services to the public.
5. A Reference Interconnection Offer ("RIO") filed under
section 26 of the Act may, in addition to those terms and conditions referred
to under section 26(2), set out
(a) provisions relating to exchange of information necessary for
interconnection;
(b) provisions relating to notifications, default and termination of
interconnection;
(c) a technical description of the interconnection interfaces, including
the signaling protocol used;
(d) measures of restrictions to ensure network security or integrity;
(e) service level parameters, including availability, security, efficiency
and synchronization;
(f) early termination charges;
(g) provisions relating to suspension for breach of the Offer;
(h) penalties for forecast errors;
(i) traffic routing arrangements; and
(j) arrangements for submitting, handling and clearing fault reports.
6. (1) A dominant carrier shall not withdraw a RIO or portion of
a RIO unless the carrier first notifies the Commission in writing of its intention
to do so, and the Commission gives its written approval of the withdrawal.
(2) The Commission may in granting approval under paragraph (1),
first impose such conditions, as it considers necessary to fulfil the objectives
of the Act.
(3) A RIO or a portion of a RIO that has been withdrawn ceases to
be effective from the date the Commission determines that its approval of
the application for withdrawal of the RIO or portion of the RIO takes effect.
7. An interconnection seeker shall produce a valid carrier licence
as proof of being the holder of such a licence as of the date the
interconnection commences.
8. (1) No information contained in a RIO shall be designated as
confidential.
(2) The entire RIO shall be made available to any person without
restriction.
(3) Notwithstanding paragraph (1), an operator may charge any
person who requests a RIO, reasonable fees for copying and mailing of the
RIO.
9. Interconnection Agreements must be filed with the Commission
within 30 days of the agreement between the Interconnection seeker and
the Interconnection provider in accordance with the Act.
10. The obligations imposed under section 30 of the Act shall apply
to the Commission in relation to the keeping of a Register of Interconnection
Agreements.
11. Interconnection disputes shall be determined in accordance with
the provisions of the Act and guidelines issued by the Commission.
12. Accounting, costing and pricing principles applicable to a dominant
operator shall be set out in guidelines issued by the Commission.
13. [Before the amendment in 2004] Charges imposed by non-dominant operators for interconnection services shall be unregulated.
13. [After the amendment in 2004] (1) Subject to paragraph (2), all charges imposed by non-dominant operators for interconnection services shall be unregulated.
(2) Notwithstanding paragraph (1), termination charges payable for the termination of calls in respect of interconnection shall be regulated by the Commission.
…
THE LICENCES
THE FACTS
(1) C&W fixed customers did not pay to make or receive domestic calls;
(2) C&W mobile customers paid to make calls both to fixed lines and to mobiles;
(3) C&W mobile customers paid to receive calls from fixed lines; and
(4) C&W mobile customers did not pay to receive on-net calls that is from other C&W mobiles.