telecommunications act 2000

7/31/2019 Telecommunications Act 2000

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TELECOMMUNICA TIONS 1

THE TELECOMMUNICATIONS ACTARRANGEMENT OF SECTIONS

PART . Preliminary/ 1. Short title.

2. Interpretation.3. Objects of Act.

PART11. Administration4. Functions of Office.5.6. Ministerial directions.7. Obligation for secrecy.8. Numbering.

Duty of Office to refer matters to the Fair Trading Commission.

PART111. Licensing of Telecommunication Servic es9 . Licence required for provision of specified service.

11.12.13.14.15.

L A 16.17.18.19.

.

Application for licence.Application fees.Grant of licence.Suspension or revocationof licence.Renewal of licence.Regulatory fees.Assignment of licences and transfer ofCustomer equipment.Register and inspection of licences.

10. Ministerial directions to Officere licences, etc.

ontrol li ensees.

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2 TELECOMMUNICATIONS

20.21.22.23 .24 .25 .26.

27.28 .29 .30 .31.32.33 .34 .35.36.37 .

38.39 .40 .41 .42 .

PARTIV. Spectrum ManagementRegulation of use of spectrum.Spectrum Management Authority.Allocation of spectrum.Licence for use of spectrum.Saving re existing users.Us e of spectrum.Spectrum regulatory fee.

PART V. InterconnectionInterpretation.Determination o f dominance.Obligation to grant interconnection.Interconnection by dominant carrier.Determination of term or condition.Filing of offer by dominant and other carriers.Principles to guide determination of prices.Pre-contract disputes.Competitive safeguards.Indirect access.Nu mbe r portability.

PAR TVI . Universal ServicePrinciples governing provision of universal service.Obligation to provide universal service.Designation of universal service provider.Obligation of universal service provider.Modification of universal service obligation.

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PARTXIII. Enforcement63 . Power to issue cease and desist order.64. Contents of cease and desist order.65 . Application for enforcement.66. Powers of Court.67. Civil liability.

PARTXIV. Offences68. Interpretation.69 . Offence re trespass, interference, etc.70 . Seizure and forfeiture of equipment.

PART XV. General7 1. Office m ay make rules.72. Regulations.73. Agreements not affected by Fair Competition Act.

SCHEDULE.

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TELECOMMUNICATIONS 5

THE TELECOMMUNICATIONS ACT Ac tI of2000.[IstMarch, 2000.1

PARTI. Preliminaryr \L 1. This Act may be cited as the Telecommunications Act. Short title.2 . 4 1 ) In this Act, unless the context otherwise requires- Intepreta-tion.

"appointed day" means the 1st day of March, 2000;''assign'' means transfer, sell or otherwise dispose of in anymanner;"broadcasting" means either sound broadcasting or televisionbroadcasting or both;"bypass operations" means operations that circumvent theinternational network of a licensed international voicecarrier in the provision of international voice services;"carrier" means a person who is granted a carrier licencepursuant to section 13;"closed user group" means, in relation to a person, that personand the person's employees and officers;"connection" means wireline and wireless connection;"customer1'means a person who is provided with a specifiedservice by a service provider and includes the end user

of that service;"customer equipment" means all equipment, whether mobileor fixed, that is used on the customer side of the networktermination point;"data service" means a specified service other than a voiceservice;''dealer'' means a person who is granted a dealer licence under

section 13;"domestic service'' means a specified service that is providedbetween one or more points in Jamaica but does notinclude a transit service;[The inclusion of this page is authorized by L.N. 3/ZOOZ]


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6 TELECOMMUNICA TIONS"existing telecommunications carrier" means C able & WirelessJamaica Limited and includes any wholly owned

subsidiary or any successor or assignee of that company;" f a c i l i t y " me a ns a ny phys i c a l c ompone n t o f atelecommunications network (other than customerequipm ent) including-(a) wires, lines, poles, ducts, sites, towers, satelliteearth stations or any other apparatus using theradio spectrum;( b ) subm arine cables and other tangible resourcesused in the provision of a specified service;

"fixed network" means a telecomm unications network that is"functionst' includes duties and pow ers;

or intelligence of any nature;"interconnection" means the physical or logical connectionof public voice networks of different carriers;"international service" means a transit service or a sp ecifiedservice between points in Jamaica and points outsideJamaica, or with ships at sea and sm all vessels in coastalwaters;"internet access" means access to the Internet or any s imilar

global system for linking networks together using, asthe basis for comm unications, transmission protocols orinternet protocols or any protocols amending o r replacingthem;"mobile network" means a telecommunications network usedto provide specified services that-

( a ) permits a user to move continuously betweenplaces ( inc lud ing p laces access ing tha tne twork th rough d i f fe ren t mobi le basefacilities) during the p rovision of a single call;and

not a mobile network;

I t intelligence" means signs, signals, writings, images, sounds

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TELECOMMUNICATIONS

P\L-

(b) does not require physical contact between thenetwork and the customer equipment;"network termination point" means the point designated by acarrier for connection by a customer of equipment tothat carrier's network;"licence" m eans a licence granted under this Act;"licensee" means a person who is the holder of a licencegranted under this Act;"the Office" means the Office of Utilities Regulationestablished un der the O ffice of U tilities Regulation Act;"prescribed equipment" means such facility or customerequipment as may be prescribed;"public network" m eans a telecomm unications network usedby any person to provide specified services to the publicand includes a network whereby the pu blic can send or

receive telecomm unications services to or fiom-(a) anywhere in Jam aica; or(b) anywhere outside of Jamaica;

and includes a network commonly known as a publicswitched telephone network;"resale" means an activity whereby a person subscribes to oracquires the use of another person's specified servicesand then re-offers those services to any other person and"reseller" shall be construed according ly;"service provider'' means a person who is the holder of aservice provider licence issued under section 13;"subscriber television service" has the same m eaning as in

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8 TELECOMM UNICA TIONS

"telecommunications" means the transmission of intelligenceby means of guided or unguided electromagnetic,electrochemical or other forms of energy, including butnot limited to intelligence-

(a) in the form of-(i)(ii) visual images, whether still or(iii) data or text;(iv) any type of signals;

speech, music or other sounds;animated;

( b ) in any form other than those specified inparagraph(4;

( c ) in any combination of forms; and(d) transmitted between persons and persons,things and things or persons and things;

"telecommunications network" means a system or any partthereof, whereby a person or thing can send or receiveintelligence to or from any point in Jamaica, inconnection with the provision of a specified service toany person;

"telecommunications service" means a service provided bymeans of a telecommunications network to any personfor the transmission of intelligence from, to or withinJamaica without change in the content or form andincludes any two way or interactive service that isprovided in connection with a broadcasting service orsubscriber television service;

"transit service" means a service that is provided to anyinternational carrier or service provider for useas a meansof transit of international traffic through Jamaica;"transmission" means the despatch, conveyance, switching,routing or reception of intelligence by any means

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TELECOMMUNICATIONSincluding, but not limited to rendering into packets,digitization and compression;

"uncontrollable forces" means such forces as are notwithin the control of the carrier or service provider orwhich the carrier or service provider is unable toavoid or prevent by the exercise of due diligence andincludes-

(a) acts of God, action by or against the Queen'senemies, riot or civil commotion;( b ) strikes, lockouts and other industrial

disturbances;(c) wars, blockades or insurrection;(4 earthquake, hurricane, flood, fire or

explosions;(e) outbreak of pestilence or epidemics;V) government rationing of electricity or otherwartime or emergency controls imposed by

government;(g) embargos or trade restrictions;

"voice service" means-(a) the provision to or from any customer of aspecified service comprising wholly or

partly of real time or near real time audiocommunications, and for the purpose of thisparagraph, the reference to real timecommunications is not limited to a circuitswitched service;


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Objects of 3. The objects of this Act are-.4ct. (a) to promote and protect the interest of the public by-(i) promoting fair and open competition in theprovision of specified services and

telecommunications equipment;(ii) promoting access to specified services;(iii) ensuring that services are provided to

persons able to meet the financial andtechnical obligations in relation to thoseservices;

(iv) providing for the protection of customers;(v) promoting the interests of customers,purchasers and other users (including, inparticular, persons who are disabled or theelderly) in respect of the quality andvariety of telecommunications services andequipment supplied;

(b) to promote universal access to telecommunicationsservices for all persons in ~amaica,o the extent thatit is reasonably practicable to provide sv:h access;

(c) to facilitate the achievement of the objects referred toin paragraphs (a) and (b) in a manner consistent withJamaica's international commitments in relation tothe liberalization of telecommunications; and(4 to promote the telecommunications industry inJamaica by encouraging economically efficientinvestment in, and use of, infrastructure to providespecified services in Jamaica.


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12 TELECOMMUNICA TIONS

( c ) have regard to the evidence adduced at any such hearingand to the matters contained in any such submissions;

(6) give reasons in writing for each decision;( e ) give notice of each decision in the prescribed manner.

(3 ) In exercise of its functions under this Act, the Officemay have regard to the following matters-

(a) the needs of the customers of the specified services;( b ) whether the specified services are provided eMiciently

and in a manner designed to-(i) protect the health and well-being of users of

the service and such members of the public aswould normally be affected by its operation;

(ii) protect and preserve the environment;(iii) afford economical and reliable service to its

customers;( c ) whether the specified services are likely to promote or

inhibit competition.(4) Where the Office has reasonable grounds for so doing,

it may for the purpose of its functions under this Act, require alicensee to f ini sh, at such intervals as it may determine, suchinformation or documents as it may specifl in relation to thatlicensee's operations and the licensee shall be given a reasonabletime within which to furnish the information. '0(5) The office may make rules, subject to affirmativeresolution, prescribing the systemofregulatory accounts to be keptby a dominant carrier or service provider in relation to specifiedservices.



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5. Where after consultation with the Fair Trading Commission DUV fOffice tomatters tothe FairTrading

the Office determines that a matter or any aspect thereof relating referto the provision of specified services-

(a) is of substantial competitive significance to the provision Commission.of specified services; and

( b ) falls within the functions of the Fair Trading Commissionunder the Fair Competition Act,

the Office shall refer the matter to the Fair Trading Commission.6 . The Minister may give to the Office such directions of a Ministerialdirections.general nature as to the policy to be followed by the Office in the

performance of its functions under this Act as he Minister considersnecessary in the public interest and the Office shall give effect tothose directions.

7.-(1) Every person having any official duty or being employed Obligationfor secrecy.in the administration of this Act shall regard and deal with as secretand confidential all confidential information relating to applicantsand applications for licences, and the management and operationof licensees and shall, upon assuming such duty or employment,make and subscribe a declaration to that effect before a Justice ofthe Peace.

(2 ) Subject to subsection (3), a person who, by reason of hiscapacity or office has by any means access to the confidentialinformation referred to in subsection (1) shall not, while hisemployment in or, as he case may be, his professional relationshipwith the Office continues or after the termination thereof,communicate any confidential information to any person.

(3 ) Subsection (2) shall not apply where-( a ) he confidential information is disclosed-

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(ii) on the written directions of the Minister to thepolice who require such disclosure for thepurpose of the investigation of a criminaloffence;(iii) to the Minister, an agent of the Office or theFair Trading Comm ission; or(iv) subject to paragraph ( b ) , o any person who isauthorized by the O ffice to receive it;

( b ) in the opinion of the O ffice or the M inister, disclosure isnecessary in the p ublic interest, so,however, that beforesuch disclosure is made, the O ffice or the M inister shallgive not less than fourteen days' notice of the proposeddisclosure to the applicant or licensee concerned whoshall, upon receipt of that notice, be entitled to ap ply toa Judge in Chambers for an order prohibi t ing thedisclosure on the ground that it would be harmful to theinterest of the applicant or licensee;

(c) subject to subsection (4), ursuant to a court order.(4) Where an application is made to a court for disclosureof confidential information , the party claiming confiden tiality hasa right to require that the inform ation be first disclosed on ly to theJudge for the purpose of determining the extent of and necessityfor the disclosure.(5) A person who contravenes subsection (2) shall be guiltyof an o ffence and shall be liable on sum mary conviction before aResident M agistrate to a fine not exceeding five hundred thousanddollars or to imprisonment for a term not exceeding three years orto both su ch fine and imprisonm ent.(6 ) In this section "confidential information" means any

information classified as such and includes information that areasonable person w ould regard as confidential having regard tothe nature of the information.

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8 . 4 ) The O ffice shall assign numbers for telecomm unications Numberingservices to carriers and service providers on a non-discriminatorybasis.(2 ) In carrying out its functions under this section the O fficeshall develop a plan for the numbering of telecommunicationsservices and may make rules pursuant to that plan regarding theassignment and u se of numbers by carriers and service providers.'\v (3) For the purposes of subsection (2 ) the O ffice shall-

( a ) take account of relevant international regulations;( b ) ensure that sufficient numbers are available for thecurrent and reasonably anticipated future needs ofcarriers and service providers;(c) have regard to the role that numbers can play inconveying useful information to customers, includinginformation about the type of service being used;(4 promote efficient use of numbers;( e ) promote fair and open competition;v) as far as possible and subject to paragraphs ( a ) o ( e ) ,avoid the imposition of costs on customers as a result ofchanges in the numbering system; and(g) to such extent as may be reasonable and subject to

paragraphs ( a ) to v), preserve the numbering systemmaintained by the existing telecommunications carrierand the numbering allocations existing immediatelybefore the appointed day.PART111. Licensing of Telecomm unications Services

9.-(1) A person shall not- Licencerequired for

il.)( a ) own or operate a facility in Jamaica unless that person isthe holder of a carrier licence granted under sec tion 13 ; service.

O f

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provide specified services to the public by means of thatfacility unless the person is also the holder of a serviceprovider licence granted under section 13;sell, trade in or import any prescribed equipment unlessthat person is the holder of a dealer licence granted undersection 13;engage in bypass operations.

(2) A person shall not provide a specified service to thepublic in Jamaica unless that person is the holder of a serviceprovider licence granted under section 13.

(3) Subsections (1) and (2) shall not apply to the followingfacilities to the extent that they are not used to provide specifiedservices, being facilities that are-

used solely on a single premises;not connected to any other system and are run solely bya person for domestic purposes;used solely as part of an electricity transmission ordistribution system or of the generation or distributionof an electricity network;used solely for broadcasting or to provide subscribertelevision service;used solely to provide emergency telecommunicationsservices;used solely by an aeronautical, maritime or other industryor organization to provide services to its members thatshare a common business purpose other than the supplyof telecommunications services.

(4) This section shall not apply to any facility owned oroperated by the Jamaica Constabulary Force or the Jamaica DefenceForce.

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(5) For the purposes of this Act, a specified service is( a ) is supplied, directly or indirectly, for a fee to a personothe r than-

(i) a connected person or any of its employees orofficers; or(ii) a closed user group;

provided to the public if it-

( b ) is connected to a public network; or(c) provides cus tomers with the capability to use the servicefor originating specified services to o r terminating suchservices from the public switched telephone network.

(6) For the purposes of this Act, the m arketing and sale ofinternational services to the public within Jamaica constitute theprovision of a specified service to the public.(7 ) Any person who contravenes subsection (1) or (2) shallbe guilty of an offence and liable on summary conviction in aResiden t Magistrate's Court to a fine not exceeding three milliondollars or to imprisonmen t for a term not e xceeding four years orto both su ch fine and imprisonment.

10 .41) The Minister shall by a direction in writing to the MinisterialdirectionsOffice, require the Office to invite applications for the grant of to Office recarrier or service provider licences or both and such direction shall licences, etcspecify-

(a) the num ber of licences to be issued;(b) the facilities or specified services, as he case may be, inrelation to which the licences will be granted.

(2) Upon receipt of a direction under subsection ( I ) , the

( a ) publish a no tice in a daily newspap er circulating in theIsland, containing inform ation as to-the service area to be covered by the licence;

c Office shall-(i )[The inclusion of this page is authorized by L N 3/2002]


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TELECOMM VNICA TIONS

(ii) the technical limits of the licence;(iii) the technical, legal and financial requirements

to be met by applicants;(iv) the number of licences to be issued;(v) the type of conditions to be included in a

licence; and(vi) such other information as the Office considers

relevant;( b ) determine the period within which applications shall besubmitted, not being less than sixty days in cases where

a limited number of licences are to be issued;(c) publish at the end of that period and in the mannerspecified in paragraph (a ) ,a notice of each application

submitted;

:3

(d) afford members of the public a reasonable opportunityto comment on any matter regarding such applicationswithin such period as the Office may determine, beingnot less than thirty days after the publication of the noticepursuant to paragraph (c).

(3) Where any comments made pursuant to subsection (2)(d) include a proposal for refusal of an application, such commentsshall contain a statement of the reasons for that proposal.

11.-(1) An application for a licence under this Act shall bemade to the Office in the prescribed form and shall be accompaniedby the prescribed application fee and contain a statement that-

( a ) the applicant undertakes to comply with the provisionsof this Act relating to the type of facility or specifiedservice to which the application relates, including-

Applicationfo r licence

0(i) interconnection obligations;(ii) universal service obligations;

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(iii) licence limitations; and(iv) network expansion requirements;

(b ) the applicant is not disqualified from being granted alicence by reason of any legal impedim ent;(c) the applicant possesses the technical qualifications tofully perform the obligations imposed by the licence;(d) the applicant satisfies the financial requirements for the

construction and operation of the facility or the provisionof the s ervices to which the app lication relates.(2 ) In deciding whether to recommend to the M inister that

(a) determine whether the applicant is a fit and p roper personto be granted a licence, is an undischarged bankrupt orhas previously been granted a licence which w as revoked;(b) determine w hether any connected person has previouslybeen granted a licence which was revoked;( c ) have regard to such other matters as he Office considersrelevant.

(3) The O ffice may, w here it considers necessary or desirablefor the purposes o f subsection (2), by notice in w riting, require anapplicant to furnish such information as is specified in that notice.

(4)After taking action in accordance with subsection (2) inrespect o f an application, the O ffice shall make recommendationsthereon to the Minister.( 5 ) The Office shall recomm end the refbsal of a licence to

(a) the applicant has failed to com ply with the requirementsof section 11 (1); or

0U and

an app licant be granted a licence, the Office shall-

an applicant if the Office is s atisfied that-

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( b ) the application is otherwise contrary to this Act or anydirections issued to the Office by the Minister pursua ntto section 10 .( 6 ) For the purposes of this Act, the following persons shallbe treated as being connected with a given person ("L") and theperson w ith them, and shall be so treated notwithstanding that atthe relevant time any of the persons in question (not beingindividuals) had not yet come into existence or had ceased to exist- 3

(a) a holding comp any or subsidiary of L;( b ) any company of which L has control;(c) any company of which L and persons connected with Ltogether have control;(d) any com pany which together with L constitute a group.

12. The M inister shall determine the am ount of the applicationfee which shall be such as is necessary to recover the costs ofprocessing the application.13.-(1) Upon receipt of a recommendation from the Officepursuan t to section 11(4), he M inister may, subject to subsections

(a) in the case of an application for a carrier licence, grantthat licence authorizing the license e to own and operatethe facilities specified in the app lication;

( b ) in the case of an application for a service provider licence,grant that licence authorizing the licensee to provide theservices specified in the application;(c) in the case of a dealer licence, grant the licenceauthorizing the licensee to sell, trade in or import anyprescribed equipment;(6) refer the recom mendation back to the Office for furtherconsideration; or

Applicationfees

Grant oflicence(2) and (3)-

(3



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( e ) refuse to grant the licence and the Minister shall as soonas practicable give written reasons for such refusal.(2 ) The Minister shall not grant a licence to an applicant

( a ) the Minister has consulted the Office with regard to itsrecommendation in relation to the application and hasobtained the support of the Office in relation thereto;and

( b ) the Minister is satisfied that the applicant satisfies therequirements specified in section 1 1 (1) (a) o (6).(3) A licence granted under this section shall be in theprescribed form and, subject to subsection (5) , shall be subject to

the following conditions-

unless-

nbJ

the licensee shall not operate a facility, provide specifiedservices or use any frequencies designated in the licencebeyond the period of the licence or in any manner otherthan that authorized by the licence;the licence or any right granted thereby shall not beassigned or otherwise transferred except in accordancewith this Part;such other condition as may be considered necessary toensure that the licensee complies with the requirementsspecified in section 11 (1) (a) o (4;subject to subsection (4), such other condition as theMinister deems reasonably necessary to achieve theobjects of this Act.

(4)Where a licence contains a condition such as is referredto in subsection (3) (4, he Minister shall inform the applicant inwriting of the reasons for that condition.(5) A licence granted under this Act may, on the expirythereof, be renewed in accordance with section 15.

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22 T E L E C O M W I C A TIONS

(6 ) A licence granted under this Act shall, unless sooner

(a) in the case of a carrier licence, for such period as isspecified therein;(b) in any other case, for such period, not exceeding fifteenyears, as may be so specified.

14.-(1) Where the Office has reason to believe that a licenseehas contravened the conditions of the licence or, as the case maybe, has failed to pay any amount required under section 16, theOffice shall give to that licensee notice in writing-

revoked, be valid-

3uspensionlicence.or revoca-tion of

(a) specifying particulars of such contravention; and(b) requiring the licensee to justify its actions to the Officeor otherwise to take such remedial action as may be

specified in the notice.(2) Where the Office gives any notice under subsection (l),

the Office shall send a copy thereof to the Minister for hisinformation.(3) Where a licensee fails to justify its actions to thesatisfaction of the Office or fails or refuses to take any remedial

action specified inthe notice issued under subsection(l), the Officeshall notify the Minister in writing of the fact of such failure orrefusal.

(4)Where a licensee fails to comply with any requirementsof a notice under subsection (l), the Office may-

(a) on the first occasion of such failure, recommend to theMinister that the licence be suspended for a period notexceeding three months; or

(b) if the failure occurs on any second or subsequentoccasion, recommend to the Minister that the licence besuspended for such period as the Office considersappropriate or be revoked.

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TELECOMMLNICA TIONS 23

(5 ) Before suspending or revoking a licence, the Ministershall direct the Office to notify the licensee accordingly and shallafford the licensee an opportunity to show cause why the licenceshould not be suspended or revoked.

( 6 ) Subject to subsection (7), the Office may recommend tothe Minister that a licence be suspended or revoked, as the casemay be, if, on its own initiative or on representations made by anyother person, the Office is satisfied that the licensee has-0

knowingly made any false statement in an applicationfor a licence or in any statement made to the Office;knowingly failed to provide information or evidence thatwould have resulted in a refusal to grant a licence;wilfully failed to comply with the terms of its licence;wilfully contravened any provision of this Act or anyrules or regulations made hereunder;violated or failed to comply with a cease and desist orderissued under section 63;provided services not authorized by its licence;operated a facility without a carrier licence;failed to make payments in a timely mannerinconnectionwith the universal service obligation levy or in respectof the regulatory fee imposed pursuant to section 16.

(7) Before taking action under subsection (l), the Officeshall carry out such investigationsasmay be necessary and affordthe licensee concerned an opportunity to be heard.

(8 ) For the purpose of this section, the Office may-c:(a) summon and examine witnesses;( b ) call for and examine documents;

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(c) require that any document submitted be verified byaffidavit;(d) adjourn any investigation from time to time.(9) If a person fails or refuses without reasonable cause, to

furnish information to the Office when required to do so, the Officemay apply to the Court for anorder to compel the person to furnishthe information to the Office.

15. The Minister shall, upon application by a licensee, renew alicence (hereinafter in this section referred to as the "originallicence") for a period equivalent to the period for which the originallicence was granted, if the Minister is satisfied that-

(a) the applicant has operated within the terms of the originallicence; and( b ) during the continuance in force of the original licence,the applicant has not engaged in any conduct amounting

to a material contravention of this Act or any regulationsmade hereunder.16.-(1) The Office may impose an annual regulatory fee in

accordance with this section in relation to all carrier licences andservice provider licences issued under &is Act.

(2) The amount of the regulatory fees shall be such sum as,in the opinion of the Office, is a reasonable estimate of the costswhich will be incurred by the Office in relation to the regulation ofthe specified services to which the licences relate (hereinafter inthis section referred to as "regulation costs").

(3 ) In determining the amount of the regulatory fee payableby a licensee, the Ofice shall apportion regulation costs reasonablyand equitably among licensees.

(4) Wherea licensee fails to pay the amount of the regulatoryfee within the time required by the Office for such payment, thelicensee shall be liable to such amount by way of a surcharge as

3Renewal oflicence.

Regulatoryfees.

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TELECOMM UNICA TIONS 25

cthe Office may determine, not exceeding twenty-five per cent ofthe amount unpaid.

17.--(1) In this Act- Assignmentof licences"control" in relation to a licensee, means the powerof a person ~ ~ ~to determine and implement the licensee's policies and licensees.the day to day operations of the policies and the day today operations of the licensed facilities or services;

"pro forma transaction" means-

c

an assignment from one or more individuals to abody corporate owned or controlled by the sameindividual or individuals without any change in theirrelative interests;an assignment from a body corporate toshareholders without effecting any change in thedisposition of their interests;a reorganization of a body corporate that involvesno change in the beneficial ownership thereof;an assignment or transfer-(i) from a body corporate to its wholly owned

subsidiary or vice versa;(ii) between wholly owned subsididiaries of thesame holding company;an assignment from a body corporate to anotherbody corporate owned or controlled by theassignor's shareholders without a substantial changein their relative interests.

(2) A licensee may,with he prior approval of the Minister,assign its licence or any rights thereunder or transfer control of itsoperations.

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26 TELECOMMUNICA TION S

(3 ) An application for approval of an assignment or transferunder this section shall be made in writing to the Minister whoshall grant such approval if he is satisfied that the assignee satisfiesthe requirements of section 11 (1) (a) to ( b ) as regards theobligations imposed on a licensee by this Act or the licence.

(4)Subsection (3) shall not apply to a pro forma transactionand the following provisions of this subsection shall apply inrelation t h e r e t e

(a) within forty-five days after the completion of thetransaction the licensee shall-

9

(0

(ii)

submit to the Office, proof of the completionof the transaction either in the form of anapplication that is appropriate for the class oflicence to which it relates or such other writtencorrespondence as the Office may authorize,containing all of the information included inthe application;certify that the transaction is a pro formatransaction;

( b ) the Office shall publish notice of the assignment ortransfer in the Gazette.

18.-(1) Any person may provide customer equipment other

(2) Customer equipment referred to in subsection (1)Customerequipment. than prescribed equipment to the public.

includes any equipment used- aU) by the customer to receive mobile services; and( b ) to connect more than one telephone station to the publicnetwork.(3) Where a person provides customer equipment referred

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T E L E C O M ~ N I C AIONS 21

(a) that person shall include a provision in the appropriatetariff or contract that reserves a right of the underlyinginternational carrier on application to the Office and onsuch terms and conditions as the Office may specifl tohave access to and inspect that equipment; and

(b ) that carrier shall take action under paragraph (a) n theprescribed manner.

(4) Where a customer denies access to the carrier that isrequired for the purposes of subsection (3) (a ) , he carrier may,with the prior approval of the Office, disconnect the serviceprovided to that customer or discontinue the provision of thatservice.

19.-(1) The Office shall cause to be kept a register of all Register andinspectionapplications for carrier, dealer and service provider licences of icences.received by it and all such licences granted pursuant to this Actand such register may be kept in electronic form.(2) Subject to section 7(Obligation for secrecy) the Office-

shall make available for public inspection during itsbusiness hours, all applications for licences andsupporting documents and all licences granted pursuantto this Act;may permit any person to make copies of any entry inthe register and may chargesuch fees as it considersreasonable for such copies.

PART IV. Spectrum Management

necessary or desirable to regulate the use, for any purpose, of the spectrum.spectrum within Jamaica or between Jamaica and elsewhere.

2 0 4 1 ) The Minister shall take such steps as he considers Regulationof use of

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28 TELECOMMlNICA TIONS

(2 ) For the purposes of this section, the Minister shall-allocate the spectrum for facilities and specified serviceswithin Jamaica;determine methods for assignment of the spectrum;issue licences authorizing the use of specified portionsof the spectrum;institute procedures for ensuring the compliance bylicensees with any obligations regarding the use andoperation of the spectrum, imposed by or under thelicence, any provisions of this Act or any regulationsmade hereunder.

,3

(3) The Minister may make regulations with respect to theimplementation of the policy with regard to management of thespectrum.

(4) The Minister may, subject to subsection (9, elegateany of his functions under this Part (other than the powers ofdelegation) to the Spectrum Management Authority establishedunder section 21.

( 5 ) In the absence of a delegation under subsection (4), theMinister shall, in carrying out his functions under this Part, eekthe recommendations of the Spectrum Management Authority.

(6) In this Act "spectrum" means the continuous range ofelectromagnetic wave frequencies up to and including a frequencyof 42 0 terahertz.21.41) For the purposes ofthis Part,he Minister shallestablish

a Spectrum Management Authority (hereinafter referred to as "theAuthority").

(2) Subject to subsection (3), the functions of the Authorityshall be to advise the Minister on any matter referred to it by theMinister and to perform any function delegated to it pursuant tosection 20 (4).

SpectrumAuthorityManagement

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(3 ) In performing its functions under this Act, the Authorityshall-

(a ) have regard to the objects, provisions and purposes ofthis Act and the provisions of the Radio and TelegraphControl Act; and

( b ) consult with and co-operate with the Office in relationto any matter which falls within the functions of theOffice pursuant to this Act.

22 . - (1 ) The Minister may, on the recommendation of the Allocationof spectrum.Authority, cause to be prepared a national plan for the allocationof the spectrum and that plan shall-(a) contain particulars &the allocationof frequency bands;and(b) conform to the International Telecommunication Uniontable of Frequency Allocations, including such allocation

for facilities and specified services.(2) In subsection (1) (a ) "frequency" means a continuous

frequency range of spectrum.Authority and subject to subsection (4), grant a licence (hereinafter spectrum.referred to as a "spectrum licence") authorizing the use of suchportion of the spectrum asmay be specified therein.

(2) For the purposes of this section, the Minister may, inwriting, direct the Authority to-

23.-( 1) The Minister may, on the recommendation of the Licence foruse of

( a ) invite applications for spectrum licences;(b) review such applications and make recommendations tothe Minister concerning assignment of the spectrum in

accordance with the provisions of the national planreferred to in section 22 (1).

(3 ) A person may, in the same application, apply for a carrierlicence, a service provider licence and a spectrum licence and in

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30 TELECOMM UNICA TIONS

Saving reexistingusers.

Use ofspectrum.

Spectrumregulatoryfee.

such a case, a copy of the application shall be sent to the Ministerand the Office.

(4)The Minister may grant a spectrum licence in connectionwith the provision of a facility or specified service only to anapplicant who is the holder of a carrier licence or service providerlicence or, as the case may be, is eligible for the grant of a carrierlicence or service provider licence.

(5) In making recommendations to the Minister undersubsection(2)(b), he Authority shall have regard to the prescribedstandards.

( 6 ) The Minister may make regulations prescribing methodsfor assignment of the spectrum and the standards required as tothe technical, financial and legal requirements of applicants.

(7) A person to whom a spectrum licence is granted underthis section shall pay such fees as the Minister may determine bynotice in writing to that person.

24. Section23 (1) to (6) hall not apply to any person (hereinafterin this Part referred to as an "existing user") to whom any rightsrelating to the use of the spectrum were granted before the appointedday in connection with a licence granted under the Radio andTelegraph Control Act or any other enactment.

25. Every person who is the holder of a spectrum licence shallcomply with the terms and conditions of that licence and thedirections of the Authority in relation to the use of the spectrum.

26.-(1) The Minister may impose an annual spectrumregulatory fee in accordance with this section in relation to eachspectrum licence issued under this Part.

(2) The spectrum regulatory fee shall be such amount as theMinister considers necessary in order to cover the reasonableoperating costs incurred by the Authority in relation to spectrumlicences.

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TELECOMMUNICA TIONS

(3) The amount of the spectrum regulatory fee shall becalculated on the same basis in relation to each holder of acarrier licence and a service provider licence.

PART V . Interconnection27. In this Part- Interprets-

t i a ."dominant public voice carrier" means a public voicecarrier that holds a dominant position in thetelecommunications market in Jamaica within themeaning of section 19 of the Fair Competition Act;

"interconnection provider" means a public voice carrierwho has received a request from another public voicecarrier for interconnection;

"interconnection seeker" means a public voice carrier whomakes a request to another public voice carrier forinterconnection;

"point of interconnection" means the physical location forhand-over of voice telecommunications servicesbetween the interconnection provider and theinterconnection seeker;

"public voice carrier" means a carrier who owns andoperates a public voice network used to provide avoice service to the public;"reference interconnection offer" means an offer documentsetting out matters relating to the price and terms andconditions under which a public voice carrier willpermit interconnection to its public voice network.

28.-41) Subject to subsection (2), the Ofice shall determine Deterrnim-t i a of


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TELECOMMUNICATIONS

(a) invite submissions from members of the public onthe matter; and(b) consult with the Fair Trading Commission and takeaccount of any recommendations made by that

Commission.(3)' A dominant public voice carrier may at any time

apply to the Ofice to be classified as non-dominant and theOffice shall not make a determination in respect of thatapplication unless it has invited submissions from members ofthe public on the matter and has taken account of any suchsubmissions.

Obligationto 29.-41) Each carrier shall, upon request in accordance withgrant inter-connection. this Part, permit interconnection of its public voice networkwith the public voice network of any other carrier for theprovisions of voice services.

(2) A public voice carrier shall provide interconnectionin accordance with the following principles-

(a) any-to-any connectivity shall be granted in suchmanner as to enable customers of each public voicenetwork to complete calls to customers of anotherpublic voice network or to obtain services from suchother network;

(b) end-to-end operability shall be maintained in order tofacilitate the provision of services by aninterconnecting carrier to the customernotwithstanding that the customer is directlyconnected to a different network;

(c) interconnecting carriers shall be equally responsible

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TELECOMMVNICA TIONS

(4)The Office may, either on its ow n initiative in assessingan interconnection agreement, or in resolving a dispute betweenoperators, make a determination of the terms and conditions ofcall termination, including charges.

(5 ) When making a determination of an operator's calltermination charges, the office shall have regard to the principleof cost orientation,so,however, that if the operator is non-dominantthen the Oflice may also consider reciprocity and other approaches.

( 6 ) For the purposes of subsection (5 ) , "reciprocity"meansbasing the non-dominant carrier's call termination charges on thecall termination charges of another carrier.

carrier shall provide interconnection in relation to a public voice dominant

C"

30.-(1) Without prejudice to section29, dominant public voice lnterconnec-tion bycarrier.network in accordance with the following principles-

(a) the terms and conditions under which it is provided shallbe-(i) on a non-discriminatory basis;(ii) reasonable and transparent, including such

terms and conditions as relate to technicalspecificationsand the number and locationofpoints of interconnection; and

(iii) charges shall be cost oriented and guided bythe principles specified in section 33 ;

c: ( b ) no unfair arrangementsfor cross subsidies shall be made;(c) where technically and economically reasonable,interconnection services shall be so diversified as torender it unnecessary for an interconnection seeker topay unreasonably for network components or facilitiesthat it does not require.

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Determina-tion ofterm orcondition.

Filing ofoffer bydominantand othercarriers.

(2) Each dominant public voice carrier shall keep separateaccounts in such form and containing such particulars aswill enablethe Office to assess whether that carrier provides interconnectionservices in accordance with the principles specified in subsection(1).

31. Each term and condition in relation to the provision ofinterconnection services provided to each carrier shall bedetermined- 3

( a ) in accordance with the relevant referencesinterconnection offer or any part thereof which is in effectin relation to the provision of those services;

(b) where paragraph (a) does not apply, by agreementbetween the interconnection seeker and theinterconnection provider; and

( c ) where neither paragraph (a)nor (b) pplies,by the Officeacting as arbitrator pursuant to the arbitration rulesreferred to in section 34 (2).

32.--(1) Every dominant carrier shall, and any other carriermay, lodge with the Office a proposed reference interconnectionoffer setting out the terms and conditions upon which other carriersmay interconnect with the public voice network of that dominantor other carrier for the provision of voice services.

(2) Each dominant public voice carrier who is required underthis Part to provide interconnection in relation to voice servicesshall submit a reference interconnection offer to the Office-

( a ) within ninety days after the date of determination ofdominance pursuant to section 28; or

( b ) at least ninety days before the date of expiry of an existingreference interconnection offer,

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35ELECOMMUNICA TIONS


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and the existing telecom munications carrier shall submit its initialreference interconnection offer within thirty days after theappointed day.( 3 ) A reference interconnection offer shall contain suchparticulars as may be prescribed.(4) A reference interconnection offer or any part thereofshall take effect upon approval by the Office in the prescribedmanner.

3 3 . 4 1) W here the Office is required to determ ine the prices at Principles towhich interconnection is to be provided by a dominant carrier, it mination ofshall, in making that determination, be guided by the following prices.principles-

0guide deter-

c:

cost s shall be borne by the carrier whose activities causethose costs to be incurred;non-recurring costs shall be recovered through non-recurring chargess and recurring costs shall be recoveredthrough recurring charges;costs that do not vary with usage shall be recoveredthrough flat charges and costs that vary with usage shallbe recovered through charges that are based on usag e;costs shall include attributable operating expenditure anddepreciation and an amount estimated to achieve areasonable rate of return;prices for interconnection shall be established betweenthe total long run incremental cost of providing theservice and the stand alone cost of providing the service,so, how ever, that the prices shall be so calculated as toavoid placing a disproportionate burden of recovery ofcomm on co sts on interconnection services;where appropriate, interconnection costs shall includep r ov i s ion f o r a supplementa ry cha rge , be ing ac on t r ibu t ion tow a r ds t he a c c e s s de f i c i t of th einterconnection provider.




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(2) Where the Office has been unable to obtain costinformation that it is reasonably satisfied is relevant andreliable, it may take into account comparable internationalbenchmarks.

(3 ) In subsection (1) U> "access deficit" means the amountby w hich a carrierk revenue from connection and line rental chargesfalls short of the cost of providing access lines due to regulatoryconstraints on those charges.Pre-contract 34.-( 1 ) Where, during negotiations for the provision ofinterconnection there is any dispute between the interconnectionprovider and the interconnection seeker (hereinafter in this sectionreferred to a s pre-contract dispute) as to the terms and conditionsof such provision, either of them may refer the dispute to the Officefor resolution.

(2) The O ffice shall make rules applicable to the arbitration

(3 ) A decision of the O ffice in relation to any p re-contract(a ) any agreement reached between the parties as to mattersthat are not in dispute;( b ) the terms and conditions set out in a reference inter-connection offer or any part thereof that is in effect w ithrespect to the interconne ction provider;( c ) the principles specified in sections 29 (2) and 30 (1).

(4) W here neither party to the dispute is a dominant publicvoice carrier, the Office may decline to act as an arbitrator in relationto the dispute.35.-( 1) The Office may, after consultation with the FairT r a d ing Commiss ion a nd suc h pa r t i c ipa n t s i n t he

telecommunications industry as i t thinks fit and subject tosubsection (3), make rules subject to affirmative resolution

0disputes.

of pre-contract disputes.dispute shall be consistent with-

9ompetitivesafeguards.

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(hereinafter referred to as "competitive safeguard rules") prescribingthe following matters in relation to dominant public voice carriers-

( a ) separation of accounts;(b) keeping of records;(c) provisions to ensure that information supplied by othercarriers for the purpose of facilitating interconnectionisnot used for any uncompetitive purpose;(6) such other provisionsas the Office considers reasonableand necessary for the purposes of the competitive

safeguard rules.(2) The Office may in consultation with the Fair Trading

(a) the types of uncompetitive practices to which thecompetitive safeguard rules apply; and(6) the procedure for determining whether to impose acompetitive safeguard in relation to that practice.

(3 ) The Office shall make competitive safeguard rules only(a) such rules are necessary for the identification orprevention of abuse of a dominant practice by a dominantpublic voice carrier or any other uncompetitive practiceby that carrier; and(b) no other means are available to the Office for the provision

of an adequate remedy in relation to such abuse orpractice;

r ' lU

Commission, develop guidelines as to-

if it is satisfied that-

3 6 . 4 1 ) The Office may make rules subject to affirmative Indirectresolution imposing on a dominant public voice carrier, the access.responsibility to offer a particular form of indirect access to itsnetwork to other interconnection providers, if theOffice is satisfiedon reasonable grounds that such rules are necessary in the interestof customers and that-(a) the benefits likely to arise from the requirement to providea particular form of indirect access outweigh the likelycost of implementing it; and

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(b) the requirement to provide the particular form of indirectaccess will not impose an unfair burden on any carrieror service provider.(2 ) In subsection (1) "indirect access" means the methodwhereby customers are able to select the services of any seriiceprovider who uses a public voice carrier's network to provide

specified services.37.--(1) Subject to this Act, the Office may make rules subjectto affirmative resolution imposing on any public voice carrier, the

responsibility to offer number portability if the Office is satisfiedon reasonable grounds that-

(a) the benefits likely to arise from the requirement toprovide a particular form of number portability outweighthe likely cost of implementing it; and

(b) the requirement will not impose an unfair burden on anycarrier or service provider.(2) In this section "number portability" means the ability ofcustomers to change service providers without having to change

their telephone numbers.

NumberPortability.

PARTVI. Universal ServicePrinciples 38. Universal service shall be provided to customers inprovision ofservice. (a) connection to the public voice network shall bereasonably provided to all customers upon request, tothe extent that such connection is technically feasibleand economically reasonable;

( b ) any obligation imposed by this act with regard tothe provision of universal service shall be fulfilledas efficiently, economically and practically aspossible;( c ) a licensee who isrequired by this Act to provide universalservice shall be entitled to compensation in relation

governinguniversal

accordance with the following principles-

3


TE LECOMMUNICA TIONS 39


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to the net costs incurred in meeting thatrequirement;(6) licensees shall pay the universal service levy in theprescribed manner.

39.-(1) Subject to this section the obligation to provide Obligationto provideuniversalservice.universal service shall be determined-(a) by an agreement between the Minister and a licensee;

andc1

(b) on the recommendation of the Office, in accordance withsection 42.(2) The obligation to provide universal service shall be based

on the following principles, that is to say the need-(a) to the extent technically feasible and economically

reasonable, to promote access to single line voicetelephone services throughout the Island to personsregardless of place of residence or work;

( b ) to ensure that payphone services are reasonablyaccessible to customers on an equitable basis;(c) to permit access to free calls to emergency services;and(d) to the extent technically feasible and in so far as the

necessary resources are available, to promote internetaccess throughout the Island in schools, public librariesand post offices.

(3 ) Where the universal service obligation is determined inaccordance with subsection (1) (a),he provisions of thisPartotherthan section 41, shall not apply to the provision of such service.

(4) Where the universal service obligation is determinedotherwise than pursuant to subsection (1) (a), he Office shall, onthe request of the Minister and subject to subsection (9,make

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recommendations as to the nature of the obligation to be imposedon the provider of such service.

( 5 ) The Office shall, before making any suchrecommendations, consult with members of the public on the matterin order to ensure that any such recommendations are based on themost complete and reliable information available and, in makingsuch recommendations, the Office shall have regard to- 0

( a ) the estimated net cost of fulfilling the universal serviceobligation in each year, not exceeding five per cent ofthe projected eligible revenue for each year in a periodof three years;

( b ) the need to avoid imposing an unfair or unreasonableburden on the universal service provider, persons whoare required to contribute to the universal service levyor customers of specified services.

(6) In determining the obligations of a universal serviceprovider under this section, the Minister shall have regard to anyrecommendations made by the Office, so, however, that theMinister shall not be bound by any such recommendations.

4 0 . 4 1 ) Subject to subsection (2), the Minister may-esignationprovider. (a ) designate the existing telecommunications carrier as aof universalservice

universal service provider; and(b) on the recommendation of the Ofice, deem any otherlicensee to be a universal service provider or to be so

eligible,for a specified area or in relation to a specific service.

1

(2) Before taking action under subsection (l), the MinisterShall-

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c

(b) issue a written determination that the public interestrequires the taking of such action.4 1 . 4 1 ) Subject to subsection (2), a universal service provider Obligation

(a) fulfull its universal service obligation in relation to therelevant area or specified service, to the extent that it istechnically feasible and economically reasonable;and

(b) follow any guidelines issued by the Office in relation touniversal service.

(2) A universal service provider shall not be in breach ofits universal service obligation if and to the extent that it ispreventedfrom fulfilling it by uncontrollable forces.

Office, direct in writing that a universal service obligation may bemodified in accordance with this section if sufficient funds are Obligation.available and it is necessary to fully compensate the universalservice provider concerned for providing additional services.

(2) Before making any recommendations under subsection(l), the Office shall consult with members of the public on thematter and such recommendations shall be based on the mostcomplete and reliable information reasonably available in relationt o -

(a) the estimated net cost of fulfilling the universal serviceobligation in each subsequent year, not exceeding fiveper cent of the projected eligible revenues derived bylicensees from provisionof the relevant services for eachyear over a period of three years; and

(b) the need to ensure that the universal service obligationdoes not impose an unfair or unreasonable burden onthe universal service provider, persons who are required

of universalprovidershall- service

42.-(1) The Minister may, on the recommendation of the Modificationof universal


42 TELECOMMUNICA TION S


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to contribute to the universal service obligation levy orcustomers of specified services.

(3) In this Part "eligible revenues" means revenues whichform the basis of calculation of contributions by licensees,determined in the prescribed manner.

PARTVII. Consumer ProtectionInterpreta- 43. In this part-tion.

"consumer" means a person-(a) to whom specified services are provided or are

intented to be provided in the course of a businesscarried on by a service provider;

( b ) who is not a carrier;"retail service" means a specified service provided by a service

provider to a consumer who is an end user of that service.4 4 . 4 1 ) Providers of retail services to consumers shall useuality ofservice. reasonable endeavours to ensure that those services are-

(a) reliable;( b ) provided with due care and skill; and(c) rendered in accordance with the standards reasonably

expected of a competent provider of those services.(2) A complaint may be made to the Office by any customer

who is dissatisfied with the services provided to him by a carrieror service provider or who claims to be adversely affected by theactions of a carrier or service provider.

(3 ) The Office may make rules subject to affirmativeresolution prescribing quality standards for the provision ofspecified services in relation to all service providers or dominantservice providers, as the case may be.

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c(4) The,Office may make rules relating to the administration

and resolution of customer complaints.45. Service providers may- Non-discrimina-tion andcontinuityof supply.( a ) refuse to provide retail services to consumers; or( b ) discontinue or interrupt the provision of such services

to a customer whether or not that customer is a consumer,pursuant to an agreement with that customer,

only on the grounds which are reasonable and non-discriminatoryand where any such action is taken, the service provider shall statethe reasons therefor.

46.--(1) In this Part- Price caprestrictions."prescribed price caps'' means such restrictions on the priceof prescribed services as are prescribed in rules madeunder this section;

"prescribed services" means services o which prescribed price

"price cap" means a restriction whereby the weightedaggregate price, calculated in the prescribed manner, forprescribed services shall not be greater than a specifiedprice.

(2) The Oflice shall make rules providing for the imposition,

caps apply;

monitoring and enforcement of price caps.47.+1) Every carrier and service provider shall, subject to Privacyofcustomersubsection (2), regard and deal with as secret and confidential, all .nformation.

information regarding the type, location, use, destination, quantityand technical configuration of services used by their customers.

/c(2) A carrier or service provider may-

( a ) disclose such information to the Office or pursuant tothe provisions of any law fnr the time being in force

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which requires such disclosure for the purpose of theinvestigation or prosecution of a criminal offence;

( b ) disclose such information with the written consent ofthe customer;( c ) disclose such information where the disclosure isnecessary in defence of the carrier or service provider in

any proceedings brought against that carrier or serviceprovider.

(3 ) A service provider or carrier shall not be liable to anyaction or suit for any injury, loss or damage resulting from adisclosure of information made pursuant to subsection (2).

48.-(1) Every service provider shall take such steps as arenecessary to ensure that, in relation to its retail public voiceservices-

0

Obligationsvoicere publicservices.

(a) each customer of that service can reasonably ahd reliablyreach-(i) emergency services by dialing the numbersspecified for use in connection with such

services; and(ii) subject to subsection(2),adirectory assistanceservice;

(b) no charge is imposed for calls to emergency services.(2 ) A service provider may charge a fee for the provision of

directory assistance.

facilities to be used by any person to defraud, abuse, annoy, threatenor harass any other person shall be guilty of an offence and shallbe liable on summary conviction in a Resident Magistrate's Courtto a fine not exceeding five hundred thousand dollars.

Improperuse ofservice orfacility49. A service provider who knowingly permits its services or (J

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PARTVIII. International Services

c50. The Office may make rules subject to affirmative International

resolution- service rules.( a ) prohibiting or regulating conduct that is likely to resultor results in the avoidance or distortion of the process

for international settlements, thereby-(i) reducing the funds that would otherwise beavailable for contributions towards the

universal service obligation; or(ii) adversely affecting competition in Jamaicaresulting in harm to consumers;

(b ) governing international settlements.51. A carrier or service provider may on application to the Rightsof

Office and on such terms and conditions as the Office may :$$specify- viders.( a ) discontinue the provision of specified services to anyperson; or(b) disconnect any facility from that carrier's facility oranother facility used to provide that service provider's

specified services,if that carrier or service provider believes on reasonable grounds,that the person who owns or operates that facility or the person towhom those specified services are provided, is engaging in bypassoperations or in conduct in respect of international services that isprohibited or regulated by the international service rules.

52.-(1) The Office may, where it considers necessary, decide Services tobe treatedthat a particular service should be treated as a voice service and as voicenotice of that decision shall be published in such manner as theOffice considers appropriate.

'(2) In making a decision under this section, the Office shallhave regard to such factors as may be prescribed.

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PART X. Powers and Immu nities of Carriers and ServiceProviders53.+1) Subject to subsection (2),a carrier ma y, with the w rittenpermission of the Minister responsible for crown lands enter anycrown lands for the pu rpose of-

( a ) inspecting the land to determine whether the land issuitable for the purposes of that c arrier;( b ) installing a facility on the land; and( c ) maintaining any facility situated on the land.

(2 ) Before entering any crown lands for the purposesspecified in subsection (1) ( a )and ( b ) he carrier shall, not laterthan seven days before the date of the proposed entry, in w ritingnotify the Min ister referred to in subsection (1 ) of its intention todo so and such no tice shall-

Access tocrown lands.

13

( a ) identify the land;( b ) state the purpose, approximate dates and period for whichthe entry is required.

54.-(1) Subject to subsection (3), if the requirements ofsubsection (2) are satisfied, a carrier (hereinafter in this sectionreferred to as the "provider carrier") may permit another carrier(hereinafter in this section referred to a s the "requ esting carrier")to enter, on a n on-discriminatory basis, any land or facility ow nedor controlled by the providing c arrier.

(2) The requirements referred to in subsection (1) are asfollows-(a) the requesting carrier shall, before the proposed date ofentry on the land, give reasonable notice of the purposesfor which such entry is required and the approximatedates and duration of such entry;( b ) the providing carrier shall be entitled to reasonablecompensation in relation to that entry, to be determined

Access tofacilities ofOther carrierland or

\3

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TELECOMMWNICA TIONS 47


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in accordance with the relevant provisions of the LandAcquisition Act;(c) entry on the land shall be carried out or supervised bythe providing carrier and any action taken thereon shallbe carried out by a certified technician.

(3) The requesting carrier shall not be permitted to en ter onany land o r facility owned or controlled by the providing carrier ifsuch entry-( a ) would threaten the integrity of the providing carrier'snetwork;(b) is not technically feasible for the providing carrier; or(c) would prevent the providing carrier from hlfilling itsreasonably anticipated requirements for use of the landor facility, including, but not limited to, requirementsfor permitting entry to other persons with whom theproviding carrier has contracted to provide such entry.

land or the permission for such entry is unreasonably delayed, the Of access.carrier may make an app lication to the court for an order permittingsuch entry.

0

55-1) Where a carrier is denied permission to enter on any Enforcement

(2) An application under subsection (1) shall-( a ) iden tifl the land to which the application relates;(b) identifl the owner or occupier of such land;(c) state the means by which entry is to be effected, thepurposes and the approximate dates and the period forwhich such entry is required;

i.. (6) specifl-(i) the date of any prior notice given to the owneror occupier of the land; and(ii) the amount of compensation offered to suchowner or occupier;[The inclusion of this page is authorized by L.N. 3/2002]

48 TELE C O M M U N I C A T l O N S


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Powers ol'Minister.

Certi ticationstandards.

Establish-nicnt ofCounci l .

FirstScl1cdulc.

( c . ) state that all reasonable attempts to seek permission forentry have failed; andin the case of land owned or controlled by another carrier,state that all reasonable alternatives for entry on landhave been exhausted.

v>

03) The court may grant an order under this section if it issatisfied that the applicant has complied with the requirements ofsections 53 an d 54 .

56. The M inister responsible for national security may, wherehe is satisfied that it is necessary to do so in the interest of nationalsecurity and after consultation with the Minister, take control of orclose dow n a licensee's operations or any part thereof and whereany such act ion is taken, the l icensee shal l be el ig ib le forcompen sation for any loss suffered as a result of that action.

PARTX. Certijcation Stundurds57. The O ffice may make rules subject to affirmative resolutionprescrib ing certification standa rds in relation to-

(a) customer equipment;(b) plugs and jacks;( c ) wiring connected to the public network; and(d) technicians.

PARTXI. Telecommunications Advisory Council;38.-( 1 ) There shall be established for the purposes of this Acta body to be called the Jamaica Telecommunications Advisory

Council (hereinafter referred to as the Council).(2 ) The provisions o f the First Schedule shall have effect as

to the constitution of the Council and otherw ise in relation thereto.I I IIL I n L I u w n 01 thi\ ~ I S C \ authorized b y I N l l 2 l o . ? l

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59. It shall be the duty of the Council to advise the M inister on Functions ofCouncil.all matters relating to telecom mun ications services, including-( a ) certification standards;(b) codes of conduct in relation to the telecommunicationsactivities of licensees and their agents and inter-licenseerelationships.

PART X II. Review of Administrative D ecisions60.-(1) A person w ho is aggrieved by a decision of the Minister Reconsidera-tion by

may, within fourteen days after receipt of that decision, apply to Minister orthe M inister in the prescribed manner for a reconsideration of the Office.matter.

(2) Where a n application is made under subsection ( I ) , theMinister may-

( a ) order that the decision to which it relates shall not haveeffect until the matter has been reconsidered and furtherdetermined by him; and

(b) confirm, modify or reverse that decision or any partthereof.(3 ) Where no order is made under subsection (2) ( a ) , the

decision shall remain in effect.(4) A person w ho is aggrieved by a decision of the O ffice

may, within fourteen days o f receipt of that decision, apply to theOffice in the prescribed manner for a reconsideration of the matter.(5) An application under subsection (4) hall be heard only

( a ) relies upon new facts or changed circumstances thatcould not, with ordinary diligence have become knownto the applicant while the m atter was being consideredby the O ffice; or

if the applicant-c(The inclusion of this page IS authorized by L N 3/2002]



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( b ) alleges that the decision was based upon material errorsof fact or law.(6) The Office may, in relation to an application undersubsection(4), onfirm, modify or reverse the decision or any part

thereof.:37) Where a decision is confirmed, the confirmation shallbe deemed to take effect from the date on which the decision was

made.(8) Where an application is made under subsection (4)-

( a ) the Office may, on an application by the applicant, orderthat the decision shall not take effect until a determinationis made under subsection (6); and

( b ) the Appeal Tribunal shall not hear an appeal undersection 62 in relation to that decision until such adetermination is made by the Office.

Establish-TribunalSecond

61. There is hereby established for the purposes of this Act, anAppeal Tribunal and the provisions of the Second Schedules shallhave effect as to the constitution of the Appeal Tribunal andotherwise in relation thereto.

6 2 . 4 1 ) A person who is aggrieved by a decision of the Office

( a ) if the person is a party, within twenty-one days afterreceipt of the decision; or(b) in any other case, within thirty days from the date ofnotification of that decision.

ment of

Schedule

Appeal toTribunal may appeal against the decision to the Appeal Tribunal-

(2) On hearing an appeal under this section the Appeal 3Tribunal may, subject to subsection (3)-( a ) confirm, modify or reverse the decision of the Office orany part thereof; or

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TE LECOMMUNICA TIONS 51

(b) by a direction in writing, refer the decision back to the


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Office for reconsideration by it, either generally or inrelation to any matter specified in the direction,

and the Tribunal shall state the reasons for so doing within thirtydays.(3 ) The Tribunal may, on application by an appellant, order

that the decision of the Office to which an appeal relates shall nothave effect until the appeal is determined.0

(4) The Appeal Tribunal may dismiss an appeal if it is ofthe opinion that-

( a ) the appeal is frivolous or vexatious or not made in goodfaith; or

( b ) the appellant does not have a sufficient interest in thesubject matter of the appeal.(5) Where the Appeal Tribunal dismisses an appeal, it shall

in writing inform the appellant and the Office, stating the reasonstherefor.(6) In making a decision the Appeal Tribunal shall observe

reasonable standards of procedural fairness and the rules of naturaljustice and act in a timely fashion.

PART XIII. Enforcement6 3 . 3 1 ) The Office may, where it is satisfied that there are Power to

reasonable grounds for believing that any conduct specified in anddesistsubsection (2 ) is being carried out by any person, on its own Order.initiative or on the application of any person, issue to the personconcerned, a cease and desist order in accordancewith section64.

(2) The conduct referred to in subsection (1) isas follows-

issue cease

L( a ) any bypass operations in contravention of this Act orregulations made under this Act;


52 TE LECOMMUNICATIONS

(b) own ership or operation of an unlicensed facility;


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( c ) providing any specified services to the public without alicence issued under this Act.(3 ) An order under subsection (1) shall-

( a ) state the facts constituting the alleged conduct and whereappropriate, the nam e of the person against whom theallegation is m ade; and( b ) be accom panied by docum ents, if any, in support of theallegation.(4)Before issuing a cease and desist order, the Office shall

( a ) containing a statement of the facts referred to insubsection (3 ) ( a ) ; nd( b ) specifying the period within which and a place at whicha hearing will be held to afford to the person concerne d

an opportunity to sho w cause why the o rder should notbe made.

0cause to be served on the person conc erned, a notice-

(5) Where at a hearing referred to in subsection (4) b)-( a ) the person concerned fails to show cause why the ceaseand desist order should not be made, the order shall beissued; or( b ) the O ffice determines that the alleged conduct has no toccurred, a cease and desist order shall not be issued.

64. A cease and desist order shall be served on the person toontents ofdesist order,cease and whom it is addressed and shall-

(a) contain a description of the alleged conduct;( b ) require the person concerned to cease and desist from

the conduct giving rise to the o rder,and the o rder shall take effect from the date specified therein.

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T EL EC OMMUN I C AT I ON S 53


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65.-( 1) If the Court is satisfied on an application by the O ffice Applicationfor enforce-that a licensee- ment.( a ) has failed to com ply with any term or con ditions of thelicence; or(b) has contravened any provision of this Act or anyregulations mad e hereunder,

the Cou rt may ex ercise any of the powers specified in section 66.(2) Before making an application to the Court under

subsection ( l ) , the Off ice shall-( a ) notify the licensee concerned in writing regarding thenature of the a lleged contravention; and(b) afford to the licensee an oppo rtunity to-

0

(i ) remedy the alleged contravention to thesatisfaction of the O ffice, within such periodas the O ffice shall specify in the notice or onthe application of the licensee;(ii) make submissions to and to be heard by, theOffice concerning the matter, and where anysuch hearing is held, the Office shall notifythe licensee of its determination in the matter;

(c) take into consideration any relevant circumstances,including-

L(i ) the resources available to the licensee or toany person or en tity affected by th e licensee'sactions;(ii) the continued eco nom ic viabil ity o f thelicensee or any other person or entity affected

as aforesaid; and(iii) the conduct of any such other person or en tity

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(3) In exercising its powers under this section, the Office

(a) the nature and extent of the conduct giving rise to theapplication;

( b ) the nature and extent of any loss suffered by a person asa result of the alleged contravention;

(c) the circumstances of the alleged contravention; and(d) any previous determination against the licensee

concerned.

shall have regard t o -

!3Powers of 66.-(1) The Court may, pursuant to an application under sectioncourt . 65 (1)-

(a) order the offending licensee to pay to the Crown suchpecuniary penalty not exceeding five hundred thousanddollars in the case of an individual and not exceedingthree million dollars in the case of any other person;

(b) grant an injunction restraining the offending licenseefrom engaging in conduct described in subsection (1)(a)or ( b )of section 65; or

(c) make such other order as the Court thinks fit,in respect of each contravention or failure specified in thatsubsection.

(2) In exercising its powers under this section the Court(3) Proceedings under this section and section 65 shall be

shall have regard to the matters specified in section 65 (3) .

civil proceedings. JCivil 67. Every person who engages in conduct which constitutes-( a ) a contravention of any obligations or prohibitions

specified in the relevant provisions of this Act;liability.


TELECOMMUN

telecommunications act 2000

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