Telecommunications Bill 2012 - Bill No. 18 of 2012
4339 07 Nov, 2013
Telecommunications Bill 2012 - Bill No. 18 of 2012 – Nov 07, 2013
Prime Minister and Minister of Parliamentary Affairs [Mr. Hinds]: I rise to move the second reading of the Telecommunications Bill 2012 - Bill No. 18 of 2012.
This Bill represents a very significant milestone for the telecommunications sector in Guyana. The importance of this Bill is very evident at the very inception in the long title, “AN ACT to provide for the establishments of the Telecommunications Agency and for a regular, coordinated, open and competitive telecommunications sector and for matters incidental thereto or connected therewith.”
The 95 clauses in this Bill, in the 14 parts, along with the seven sets of regulations, which we plan to table subsequent to the enactment of this new telecommunications law, have been written to create, comprehensively, a new open competitive regime which will be fair to consumers, to sector participants and attractive to new entrants, large or small, of interests, wide or narrow.
This is landmark legislation for Guyana. This Bill will allow for Guyana to be placed, at last, in the league of nations with modern legislation in the area of provision of telecommunications services. It will move Guyana from a nation with a monopoly provider in wire line and international services to one where free and fair competition in all segments of service provision is allowed.
We can expect that this new competitive regime will give more play to the initiative, innovation and ingenuity of our people so that they could experiment and create hybrid systems which, we think, will rapidly evolve to arrangements which are appropriate to our geographic, demographic and economic circumstances, giving good value for every dollar that we spend, as customers, seeking services at the lowest sustainable prices at the best possible quality of service.
This Bill has been long in the making. The basic text of this Bill was first tabled before this honourable House in 2011 during the sittings of the Ninth Parliament. The 2011 Bill was then read a first time and a second time and then deliberated on in the Special Select Committee process. Thereafter, in response to demands by Guyana Telephone & Telegraph Company (GT&T) and its principal shareholder, Atlantic Tele-Network (ATN), for a deferral of the enactment of the 2011 Bill to allow for further discussions between the Government and GT&T, and ATN, on the transition to a liberalised sector, the Government opted to withdraw the 2011 Bill just prior to the third reading thereof in August 2011.
The Bill was again tabled before this honourable House during this current Tenth Parliament in August 2012. There was the first reading of this Bill, having taken place in this honourable House in August 2012. Further readings were deferred, from time to time, by this honourable House at the request of the Government’s side in order to allow for full consultations and discussions with the major players in the sector so as to ensure that there is a new law that is practical, realistic and provides the template for a regime that can most effectively foster and regulate a fully open sector and provides for fair competition.
I can venture to say that the efforts, which have culminated in the Bill, and the proposed amendments thereto, which are before this honourable House today, commenced some two decades ago and a large number of efforts have been engaged in over that period to have our telecommunications sector transitions to an open one so that Guyana could progress in this area of service provision and not lag behind other sister Caribbean Community (CARICOM) countries and most of the rest of the world.
We all know that world trends in the telecommunications sector, up to around the late 1980s, were to largely have government-owned monopoly telecommunications companies. By 1990 the world was transitioning to private ownership of monopoly telecommunications companies and many countries were further transitioning to open competitive sectors. The 1994 World Trade Organisation (WTO) negotiations and the deferred WTO negotiations on basic telecommunications that resulted in the 1997 agreement on basic telecommunications, strongly promoted open telecommunications sectors that were fairly regulated.
It was in 1990 that our government-owned monopoly telephone service provider, the Guyana Telecommunications Corporation (GTC) was converted to the incorporated company GT&T and privatised. It changed from a government-owned telecoms monopoly of networks into a private monopoly over the extant networks with the technology of that time.
The 1990s was a time of the beginning of rapidly emerging and evolving technologies, including mobile cellular and the internet, to name the two basic lines of development. Fortunately, as it happened, new emerging technologies were not included in that monopoly so the PPP/C administration was able to encourage investors and nurture competitive investments into the new emerging mobile cellular telecommunications service, with Digicel eventually joining GT&T in offering robust competitive domestic mobile cellular, voice and data services. It is so much so that there are approximately 600,000 cellular phones in use in Guyana today as compared with only approximately 154, 000 landlines. In this regard, in terms of a usual measure in the telecoms sector, the penetration rate, that is the number of telephone lines per head of population, and the range of telecommunications services available, Guyana is not much behind even the most advanced countries, even though it is late in introducing this new open competitive law. This new law will allow us to more easily meet the growing demand for various types of data intensive services and video services in Guyana and applications from potential service providers. The demands are such that we see the need to move urgently to an open sector, where investors are encouraged to build networks, deploying new technologies, including 3G and 4G High Speed Packet Access (HSPA), Universal Mobile Telecommunications Systems (UMTS) and Long Term Evolution (LTE) networks and providing the mix of voice and data intensive services and voice services at high speeds that are expected by our consumers.
The new proposed legislation brings benefits to all participants in the sector in establishing greater clarity in the sector. The laws of 1990, which are our existing laws, are dated. Here I speak of the Telecommunications Act, 1990, the National Frequency Management Unit Order, 1990 and the extant provisions of the PUC Act that concern the telecommunications sector. These laws were drafted and enacted, simultaneously, with the creation of GT&T as a monopoly provider and the privatisation of it. These laws were largely drafted with the regulation of a monopoly provider in mind. Also, there is some degree of conflict between the laws as the Telecommunications Act, 1990, was patterned after the British system, whilst the provisions of the PUC Act, as they relate to telecommunications, are largely patterned after the American system. The new laws seek to remove and resolve those areas of conflict. Additionally, and perhaps more importantly, our existing laws, being written against the background of telecommunications technology and practices of the 1980s, could not and did not foresee where the technology is today - where there are many ways of achieving the same end; where there is much convergence and distinctions of the 1980s matter little today.
Shortly after the PPP/C administration came to power in 1992, it embarked on talks to reform the sector as by then other countries were already seeing the benefits of allowing competition in the sector. As early as 1993, the Government entered into discussions with GT&T and its principal shareholder, ATN with a view to establishment of an open, competitive sector and one which would bring increased regulatory certainty. Such efforts were not successful at that time and over the years other similar efforts were made – major attempts to hold discussions aimed at achieving liberalisation of the sector, which come to mind, took place in 2001, 2003 and 2008. Of particular importance was the Government’s launch in 2000 of the Modernisation of Telecommunications Sector Project that saw national consultations and options for reform of the sector, the preparation of a draft national telecommunications policy and a draft new telecommunications Bill.
During that time, the Government faced litigation filed by GT&T and ATN in the United States of America courts over efforts to encourage information and communications technology (ICT) development in Guyana through meaningful interventions, all of which, in the opinion of some experts, were lawful efforts by the Government. It was a time, however, when different experts, both legal and technical, were of different opinions, as sentiments, practices and technologies were evolving rapidly.
In 2008, the efforts to negotiate an end to the GT&T monopoly reached the point where the Government and GT&T, and ATN, recognised the need to allow for an examination of some financial issues concerning the company and for the preparation of an appropriate legal framework that would govern an open, competitive sector. Thereafter, the Government continued, in earnest, its efforts to update drafts then available and to complete the preparation of a comprehensive legal framework for the sector. The drafts were made available for review and comments to each and every participant in the sector and to the general public.
It was out of that framework that the law was developed which was presented to this honourable House in 2011 and saw through a Special Select Committee, but the Government allowed it to lapse on strong protests from GT&T and ATN, claiming that the process was being rushed. We, the Government, fearing that implementation of the law could be hung up in the courts, accepted, trying again in the new Parliament, this Tenth Parliament.
In August 2012, we again tabled the Bills, this Telecommunications Bill, Bill No. 18 of 2012, and the amendments to the Public Utilities Commission Act, Bill No. 17 of 2012. These Bills were read a first time and thereafter further readings were deferred by this honourable House at the request of the Government’s side again to allow for the discussions with the major players in the sector.
Following the first reading of the Bills, in August 2012, in this Tenth Parliament, intensive discussions between the Government and GT&T and its principal shareholder, ATN, took place in November 2012, December 2012, January 2013, March 2013, May 2013 and September, 2013. A number of issues for discussion were tabled by GT&T and ATN under two categories: legislative issues and non-legislative issues. Separate discussions were held with Digicel and the four other operators.
The Government has worked to accommodate the legislative issues that have been identified by GT&T/ATN and Digicel in the discussions. These are reflected in the amendments to the Bills that were tabled in Parliament on August 7, 2013, which themselves came out of the Special Select Committee of September 2011 at the end of the Ninth Parliament as well as from discussion held with GT&T and Digicel. The further amendments, which are dated November 5, 2013, and which we are laying today, came out of discussions since last August with GT&T and its principal shareholder, ATN, and other stakeholders. I wish to particularly note that the Government has been careful to ensure that the amendments, which came about as a result of the discussions, do not prejudice or compromise a fair and level playing field for operators and service providers to be licensed under the new laws. These amendments are intended to ensure that the Bills are practical and workable from the operators and service providers’ perspective and we see them as enhancements to the Bills.
As we proceed today, I will not be shy to inform this House that there are three main issues that have been tabled by GT&T and ATN where significant distances remain between the Government’s positions, however, these are issues of a non-legislative nature and should not compromise the further debates on the Bills. One of these issues concerns differences in assessing tax liabilities and have been pending since the late 1990s in the courts. The Government expects to continue discussions on these three issues with GT&T and ATN.
Guyana’s new legal regime for the sector, as set out in these Bills, is a modern regime which takes account of “international best practices” and tried and tested regimes. It draws, particularly, from laws and experiences in our sister Caribbean countries, including Trinidad and Tobago, Jamaica and the Organisation of Eastern Caribbean States (OECS) countries. It will be supplemented by significant, detailed regulations in the seven areas of licensing and spectrum authorisation, pricing, spectrum management, interconnection and access, universal access/service, telecommunications related competition matters and telecommunications related consumer protection matters. Also being prepared are model licences for the main types of networks and services that may be licensed under the new law, thereby creating a comprehensive framework for even greater level of fair play among operators and service providers.
It will create the framework for an open, competitive sector without exclusivity for any type of telecommunications network or service. It will address the expansion of telecommunications networks and services into unserved and underserved areas and regions of Guyana.
At another level, it will serve to regularise and rationalise the growth in internet based services that has already blossomed in Guyana. As it is known, there are four significant operators in this area in Guyana and several other smaller operators. They are all waiting with bated breath for a regularising/licensing of their operations so that they may come under the umbrella of licensing regime and the protection of fair regulation. Such regularisation will also serve as incentive to invest in a greater way in their operations once licensed.
The Government’s oft stated objectives for reforming and modernising the sector have and continue to include the following:
• To promote access to reliable, competitively priced and advanced telecommunications services in all regions of Guyana.
• To improve the lives of all citizens by improved access to economic, social and information resources, through improved national telecommunications infrastructure that permits access to the internet and internet based services.
• To promote the development of ICT services and businesses in order to improve the lives and businesses of citizens of Guyana and to provide export revenues
• To improve access by all citizens to Government and other public services, including public health, education and economic and social services through use of technology and appropriate telecommunications infrastructure.
• To promote competition in the supply of telecommunications services as a means to achieving improved services, increased efficiency and competitively priced services.
I would also remind this honourable House that the Government, taking account of the early stage of development in Guyana, has also sought through direct intervention and investment to bring these objectives to reality. I speak particularly of:
(i) The Government’s investment in the installation of an optical cable from Georgetown to Lethem for the purpose of bringing bandwidth from Brazil for e-government purposes.
As can be expected, this is one other area of significant objection by GT&T. I must say, however, the usefulness and value of this investment by the Government is forcefully reinforced when one considers our unpleasant experience just yesterday, when due to a complete cut in the principal submarine cable used by GT&T for international traffic and a failure of its redundant link, Guyana was rendered completely disconnected from the internet via GT&T’s facilities for several hours. Emails could not go through and international calls were severely restricted.
(ii) The other project being implemented to establish a backbone and bring connectivity to citizens from Moleson Creek to Anna Regina and then reaching out to the more remote and less populous areas, and;
(iii) Our One Laptop Per Family Project that is providing computers, in the first instance, to some 90,000 families across Guyana and to the projects to equip all secondary and primary schools across Guyana with computer labs, entrench computer literacy in the school curriculum and to train teachers in computer literacy so that every Guyanese, without exception, has an opportunity to become computer literate and hooked up.
All that I have spoken of so far point to this Government’s seriousness with respect to encouraging the development of this sector for the benefit of all Guyana.
This new legal framework and all of Government’s effort to encourage growth in the sector is fully justified when we consider the experiences of other countries that have established liberalisation of the telecommunications sector and when we consider the data from the International Telecommunications Union (ITU) and the World Bank. Some reports have shown that by just adding ten mobile phones per one hundred persons in a typical developing country boosts growth in GDP per person by 0.8 percentage points. It is noted in the ITU’s 2nd Broadband Commission Report, A Platform for Progress, (June 2011), that:
“Market liberalization remains the most effective mechanism to encourage greater investment in telecommunication networks. Experience shows that liberalization through the licensing or authorization of new operators will yield greater benefits than incentives or obligation-driven approaches targeted at only a monopoly or duopoly.”
The Government’s new telecommunications Bill and the accompanying consequential amendments to the PUC Act are characterised by transparency, technological neutrality and non-discrimination in the issuance and monitoring of licences and frequency authorisations, the interconnection of and access to telecommunications networks and services, and the implementation of a universal access/service programme, all to be administered in a competitively neutral manner with regulatory burdens imposed only where necessary to ensure a competitive environment and the integration of networks and services.
Looking a bit more directly at the Bill, Part I provides usual “Preliminary Provisions.” In Part II the new regime provides for the establishment of the telecommunications agency into which the National Frequency Management Unit (NFMU) be incorporated, functioning from the subject Minister supervision which will be the technical regulator and the Public Utilities Commission (PUC) which will function as the economic regulator for the sector.
Part III states and distinguishes between the functions of the Minister, the telecommunications agency and the Public Utilities Commission. The Minister will be responsible for the matters such as developing policy the determination of what types of network and services require licences, the granting or denying of applications for licences and frequencies authorisation, the making of regulations, the overseeing of the new telecommunications agency and representing Guyana’s telecommunications interests internationally.
The telecommunications agency, which is the technical regulator, implements the Minister’s policy directives; receives, reviews and makes recommendations on applications for licences and frequency authorization; advises and supports the Minister on matters related to policy licence, spectrum and international relations; monitors and enforces compliances with licenses and frequency authorisation manages the spectrum; plans, supervises, regulates and monitors harmful interference and other technical aspects of telecommunications, including numbers, and administers universality fund and the universal access service programme.
The PUC, the economic regulator, regulates wholesale and retail prices to telecommunications network and services; regulates interconnection and access; regulates number of portability and equal access; enforces competitive safeguards; resolves disputes involving operators and service providers; protects consumers and resolves disputes between consumers and service providers.
In Part IV represents the new licensing provision and frequency authorisations. The new framework contemplates three types of licences. Individual licences will be required to operate the public telecommunications network or provide public telecommunications services. Class licences maybe authorised for certain public telecommunications networks and certain public telecommunications services, the determination of which is the responsibility of the Minister. Special licences and related frequency authorisations will be permitted in emergencies and other exigent circumstances and for demonstrations testing other short-term situations. These will be valid for 10 days and will be renewable for good cause.
The Minister is responsible for the determination of networks and services which may be exempted from acquiring licence and these will be designated in orders after consultations with stakeholders. Dealer’s permits will be permitted for the sale or other transfer or programming or other modification of radio communications equipment.
The material terms and conditions of licences and frequency authorisation include the following features:
• the terms and conditions would be transparent and nondiscriminatory;
• the concept of a level playing field for all licences to be established;
• the agency recommended licensing and the Minister approves or denies application after a public comment period;
• the obligations attached to licences and frequency authorisation includes requirement to comply with the Act, regulations, the telecommunications code and other relevant laws;
• the obligations attached to frequency authorisation include the requirement for authorisation holders to respect the technical parameters of frequency assigned and adhere to authorised frequency bands.
There are also in Part IV clauses dealing with the suspension and termination of licences and renewal of licences. It is just to say, as it is the common and universal practice, the authorisation is not required for ships, aircraft and other vehicles that are not registered in Guyana while they are in Guyana, but they do come under our telecommunication agency while they are in Guyana.
For what may be considered as its core, this Bill provides that certain new licences and frequency authorisations will be awarded under the new regime on the effective date of the new Act and these are…
Mr. Speaker: Hon. Prime Minister, one second please. Firstly, your allotted time of half an hour is up. You will need an extension of half hour. Secondly, we have gone into our suspension period so I was wondering whether you wish to take the adjournment now or complete it because it does look like you have quite a bit more to go.
Mr. Hinds: I wish to complete now.
Mr. Speaker: Proceed Hon. Prime Minister.
Mr. Hinds: New licences will be granted on the effective date of the new Act. These licences are a new GT&T licence and frequency authorisation to replace the existing licence granted in 1990 and various documents authorising it to use the frequency spectrum. Members may know that GT&T had a licence for 20 years in the first instance and which, at its wish, would be extended for a second 20 years. The Government will, on the effected date of the new Act, also issue a new licence for Digicel inclusive of international service provision and frequency authorisation to replace the existing 2001 licences and authorisation for it to use the frequency spectrum.
There will be licences and frequency authorisation for the four Internet Service Providers (ISPs) operating wireless broadband internet access networks. These are E-Networks Inc., Corp Communications Inc., I-net Communications Inc. and Next Link Communications Inc.
Model licences will be prepared for the following types of operators and service providers:
• fixed networks and services;
• mobile networks and services;
• international services;
• domestic services;
• mobile services;
• value added services;
• and resale of services.
Model frequency authorisations will also be prepared.
In Part V there are clauses which speak to prices and dominants. With respect to price regulation, the principles are prices for public telecommunications services are to be set by the market participants on the basis of supply and demand. Price regulation will only be imposed in cases of service provisions by a sole provider in cases of dominants or where there is proven and anti-competitive cross subsidisation or other anti-competitive or unfair behaviour. One amendment been proposed among the amendments dated the 5th of November allows for wholesale price to be agreed between parties with recourse to the PUC where there is failure by the parties to agree on a price or in case of other dispute. Price regulation will be within a framework designed to ensure transparency and non-discrimination. The provisions provide clarity of implementation the regulator, operators and service providers.
The issues of interconnection and access are provided for in Part VI. They encompass interconnection of public telecommunications network, access to facilities of telecommunications operators, access to utilities installation of other public utilities, for example, access to the poles of Guyana Power and Light (GPL) and vice versa and issues of collocation of telecommunications and facilities, and so on. These provisions supplemented by the regulations create a comprehensive deal and the enforceable set of rules for interconnection and access between and among operator service providers. For example, operators will be obliged to provide interconnection and access and the PUC will be required to mandate the terms of interconnection and access of operators and service providers do not reach agreement on terms within specified time limits. Quite often the operators will speak with other, try to reach agreement and if they do not then at the wish of either party goes to the PUC to be resolved.
Parts V and VI contain the provisions relating to prices, dominance and interconnection access go to the core of regulating and open telecommunications market. It is the way of finding the appropriate way to hand regulations in the given circumstances, not too heavy and stifling and yet not too light so new entrances are kept out. These are also issues with timing of the implementation of various provisions. The law allows the Minister some judgement in making certain provisions into force such as those related to collocation and number of portability.
In part VII the law speaks to the universal access and…
Mr. Speaker: Hon. Prime Minister, this Bill has 14 parts.
Mr. Hinds: Yes Sir, but with the others I will move much quickly.
Mr. Speaker: I would not want you to rush and that is why I offer you the option for us taking the suspension so that you can take your time.
Mr. Hinds: I will take your suggestion to let us have the break, Sir.
Mr. Speaker: Hon. Prime Minister, thank you for accommodating us. You may proceed.
Mr. Hinds: Mr. Speaker, Hon. Members, during the break I learned from many Members that they are sufficiently impressed with the thoroughness and comprehensiveness… I and some others have been working on this Bill for almost 20 years so maybe we would have wanted a few moments in front of a camera.
But it is just to briefly end. Part VII speaks to the universal access and the universal services provisions and this is a requirement that certain services contribute a portion of their gross revenues to create this universality fund that would be utilised by the telecommunications agency in extending telecom services where it may not otherwise go, where it may not be fully commercially sustainable.
Part VIII deals with spectrum management, numbering and domain name management for the internet.
Part IX deals with terminal equipment, other equipment and testing and technical standards, that is, equipment within one’s house or within a building.
Part X speaks to requirements concerning providing information, reporting and inspection.
Part XI speaks to the mundane practical things of breaking up streets to laid cables, and so on, removal of obstructions and access to land.
Part XII sets out the offences.
Part XIII sets out the types of fees which will be charged by the agency and what they should take account of.
Part XIV is the general and transitional provisions, bringing together provisions relating national obligations, national security and public order and the transitional arrangements.
This is a very significant Bill, one which time has come; one which related with much anticipation with most Guyanese. We would have been happy to complete this Bill altogether. It is a big Bill and our intention is that on completion of the second reading we would want to commit it to a Special Select Committee, and we would want also that it be done expeditiously. Maybe the 1st or 2nd of January of the new year it could be the commencement date for a new telecommunications regime in Guyana.
I thank you very much. [Applause]
Mr. Hinds (replying): I would like to put Hon. Members’ minds at rest on the issue of the powers of the Minister. I think it is a matter of wording and language – “the Minister shall”. It means that the Minister is responsible for those things and it is the Minister who finally signs on to it.
There is the agency and if one reads, one will notice that the agency is speaking to advising the Minister on many, if not all, of those things.
I was pleased that the Member, Mr. Trevor Williams, pointed to the fact that we already have some experience in an open mobile cellular phone market and that is the bigger one – 600,000 accounts versus 150,000 landlines. The larger part of our telecommunications sector is already pretty open and I think we have been managing some well.
The Member, Mr. Greenidge, spoke at the beginning about having freer and lower cost access to bandwidth and so on and I want to ensure him that that is exactly what we want to get at. I do not agree with him that there is only focus on revenue-raising. In fact, we are limiting the moneys that companies will pay. We are putting it at one per cent or one million, whichever is less. At the moment, it is one per cent for the telecommunications sector period. That is a reduction actually in the telecommunications area, at least for the big companies.
On the question of looking to the future, yes, we spent a lot of time trying to write something that would be good for a future that can only be seen hazily, if at all, and we have a processing of licensing networks and registering services which we think will accommodate itself to many ways of development. The standard list of networks and services is up for review and adjustment from time to time. We have something which is a bit of innovation where we would have the whole sector and the public having biennial meetings to talk about the sector in Guyana and where things are going and so on.
We think that the law as it is, when we look at it closely within the Special Select Committee, I hope that most persons would find that their concerns have been addressed and where there is residue, we will be ready and willing to make adjustments.
So, I would like to move that the Telecommunications Bill 2012, Bill No. 18/2012 be read for a second time.
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