To provide for the
establishment and management of a Mauritius Telecommunications Authority and the
setting up of a Telecommunications Advisory Council, and for the better
regulation of the telecommunications sector in the interest of consumers, and
providers, of telecommunication services
ENACTED by the Parliament of Mauritius, as
follows -
1.Short title
This Act may be cited as the Telecommunications
Act 1998.
PART I
PRELIMINARY
2. Interpretation
In this Act -
"authorised officer" means an officer
designated by the Authority for the purpose of section 9 or 13;
"Authority" means the Mauritius
Telecommunications Authority established by section 4;
"broadcasting" means the emission or
transmission of sounds or images, by means of Hertzian waves, satellite or wired
electromagnetic system for reception by the public, and "broadcast"
shall be construed accordingly;
"charging principles" means the
principles that may be prescribed for use in determining the prices to be
charged from or by a licensee under an interconnection agreement;
"Council" means the Telecommunications
Advisory Council set up in accordance with section 11;
"dominant operator" means a licensee
who, by the terms of his licence or by reason of his share in the market or the
availability to him of technological ability, infrastructure or capital, has a
substantial degree of power in the market for the supply of a telecommunication
service;
"Executive Director" means the person
appointed as such under
section 5 (1);
"facility" means -
(a) any part of the infrastructure of a
telecommunication network; or
(b) any line, cable, radio, equipment, antenna,
tower, mast, tunnel, pit, pole or other structure or thing used, or intended
for use, in connection with a telecommunication network;
"intercept" means intercept by
listening to or recording, by any means, a message passing over a
telecommunication network without the knowledge of the person originating,
sending or transmitting the message;
"interconnection" means the linking up
of 2 telecommunication networks so that users of either network may communicate
with users of, or utilise services provided by means of, the other network or
any other telecommunication network;
"interconnection agreement" means an
agreement made in accordance with section 15 between 2 or more licensees which
sets out the terms and conditions -
(a) for interconnection between the facilities
in the telecommunication networks of 2 or more licensees; or
(b) upon which a licensee obtains
interconnection to telecommunication services supplied by another licensee;
"licence" means a licence issued or
held pursuant to this Act;
"licensee" means the holder of a
licence;
"member" means a member of the
Authority and includes the Chairman;
"message" includes any communication
whether in the form of speech, or other sound, data, text, visual image, signal
or code, or in any other form or combination of forms;
"Minister" means the Minister to whom
responsibility for the subject of telecommunications is assigned;
"network licensee" means a person who
holds a licence to operate a telecommunication network;
"officer" means a person appointed as
such pursuant to section 5;
"Part A licence" means a licence
referred to in Part A of the First Schedule;
"Permanent Secretary" means the
Permanent Secretary of the Ministry responsible for the subject of
telecommunications;
"public operator" means a licensee who
operates a public telecommunication network, including a public mobile
telecommunication network;
"public telecommunication network"
means a network over or through which a telecommunication service is offered to
the public;
"public mobile telecommunication
network" means a public telecommunication network -
(a) in which the service can be used by a
person while moving continuously between places; and
(b) in which the customer equipment used for
the service is not in physical contact with any part of the telecommunication
network through which the service is supplied;
"radio apparatus" means any apparatus
or installation intended for the purpose of effecting radiocommunication,
whether by transmission or reception, or both, but excludes any ordinary
broadcast television and radio receiver;
"radiocommunication" means any
transmission, emission, or reception of signs, signals, writings, sounds or
intelligence of any nature, of a frequency less than 3000 gigahertz, propagated
in space without artificial guide;
"tariff" means a document indicating
the rate of any fee or charge which a public operator intends to claim for a
telecommunication service which it supplies;
"telecommunication" means the
transmission, emission or reception of signs, signals, writings, images and
sounds or intelligence of any nature by wire, radio, optical or other
electromagnetic systems;
"telecommunication installation" or
"installation" means a line or any equipment, apparatus, structure,
tower, antenna, tunnel, manhole, pit or hole used, or intended to for use, in
connection with a telecommunication service;
"telecommunication message" means -
(a) a material record of a communication or
information sent or delivered to a licensee for transmission or transmitted
through telecommunication installations established by the licensee to provide
telecommunication services; or
(b) a material record issued by a licensee as a
record of a communication or information transmitted over such
telecommunication installations;
"telecommunication network" means a
system, or a series of systems, operating within such boundaries as may be
prescribed, for the transmission or reception of messages by means of guided or
unguided electromagnetic energy or both, to supply telecommunication services
between places within Mauritius or between places within Mauritius and places
outside Mauritius;
"telecommunication service" -
(a) means a service for carrying a message by
means of guided or unguided electromagnetic energy or both or a value-added
service using similar means;
(b) subject to paragraph (c) includes
radiocommunication;
(c) does not include public broadcasting by the
Mauritius Broadcasting Corporation or such other body as may be prescribed by
the Minister.
"universal service" means a
telecommunication service determined by the Authority as being a service to be
provided by the licensee to an area, to areas, or sectors not served or
adequately served by the telecommunication service;
"universal service obligation" means
any contribution payable by a licensee in respect of a universal service;
"value-added services" means -
(a) the manipulation of the format, content,
code, protocol, or other aspect of information transmitted via
telecommunications by a subscriber;
(b) the provision of information to a
subscriber, including the restructuring of information transmitted by a
subscriber; or
(c) the offering of stored information for
interaction by a subscriber.
3. Application of the Act
(1) Subject to subsection (2), this Act shall
bind the State.
(2) The Minister may, on the recommendation of
the Authority and on such terms and conditions as he thinks fit, exempt any
Government Department or statutory corporation from compliance with this Act in
the interests of public order or national security.
PART II
THE MAURITIUS
TELECOMMUNICATIONS AUTHORITY
4. Establishment and management of the
Authority
(1) There is established, for the purposes of
this Act, a Mauritius Telecommunications Authority which shall be a body
corporate.
(2) (a) The Authority shall be managed by a Board
which shall consist of -
(i) a Chairman to be appointed by the Prime
Minister, after consultation with the Leader of the Opposition, on such terms
and conditions as he thinks fit;
(ii) 4 other members appointed by the Minister,
after consultation with the Council, being persons who are -
(A) qualified for appointment by reason of
their knowledge and experience in telecommunication, technology, economics,
commerce, law or industry;
(B) neither directors nor officers of a
public operator.
(b) (i) Every member shall hold office for 3
years but shall be eligible for re-appointment.
(ii) A member shall not be removed from office
except for one of the reasons set out in section 37 (3) (b) of the
Interpretation and General Clauses Act.
(c) The remuneration or allowance payable to
any member shall be determined by the Minister.
(d) The Authority shall meet -
(i) at least once every month; and
(ii) as often as requested by the Chairman or
any 3 other members.
(e) Three members shall constitute a quorum.
(f) Every member shall, in relation to any
matter before the Authority in which he, or any person related by blood or
marriage to the member, has a pecuniary or other material interest -
(i) disclose the nature of that interest in
writing at or before the meeting convened to discuss that matter; and
(ii) refrain from taking part in any
deliberations of the Authority relating to that matter.
5. Officers and other staff
(1)
(a)
There shall be an Executive Director
appointed by the Authority, with the approval of the Minister, on such
terms and conditions as it thinks fit, who shall be the Chief Executive
Officer of the Authority.
(b)
The Executive Director shall be
responsible for the execution of the policy of the Authority and for the
control and management of its day-to-day business.
(c)
In the exercise of his functions the
Executive Director shall act in accordance with such directions as he
may receive from the Authority.
(2)
(a)
The Authority may, on such terms and
conditions as it thinks fit, employ such other officers, and such other
persons, as may be necessary for the proper discharge by the Authority
of its functions.
(b)
Every person employed pursuant to
paragraph (a) shall be under the administrative control of the Executive
Director.
(c)
It shall be a term of the contract of
employment of every officer that -
(i) he shall not attempt to acquire an
interest of any kind in any entity which is a licensee or has entered
into a contract with the Authority in return for payment of an amount
which exceeds such sum as may be prescribed;
(ii) where he holds an interest
referred to in subparagraph (i) or he acquires such an interest, by
succession or otherwise, he shall, unless the Authority otherwise
determines, forthwith dispose of that interest.
(3)
The Authority may delegate to its Chairman
or to the Executive Director such of its powers as may be necessary for
the effective management of the Authority other than the power to -
(a) borrow money; or
(b) grant a licence.
6. Functions of the Authority
(1) The Authority shall -
(a) implement the policy of Government relating
to the telecommunication industry;
(b) provide economic and technical monitoring
of the telecommunication industry in accordance with recognised international
standard practices, including the promotion of fair competition and efficient
market conduct within that industry, and ensure appropriate control,
inspection and regulation of the industry;
(c) assist in the formulation of national
policies with respect to the promotion, development and regulation of
telecommunication and the telecommunication industry;
(d) ensure that this Act is implemented with
due regard to the public interest and so as to prevent any unfair or
anti-competitive practices by licensees such as cross-subsidising;
(e) establish, for public operators,
performance standards and linkage standards in relation to the provision of
international and local telephone services, and monitor compliance with both
of those standards;
(f) report, in such manner as it thinks fit, to
the Minister or to any other person on any matter that lies within its
purview, such as the performance of public operators, the quality of consumer
service and consumer satisfaction, measured against the best available
international standards of practice;
(g) oversee the fulfillment by public operators
of their obligations under any enactment, or their compliance with any
direction issued pursuant to section 13 (e);
(h) develop and, where appropriate, revise,
accounting requirements and a cost allocation manual for use by public
operators;
(i) ensure the safety and quality of every
telecommunication service and, for that purpose, determine technical standards
for telecommunication network matters, the connection of customer equipment to
telecommunication networks;
(j) develop an appropriate system for
receiving, and enquiring into, complaints by consumers in relation to every
telecommunication service;
(k) authorise any person to conduct such
technical tests or evaluations relating to telecommunication as it thinks fit;
(l) allocate the frequencies and determine the
telephone numbering system to be used for every telecommunication service, and
manage, review, and, where appropriate, reorganise the frequency spectrum or
numbering system;
(m) set up a radio frequency management unit
for the allocation, monitoring, control and regulation of radio frequencies
and, with the approval of the Minister, participate in any regional monitoring
system;
(n) monitor every access agreement and assist
in the resolution of any dispute relating thereto;
(o) monitor the use of telecommunication
services on any ship or aircraft;
(p) control the importation of any equipment
capable of being used to intercept a telecommunication message;
(q) regulate the conduct of examinations for,
and the issue of, certificates of competency to persons wishing to operate any
apparatus used for purposes of telecommunication;
(r) manage the Universal Service Fund set up
under section 7 (2);
(s) determine, whether as conditions of
licences or otherwise, the universal service obligations and requirements.
(2) Notwithstanding paragraphs (l) and (m) of
subsection (1), the Authority shall allot, and regulate the use of, any
frequency to the Mauritius Broadcasting Corporation or to any body prescribed
pursuant to section 26 (1) (b), and the Corporation and any such other body
shall pay to the Authority such fee as may be prescribed.
7. Financial provisions
(1) The Authority shall establish a General Fund
-
(a) into which any money received by the
Authority shall be paid;
(b) out of which all payments required to be
made by the Authority shall be effected.
(2) The Authority shall establish a Universal
Service Fund -
(a) into which shall be paid any contribution
received from licensees in pursuance of section 10;
(b) out of which payments may be made to any
licensee required by the terms of his licence, or otherwise directed by the
Authority, to provide a universal service.
(3) The Authority shall derive its income from -
(a) any charge or fee that may be prescribed;
(b) any sum appropriated from the Consolidated
Fund; and
(c) such other source as may be approved by the
Minister.
(4) The Authority may, in the discharge of its
functions, charge to the General Fund all remunerations, allowances, salaries,
fees, working expenses and other charges properly arising.
(5) The Authority shall, not later than 3 months
before the commencement of every financial year, submit to the Minister an
estimate of its income and expenditure for that year.
8. Licences
(1) Any person who wishes to obtain, transfer,
renew or vary the terms of, a licence for the operation of a telecommunication
network or service specified in the First Schedule shall make a written
application to the Authority in the prescribed form.
(2) Upon receipt of an application referred to in
subsection (1), the Authority -
(a) shall, in the case of a Part A licence,
give public notice of the application in 2 daily newspapers and invite any
interested person who wishes to object to the application to do so in writing
within 14 days;
(b) may -
(i) require the applicant to furnish any
additional information that it considers relevant;
(ii) inspect any installation, apparatus or
premises relating to the application.
(3) The Authority shall, after hearing any
representations that may be made pursuant to subsection (2) (a), determine
whether to issue, transfer, renew or vary the terms of the licence.
(4) The Authority shall, in the exercise of its
powers under subsection (3), have regard in particular to -
(a) the public interest and any likelihood of
unfair practice;
(b) any element of national security;
(c) the technical and electromagnetic
compatibility of the application with any other licensed service;
(d) any agreement between Mauritius or the
Authority with any other State, or any national or international organisation
relating to telecommunication; and
(e) any direction of the Minister.
(5)
(a)
Where the Authority agrees to issue,
transfer, renew or vary the terms of a licence -
(i) it may do so by imposing any term
or condition that it thinks fit;
(ii) it shall give written notice of
its decision, and the reasons therefore, to any person who has made
representations pursuant to subsection (2) (a).
(b)
Where the Authority refuses to issue,
transfer, renew or vary the terms of, a licence, it shall give written
notice of its decision, and the reasons therefore, to the applicant and
to any person who has made representations pursuant to subsection (2)
(a).
(c)
No licence shall be issued or renewed
under this section unless the prospective licensee pays such fee as may
be prescribed.
(6) Every licence shall specify -
(a) the name and business address of the
licensee;
(b) the installation, apparatus and premises to
which it relates;
(c) the telecommunication network or service to
be provided by the licensee; and
(d) any term or condition imposed pursuant to
subsection (5) (a).
(7) The Authority may, where it thinks fit but
subject to subsection (8), proprio motu vary the terms of, or revoke, a
licence on the ground that the licensee has -
(a) contravened this Act; or
(b) acted in breach of any term or condition
imposed pursuant to subsection (5)(a).
(8)
(a)
Where the Authority proposes to vary the
terms of, or revoke, a licence pursuant to subsection (7), it shall give
written notice of its intention to the licensee, stating -
(i) the reasons for which it proposes
to do so; and
(ii) the time, being not less than 14
days, within which the licensee may make written representations to
object to the proposal.
(b)
The Authority shall, after considering any
representations made pursuant to paragraph (a) (ii), communicate its
decision in writing, and the reasons therefore, to the licensee.
(9)
(a)
Where, in its opinion, the urgency of the
matter so requires, the Authority may forthwith suspend a licence on any
ground specified in subsection (7).
(b)
A suspension effected pursuant to
paragraph (a) shall, unless sooner revoked, lapse after 21 days.
9. Special powers
(1) An authorised officer may -
(a) require a licensee to produce his licence;
(b) at all reasonable times inspect any
installation, apparatus or premises relating to a licence.
(2) Where a Magistrate is satisfied, by
information upon oath, that there is reasonable ground to suspect that a person
is contravening this Act or any regulations made thereunder, he may grant a
warrant to an authorised officer enabling him to -
(a) enter any premises named in the warrant and
search those premises or any person found therein;
(b) inspect, remove and take copies of any
document found therein which he considers relevant;
(c) inspect and remove any installation or
apparatus found therein which he has reason to suspect is operating in
contravention of this Act or any regulations made thereunder.
10. Universal service obligation of licensees
(1) Every licensee shall, in addition to the
licence fees payable, pay into the Universal Service Fund, such annual
contributions as shall be prescribed by the Authority.
(2) The Authority shall prescribe -
(a) the basis and manner of determination of
such contributions;
(b) the dates when such contributions shall
become payable and the manner and, if it deems it appropriate, the period over
which the contributions shall be paid.
PART III
THE TELECOMMUNICATIONS ADVISORY
COUNCIL
11. Establishment of the Council
(1) There shall be a Telecommunications Advisory
Council which shall consist of -
(a) a Chairman, to be appointed by the
Minister;
(b) 4 representatives from the public sector,
appointed by the Minister;
(c) a representative of the Joint Economic
Council;
(d) a representative of the Mauritius Chamber
of Commerce and Industry;
(e) 2 other persons representing the interests
of consumers, purchasers and other users of telecommunication services,
appointed by the Minister.
(2) The Council may co-opt persons with
specialised qualifications and experience to assist the Council at any of its
meetings.
(3) Every member of the Council shall hold office
on such terms and conditions as the Minister thinks fit.
(4) The Council shall meet once every 3 months or
at such other time as the Chairman or 3 other members of the Council may
require.
(5) Five members of the Council shall constitute
a quorum.
(6) Every member of the Council shall, in
relation to any matter before the Council in which he, or any person related by
blood or marriage to the member, has a pecuniary or other material interest -
(a) disclose the nature of his interest in
writing at or before the meeting convened to discuss the matter; and
(b) refrain from taking part in any
deliberation of the Council relating to that matter.
12. Functions of the Council
The Council shall advise the Minister on any
matter relating to -
(a) the promotion of the interests of
consumers, purchasers and other users in respect of -
(i) the quality and variety of
telecommunication services provided;
(ii) the telecommunication equipment and
facilities supplied;
(iii) the effect of the tariff policy adopted
by the Authority;
(b) the promotion of research into, and the
development and use of, new telecommunication techniques;
(c) the improvement of telecommunication
services;
(d) telecommunications which, in its opinion,
should be referred to the Minister;
(e) telecommunications which may be referred to
it by the Minister or by the Authority.
PART IV
TELECOMMUNICATION OPERATIONS
13. Licensees
Every licensee shall -
(a) maintain any installation, apparatus or
premises relating to his licence in such condition as to enable him to provide
a safe, adequate and efficient service;
(b) provide access thereto to an authorised
officer;
(c) furnish to the Authority such reports,
accounts and other information relating to his operations as the Authority may
require;
(d) comply with every term or condition
attached to his licence;
(e) comply with any written direction given to
him by the Authority in relation to the exercise of his rights and obligations
under a licence;
(f) pay to the Authority such fee or charge as
may be prescribed by the Minister.
14. Public Operators
(1) A public operator may, subject to subsections
(2) and (3) -
(a) enter any property for the purpose of
exercising any of his powers under his licence;
(b) establish any installation or apparatus on,
over, under or across any land or road.
(2)
(a)
Before taking any steps under subsection
(1), a public operator shall give not less than 4 days' written notice
of his intention to the owner and, where applicable, the occupier,
stating the reasons for which he proposes to take such steps.
(b)
Any person who receives a notice issued
pursuant to paragraph (a) may, within 5 days of the receipt of the
notice, lodge with the Authority an objection to the notice, specifying
the grounds of his objection and his claim, if any, for such
compensation for depreciation in the value of his property and interest
in the property which may arise from the execution of such steps, as he
considers himself entitled to.
(c)
The Authority shall, within 30 days after
the receipt of the objection and claim, if any, under paragraph (b), and
after hearing the parties, make such order, including the payment of
compensation, as it thinks fit and, within 7 days after making the
order, communicate a copy of its determination to each of the parties.
(3)
(a)
A party to the hearing under subsection
(2) may, if dissatisfied with the order of the Authority, appeal to the
Supreme Court within 8 days after receiving a copy of the determination
under subsection (2) (c), by filing, in the Registry of the Supreme
Court, a notice of appeal in writing setting out the grounds of his
appeal and giving an address where service of any process upon him may
be effected.
(b)
The appellant shall, within the period of
8 days specified in paragraph (a), cause the Chairman of the Authority
to be served by an Usher with a copy of the notice of appeal.
(c)
Within 10 days after receiving a copy of
the notice of appeal under paragraph (b), the Chairman of the Authority
shall forward to the Registry of the Supreme Court a certified copy of
the record of the proceedings before the Authority under subsection (2),
together with any document and exhibit produced in the course of such
proceedings.
(d)
The appellant shall not, at the hearing of
the appeal, raise any ground of appeal other than a ground of appeal set
out in his notice of appeal except where the Supreme Court grants him
leave to do so.
(4) Nothing in this section shall prevent a
public operator from entering on any property to do whatever may be required to
remove any tree, branch, hedge or any other object that is likely to cause
danger to any installation or apparatus relating to telecommunication service
provided by him.
(5) For the purpose of this section, an
installation or apparatus relating to telecommunication shall include poles,
wires, stays or struts or other similar structure set up, or any work performed,
either above or under the ground, in connection with the establishment,
alteration, disconnection, modification or repair of the installation or
apparatus.
(6) Where a public operator has, pursuant to this
section, established a telecommunication installation over or under private
property, the owner or occupier of the property may request the public operator
to alter, modify or divert the installation and the expenses of doing so shall
be borne by the person making the request.
15. Interconnection agreements
(1) Every network licensee or public operator
shall grant access to his network in accordance with this section.
(2) A licensee may make a written application to
a network licensee or public operator requesting the latter to give to the
licensee access to its telecommunication network and shall, where it does so,
forward a copy of the application to the Authority.
(3)
(a)
Where a network licensee or public
operator receives an application pursuant to subsection (2), he shall,
unless the Authority otherwise determines, negotiate the terms of an
interconnection agreement with the applicant, and shall do so in good
faith;
(b)
Either party to the proposed agreement may
require the Authority to depute a representative to attend, and assist
in, the negotiations, and the Authority shall comply with the request.
(4)
(a)
Subject to paragraph (b), the rates for
interconnection and interconnection charged by the network licensee or
public operator shall be determined in accordance with any charging
principles in force.
(b)
Where an interconnection agreement is
negotiated before any charging principles have been prescribed, the
agreement shall, where appropriate, be amended by the parties to comply
with any charging principles that may subsequently be prescribed.
(5) Where the parties to a proposed
interconnection agreement are unable to agree on the terms thereof within 90
days from the date of an application under subsection (2), either party may
require the Authority to act as an arbitrator in the matter.
(6) An arbitration made by the Authority pursuant
to subsection (5) shall, subject to subsection (7), be deemed to be made under,
and be regulated by, articles 1015-2, 1018, 1019, 1025, 1026-2, 1026-3, 1026-5,
1026-7, 1027-3, 1027-4, 1027-5 and 1027-8 of the Code de Procedure Civile.
(7) The award of the Authority on the dispute
shall -
(a) be made within 90 days from the date of a
request under subsection (5); and
(b) specify -
(i) the facilities and the telecommunication
network covered by the award;
(ii) the extent of any telecommunication
network over which one party is required to carry telecommunication messages
to enable another party to supply telecommunication services;
(iii) the points of, and the technical
standards for, interconnection and access.
(8) Each party to an interconnection agreement
shall supply to the Authority -
(a) a copy of the agreement, and of any
amendment to it, within 14 days of the execution of the agreement, or
amendment, as the case may be;
(b) such information relating to the
interconnection agreement as the Authority may require.
16. Competition
(1) A dominant operator shall not take advantage
of his power in a market for the supply of a telecommunication service with a
view to -
(a) eliminating or substantially damaging
another licensee in the market in which he operates or in any other market;
(b) preventing the entry of any other person
into that market or any other market;
(c) deterring any other licensee from engaging
in competitive conduct in that or in any other market.
(2)
(a)
A dominant operator shall not discriminate
between persons who acquire or make use of a telecommunication service
in the market in which he operates in relation to -
(i) any fee or charge for the service
provided;
(ii) the performance characteristics of
the service provided;
(iii) any other term or condition on
which the service is provided.
(b)
Nothing in paragraph (a) shall prevent a
dominant operator from making a reasonable allowance, subject to the
approval by the Authority, for the cost of providing a telecommunication
service where the difference results from -
(i) different quantities in which the
service is supplied;
(ii) different transmission capacities
needed for the supply of the service;
(iii) different places from or to which
the service is provided;
(iv) different periods for which the
service is provided;
(v) different performance
characteristics of the service provided; or
(vi) doing an act in good faith to meet
a price or benefit offered by a competitor.
(3) A licensee shall not enter into or give
effect to any agreement, arrangement or understanding which has the purpose or
has, or is likely to have, the effect of significantly lessening competition in
any market for the supply of telecommunication services or of any product used
in connection with telecommunication services.
(4) A licensee shall not enter into or give
effect to any agreement, arrangement or understanding with another licensee
which has the purpose or has, or is likely to have, the effect of fixing,
controlling or maintaining the prices for, or any discount, allowance, credit or
rebate for, any telecommunication service or any product used in connection with
telecommunication services.
17. Tariffs
(1) Every public operator shall provide the
Authority with a tariff of its charges for every telecommunication service which
he proposes to supply and of every intended alteration of those charges, in a
form approved by the Authority and in compliance with the requirements of this
section.
(2) Every tariff shall include information
relating to -
(a) the period during which the tariff is to
apply;
(b) the description of the telecommunication
service;
(c) the amount of the charges payable for each
telecommunication service including the amount of any surcharge that may be
imposed as a result of non-payment of fees or charges and the cost-related
computation thereof;
(d) the quantity in which the service is
supplied;
(e) the transmission capacity needed to supply
the service;
(f) the performance characteristics for the
service supplied; and
(g) the terms and conditions on which the
service is supplied.
(3)
(a)
On receipt of a tariff in accordance with
subsection (1), the Authority shall determine whether to allow, or to
disallow, or to amend the tariff and shall, in so doing, have regard, inter
alia, to the just and reasonable nature of the charges set out
therein.
(b)
The Authority shall forthwith give public
notification in 2 daily newspapers of every determination made pursuant
to paragraph (a).
(4) Every public operator shall supply to the
Authority such information relating to the proposed tariff as the Authority
considers necessary or desirable to enable the Authority to monitor compliance
with this Act.
(5) Every public operator shall, at each of his
business offices, make available for inspection or purchase a copy of every
tariff.
(6) The Authority may, by notice in writing to a
public operator, disallow any tariff which does not comply with this Act or with
any regulations made thereunder or with any condition of his licence.
(7)
(a)
Where the Authority is of opinion that the
operation of a tariff by a dominant operator would have an anti-
competitive effect in any market for any telecommunication service, it
shall, by notice in writing, inform the dominant operator that it is
disallowing the tariff, and of the reasons for which it does so.
(b)
For the purposes of paragraph (a), the
operation of a tariff shall be deemed to have an anti-competitive effect
in a market if, and only if, the operation or continued operation of the
tariff, whether or not in conjunction with other tariffs or commercial
arrangements, has, or is likely to have, the effect of materially and
adversely affecting the development or maintenance of commercially
sustainable competition in that market.
(8) No public operator shall demand or receive
from any person payment of any fee or charge, for the supply of a
telecommunication service, which -
(a) exceeds the fee or charge payable under the
appropriate tariff;
(b) is not worked out or computed in accordance
with the appropriate tariff; or
(c) is worked out or computed in accordance
with a tariff which has been disallowed pursuant to subsection (6).
18. Confidentiality
(1) Every member or officer shall -
(a) before he begins to perform his duties
under this Act, take the oath set out in the Second Schedule;
(b) maintain, and aid in maintaining, the
confidentiality of any matter which comes to his knowledge in the performance
or as a result of his duties under this Act;
(c) not reveal to an unauthorised person any
matter referred to in paragraph (b).
(2) Any person who contravenes subsection (1)
(a), or without legal cause or reasonable excuse contravenes subsection (1) (b)
or (c), shall commit an offence.
(3) Every licensee and his employees and agents
shall treat as confidential any telecommunication message or any information
relating to a telecommunication message which comes to his or their knowledge in
the course of his or their duties.
(4) Any person who, otherwise than in the course
of his duties, makes use of, or records, the contents or substance of a
telecommunication message that comes to his knowledge or to which he has access,
by reason of his position as an employee or agent of a licensee, shall commit an
offence.
(5)
(a)
Nothing in this Act shall prevent a public
operator or any of his employees or agents from intercepting,
withholding or otherwise dealing with a telecommunication message which
he has reason to believe is -
(i) indecent or abusive;
(ii) in contravention of this Act;
(iii) of a nature likely to endanger or
compromise public order or national security.
(b)
Where a message is withheld pursuant to
paragraph (a), the operator shall forthwith refer it to the Authority
for such written directions as the latter may think fit to give.
(6)
(a)
Nothing in this Act shall prevent a Judge
in Chambers, upon an application, whether exparte or otherwise, being
made to him by the police, from making an order authorising a public
operator, or any of its employees or agent, to intercept, withhold or
disclose to the police, a telecommunication message.
(b)
An order under paragraph (a) shall -
(i) not be made unless the Judge is
satisfied that information relating to the telecommunication message
is material to any criminal proceedings, whether pending or
contemplated, in Mauritius;
(ii) remain valid for such period, not
exceeding60 days, as the Judge may determine;
(iii) specify the take place.place
where the interception or withholding shall take place
19. Transparency
(1) The Authority shall not, except with the
Minister's approval, enter into any contract, other than a contract governed by
any enactment relating to public tendering, by virtue of which the Authority is
required to pay, or receive, any sum in excess of such amount as may be
prescribed.
(2) The Authority shall ensure that adequate
publicity is given to -
(a) the contents of every contract referred to
in subsection (1);
(b) any report referred to in section 6 (1)
(f);
(c) the terms of every Part A licence.
PART V
MISCELLANEOUS
20. Appeals
(1) Any person who is aggrieved by a decision of
the Authority under section 8 or 17 may, within 21 days of the notification of
the decision, appeal to the Minister.
(2) An appeal under subsection (1) shall -
(a) be lodged with the Permanent Secretary;
(b) specify the reasons in support of the
appeal; and
(c) be determined by the Minister after
consultation with the Council.
(3) The Permanent Secretary shall give to the
appellant written notification of the Minister's decision within 3 months after
the lodging of the appeal.
21. Evidence
(1) A telegram, telex or facsimile purporting to
have been stamped and initialed by the employee of a licensee shall be
admissible in all legal proceedings as prima facie evidence that the
matter contained therein is the same as that stated in the telegram, telex or
facsimile as received for transmission by or on behalf of the person by whom the
telegram, telex or facsimile purports to have been sent.
(2)
(a)
In this subsection, "computer
record" includes a microfiche, a microfiche printout, a computer
printout, or any other document produced by a device by means of which
information is recorded or stored.
(b)
A document, certified by the employee of a
licensee to be a computer record of a telecommunication call and to have
been produced in the usual and ordinary course of producing such
computer records, shall -
(i) be admissible in all legal
proceedings; and
(ii) constitute prima facie
evidence of the making of the call, the originating number, the number
called, the date and time of the call, and the duration and cost of
the call, to the extent that those items are recorded therein.
22. Extent of liability
(1) No liability, civil or criminal, shall attach
to the Authority or to any member or officer, in respect of any loss or damage
arising from the exercise in good faith by the Authority, or by a member or
officer, of its or his functions under this Act.
(2)
(a)
A public operator shall not be liable for
or in respect of -
(i) any loss or damage caused by any
electric current emanating from a source other than his premises or
any installation or apparatus operated by him;
(ii) any loss or damage which may be
incurred or sustained by reason or on account of any interruption or
failure in communication of any telecommunication installation or
exchange or radio system or by reason of, or in connection with, the
taking or giving of messages by any of his employees or agents, except
where such loss or damage arises through the fault or negligence of
such employee or agent.
(b)
A subscriber to a telecommunication
service shall not, by reason of the occurrence of any event referred to
in paragraph (a), be entitled to any abatement of any payment due to a
public operator.
23. Exemptions
(1) Article 910 of the Code Napoleon shall not
apply to the Authority.
(2) The Authority shall not be liable to the
payment of income tax.
(3) No registration duty shall be payable in
respect of any document signed or executed by the Authority or under which it is
the sole beneficiary.
24. Offences
Any person who -
(a) by any form of emission, radiation,
induction or other electromagnetic effect, harms the functioning of a
telecommunication service;
(b) with intent to defraud or to prevent the
sending or delivery of a telecommunication message, takes a telecommunication
message from the employee or agent of a licensee;
(c) with intent to defraud, takes a
telecommunication message from a place or vehicle used by a licensee in the
performance of his functions;
(d) steals, secretes or destroys a
telecommunication message;
(e) wilfully or negligently omits or delays the
transmission or delivery of a telecommunication message;
(f) forges a telecommunication message or
transmits or otherwise makes use of a telecommunication message knowing that
it has been forged;
(g) knowingly sends, transmits or causes to be
transmitted a false or fraudulent telecommunication message;
(h) uses a telecommunication service -
(i) for the transmission or reception of a
telecommunication message which is grossly offensive or of an indecent,
obscene or menacing character; or
(ii) for the purpose of causing annoyance,
inconvenience or needless anxiety to any person;
(iii) for the transmission of a message which
is of a nature likely to endanger or compromise public order or national
security;
(i) dishonestly obtains or makes use of a
telecommunication service with intent to avoid payment of any applicable fee
or charge;
(j) by means of an apparatus or device
connected to a telecommunication installation maintained or operated by a
licensee -
(i) defrauds the licensee of any fee or
charge properly payable for the use of a telecommunication service;
(ii) causes the licensee to provide a
telecommunication service to some other person without payment by such other
person of the appropriate fee or charge; or
(iii) fraudulently installs or causes to be
installed an access to a telecommunication line;
(k) wilfully damages, interferes with, removes
or destroys a telecommunication installation maintained or operated by a
licensee;
(l) establishes, maintains or operates a
telecommunication network or service without a licence or in breach of the
terms or conditions of a licence;
(m) without the prior approval of the
Authority, imports any equipment capable of intercepting a telecommunication
message;
(n) discloses a telecommunication message or
information relating to such a message to any other person otherwise than -
(i) in accordance with this Act;
(ii) with the consent of each of the sender
of the message and each intended recipient of the message;
(iii) for the purpose of the administration
of justice; or
(iv) as authorised by a Judge;
(o) except as expressly permitted by this Act
or as authorised by a Judge, intercepts, authorises or permits another person
to intercept, or does any act or thing that will enable him or another person
to intercept, a message passing over a telecommunication network;
(p) in any other manner contravenes this Act,
shall commit an offence.
25. Penalties
(1) Any person who commits an offence under this
Act shall, on conviction, be liable to a fine not exceeding 1,000,000 rupees and
to imprisonment for a term not exceeding 5 years.
(2) The Court before which a person is convicted
of an offence under this Act may, in addition to any penalty imposed pursuant to
subsection (1), order -
(a) the forfeiture of any telecommunication
installation or apparatus in connection with which the offence was committed;
(b) the cancellation of the licence held by the
person convicted;
(c) that the person convicted shall not be
issued with a licence for such period as the Court thinks fit;
(d) that a telecommunication service provided
to a person convicted of an offence under this Act shall be suspended for such
period as the Court thinks fit.
(3) An offence under this Act shall -
(a) be triable by the Intermediate Court;
(b) not be triable by a District Court.
26. Regulations
(1) The Minister may, by regulations, prescribe -
(a) charging principles, on the recommendation
of the Authority;
(b) a corporate body for the purposes of
paragraph (c) in the definition of "telecommunication service" in
section 2;
(c) the amount referred to in section 19 (1);
(d) the date referred to in section 28 (2) (b);
(e) anything that may be prescribed under this
Act other than a matter referred to in subsection (2).
(2)
(a)
The Authority may make such regulations as
it thinks fit for the purposes of this Act.
(b)
Any regulations made under paragraph (a)
may -
(i) amend the Schedules;
(ii) prescribe anything that may be
prescribed under this Act other than a matter referred to in
subsection (1);
(iii) provide that any person who
contravenes them shall commit an offence and shall, on conviction, be
liable to a fine not exceeding 2,000 rupees.
27. Repeal
The Telecommunication Act 1988 is repealed.
28. Consequential amendments
(1) The Statutory Bodies (Finance and Audit) Act
is amended in Part II of the Schedule by adding the following item -
"The Mauritius Telecommunications
Authority"
(2) (a) Subject to paragraph (b), the Post Office
Act is amended -
(i) by deleting, in section 2, the definition
of "telegram";
(ii) by deleting in sections 35, 46, 47 and 66
(1) (b) the words "or telegram", "or telegrams", "or
the telegram", "and telegrams" wherever they occur;
(iii) by deleting, in section 66, subsection
(1) (f);
(b) The amendments effected by paragraph (a)
shall come into operation on such date as may be prescribed.
29. Transitional provisions
(1) Every act done by, or in relation to, the
Telecommunication Authority established under section 4 of the Telecommunication
Act 1988 shall be deemed to have been done, or commenced, as the case may be, by
or in relation to the Authority.
(2)
(a)
Notwithstanding subsection (1), every
person who has, before the commencement of this Act, been authorised
pursuant to the Telecommunication Act 1988, by licence issued under that
Act or otherwise, to make use of a frequency for purposes of
radiocommunication, or to operate any telecommunication service shall -
(i) not later than 3 months after the
commencement of this Act, inform the Authority in writing of that fact
and surrender any licence or authority granted to it; and
(ii) furnish to the Authority such
further information as it may require concerning his operation under
that licence or authorisation.
(b)
Notwithstanding section 8 (7), where a
person referred to in paragraph (a) fails to comply with a requirement
of that paragraph, the Authority shall be entitled to exercise its
powers under sections 6 (1) (l) and 8 (7) in relation to that person,
without giving him any notice of its intention to do so.
(3) Notwithstanding section 4 (2) (b), the
Minister shall, when exercising his power under section 4 (2) (a) (ii) for the
first time, appoint the 4 members of the Authority referred to in that section
for a term of 5 years.
(4) Section 7 (4) shall not apply to the first
financial year of the Authority.
(5) The auditor to be appointed for the Authority
under
section 5 (1) of the Statutory Bodies (Accounts and Audit) Act shall be the
Director of Audit.
(6) Notwithstanding section 8, Mauritius Telecom
Ltd shall be deemed to have been issued by the Authority with a licence as a
public operator, in relation to the telecommunication services provided by it at
the coming into force of this Act, for the period commencing on the date of
coming into force of this Act and ending on 31 December 1999 and shall pay to
the Authority such fee as may be prescribed in respect of that period.
(7) Notwithstanding sections 8 and 14, but
subject to subsection (9)(a), no network licensee, public operator or any other
person shall, in respect of the period commencing on the date of coming into
force of this Act and not extending beyond 31 December 2004, supply or offer to
supply telecommunication services between places within Mauritius and places
outside Mauritius otherwise than in accordance with an interconnection agreement
concluded with Mauritius Telecom Ltd.
(8)
(a)
Any person who uses, or provides, in
return for payment by means of credit card or otherwise, a
telecommunication service between places within Mauritius and places
outside Mauritius and in relation to which there is no such
interconnection agreement as is referred to in subsection (7) (a) shall
commit an offence.
(b)
Any person who commits an offence under
paragraph (a) shall, on conviction, be liable to a fine not exceeding
1,000,000 rupees and to imprisonment for a term not exceeding 5 years.
(c)
Without prejudice to the penalty provided
for in paragraph (b) for the offence under paragraph (a), Mauritius
Telecom Ltd may -
(i) disconnect, and refuse to reconnect
permanently, any telephone or rented payphone used in the commission
of that offence; and
(ii) refuse to provide a new telephone
line to the subscriber at the premises where the telephone or rented
payphone is situated or at any other premises.
(d)
It shall not be a defence to any
prosecution under paragraph (a) that the person prosecuted did not know
of the non-existence of the interconnection agreement referred to in
that paragraph.
(e)
For the purposes of paragraph (a) -
(i) "a telecommunication service
between places within Mauritius and places outside Mauritius"
includes a "call back service";
(ii) a "call back service"
includes a service permitting an international call to be made by a
caller or subscriber in Mauritius whereby a foreign telecommunication
service provider, or a reseller in a foreign country, initiates a
return call or provides a dialling tone which enables the caller or
subscriber to make an international call through the foreign
telecommunication service provider or the reseller resulting in
Mauritius Telecom Ltd being deprived of international call charges.
(9)
(a)
Notwithstanding any other provision of
this Act and, in particular, sections 8 and 13, the Authority shall,
where so directed by the Minister, grant to Mauritius Telecom Ltd, for a
period not extending beyond 31 December 2004, the exclusive right to
supply, or to enter into an interconnection agreement or other
appropriate agreement for the supply of telecommunication services
between places within Mauritius and places outside Mauritius.
(b)
No direction shall be issued under
paragraph (a) unless the Minister deems it to be in the national
interest to do so.
30. Commencement
(1) This Act shall come into operation on a day
to be fixed by Proclamation.
(2) Different dates may be fixed for the coming
into operation of different provisions of this Act.
Passed by the National Assembly on the
fifteenth day of December one thousand nine hundred and ninety-eight.
ANDRE POMPOM
Clerk of the National Assembly
___________
FIRST SCHEDULE
(Section 8)
PART A
Telecommunication Operators'
Licences
1. Alarm Monitoring Services (Operator)
Licence
To establish and operate alarm-monitoring
services based on a fixed or mobile public telecommunication network or
private radio network, or a combination of these networks.
2. Audiotex Services Provider Licence
To operate a kiosk for the hosting of audiotex
services whereby these services are accessed via a public fixed or mobile
telecommunication network.
3. Data Services Licence
To establish and operate data services.
4. Facsimile Services Licence
To establish and operate facsimile services.
5. GMPCS Services (Operator) Licence
To establish and operate Global Mobile Personal
Communication by Satellite (GMPCS) whereby the network is satellite based and
the satellite coverage extends over the territory of Mauritius.
6. Internet Services Provider Licence
To provide internet services to the public
whereby the subscriber network is operated by a public fixed or mobile
telecommunication network operator.
7. Payphone Services Licence
To establish and operate payphone services.
8. Private Access Mobile Radio Services
Licence
To establish and operate private access mobile
radio services.
9. Public Fixed Telecommunication Network
Licence
To establish and operate a public fixed
telecommunication network and service.
10. Public Mobile Telecommunication Services
Provider Licence
To provide mobile telecommunication services to
the public whereby the telecommunication network is operated by a mobile
terrestrial telecommunication network operator or a Global Mobile Personal
Communications by Satellite (GMPCS) services operator.
11. Public Mobile Terrestrial
Telecommunication Network Licence
To establish and operate a public mobile
terrestrial telecommunication network and service.
12.Subscription Television Rebroadcasting
Services Licence
To establish and operate subscription
television re-broadcasting services whereby television signals received from
satellites via large receive-only dish antennas are retransmitted, for direct
reception by the general public upon payment of a monthly subscription fee.
13. Subscription Television Direct To Home
Satellite Broadcasting Services Provider Licence
To provide television services to the public
whereby television signals are transmitted by satellites for direct reception
by the general public, via receive-only dish antennas and decoders managed by
the services provider, upon payment of a monthly subscription fee.
14. Value-Added Network Licence
To establish and operate value-added network
and services.
15. Wide Area Radio Paging Network Licence
To establish and operate a wide area radio
paging network and service.
___________
PART B
OTHER TELECOMMUNICATION
LICENCES
1. Aircraft Radio Station Licence
To establish and operate an aircraft radio
station.
2. Assembler's Licence
To assemble any telecommunication apparatus at
a specific place.
3. Dealer's Licence
To import or deal in radio apparatus or PABX
equipment, facsimile machine, telephone set, cordless telephone set, modem,
answering machine, or any other telecommunication apparatus.
4. Experimenter's Licence
To establish and operate an experimental radio
station.
5. Local Area Private Radio Paging Licence
To establish and operate a local area private
radio paging service at a specific place.
6. Marine Radio Base Station Licence
To establish and operate a VHF radio coast
station for communication with pleasure boats.
7. Mobile (Cellular) Telephone Licence
To possess and use a mobile (cellular)
telephone.
8. Mobile Paging Receiver Licence
To possess and use a mobile paging receiver on
a wide area radio paging network.
9. Model Radio Control Licence
To possess, or use in radio apparatus to
control the movement of model vehicles for recreation purposes, unless
exempted under any regulations made in that behalf.
10. Private Mobile Radio Licence
To possess or use radio apparatus at a specific
place or in a specific vehicle.
11. Radio Amateur Licence
To establish and operate an amateur radio
station at a specific place.
12. Radio Alarm Transmitting (Subscriber)
Station Licence
To possess and use a radio transmitter for the
transmission of alarms onto any alarm monitoring services network.
13. Radio Broadcaster's Base Station Licence
To establish and operate radio apparatus at a
base station, for the purpose of radio broadcasting or rebroadcasting.
14. Radio Broadcaster's Repeater Station
Licence
To establish and operate radio apparatus at a
repeater site for the purpose of radio broadcasting or rebroadcasting.
15. Radio (Relay) Fixed Link Licence
To establish and operate a radio (relay) fixed
link between 2 fixed locations.
16. Radio Repeater (Relay) Licence
To establish and operate a radio repeater
(relay) station for private mobile radio services.
17. Ship Station Licence (private)
To establish and operate a VHF ship radio
station for private purposes.
18. Ship Station Licence (public)
To establish and operate a ship radio station
on board oceangoing vessels.
19. Telemetry, Command and Ranging (TCR)
Satellite Earth Station Licence
To establish and operate a satellite earth
station for the transmission to or reception from satellite space stations or
both, of telemetry, command and ranging data for the control and maintenance
of satellites.
20. Television Broadcaster's Base Station
Licence
To establish and operate radio apparatus at a
base station, for the purpose of television broadcasting or rebroadcasting.
21. Television Broadcaster's Repeater
Station Licence
To establish and operate radio apparatus at a
repeater site, for the purpose of television broadcasting and rebroadcasting.
22. VSAT Licence
To possess and use a VSAT (very small aperture
terminal) for the transmission or reception, or both, of data, voice, images
only, on a satellite approved by the Authority.
___________
SECOND SCHEDULE
(Section 18)
Oath of Secrecy
I
................................................, residing at
...................................., *make oath/solemn affirmation that in the
discharge of my duties under the Telecommunications Act 1998, I will deal with
and regard all documents and information relating to the operations of the
Authority, and to which I have access, as secret and confidential, and refrain
from disclosing any such document or information to any unauthorised person.
*Sworn/solemnly affirmed by the deponent, in
Chambers on
