This Bill seeks to re-enact the law relating to the provision of service in the entire communications sector, encompassing telecommunications, broadcasting (both-radio and television) and posts.
The preparation of this Bill is a sequel to the Statement of the National Communications Policy which sets out the main principles, objectives and performance targets determined by the Government in relation to the growth of the communications sector. This Memorandum, therefore, only outlines the structure of the law under the Bill.
Scope of the Draft Bill
The Bill covers the regulation of telecommunications, radio communications and broadcasting, as well as posts. These sectors are all to be regulated by a regulatory body to be called the Malawi Communications Regulatory Authority (MACRA), which is established under Part 11 of the Bill. The Bill enables the present Malawi Posts and Telecommunications Corporation (MPTC) to be restructured as separate telecommunications and postal business and also enables the telecommunications business to be privatized. New legislation governing the Malawi Broadcasting Corporation (MBC) is also included, primarily to deal with the public policy issues regarding its independence and appointment of its Board of Directors.
It is intended that the Bill will replace the present Malawi Posts and Telecommunications Act (No. 29 of 1994), the Malawi Broadcasting Corp-oration Act (Cap. 20:01) and the Radio-communications Act (Cap. 68:02).
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Following standard practice, telecommunications is defined broadly so as to cover wire and radio communications of all kinds. How-ever, separate licensing provisions relate to telecommunication services, defined to exclude radio and television broadcasting, broadcasting services and radio transmissions. This approach conforms to the terminology of the International Telecommunications Union (ITU). For example, it is envisaged that cable TV network would belicensable as telecommunication networks under the Act since the basic service they provide comes within the meaning of telecommunication service. The separate licensing of broadcasting services also permits the inclusion of specific provisions regarding the award of broadcasting licences and the regulation of access to and the contents of broadcast programmes.
Telecommunications licences are required for the provision of public services. Private telecommunication activities, such as the sale of telecommunication equipment, the operation of a PABX connected to the public telephone network or the running of a private network not connected to the public telephone do not require a licence. The use of any equipment connected to the network will be subject to standards and type approval.
In the Bill, it is services that are licensable, rather than networks. A licence to provide a public telecommunication service may or may not authorize the operation of a network. Many data and value added services, such as Internet services, will be provided over the existing public network (including leased lines), and, therefore, licences covering such services will not convey rights to own and operate a telecommunication network.
Telecommunication licences will not, in themselves, convey
the right to use
General Licences and Individual Licences
The Bill follows the most recent developments in tele-communication regulation in adopting a distinction between General Authorization and Individual Licences. General authorizations are characterized by the absence of specific approval of each network operator or service provision. A general authorization could take the form of a statutory provision, regulation or general licence (also known as a class licence). In the Bill, the general licence option is used. It simplifies language if every permission to operate a network or provide a service is called a licence. Individual licence on the other hand will require specific approval.
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Given this general framework, MACRA will need to develop a detailed licensing policy within the framework of the National Commu-nications Policy. An important element of the policy will be the classi-fication of types of licences, e.g. national operator, local operator, cable TV network, data and value added, network, etc. This classification is not placed in the Bill because it is likely to change quite frequently as new services are, introduced and the scope of: licences for existing services adjusted. Rather, it is envisaged that regulations will be made governing this Aspect.
Providers of telecommunication services are to be given permission in the licence to operate networks if this is required in order to be able to provide the services. Thus, for example, provision of a value added service may not entail the running of a network. To function properly, operators of networks need to have access to public and private land. Where construction of a network is necessary to be able to provide an authorized service, the Bill provides for the licencee to be designated as a public operator so as to have rights of access to public and private lands and to private premises, subject to a Code of Conduct set out in the Second Schedule to the Bill. This Code will replace section 53-60 of the present Posts and Telecommunica-tions Act and sections 6 and 8-12 of the present Radio-communications Act.
These rights of access need to be regulated so as to minimize disturbance and to protect the rights of owners and occupiers of land. Accordingly, the Code of Conduct-
(a) permits appropriate regulations to be made to require that lines are placed underground;
(b) requires operators to show respect for the environment; and
(c) provides for the payments of compensation to owners of property.
The Code of Conduct also ensures that tenants and other occupiers can have access to public services.
The provisions for radio regulation are relatively standard. However, the Bill provides a method for the competitive tendering for frequencies. This is appropriate because it will often be the case that the demand for frequencies for telecommunications will exceed their supply. The tendering process does not require that the frequencies are given to the highest bidder. MACRA can lay down other criteria.
The application in the case of cellular mobile licences may be a useful illustration. Assume that a second cellular licence is proposed for Malawi, MACRA would licence the second operator, acting under a policy direction by the Minister. The second licence could be issued as part of the general restructuring
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of the telecommunications sector, or by competitive tender or through direct negotiation with a preferred bidder. All these possibilities are allowed by the Bill. If a competitive bidder is to be used, the Minister would need to give express approval to the design of the tender because of the financial implications. In each case, both a telecommunication and. a radio licence would be required.
Broadcasting licences are treated as a special type of radio licence with additional provisions covering public issues such as access. Accor-dingly, many of the provisions of Part IV of the Bill (Radio Spectrum Management), also apply to licences -'Issued under Part V of the Bill (Regulation of Broadcasting) as in the case of provisions relating to frequency assignments and the monitoring and enforcement of radio regulations. This approach enables regulation of broad-casting to focus primarily on the public policy aspects.
The regulation of broadcasting is designed to secure its inde-pendence from undue influence. The provisions which relate to ensuring this independence include--
(a) the manner of appointment of the Board of MBC, the public broadcaster;
(b) the requirement for a public consultation before broadcasting licences are issued;
(c) the denial of rights to political parties to have a broadcasting licence;
(d) the limitation on the number of broadcasting licences any commercial interest may hold; and
(e) the restricted powers to amend or revoke a broadcasting licence once issued.
In addition, all broadcasters will be required to comply with a Code of Conduct set out in the Third Schedule to the Bill which lays down standards for broadcast news and other radio and television programmes. The Code of Conduct requires balanced reporting of elections.
Postal Services and Postal Monopoly
Part VI of the Bill envisages that only the conveyance of letters will need to be licenced and that Malawi Posts will have exclusivity in this regard.
The Bill defines the letter monopoly in a relatively standard way, exempting non-commercial activities and parcel services. On a practical level; it is worth noting that the service between Blantyre and Lilongwe and Mzuzu operated by Stagecoach provides a useful express service, and the Bill does not prohibit such complementary services.
The Bill includes a limited provision enabling the Authority to licence others to deliver letters within the scope of the exclusive right. This provision is needed as a check of Malawi Posts' potential to abuse its monopoly power or in the event of a temporary failure to provide service in any area of the country.
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Separation of Posts from Telecommunications
Part VII of the Bill deals with the setting up of Malawi Telecom under the Companies Act and the transfer of staff and assets from MP'FC to it. The transfer of staff is voluntary, although it is open to both MPTC, before the transfer date, and to Malawi Telecom, afterwards to restructure. The rights of transferred employees are fully protected. This Part also permits the sale of shares in Malawi Telecom without prescribing the form or timing of such privatization. The freedom to sell shares is limited only by the requirement that MACRA shall be consulted.
Part VIII of the Bill deals with the setting up of Malawi Posts as a statutory corporation. As with Malawi Telecom, relevant assets shall be transferred on the transfer date and the staff shall transfer voluntarily with their rights protected.
Reconstitution of MBC
MBC continues in existence, but its Board is reconstituted. The process for choosing Board members being undertaken in consultation with the Public Appointments Committee.
The Bill contains three distinct avenues for appeal against the conduct of regulation by MACRA-
(a) to the Courts, where MACRA has exercised its own judgement;
(b) to the Minister, on matters of policy; and
(c) to arbitration, where essentially commercial matters are in dispute.
MACRA itself acts as an appeal body in relation to consumer complaints and commercial matters, such as interconnexion disputes between operators.
Offences and Penalties
The number and type of offences for the purposes of the new law has changed as a result of the commercialization of posts and telecommu-nications. Commercial companies are not expected to behave in the same way as Government departments. Thus, for example, offences by employees will in future be a matter for the contract of employment. Other offences by licensees can be covered by financial penalties in the licences. Any matter concerning relations with customers is best considered not as an offence, but as a potential breach of contract which can be pursued through the civil courts, or by MACRA on behalf of users.
Nonetheless, the Bill -lays down a few offences, relative to each service segment of the communications sector, for certain violations considered to be serious. The Bill emphasizes the monetary penalty more than penalty by imprisonment for these offences.
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