MALAWI COMMUNICATIONS LAW 1998                                                                      MALAWI SDNP
 
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                                            Communications                                            15 


PART III-REGULATIONS OF THE TELECOMMUNICATION  
                  NETWORKS AND SERVICES 

15. In the performance of its duties under section 4, the  
Authority shall regulate telecommunication networks and  
services in Malawi so as to ensure- 
(a) the provision of a wide range of public telecommunication 
services in Malawi; and 
(b) as far as is practicable, open entry into the provision of public  
telecommunication services; 
 

 
 
 
 
 
 

Duty of the  
Authority 
In respect of  
public teleco- 
mmunication 
services  
 
 
 
 

16-(I) The Authority may, where necessary, seek the general  
direction of the Minister as to the manner in which it is to  
carry out its duties under this Part. 
2. Any direction given by the Minister under subsection (1) shall  
be in writing. 
 
Policy  
directions by  
the Minister 
 
 
 
 
17.-(1) Subject to subsection (2), no person may operate a tele- 
communication network or provide telecommunication service  
in Malawi or between any place in Malawi and any other place 
except in accordance with a licence issued by the Authority. 
(2) The Minister, on the advice of the Authority, may from time 
to time make regulations exempting- 
(a) the operation of the telecommunication networks; or 
(b) the provision of the telecommunication services, of the 
kinds set out in the regulations from the requirement to  
be licensed under this Act. 
 
Requirement of  
licence for provision of  
telecommunication 
service 
 
 
 
 
 
 
 
 
18.-(I) The Authority may issue telecommunication licences of  
  the following kinds- 
(a) general licences; and 
  (b) individual licences. 
(2) The Authority shall publish a list of the telecommunication  
networks and services which may only, be provided under 
an individual licence. 
  (3) Notwithstanding section 17 and subsection (2) of this section- 
   (a) the provision of voice telephony; and 
  (b) the operation of a cable television network, may only be 
authorized under an individual licence. 
(4) Before issuing any telecommunication licence, the Authority 
shall publish in the Gazette a complete draft of the proposed 
licence and consider any representations made to it concerning 
the draft. 
Kinds of 
telecommunications 
licence 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
B. No. 17
 
Registration 
under a  
General 
Licence 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
16                                Communications 


(5) Any telecommunication licence issued by the Authority shall 
come into effect when published in the Gazette. 

19.-(I) The Authority shall publish a notice specifying- 

(a) the procedure by which any person wishing to operate  
a telecommunication network or provide a telecommunication 
service which is regulated by a general licence may register 
with the Authority; 
(b) the information which must be provided to the Authority  
at the time of initial registration or subsequently; and 
  (c) the registration fee payable. 

(2) The Authority may, after due inquiry has been made, refuse to recognize the registration of any person even if made in accordance with the published procedure if so directed b the President in the  interest of national security. 

(3) Subject to subsection (2), any person may begin to operate a  
telecommunication network or provide a telecommunication  
service which is regulated by a general licence twenty-eight days  
after its registration has been duly made within which period all  
other technical procedures and formalities would have been  
complied with. 

(4) No person may operate a telecommunication network or provide  
a telecommunication service to which a general licence relates until the registration procedure of the Authority has been complied with. 
 

Application for  
individual  
licenses 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 20.-(1) The Authority shall publish the procedures by which 
individual licences may be applied for. 
  
   (2) Licensing procedures shall be objective, transparent and non- 
discriminatory and shall specify- 
   (a) the kinds,of individual licences which may be applied for; 
   (b) the criteria by which each licence will be issued; and 
   (c) the fees payable for the issue of a licence. 
  
 (3) The Authority may grant or refuse an application for an indi- 
vidual licence taking into consideration- 
  (a) the applicant's capability to operate the network or service  
 for which he seeks a licence; 
  (b) the published criteria by which the licence will be issued; 
  (c) the extent to which issuing such a licence would be consis- 
tent with the principles stated in section 4; and 
  (d) whether or not the issue of such a licence is in the public interest.
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                                 Communications                                                      17 


(4) The Authority shall communicate its decision on an application for an individual licence within six months of receipt of the application. 

(5) Where the individual licence to be issued for the operation of a particular type of telecommunication network or the provision of a particular type of telecommunication service is to be limited in number, the Authority shall- 
 (a) publish a consultative document providing a detailed explanation of the reasons for the proposed limitation and consider any representation made to it on the matter; 
(b) publish a notice in the Gazette stating the number of licences to be issued and the grounds for the limitation to the number; and 
 (c) review from time to time a review of any limitation imposed. 
  
(6) An individual licence may not be transferred except with the 
consent in writing of the Authority. 
 

21.--(I) A telecommunication licence issued by the Authority Terms and 
shall- 
(a) be issued on payment by the applicant of the appropriate munication licence fee-, 
(b) state the terms and conditions on which it is issued; 
(c) specify the services that may be provided; and 
(c)        come into effect when published in the Gazette. 

(2) A telecommunication licence may only be issued on such terms and subject to such conditions as are consistent with the principles stated in section 4. 
  
(3) A telecommunication licence may include all or any of the following conditions- 
  
(a) the provision of services to rural or other specified areas; 
(b) the payment of sums of money for the licence calculated as 
a proportion of the annual turnover of the licenced network or otherwise; 
  
(c) the payment by the licencee of a contribution toward any loss incurred by another licencee as a result of an obligation imposed on that licencee by the Authority regarding the provision of uneconomic service in accordance with the principle,., stated in section 4; 
  
(d) the interconnelion of the licencee's telecomm; unication network with any other licenced network and permitting the connexion of approved equipment to the licencee's telecommunication network; 
 

Terms and 
Conditions of telecom- 
munication  licenses 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
B. No. 17
 
 
  18                                                  Communications 


(e) prohibiting the licencee from giving undue preference to or from exercising undue discrimination against any particular person or any class of persons (including any other licencee); 
(f) prescribing rules that govern the commercial behaviour of the licencee; 
(g) requiring the submission to the Authority for its approval of a standard contract for the provision of service to users; 
(h) specifying the criteria for setting tariffs of voice telephony services and of any other telecommunication service if provided on an exclusive basis, and such criteria shall as far as possible promote consultation between the Authority and the operator or service provider; 
(i) requiring the licencee to publish the charges and other terms and conditions that are to be applicable to facilities and services provided; 
(i) requiring the licencee to ensure that adequate and satisfactory information including billing, tariffing, directory information and directory enquiry services and emergency numbers are provided to customers; 
(k) establishment by the licencee of a simple method of resolving disputes with users; 
(1) furnishing to the Authority such documents, accounts, returns or such other information as the Authority may require for the performance of its functions under this Act; 
(m) requiring the licencee to comply with such technical standards or requirements including service performance standards as may be specified in the licence;  
(n) any other conditions as the Authority may consider appropriate  and which are consistent with the principles stated in section 4  of this Act. 
 
Monitoring 
and 
enforcement 
of telecom- 
munication 
licences 
  
 
 
 
 
 
 
 
 
22.-(I) The Authority shall ensure that telecommunication services are provided in accordance with the terms and conditions of licences and regulations in force. 
  
(2) The Authority may- 
(a) investigate any complaint made to it concerning activities undertaken under a telecommunication licence; 
(b) appoint an independent person to carry out an investigation into such a complaint; 
(a) require the licencee to respond to such a complaint. 

(3) Where, after due inquiry, the Authority is satisfied that a licencee has breached a term or condition of its telecommunication licence, it shall notify the licencee of the fact in writing and may make a provisional order requiring the licencee to remedy the breach forthwith. 
 

B. No. 17
 
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(4) The Authority may make a provisional order suspending the registration of any person under a general licence if it believes on reasonable grounds that the person has ceased to be eligible or that the person has contravened any condition of the licence, provided 
that the Authority- 

(a) gives not less than twenty-eight days notice in writing 
before the suspension takes effect;  
(b) gives the person reasons in writing for the intended sus- 
pension; and  
(c) provides a reasonable opportunity for the person to make representations in writing or in person. 

(5) After due consideration of any representations made to it, the Authority may confirm a provisional order made under this section and may require the payment of a penalty or compensation, as appropriate. 
  
(6) Any person affected by an order made by the Authority under 
this section may apply to the High Court for judicial review. 
 

23.-(I) The Authority may modify any condition of a telecommunication licence in accordance with the provisions of the licence or, in the absence of such-provision, if it is in the public interest to do so. 

(2) Before modifying any condition of a telecommunication licence, the Authority shall- 
(a) publish a notice stating the reasons for the intended modification and giving any person with an interest in the matter the opportunity to make representation; and 
(b) give due consideration to any representation regarding the 'proposed modification made to it by any person having an interest or holding an individual licence. 
 

Amendment 
of a telecom- 
munication 
licence 
 
 
 
 
 
 
 
 
 
 
24.--(I) The Authority may designate as a telecommunication operator any person who has been issued an individual licence under this Part which includes the following conditions- 
(a) an obligation to provide such telecommunication services 
as air specified in the licence; 
 (b) an obligation  to connect to any telecommunication network 
to which the licence relates or permit the connexion to any such network, of such other networks as are specified in the licence; 
 (c) a prohibition on showing undife preference to, or on exer- 
cising undue discrimination against, particular persons or persons 
of any class or description in respect of any service provided or 
connexion made (whether in respect of the charges- or other terms and conditions applied or otherwise); and
Desination  
of telecom- 
munication  
operators 
 
 
 
 
 
 
 
 
 
 
 
 
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20                                               Communications 


(d) such other terms and conditions as the Authority may specify. 

(2)  Any person designated as a telecommunication operator shall enjoy the rights and comply with the obligations specified in the code of conduct set out in the Second Schedule. 

(3)  The Authority may co-opt any person designated as a telecommunication operator as a member of its delegation to any international organization concerned with telecommunications. 
 
 

Competition  
rules 
 
 
 
 
 
 
 
 
 
 
 
25.  If it appears to the Authority that a person holding an individual licence is taking or intends to take any action which- 

(a) may constitute an abuse of a dominant position in relation to the provision of any telecommunication service, or 
(b) has or is likely to  have the effect of placing another person engaged in telecommunication activities at a competitive disadvantage in relation to that person, 

the Authority may, after giving the person concerned an opportunity to make representations, direct that person to cease or refrain from taking such actions, as the case may be. 
 

Network 
Inter- 
connexion 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
26.- (1)  Any person holding a telecommunication licence under this Act may enter into an agreement regarding interconnexion with another such person terms and conditions as the parties agree, provided that the agreement is notified to the Authority with a copy supplied. 

(2) The Authority may, within twenty-eight days of an agreement regarding interconnexion notified to it under subsection (1), declare void any term of the agreement. 
(3) Where, pursuant to subsection (2), the Authority declares void a term of an agreement regarding interconnexion, the Authority shall notify the parties to the agreement in writing giving its reasons. 
(4) If the persons referred in subsection (1) fail to agree on terms for interconnexion, the Authority shall, at the request of any of them, determine such terms and conditions. 
(5) The Authority may issue guidelines in accordance with which agreements regarding interconnexion may be negotiated. 
(6) Any network interconnection agreement reached pursuant to this section shall be filed with the Authority and shall be open to inspection by the public at the premises of the Authority 
 
 

National  
numbering  
plans
27.- (1)  After consultation with licensees designated as telecommunication operators, the Authority shall publish in the Gazette a numbering plan for use by subscribers in Malawi.
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                                             Communications                                                   21

(2) The Authority shall from time to time consult with operators of telecommunication networks providing voice telephony on the need for additions to or changes in the published numbering plan. 
(3) No change to the numbering plan may be made without the consent of the Minister. 
(4) Any change in the numbering for voice telephony shall be designed so as to ensure that  
(a) sufficient numbers can be made available to subscribers without delay; 
(b) numbers include a few digits as practicable; 
(c) additional blocks of numbers are allotted to licensees in a non discriminatory manner; 
(d) no undue competitive advantage is conferred on any licensee; 
 
28.- (1)  Telecommunication operators in Malawi may by agreement have access to or make use of any infrastructure for the purpose of providing public telecommunication services. 

(2)Any person authorized to operate infrastructure may install, maintain and operate telecommunications equipment and facilities for the purposes of operating that infrastructure: 

Provided that--- 
(a) any permits required from the Authority to install, maintain or prepare such equipment and facilities have been obtained; 
(b) subject to section (1), the telecommunications equipment and facilities are not used to provide a public telecommunication service. 

(3) An operator of public telecommunication service shall, whenever technically feasible and subject to a negotiated agreement, make available its infrastructure or any part thereof causes or is likely to cause harmful interference with the provision of services by the first operator. 

(4) The cost, if any, of making infrastructure available to a requesting operator of public telecommunications pursuant to subsection (3) shall be made in writing and shall be responded to in writing within twenty-eight days of the receipt of the request and in the event of refusal the requested operator shall be required to furnish reasons.

Use of  
Infrastructure 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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22                                                  Communications 


(6) Where the parties referred to in subsection (3) fail to reach agreement and the Authority is of them opinion that it is technically feasible for those parties to share the infrastructure concerned, the Authority shall have power to compel the parties to reach agreement on such terms and conditions as the Authority shall determine. 
  
(7) Any agreement for sharing infrastructure made pursuant to subsection (1') and (3) shall be filed with the Authority by the requesting operator of public telecommunications services being party to the agreement. 
  
(8) Any dispute regarding the sharing of infrastructure pursuant 
to this section shall be resolved by the Authority. 
 
Settlement of 
disputes 
 
 
 
 
 
 
 
 
 
 
 
 
 
29.--(I) The Authority shall, establish and maintain a procedure by by which any matter which- 
 (a) relates to the provision of a telecommunication service; 
(b) has not, after allowing a reasonable period, been resolved 
between the subscriber or subscribers concerned and the provider of the telecommunication services; and 
(c) in relation to which the Authority has been requested to act by a subscriber concerned, may be resolved in an effective, fair and relatively cheap manner. 
  
(2) The Authority may intervene at the request of any party in order to resolve any dispute between holders of telecommunication licences. 
 
Provision of 
information  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
30. The Authority may require any person holding a telecommunication licence- 

(a) to adopt any method of calculating the costs of providing telecommunication services and to adopt any accounting method or system of accounts for the purposes of complying with the provisions of this Act or the exercise of a power conferred on the Authority under this Act: 
  
Provided that any such accounting system or method shall not be contrary to the accounting requirements of companies' legislation; 

(b)          to submit information to the Authority, in periodic reports or in such other form and manner as the Authority considers Necessary for the implementation of this Act. 
 

Confidentiality 
 
 
 
 
31.--(I) The Authority shall not discuss any information provided to it as part of the exercise of its functions under this Act which relates to the business activities of any body corporate which that person has notified to the Authority that it wishes to be kept confidential.
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(2) Notwithstanding subsection (1), the Authority may disclose information that it has been notified should be kept confidential if such disclosure is essential in order to fulfill its functions under this Act or if so directed under an order of a court. 
  
(3) Before disclosing any information that it has been notified should be kept confidential, the Authority shall inform the-person affected and consider any representations made by it regarding the' necessity for, time and manner of disclosure. 
 
32.(1) The Minister, on the advice of the Authority, may from time to time make regulations governing the operation of telecommunication networks, the provision of telecommunication services or the use of terminal equipment. 

(2) Before advising the Minister to make any regulations contemplated in subsection (1), the Authority shall publish a complete draft of the proposed regulation and consider any representations made to it concerning the draft. 
 

PART IV-RADIO SPECTRUM MANAGEMENT

Telecom- 
munication 
regulations 
  
 
 
 
 
 
 
 
 
 
B. No. 17
 
 
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