Telecommunications Amendment Act 1997

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1997/Acts/Telecommunications%20Amendment%20Act%201997.pdf

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Telecommunications Amendment Act 1997
TELECOMMUNICATIONS AMENDMENT ACT 1997

1

BERMUDA
1997 : 8

TELECOMMUNICATIONS AMENDMENT ACT 1997

[Date of Assent 27 March 1997]

[Operative Date 27 March 1997]

WHEREAS it is expedient to amend the Telecommunications Act
1986:

Be it enacted by The Queen’s Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:—

Short title
1 This Act which amends the Telecommunications Act 1986
(hereafter referred to as “the principal Act”) may be cited as the
Telecommunications Amendment Act 1997.

Amends section 2 of principal Act
2 Section 2 of the principal Act is amended by inserting next after
the definition of the expression “radio station” the following—

" "rates and charges” means the rates, the charges for, the terms
and conditions applying to the offer of, and the provision of
any services in connection with—

(i) the transmission of intelligence by telecom-
munication and rental charges;

(ii) the rental of equipment;

TELECOMMUNICATIONS AMENDMENT ACT 1997

2

(iii) the use of the lines of communication of a
Carrier, whether derived from wire or radio
facilities or incidental to radio communication of
any kind; and

(iv) the interconnection of telecommunications
facilities or networks, including the interchange
of traffic between networks,

and includes single rates or charges, ranges or bands of rates or
charges, and any ancillary rates or charges;".

Amends section 6(1) of the principal Act
3 Section 6(1) of the principal Act is amended by inserting next
after the word “Act” the words “and to fulfill any duties assigned to it
under this Act or the regulations”.

Amends section 9 of the principal Act
4 Section 9 of the principal Act is amended—

(a) in subsection (1), by deleting the words "No person" and
substituting the words "Subject to subsection (3A), no
person";

(b) in subsection (3), by inserting next after the words
"section 3" the words "and subsection (3A) of this
section"; and

(c) by inserting next after subsection (3) the following—

"(3A) Notwithstanding subsection (1) and
subsection (3)(ii), where—

(a) the Minister considers it necessary to
allow the provision of public
telecommunication service pending
his decision whether to grant a
licence, or for any other reason;

(b) the Minister considers it necessary to
allow the possession or use of a radio
station pending his decision whether
to grant a licence, permit or
certificate; or

(c) a person applies for temporary
permission to provide public
telecommunication service or to
possess or use a radio station,

TELECOMMUNICATIONS AMENDMENT ACT 1997

3

the Minister may issue a temporary permit for the
provision of such public telecommunication service or for
the possession or use of such radio station, as the case
may be.

(3B) A temporary permit shall be issued for a
period not exceeding six months and shall be subject to
such conditions as the Minister considers necessary.";
and

(d) by deleting subsection (5), other than the proviso
thereto, and substituting the following—

"(5) Subject to section 3(4), a fee prescribed
under the Government Fees Act 1965 shall be payable in
respect of every licence, permit or certificate granted
under this Act and different fees may be prescribed in
respect of licences or permits, as the case may be,
granted in respect of different classifications of public
telecommunication services or radio stations.

(5A) A fee referred to in subsection (5) shall
be paid either prior to the grant of a licence, permit or
certificate referred to in that subsection or at such other
time as may be specified in the Government Fees
Regulations 1965.".

Amends section 10B of the principal Act
5 Section 10B of the principal Act is amended by repealing
subsection (1) and substituting the following—

“ (1) The secretary of a body corporate which operates a
public telecommunication service shall submit to the Minister—

(a) on an annual basis not later than six months
after the closing of its financial year or such
longer period as the Minister may allow—

(i) a copy of its annual report;

(ii) a copy of its annual financial
statement and its auditor’s
report; and

(iii) a list of shareholders owning 1%
or more of the total
shares in the body corporate
and specifying therein their
nationality, the number of
shares held by each and

TELECOMMUNICATIONS AMENDMENT ACT 1997

4

whether or not control of the
body corporate is vested in
persons possessing Bermudian
status within the meaning of the
Bermuda Immigration and
Protection Act 1956;

(b) on a semi-annual basis, commencing at such
time as may be specified by the Minister—

(i) a list of all of its telecom-
munication services including
the rates and charges for the
services;

(ii) market size and market share
estimates for each pub-
lic telecommunication service
offered by the Carrier; and

(iii) monthly traffic data for
each public telecommunication
service offered by the Carrier;
and

(c) such other periodic reports as may be specified
by the Minister.”.

Amends section 14 of the principal Act
6 Section 14 of the principal Act is amended—

(a) in subsection (4) by deleting the word “may” and
substituting therefor the word “shall” and by deleting the
words “, the conditions applying thereto”;

(b) by deleting subsection (5) and substituting the
following—

“ (5) On receipt of the submission made under
subsection (4) the Commission shall publish in the
Gazette a notice which shall—

(a) identify the Carrier;

(b) state that the Minister has added the
Carrier to the list of specified Carriers in
the First Schedule;

(c) state that the Carrier has submitted to
the Commission a list of its
telecommunications services and the
rates and charges for such services; and

TELECOMMUNICATIONS AMENDMENT ACT 1997

5

(d) specify a time and a place for the
inspection of the matters referred to in
paragraph (c),

and shall make such enquiry into the matter as the
Commission may think fit for the purpose of
ascertaining whether the rates and charges are just and
reasonable and comply with the provisions of this Act or
the regulations.";

(c) in subsection (7) in paragraphs (a) and (b), by deleting
the words “the conditions of service, and” ;

(d) in subsection (8) by deleting the words “the list of
conditions of service and”; and

(e) in subsection (10) by deleting the word “affirmative” and
substituting therefor the word “negative”.

Amends section 15 of the principal Act
7 Section 15 of the principal Act is amended by deleting the
proviso thereto and by deleting the colon at the end of the section and
substituting therefor a full stop.

Amends section 16 of the principal Act
8 Section 16 of the principal Act is amended by deleting
subsections (1) and (2).

Amends section 17 of the principal Act
9 Section 17 of the principal Act is amended by deleting
subsection (3).

Amends section 18 of the principal Act
10 Section 18 of the principal Act is amended by deleting
subsection (2) and substituting the following—

“ (2) The Telecommunications Inspector or an inspector
may at any reasonable time enter any premises for the purpose
of inspecting—

(a) any radio apparatus or radio station or any
records maintained in connection therewith
which are required to be kept by any provision
of this Act or the regulations or by the
Convention; or

(b) any apparatus or any records maintained in
connection therewith which are maintained by a
Carrier in connection with the provision of a
public telecommunication service.”.

TELECOMMUNICATIONS AMENDMENT ACT 1997

6

Amends section 20 of the principal Act
11 Section 20 of the principal Act is amended by deleting
subsection (3) and substituting the following—

“ (3) A report of the Commission shall be prepared and
made public in accordance with the provisions of section 61A
and 61B.”.

Inserts new section 20A in principal Act
12 The principal Act is amended by inserting next after section 20
the following—

“Interim and ex parte decisions
20A (1) The Minister or the Commission may make any
decision under this Act on an interim basis and may make the
final decision effective from the day the interim decision came
into effect.

(2) The Minister or the Commission may make an ex
parte decision whenever the Minister or the Commission, as the
case may be, considers that the urgency of a particular case
justifies such ex parte decision, so, however, that within fourteen
days or such longer period as the Minister or the Commission
may determine, after an ex parte decision is made under this
subsection the Minister or the Commission, as the case may be,
shall hold an inter partes enquiry for the purpose of making an
interim or final decision.”.

Repeals and replaces section 21 of the principal Act
13 Section 21 of the principal Act is repealed and replaced by the
following—

"Duties of Carriers
21 (1) Subject to the provisions of this section, it shall be
the duty of every Carrier—

(a) to furnish telecommunication service upon any
reasonable request therefor and on reasonable
terms and conditions;

(b) to establish physical connections with other
Carriers on reasonable terms and conditions;

(c) to establish through routes and the charges
applicable thereto;

(d) to establish and provide facilities and rules for
operating such through routes;

TELECOMMUNICATIONS AMENDMENT ACT 1997

7

(e) to maintain the confidentiality of any
information provided by a customer or another
Carrier;

(f) to refrain from any act or practice intended to
lessen, or likely to have the effect of lessening,
competition;

(g) to refrain from marketing practices or
advertisements which are false or misleading in
a material respect;

(h) to provide to other Carriers access to support
structures including telephone poles,
underground conduits and communications
towers upon reasonable terms and conditions;
and

(i) to maintain existing services unless permitted by
the Commission to discontinue such service.

(2) Where a Carrier has established to the satisfaction
of the Commission that an existing service is unprofitable or
loss-making the Commission shall not refuse permission to
discontinue that service unless—

(a) the Commission considers that it is in the public
interest to refuse permission, having regard to
the utility of the service, the availability of
suitable substitutes and the degree of reliance
on the service by the public or segments of the
public; and

(b) the Commission is satisfied that the Carrier will
be adequately compensated for the loss involved
in continuing the service by the rates and
charges it charges for other services it provides.

(3) No Carrier may disconnect another Carrier without
the consent in writing of the second mentioned Carrier or the
Minister unless—

(a) the second mentioned Carrier fails to settle its
accounts due within a period of thirty days after
the date of receipt of a formal warning notice
and within a further period of thirty days after
the date of receipt of a notice of intended
disconnection; or

(b) the second mentioned Carrier fails to comply
with any term of the contract or agreement for
the provision of the service; or

TELECOMMUNICATIONS AMENDMENT ACT 1997

8

(c) the second mentioned Carrier fails to conform to
the agreed technical specification for the
provision and operation of the service; or

(d) there is other just and reasonable cause for so
doing.

(4) A Carrier which intends to disconnect another
Carrier shall, not less than thirty days before the date of the
proposed disconnection, in writing, inform the Minister of the
reasons for the proposed disconnection, and the Minister shall
forthwith refer the matter to the Commission for enquiry and
report.

(5) Upon referral of a matter to the Commission under
subsection (4) the Commission shall conclude its enquiry as
expeditiously as possible and report to the Minister with
recommendations within twenty days of the date of referral by
the Minister.

(6) The Minister shall render a decision on a proposed
disconnection of one Carrier by another within thirty days of
receipt by the Minister of the notice by the Carrier under
subsection (4).".

Repeals and replaces section 22 of the principal Act
14 Section 22 of the principal Act is repealed and replaced by the
following—

“Enquiry into failure of a Carrier to discharge a duty
22 (1) A person other than a Carrier who is aggrieved by
the failure of a Carrier to discharge a duty to which it is subject
by virtue of this Act or any regulation or any directive of the
Minister or the Commission may make a written complaint on
that account to the Commission and shall provide a copy of the
complaint to the Carrier concerned.

(2) As soon as possible after the receipt of a complaint
under subsection (1) the Commission shall investigate the matter
and, if satisfied on the evidence submitted that there are prima
facie grounds for the holding of an enquiry, shall hold an
enquiry and shall report thereon to the Minister.

(3) On receipt of a report under subsection (2) the
Minister may, after giving due consideration to the report, give
such directive to the Carrier as he thinks fit and the Carrier shall
comply therewith.

(4) A Carrier aggrieved by the failure of another Carrier
to discharge a duty to which it is subject by virtue of this Act or

TELECOMMUNICATIONS AMENDMENT ACT 1997

9

any regulation may make a written complaint on that account to
the Commission and shall provide a copy of the complaint to the
Carrier concerned.

(5) Upon receipt of a complaint under subsection (4)
the Carrier against which the complaint is made shall
immediately attempt to resolve the dispute so, however, that
either party to the dispute may request the assistance of the
Department in resolving the dispute.

(6) If the dispute is unresolved within thirty days after
the copy of the complaint is received by the respondent Carrier
the parties to the dispute may—

(a) jointly agree to further negotiation or mediation;
or

(b) jointly agree to submit the dispute to binding
arbitration in accordance with the provisions of
the Arbitration Act, 1986 or any then subsisting
statutory re-enactment or modification thereof;
or

(c) elect to submit the dispute to the Commission
for resolution.

(7) In the event the dispute is referred to the
Commission pursuant to subsection (6), the Commission shall
enquire into, and render a decision on, the dispute within forty
five days from the date of the referral.

(8) In its decision the Commission may direct one or
more of the parties to take such action as is necessary to comply
with the requirements of this Act or the regulations.

(9) In subsection (6) "the respondent Carrier" means
the Carrier against which a complaint is made.".

Amends section 23 of the principal Act
15 Section 23 of the principal Act is amended—

(a) in subsection (1) by deleting the words "to the public"
wherever they appear;

(b) in subsection (2) by deleting all the words beginning with
"members of the public" and ending with "notice" and
substituting the words "any person may make objections
and forward such objections to the Commission within
twenty-one days from the second date of publication of
the notice"; and

(c) by deleting subsections (5), (6) and (7).

TELECOMMUNICATIONS AMENDMENT ACT 1997

10

Inserts new section 23A in principal Act
16 The principal Act is amended by inserting next after section 23
the following new section—

"Carriers to maintain lists of rates and charges
23A (1) A Carrier shall at all times keep at its place of
business in Bermuda or such other place approved by the
Commission a current list of all its rates and charges and shall
make the list available for inspection by any person without
charge during business hours subject to such reasonable
restrictions as the Carrier may impose.

(2) A Carrier shall prior to initiating a new
telecommunication service or varying the rates or charges for
existing telecommunication services as the case may be furnish
to the Department in such form as may be specified by the
Commission, notice in writing of the new service and the rates
and charges therefor or the revised rates and charges for the
existing service as the case may be and such information shall
be available for inspection at the offices of the Department or
such other location as may be specified by the Commission.

(3) A Carrier which contravenes any provision of this
section is guilty of an offence and is liable on conviction by a
court of summary jurisdiction to a fine not exceeding five
thousand dollars and, in the case of a continuing offence, is
liable to a further fine of five hundred dollars for each day during
which the contravention continues.".

Amends section 24 of the principal Act
17 Section 24 of the principal Act is amended—

(a) in subsection (2),—

(i) by inserting next after the words "subsection (1)"
the words "or subsection (5)";

(ii) by deleting the word "specified" in paragraphs (i),
(ii), (iii) and (x);

(iii) by deleting paragraph (x)(a) and renumbering
paragraphs (x)(b) and (c) as paragraphs (x)(a)
and (b) respectively;

(iv) by deleting the words "undue or unreasonable"
in paragraphs (x)(a) and (b); and

(b) by inserting next after subsection (4) the following—

“ (5) On receipt of a complaint regarding a
Carrier’s rates and charges, on the direction of the

TELECOMMUNICATIONS AMENDMENT ACT 1997

11

Minister, or of its own motion, the Commission may
review the Carrier’s rates and charges after making such
enquiry into the matter as the Commission may think fit
and having regard to subsection (2), where applicable,
and may give a direction changing the rates and charges
for the service in whole or in part.

(6) Before the Commission gives a direction
under subsection (5) the Commission shall notify the
Carrier of its intention and shall allow the Carrier
fourteen days or such longer period as the Commission
may specify to submit reasons in writing why the
direction should not be given.".

Amends section 25 of the principal Act
18 Section 25 of the principal Act is amended—

(a) in subsection (1) by deleting the words “A specified
Carrier” and substituting therefor the words “Any
person” and by inserting immediately after the figure
“14” the symbol and figures ", 22 or 24"; and

(b) by deleting subsection (5) and substituting the
following—

" (5) When a person gives notice of appeal to the
Minister, the Minister may suspend the implementation
of the direction of the Commission pending the outcome
of the appeal.".

Amends section 26 of the principal Act
19 Section 26 of the principal Act is amended—

(a) by inserting the following as subsection (1)—

“ (1) All rates and charges made by a Carrier
must be just and reasonable."; and

(b) by renumbering the section as subsection (2).

Inserts new section 28A in the principal Act
20 The principal Act is amended by inserting immediately after
section 28 the following—

“Carriers may construct facilities on public roads etc.
28A (1) Any Carrier, with the prior consent in writing of the
Minister responsible for Telecommunications and of the Minister
responsible for Works and Engineering, may enter upon any
public road now existing or which may hereafter exist or be
made in Bermuda and may place thereunder or erect thereon in

TELECOMMUNICATIONS AMENDMENT ACT 1997

12

such places and positions and in such manner as the Minister
responsible for Works and Engineering may sanction, any
telecommunications line or lines with all necessary posts,
supports, wires, pipes, and other apparatus; and with the like
permission may at all times alter the position or arrangement of
such posts, supports and pipes, and alter, diminish or add to
the wires or other apparatus.

(2) The Corporation of the City of Hamilton or the
Corporation of the Town of Saint George, as the case may be,
shall have the like powers with respect to the streets of the said
City and Town respectively as are conferred on the Minister
responsible for Telecommunications and the Minister responsible
for Works and Engineering by subsection (1) in reference to
public roads, and the provisions of subsection (1) shall apply,
mutatis mutandis, to the streets of the said City and Town as if
the same were re-enacted with reference thereto:

Provided that the public traffic on the roads shall not be
unreasonably impeded, obstructed or interfered with.”.

Repeals and replaces section 40 of the principal Act
21 Section 40 of the principal Act is repealed and replaced by the
following—

"Failure to comply with directives
40 Any Carrier which refuses or fails to comply with a
directive issued to it—

(a) by the Minister under section 15 or 22(3);

(b) by the Commission under section 14, 22 or 24,
or, as the case may be, such direction as varied
by the Minister under section 25,

is guilty of an offence and liable on conviction by a court of
summary jurisdiction to a fine not exceeding five thousand
dollars for each day during which the refusal or failure
continues.".

Repeals and replaces section 43 of the principal Act
22 Section 43 of the principal Act is repealed and replaced by the
following—

"Enforcement of price control provisions
43 A specified carrier which initiates a new
telecommunication service or imposes a change in its authorized
rates and charges without giving notice thereof to the
Commission as required by section 23 is guilty of an offence and

TELECOMMUNICATIONS AMENDMENT ACT 1997

13

is liable on conviction by a court of summary jurisdiction to a
fine not exceeding five thousand dollars and, in the case of a
continuing offence, is liable to a further fine of five hundred
dollars for each day during which the offence continues.".

Amends section 44 of the principal Act
23 Section 44 of the principal Act is amended by deleting
subsection (1) and substituting the following—

“ (1) Neither the Minister nor any member of the
Commission, the staff of the Commission or the Department,
shall reveal or in any manner communicate to any other person,
except for the purposes of this Act and the regulations or as
required by law—

(a) any information for which a confidentiality claim
has been made by a Carrier under section 61B
and not withdrawn by the Carrier or denied in
accordance with that section; or

(b) any information in respect of a customer which
is designated as confidential pursuant to the
regulations.”.

Amends section 59 of the principal Act
24 Section 59 of the principal Act is amended—

(a) in subsection (1)(a) by inserting immediately after the
word “service” the words “including, without limiting the
generality of the foregoing,—

(i) the regulation of the rates and
charges for the provision of public
telecommunication services;

(ii) restrictions on the marketing and
advertising of public telecommunication
services;

(iii) the regulation and prevention of anti-
competitive practices by Carriers;

(iv) the establishment and regulation of
technical standards for equipment used
in connection with the provision of
or use of public telecommunication
services including equipment used by
Carriers and equipment to be connected
to the networks of Carriers;

TELECOMMUNICATIONS AMENDMENT ACT 1997

14

(v) the regulation of quality of service
of public telecommunication services
offered by Carriers;

(vi) the establishment and regulation of
procedures and technical standards for
the interconnection of the facilities of
Carriers;

(vii) the establishment and regulation of
procedures and technical standards for
the construction of telecommunications
lines on public roads, highways and
other public places;

(viii) the establishment and regulation of
procedures and technical standards for
the use and sharing of support
structures by Carriers; and

(ix) the classification of the various types of
public telecommunication services;";
and

(b) in subsection (5) by deleting the word “affirmative” and
substituting therefor the word “negative”.

Inserts new section 59A in the principal Act
25 The principal Act is amended by inserting next after section 59
the following—

“Action for damages in the Supreme Court
59A (1) Subject to any limitation of liability imposed in
accordance with this or any other Act, a person who has
sustained loss or damage as a result of any act or omission that
is contrary to any provision of this Act or any regulations made
thereunder or any decision of the Minister or Commission as the
case may be, may sue for and recover in the Supreme Court an
amount equal to the loss or damage from any person who
engaged in, directed, authorized, consented to or participated in
the act or omission.

(2) Notwithstanding any other provision of law to the
contrary, but subject to subsection (3), an action may not be
brought in respect of any loss or damage referred to in
subsection (1) more than two years after the day on which the
act or omission occurred.

TELECOMMUNICATIONS AMENDMENT ACT 1997

15

(3) Nothing in subsection (1) or (2) applies to
any action for breach of a contract to provide public
telecommunication services.”.

Amends section 60 of the principal Act
26 Section 60 of the principal Act is amended by inserting
immediately after subsection (4) the following—

“ (5) An appeal under subsection (1) shall not act as an
automatic stay of the decision or directive of the Minister
appealed from.”.

Inserts new sections 61A and 61B in the principal Act
27 The principal Act is amended by inserting next after section 61
the following—

"Access to information
61A Subject to section 61B, the Commission shall make
available for public inspection any information submitted to the
Commission in the course of proceedings before it.

Confidentiality of information
61B (1) A Carrier providing any information to the Minister,
the Commission or the Department pursuant to this Act or the
regulations may designate such information as confidential on
the grounds that it is—

(a) a trade secret;

(b) financial, commercial, scientific or technical
information which is confidential in nature and
is consistently treated as such by the Carrier; or

(c) information which, if made public, is likely to—

(i) result in material financial loss
or gain to any person;

(ii) prejudice the competitive posi-
tion of the Carrier or others; or

(iii) prejudice contractual or other
negotiations.

(2) A Carrier claiming confidentiality in respect of any
information under subsection (1) must provide full justification
for its claim and must also provide a version of such information
without the confidential provisions and in a form that may be
made available to the public.

TELECOMMUNICATIONS AMENDMENT ACT 1997

16

(3) Upon receipt of a confidentiality claim pursuant to
subsection (1) and after considering any representations of
interested persons, the Minister, the Commission or the
Department, as the case may be, shall assess such claim having
regard to the public interest in disclosure, as well as the private
interests of the Carrier and other persons identified by the
Carrier, and shall determine whether disclosure of the relevant
information is in the public interest.

(4) Following a decision by the Commission or
Department, as the case may be, regarding disclosure of
information, the Carrier or any interested person may appeal
such decision to the Minister within five days of the decision and
the Minister shall render a decision on any appeal within a
further seven days.

(5) On appeal the Minister may uphold or vary any
disclosure decision of the Commission or the Department as the
case may be.

(6) A decision of the Minister under subsection (3) or
(5) may be appealed to a Judge in Chambers.

(7) A decision of the Minister under subsection (3) or
(5) shall be suspended pending the outcome of the appeal to the
Judge in Chambers under subsection (6).

(8) When a decision has been rendered, and any
appeals completed, under this section, the Carrier shall
forthwith comply with the decision.”.

Amends section 64 of the principal Act
28 Section 64(1) of the principal Act is amended by inserting
immediately after the word “equipment” the words “any information or
record pertaining to any telecommunications equipment, or any
information or record relating to the provision of public
telecommunication services”.

Amends section 66 of the principal Act
29 Section 66 of the principal Act is amended—

(a) by renumbering subsection (2) as subsection (3); and

(b) by inserting the following subsection as subsection (2);

“(2) Any order under subsection (1) may be
made subject to any conditions the Minister considers
appropriate.”.