Telecommunications Amendment Act 2001
TELECOMMUNICATIONS AMENDMENT ACT 2001

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BERMUDA

2001 : 28

TELECOMMUNICATIONS AMENDMENT ACT 2001

[Date of Assent: 13 August 2001]

[Operative Date: 13 August 2001]

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:

Citation
1 This Act which amends the Telecommunications Act 1986
(hereinafter referred to as "the principal Act") may be cited as the
Telecommunications Amendment Act 2001.

Amends section 2 of principal Act
2 Section 2 of the principal Act is amended—

(a) in the definition of "Carrier", by deleting all the words
beginning with "means a person" and ending with "who
provides" and substituting the words "means a person to
whom a licence has been granted pursuant to section
9(1) of the Act and includes a person who provides";

(b) by deleting the definition of "public telecommunication
service" and substituting the following

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""public telecommunication service" means the
provision, whether by one person or by a number of
persons jointly, of telecommunication services to
members of the public upon payment of a fee;";

(c) by inserting next after the definition of "Department" the
following

""Director" means the Director of Telecommunications"
referred to in section 6(2);" and

(d) by deleting the definition of "telecommunication
installation" and substituting the following

""telecommunication apparatus" means equipment used
for telecommunications;".

Amends section 3 of principal Act
3 Section 3 of the principal Act is amended by deleting subsection
(6) and substituting the following

"(6) This Act shall not apply or have effect in relation to any
radio receiving apparatus which is designed primarily for the
direct reception and use by members of the public of the
transmissions of broadcasting services.".

Amends section 7 of principal Act
4 Section 7 of the principal Act is amended in subsection (2), by
deleting all the words beginning with "Initially" and ending with "one
year".

Amends section 9 of principal Act
5 Section 9 of the principal Act is amended

(a) by deleting subsection (1) and substituting the
following

"(1) Subject to subsection (3A), no person shall
establish, maintain or operate a public
telecommunication service in Bermuda without first
obtaining the grant of a licence from the Minister under
this Act or without being authorized by law."; and

(b) in subsection (3), by inserting next after paragraph (ii)
the following

"(iii) possess or use telecommunications apparatus
that transmits or receives information by means of
wireless light signals.".

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Amends section 10B of principal Act
6 Section 10B of the principal Act is amended

(a) by inserting next after subsection (1) the following

"(1A) Where

(a) pursuant to subsection (1) (a) (ii), a secretary
submits to the Minister a copy of the
financial statement and auditor's report of a
public telecommunication service; and

(b) the Minister considers it necessary or
expedient so to do,

the Minister may require the secretary to allow the
Director or the Commission, or both, to review the books
and financial or other records of the public
telecommunication service, and for this purpose, to allow
physical access to its premises during ordinary business
hours."; and

(b) by deleting subsection (2) and substituting the
following

"(2) A secretary who

(a) contravenes subsection (1); or

(b) refuses to allow the Director or the
Commission to review the books and
financial or other records of a public
telecommunication service; or

(c) refuses access to the premises of a public
telecommunication service for the purpose of
such review,

is guilty of an offence and is liable, on conviction by a
court of summary jurisdiction to a fine not exceeding
$5,000 or imprisonment for a term not exceeding six
months, or to both such fine and imprisonment.".

Amends section 13 of principal Act
7 Section 13 of the principal Act is amended

(a) in subsection (3), by deleting the words "and the
applicant" and substituting the words "the applicant and
any party having an interest in the application may";
and

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(b) in subsection (4), by deleting all the words beginning
with "(other than" and ending with "broadcasting
service)".

Amends section 21 of principal Act
8 Section 21 of the principal Act is amended

(a) by deleting subsections (1) and (2) and substituting the
following

"(1) Subject to this section, it shall be the duty of
every Carrier

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

(b) to establish, upon reasonable terms and
conditions, interconnection, at any
technically feasible point within its network,
with other Carriers; and such
interconnection shall be at least equal in
quality to that provided to itself, a subsidiary,
affiliate or any other Carrier, to which it
provides interconnection;

(c) to provide, on reasonable terms and
conditions, for physical collocation of
interconnection at its premises;

(d) to establish, and provide facilities for
operating, through routes, on reasonable
terms and conditions;

(e) subject to subsection (1A), to maintain the
confidentiality of any information provided by
a customer or another Carrier;

(f) to refrain from any act or practice which is
intended, or is 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, upon reasonable
terms and conditions, access to support
structures including telephone poles,

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underground conduits and communication
towers;

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

(j) to display

(i) in a conspicuous place in the Carrier's
principal place of business or in such
other place as may be specified in
writing by the Minister; and

(ii) in such a manner that all the terms and
conditions subject to which the licence
is granted are visible and legible,

every licence granted under this Act or
authorized by law to establish, maintain or
operate a public telecommunication service;

(k) to submit to the Commission either prior to,
or not later than ten days after, execution,
and in such form as the Commission may
specify, copies of all agreements in respect of
interconnection or access to support
structures between that Carrier and another
Carrier, including any amendments to any
existing agreements between Carriers.

(1A) Subsection (1)(e) does not apply

(a) where one Carrier wishes to transfer certain
classes of services to another Carrier;

(b) in respect public telecommunication services
which are directly connected with the delivery
of emergency services; or

(c) where in the special circumstances of a
particular case the Minister determines that
it is in the public interest that such
confidentiality should not apply.

(2) A carrier shall comply with a request under
paragraph (1)(a), (b), (c) or (d) within thirty days of the
request being made or within such longer period as the
Commission may allow, and a Carrier is not relieved of
the duty imposed by those paragraphs by reason only of
the Carrier's inability to comply with the request within
the time specified.".

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Amends section 22 of principal Act
9 Section 22 of the principal Act is amended by inserting next after
subsection (7) the following

"(7A) If the Commission fails to render a decision within the time
specified in subsection (7), the parties to the dispute may

(a) jointly agree to negotiation or mediation; or

(b) jointly agree to submit the dispute to binding arbitration
in accordance with the provisions of the Arbitration Act
1986.".

Amends section 24 of principal Act
10 Section 24 of the principal Act is amended

(a) in subsection (1)(h), by inserting next after the word
"new" where it first appears the words "service or"; and

(b) in subsection (2)(vi), by inserting next after the word
"overseas" the words "including the likely impact of a
new service on other Carriers".

Amends section 25 of principal Act
11 Section 25 of the principal Act is amended by deleting
subsection (2) and substituting the following

"(2) For the purposes of an appeal under subsection (1) the
Commission shall, at the time of giving, or not later than three
working days after the date on which it gives, a direction, give
reasons, in writing, for the direction.".

Amends section 26 of principal Act
12 Section 26 of the principal Act is amended by deleting
subsection (1) and substituting the following

"(1) It shall be unlawful for any Carrier to make any unjust or
unreasonable discrimination in rates, charges, practices,
classifications, regulations, facilities, or services, directly or
indirectly, by any means or device, or to make or give any undue
or unreasonable preference or advantage to any particular
person, Carrier or class of person, or locality, or subject any
particular person, Carrier or class of person or locality, to any
undue or unreasonable prejudice or disadvantage.".

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Inserts new section 28B in principal Act
13 The principal Act is amended by inserting next after section 28A
the following new section

"Apparatus standards
28B No telecommunication apparatus shall be imported into
Bermuda unless such apparatus meets the standards of

(a) the Federal Communications Commission of the United
States of America;

(b) the Canadian Standards Association International; or

(c) the International Telecommunications Union.".

Repeals section 37 of principal Act
14 Section 37 of the principal Act is repealed.

Repeals and replaces section 39 of principal Act
15 Section 39 of the principal Act is repealed and replaced by the
following

"Contravention of section 9 an offence
39(1) A person who contravenes section 9 is guilty of an offence
and is liable

(a) on conviction by a court of summary jurisdiction to a
fine not exceeding $50,000 or to a term of imprisonment
not exceeding 2 years, or to both such fine and
imprisonment; or

(b) on conviction on indictment to a fine not exceeding
$100,000 or to a term of imprisonment not exceeding 5
years, or to both such fine and imprisonment.

(2) Where any such offence is a continuing offence, the
person guilty of the offence shall, in addition to any punishment
provided in this section, be liable in respect of each day during
which the offence continues to a fine of $5,000,00.".

Inserts new section 42A in principal Act
16 The principal Act is amended by inserting next after section 42
the following new section

"Contravention of section 21 an offence
42A Any person who contravenes any provision of section 21(1),
(2) or (8) is guilty of an offence and is liable on conviction by a
court of summary jurisdiction to a fine not exceeding $50,000.".

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Amends section 53A of principal Act
17 Section 53A of the principal Act is amended by deleting the
definition of "callback telecommunication service" and substituting the
following

"callback telecommunication service" means a
telecommunications service offered to a customer within
Bermuda which enables that customer to make a
telecommunication from Bermuda to a place outside
Bermuda, where such service is not initiated, processed and
billed through a facilities-based telecommunications Carrier
licensed in Bermuda to provide such a telecommunications
service from Bermuda to a place outside Bermuda; and
includes the telecommunication callback services specified in
the Third Schedule.".

Amends section 60 of principal Act
18 Section 60 of the principal Act is amended

(a) in subsection (2), by deleting "twenty one" and
substituting "thirty";

(b) in subsection (3), by deleting the words "On any such"
and substituting the words "Subject to subsection (6), on
any such";

(c) by deleting subsection (5) and substituting the
following

"(5) Pending the hearing and determination of an
appeal, the Court shall not order a stay of a decision, or
direction, of the Minister.

(6) Notwithstanding section 17 of the Crown
Proceedings Act 1966, where a person appeals
successfully against a decision or a direction of the
Minister, then, unless there is evidence of bad faith on
the part of the Minister in making the decision or giving
the direction, as the case may be, the Court shall not
order costs against the Minister.".

Amends section 61 of principal Act
19 Section 61 of the principal Act is amended in subsection (8) by
inserting next after "hearing" the words "except for the purpose of
proving the contravention of those subsections and for that purpose the
person adjudicating shall make such order as he considers appropriate
to preserve confidentiality", and by deleting the words "or investigation".

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Amends Second Schedule to principal Act
20 The Second Schedule to the principal Act is amended in
paragraph 12 by deleting all the words beginning with "a majority and
ending with "three" and substituting the words "not less than four".

Amendment of penalty provisions, etc.
21 The provisions of the principal Act set out in column 1 of the
Schedule are amended in the manner set out in column 2 of that
Schedule.

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SCHEDULE (section 21)
AMENDMENTS OF PENALTY PROVISIONS, ETC.

COLUMN 1 COLUMN 2

section 6 Delete "Telecommunications Inspector"
and substitute "Director of
Telecommunications"

section 15 Insert next after the word "Commission"
wherever it appears the words "or
Director"

section 18 Delete "Telecommunications Inspector"
and substitute "Director of
Telecommunications"

section 23A(1) Insert next after the word "Commission"
the words "and on its website, if any"

section 41 Delete "$500" and substitute "$5,000"

section 42 Delete "$500" and substitute "$5,000"

section 45 Delete "$2,000", "$5,000" and "$1,000"
and substitute therefor respectively
'$5,000", "$10,000" and "$2,000"

section 46(1) Delete "$5,000" and "$1,000" and
substitute therefor respectively "$10,000"
and "$2,000"

section 47 Delete "$2,000" and substitute "$5,000"

section 48 Delete "$2,000" and substitute "$5,000"

section 49 Delete "$1,000" and substitute "$2,000"

section 50 Delete "$500" and substitute "$2,000"

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section 51 Delete "$5,000" and "$1,000" and
substitute therefor respectively '$10,000"
and "$2,000"
Delete "installation" whenever it appears
in the heading and in subsections (1) and
2(a) and substitute therefor in each case
"apparatus"
Delete "installation or" in subsection (2)(b)

section 56 Delete "$500" and substitute "$5,000"

section 63(1)(a) Delete "installations" and substitute
"apparatus"

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