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Telecommunications - Miscellaneous Provisions (Ss 46-57)

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46.     Liability of service provider, etc.

 

            (1) Every person who-

     (a)     operates a telecommunication or radio system;

     (b)     provides a telecommunication service;

     (c)     supplies terminal equipment or radio equipment; or

     (d)     undertakes the maintenance or repair of telecommunication or radio equipment,

shall ensure that the system or equipment he so operates, provides, supplies, maintains or repairs is safe in order to ensure the protection of consumers and users of such service or equipment against injury.

            (2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and shall be liable to a fine of not less than P10 000,00 but not more than P2 000 000,00.

 

47.     Network interconnections

 

            (1) Where a telecommunication system operator or telecommunication service provider believes that it is necessary, in order for him to be able to provide any service, to connect his system or equipment to the network, system, or equipment of another telecommunication network, system, or to other telecommunication equipment he shall seek the consent, in writing, of the operator or provider of that network, system or equipment to so connect his system or equipment.

            (2) Where the consent referred to in subsection (1) is obtained by the telecommunication system operator or telecommunication service provider referred to in that subsection, the said telecommunication system operator or telecommunication service provider may, in applying for a licence under this Act, seek the authorization of the Authority to connect his system or equipment to the operator or provider referred to in subsection (1), and shall forward, to the Authority, a copy of the document giving such consent.

            (3) Where the Authority is satisfied that the provisions of subsections (1) and (2) have been complied with, it may specify, on the licence it grants, that the licensee is authorized to connect his telecommunication system or equipment to such other telecommunication network, system or equipment as it may designate in the licence, being the system or equipment in respect of which consent has been obtained.

            (4) No connection as is referred to in this section shall be made by any person unless he has complied with the provisions of this section.

            (5) Notwithstanding the provisions of subsection (4), the person whose consent is sought under this section shall not withhold that consent unless such interconnection would materially restrict his ability to exploit the network capacity at his disposal in his own operations.

            (6) The interconnection charge or cost of using such designated network, system, or equipment shall be as agreed between the licensee and the operator of the designated network, system, or equipment; and that charge or cost shall be fair and reasonable in relation to the service to be provided by the licensee, and to the additional costs that may accrue to the operator of the designated network, system, or equipment as a result of the connection.

            (7) If a dispute arises relating to-

     (a)     the technical conditions, if any, stipulated by the operator of the designated network, system or equipment; or

     (b)     the reasonableness of the interconnection charge,

the parties shall refer the dispute to the Authority which shall have the power to decide on the matter and set down such terms and conditions for the interconnection as seem fair and reasonable to the Authority.

 

48.     Competition rules

 

            (1) As far as practicable and within the framework of the licensing system established by this Act, telecommunication services shall be provided on a competitive and non-discriminatory basis.

            (2) The following practices shall constitute violations of the principle of free and fair competition and shall, if they are economically harmful to any person, the Botswana Government or the national economy, constitute offences under this Act-

     (a)     collusion between potential operators or service providers in applying for or exploiting a licence granted under this Act;

     (b)     restraining the access, by any service provider or user, to a licensed service in violation of the conditions of a licence;

     (c)     providing false or misleading information in dealings relating to the provision of telecommunication services or systems with the Ministry responsible for communications, the Authority or any other body of Government;

     (d)     providing false or misleading information relating to approved tariffs;

     (e)     charging tariffs which are not in accordance with the applicable tariff structure;

     (f)      forming of cartels, e.g. for price-fixing of tariffs, market sharing or in connection with public procurement of telecommunication equipment;

     (g)     use of a dominant position in a market for the purpose of restricting, preventing or deterring the entry of a person into the market or eliminating a person from the market;

     (h)     charging of unreasonable prices for telecommunication equipment;

     (i)      limiting technical development in the telecommunications sector;

     (j)      offering, accepting, giving or receiving bribes in respect to any matter dealt with in this Act; and

     (k)     advertising for or otherwise offering telecommunication equipment and services in a fraudulent or indecent manner.

            (3) Any person who commits an offence under this section shall be liable to a fine of not less than P10 000,00 but not more than P5 000 000,00.

 

49.     Provision of directory information

 

            A licensee shall provide directory information regarding its subscribers and clients to the Authority or such other person as the Authority may designate, and in such manner as the Authority may prescribe.

 

50.     Compensation for loss or damage

 

            In the execution of works or interference with property, a telecommunication operator or service provider shall cause as little detriment and inconvenience and do as little damage as possible, and shall make full compensation to all local and other authorities and other persons who have sustained loss or damage for all loss or damage sustained by them by reason or in consequence of the performance of such works.

 

51.     Emergency conditions

 

            (1) The Authority may, during any emergency, require a telecommunication service provider to give priority to the transmission of the messages of Government or of any person, and to intercept messages transmitted under such circumstances.

            (2) Any telecommunication system operator or telecommunication service provider who does not comply with the provisions of subsection (1) shall be guilty of an offence and shall be liable to a fine of not less than P10 000,00 but not more than P50 000,00.

 

52.     Confidentiality of transmitted messages

 

            (1) A person who is engaged in the operation of a public telecommunication system or the provision of a telecommunication service who, otherwise than in the course of his duty, intentionally or negligently-

     (a)     intercepts a message sent by means of that system or through that service;

     (b)     discloses, to any person the contents of such message;

     (c)     discloses, to any person, information about a customer obtained in the course of performing his duty; or

     (d)     uses any information obtained in the course of his duties about a customer for his own benefit,

shall be guilty of an offence and shall be liable to a fine of not less than P10 000,00 but not more than P50 000,00 or to imprisonment for a term not exceeding 12 months, or to both.

            (2) Subsection (1) shall not apply to the disclosure of information made in connection with the investigation of any criminal offence or for the purpose of any criminal proceedings.

            (3) A person engaged in the operation of a public telecommunication system or the provision of a telecommunication service who, otherwise than in the course of his duty, intentionally or negligently modifies or otherwise interferes with the contents of a message sent by means of that system or through that service shall be guilty of an offence and shall be liable to a fine of not less than P10 000,00 but not more than P50 000,00 or to imprisonment for a term not exceeding 12 months, or to both.

 

53.     Improper use of public telecommunication system

 

            (1) A person who-

     (a)     sends, by means of a public telecommunication system, a message or other matter which is offensive or of an indecent, obscene or menacing character; or

     (b)     sends, by those means, for the purpose of causing annoyance, inconvenience or anxiety to another person, a message which he knows to be false, or persistently makes use, for that purpose, of a public telecommunication system,

shall be guilty of an offence and shall be liable to a fine of not less than P10 000,00 but not more than P50 000,00

 

54.     Miscellaneous offences

 

            Any person who-

     (a)     wilfully interferes with, hinders or impedes in any way the erection, alteration, maintenance or inspection of any telecommunication equipment;

     (b)     without lawful excuse, by any means interferes with or obstructs the provision or operation of a telecommunication service;

     (c)     steals any telecommunication equipment;

     (d)     wilfully and unlawfully damages or destroys any telecommunication equipment, or does any act with intent to, or knowing that it is likely that such act will, impair the usefulness or efficiency or prevent or impede the working of, any such equipment,

shall be guilty of an offence and shall be liable to a fine of not less than P50 000,00 but not more than P1 000 000,00, or to imprisonment for a term of not less than five years but not more than 15 years.

 

55.     Investigation of complaints

 

            (1) It shall be the duty of the Authority to consider any complaint which-

     (a)     relates to telecommunication services provided or telecommunication equipment supplied in Botswana; or

     (b)     is the subject of a representation (other than one appearing to the Authority to be frivolous) made to the Authority by or on behalf of a person appearing, to the Authority, to have an interest in the matter.

            (2) Subsection (1) shall not apply to any matter which relates to a telecommunication service not requiring a licence under this Act.

 

56.     Appeal

 

            (1) Any person who is aggrieved by a decision of the Authority given under this Act may appeal, against that decision, to the High Court.

            (2) The procedures laid down in the High Court Rules shall apply in respect of any appeal made under this section.

 

57.     Savings

 

            Any equipment which, immediately before the coming into operation of this Act, has been approved for use in Botswana by the Botswana Telecommunications Corporation shall be deemed to have been a type approved under this Act.