Telecommunications Amendment Act 2014

Link to law: http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202014/Telecommunications-Amendment-Act-2014-Eng.pdf

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rangement of Provisions

1. Short title and commencement 2. Interpretation 3. Objectives of this Act 4. Responsibilities, functions and
powers of the Regulator
5. Office of the Regulator 6. Appeal of orders of the Regulator
to the Telecommunications
Tribunal
7. Other tribunal members 8. Tribunal proceedings
9. Tribunal decisions 10. Appeal shall bar litigation 11. Customer complaints 12. Service provider disputes 13. Customer disputes 14. Insertion of new provisions 15. Alternative dispute resolution

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2014, No. 13

AN ACT to amend the Telecommunications Act 2005. [7
th April 2014]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:

1. Short title and commencement-(1) This Act may be cited as
the Telecommunications Amendment Act 2014, and shall be read
with, and form part of the Telecommunications Act 2005 (hereinafter
called the “Principal Act”).
(2) This Act commences on the date of assent by the Head of State.

2. Interpretation - In section 2 of the Principal Act, for the
definition of “telecommunications service” substitute:




2 Telecommunications Amendment 2014, No. 13

““telecommunications service” means a service provided by
means of a telecommunications network, and includes the
provision of telecommunications facilities (in whole or
part) and any related equipment to a customer by lease, sale
or otherwise;”.

3. Objectives of this Act - In section 3(l) of the Principal Act for
“approvals” substitute “type approval”.

4. Responsibilities, functions and powers of the Regulator - In
section 8(1)(u) of the Principal Act, before “in exercising” insert
“subject to section 11”.

5. Office of the Regulator - For section 9(4)(a) and (b) of the
Principal Act substitute:

“(a) the staff and employees up to Principal level of the
Office of the Regulator are appointed and employed
by the Regulator, whilst contractual employees
including the post of the Regulator are appointed
and employed under the Public Service Act 2004;
and
(b) all staff and employees appointed by the Regulator
under paragraph (a), except contractual employees,
shall be under the direction and control of the
Regulator; and”.

6. Appeal of orders of the Regulator to the
Telecommunications Tribunal - In section 11 of the Principal Act:
(a) in subsections (1) and (4), for “directive, decision”
substitute “or a directive, or a decision”; and
(b) in subsection (2)(a), before “bank” insert “non-refundable”;
and
(c) after subsection (5) insert:

“(6) Subject to section 11G(2)(c), an order, or directive, or
decision, or exercise of discretion of the Regulator appealed under
this section shall remain in full force pending the Tribunal’s
decision on such appeal.
(7) An appellant may only withdraw an appeal upon
application to and with permission of the Tribunal.




2014, No. 13 Telecommunications Amendment 3

(8) The Tribunal may refuse or permit withdrawal of an appeal:
(a) where issues of costs (incurred from a hearing) remain
outstanding; or
(b) where it is in the public interest to continue; or
(c) where reasons provided by the appellant in his or her
application are reasonable and justified noting that
the deposit provided with the Notice of Appeal is
non-refundable.
(9) If an appeal is withdrawn:
(a) any interim order of the Tribunal, other than an order
made in respect of costs, shall immediately cease to
have effect;
(b) no fresh appeal may be brought by the appellant in
relation to an order, or directive, or decision, or
exercise of discretion of the Regulator which was
the subject of the appeal withdrawn; and
(c) the amount paid under subsection (2)(a) will not be
refunded to the appellant.”.

7. Other tribunal members - In section 11C(2)(c) of the Principal
Act, for “telecommunication background” substitute “a background in
telecommunication law and regulation”.

8. Tribunal proceedings - For section 11E(5) of the Principal Act,
substitute:
“(5) The tribunal has the power to control its own processes
and may make rules in relation to a matter of practice and
procedure to facilitate the just and timely resolution of the matters
before it.
(6) Without limiting subsection (5), the tribunal may make
rules in relation to:
(a) the holding of pre-hearing conferences, including
confidential pre-hearing conferences, and requiring
the parties and any interveners to attend a pre-
hearing conference;
(b) dispute resolution processes;
(c) receipt and disclosure of evidence, including but not
limited to pre-hearing receipt and disclosure and
pre-hearing examination of a party on oath,
affirmation or by affidavit;
(d) the exchange of records and documents by parties;
(e) the filing of written submissions by parties;




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(f) the filing of admissions by parties;
(g) specifying the form of notice to be given to a party by
another party or by the tribunal requiring a party to
diligently pursue an application and specifying the
time within which and the manner in which the
party must respond to the notice;
(h) service and filing of notices, documents and orders,
including substituted service;
(i) requiring a party to provide an address for service or
delivery of notices, documents and orders;
(j) providing that a party’s address of record is to be treated
as an address for service;
(k) procedures for preliminary or interim matters;
(l) amendments to an application or responses to it;
(m) the addition of parties to an application;
(n) adjournments;
(o) the extension or abridgement of time limits provided for
in the rules;
(p) the transcribing or tape recording of its proceedings and
the process and fees for reproduction of a tape
recording if requested by a party;
(q) establishing the forms it considers advisable;
(r) the joining of applications;
(s) exclusion of witnesses from proceedings;
(t) the effect of a party’s non-compliance with the
tribunal’s rules;
(u) access to and restriction of access to tribunal documents
by any person;
(v) witness fees and expenses;
(w) applications to set aside any summons served by a
party.
(7) In an application, the tribunal may waive or modify one (1)
or more of its rules in exceptional circumstances.
(8) The tribunal must make accessible to the public any rules of
practice and procedure made under this section.”.
9. Tribunal decisions - Section 11G of the Principal Act is
amended by the following:
(a) in subsection (1), for “All” substitute “Subject to subsection
(4), all”; and
(b) in subsection (2)(a) and (b) for “decision or order”,
wherever occurring substitute “order, directive,
decision or exercise of discretion”; and




2014, No. 13 Telecommunications Amendment 5

(c) in subsection (2)(c) -
(i) for “decision” substitute “order, directive,
decision or exercise of discretion”;
(ii) between “appeal relates” and “shall not”
insert “shall be modified or”;
(d) after subsection (3), insert:

“(4) In the absence of a majority or if the Tribunal so
authorises, the presiding member of the Tribunal may:
(a) make decisions on matters of procedure; or
(b) hear and determine any preliminary or interlocutory
matter, before the Tribunal hears any substantive
matter.”.

10. Appeal shall bar litigation - Section 11I of the Principal Act
is amended:
(a) for the section heading “Appeal shall bar litigation”
substitute “Appeal and judicial review”; and
(b) after subsection (2), insert:

“(3) Subject to this section, any person may seek judicial
review of a decision of the Tribunal, and an application for a
judicial review shall be made within 28 days of the decision being
made and in accordance with the rules of court.”.

11. Customer complaints - In section 52(3) of the Principal Act:
(a) omit “or between service providers,” and “71,”; and
(b) after “72” insert “, 72A, 72B”.

12. Service provider disputes - In section 71 of the Principal Act:
(a) in subsection (1), omit “(1)”; and
(b) delete subsection (2).

13. Customer disputes - For section 72 of the Principal Act
substitute:

“72. Customer disputes - Where a service provider and
customer have been unable to resolve a matter among themselves,
the customer may apply to the Regulator for assistance in resolving
the dispute.”.




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14. Insertion of new provisions - After section 72 of the Principal
Act insert:

“72A. Dispute resolution-(1) An application made under
section 71 or 72 shall be made in such manner as the Regulator
may require.
(2) After receipt of an application under section 71 or 72, the
Regulator shall determine whether:
(a) to conduct or arrange mediation of the dispute pursuant
to section 72B; or
(b) to deny the application for assistance in resolving the
dispute.
(3) The Regulator may deny an application for assistance in
resolving a dispute made under section 71 or 72 if it determines
that:
(a) reasonable efforts have not been made to reach an
amicable settlement;
(b) there are alternative means available for resolving the
dispute consistent with this Act; or
(c) the dispute is frivolous or vexatious.
(4) The costs of dispute proceedings include the costs of the
Regulator and the parties, including without limitation legal and
expert fees and expenses, including without limitation travel
expenses.
(5) The Regulator may make orders for either party to pay
advances on account at any time during the dispute proceeding.
(6) At the end of the dispute proceeding, or if an application
made under section 71 or 72 is withdrawn, the Regulator may
make such order for costs as it sees fit under the circumstances.

72B. Mediation-(1) If the Regulator refers the dispute to
mediation pursuant to section 72A(2), the Regulator may appoint
any one (1) or more of its officers or employees, expert consultants
or professional mediators to conduct the mediation.
(2) The Office of the Regulator shall administer financial and
organisational matters relating to the mediation.
(3) Subject to subsection (4), the Regulator shall offer the
parties the opportunity, acting in agreement with one another and
with the facilitation of the Regulator, to:
(a) select the mediator or mediators;
(b) set the terms of engagement of the mediator or
mediators;
(c) set the time and place of any mediation meetings; and




2014, No. 13 Telecommunications Amendment 7

(d) determine any matters of process for the mediation.
(4) If the parties fail to agree on any matter under subsection
(3), the Regulator shall determine the matter.
(5) The Regulator may for good reason consistent with this Act
reject any mediator selected by the parties and the agreed terms of
engagement.
(6) Mediation under this section may include:
(a) consulting with the parties together or separately to
facilitate communication between them;
(b) assisting the parties to understand their respective
perspectives, objectives and constraints;
(c) guiding the negotiation process and seeking a mutually
acceptable resolution to the dispute; and
(d) if full resolution cannot be achieved, clarifying the
remaining unresolved issues.
(7) Sections 8 to 11 only, other than section 8(3) and all other
sections, of the Alternative Dispute Resolution Act 2007 apply,
with the necessary modifications, to mediations conducted under
this section.”.

15. Alternative dispute resolution - In section 73 of the Principal
Act:
(a) in subsection (1), after “mediation or arbitration” insert “or
another dispute resolution procedure”; and
(b) for subsection (2), substitute:

“(2) Service providers submitting a dispute to arbitration shall
notify the Regulator by delivering to it a copy of the submission to
arbitration at such time as it is entered into by the parties.
(3) The dispute resolution procedure agreed to by service
providers shall not exclude the application of or otherwise be
inconsistent with the provisions of this Act or any relevant
regulation, rule, order, licence or decision or other act of authority
under this Act.
(4) The Regulator shall endeavour to perform any reasonable
role, if any, assigned to it in a dispute resolution procedure under
subsection (1) consistent with its functions, duties and powers
under this Act and other laws of Samoa.
(5) The role of the Regulator under subsection (4) may include
without limitation:
(a) mediating between the parties;
(b) approving a notice provided by one party to another;
(c) providing an opinion on a matter;




8 Telecommunications Amendment 2014, No. 13

(d) appointing an expert to decide the matter;
(e) making an award of costs relating to the procedure; and
(f) proposing or appointing one (1) or more suitable
persons to carry out the required role.
(6) The Regulator may decline to carry out a role provided for
it in a dispute resolution procedure under subsection (1) if it
considers that the procedure or the role is not appropriate.
(7) A procedure or role is not appropriate for the purposes of
subsection (6) if:
(a) it is inadequate for its purpose or cannot be effectively
implemented;
(b) it places unsustainable demands on the Regulator’s
resources, including the available time of the
Regulator; or
(c) it is inconsistent with the provisions of this Act or any
regulation, rule, order, licence, decision or other act
of authority under this Act, or is otherwise
unlawful.
(8) The Regulator’s costs under this section, including but not
limited to any travel or other expenses incurred by or on behalf of
the Regulator in connection with the Regulator’s assistance or
intervention, shall be paid to the Regulator by the parties to the
dispute, and the Regulator may request an advance on account
against such costs.”.

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The Telecommunications Amendment Act 2014 is administered
by the Ministry of Communications and Information Technology.