Arrangement of Provisions

1. Short title and
commencement
2. Alternative arrangements
for appointing a Regulator
3. Appeal of orders of the
Regulator
4. Telecommunications
Tribunal
5. Additional grounds for
revoking or refusing
renewal of a licence
6. Interim interconnection
charges
7. Consequential amendments
8. Civil liability

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2008, No. 18


AN ACT to amend the Telecommunications Act 2005.
[12th
June 2008]

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 2008.
(2) This Act commences on the date of assent by the
Head of State.

2. Alternative arrangements for appointment of a
Regulator - The Principal Act is amended by inserting after
section 7 the following section:



2 Telecommunications Amendment 2008, No. 18

“7A. Alternative arrangements for the
appointment of a Regulator-(1) Notwithstanding the
provisions of sections 6 and 7, Cabinet may approve the
appointment of a suitable regulatory body within or
outside Samoa to act as Regulator for the purposes of
this Act.
(2) An appointment made under this section shall be
on such terms and for such period as Cabinet approves,
and may be revoked by Cabinet at any time if the
arrangement is no longer required or considered to be
unsatisfactory in meeting the objectives of this Act.
(3) The appointment of a Regulator under this
section shall be in accordance with the terms approved
by Cabinet, and shall otherwise be implemented and
administered in accordance with a contract approved for
that purpose by the Attorney General.”

3. Appeal of orders of the Regulator - The Principal
Act is amended by deleting section 11 and replacing it with
the following section:

“11. Appeal of orders of the Regulator to the
Telecommunications Tribunal-(1) An appeal from an
order, directive, decision, or exercise of discretion of the
Regulator may only be made to the Telecommunications
Tribunal by way of a Notice of Appeal and in
accordance with the provisions of this Act.
(2) A Notice of Appeal must be served on the
Minister and must be accompanied by:
(a) a bank cheque in the amount of $100,000 tala;
and
(b) a signed written undertaking by the appellant to
pay damages and all costs arising in any way
from the convening of the Tribunal, the
conduct of its proceedings and any
subsequent order that is made by the Tribunal
or the Regulator as a result of the appeal.



2008, No. 18 Telecommunications Amendment 3

(3) The appellant must also serve, on the same date,
copies of the Notice of Appeal and accompanying
documents on the Regulator and the Attorney General
and where relevant, to the other person who may be a
respondent or party to the appeal.
(4) The Notice of Appeal must be served within 30
days after the date of the order, directive, decision, or
exercise of discretion of the Regulator which is the
subject of the appeal.
(5) The Notice of Appeal must set out:
(a) the relevant section of the Act under which the
decision appealed against was made; and
(b) the grounds of appeal which must set out in
sufficient detail so as to state -
(i) the grounds upon which the appellant
contends that the decision appealed against was
based on an error of fact or was wrong in law, or
both;
(ii) the grounds upon which the appellant is
appealing against the exercise of a discretion by
the Regulator.”

4. Telecommunications Tribunal - The Principal Act is
amended by inserting after Part II a new Part IIA as follows:

“PART IIA
TELECOMMUNICATIONS TRIBUNAL

11A. The establishment of the
Telecommunications Tribunal-(1) The
Telecommunications Tribunal is hereby established.
(2) When conducting a proceeding in accordance
with this Act, the Tribunal shall be comprised of a
presiding member and two (2) other members appointed
in accordance with this Part.
(3) The Ministry shall provide the necessary
administrative support to the Tribunal whenever it
convenes under this Part of the Act.



4 Telecommunications Amendment 2008, No. 18

11B. Presiding member - The Tribunal shall be
presided over by a Judge or a lawyer who is qualified to
be a Judge, who shall be appointed from time to time by
the Chief Justice when the Tribunal is required to hear
and determine an appeal under section 11.

11C. Other tribunal members-(1) Two (2)
members of the Tribunal shall be appointed by the
presiding member from the panel of Tribunal members
for each Tribunal proceeding convened under this Act.
(2) A person may be appointed to the panel of
Tribunal members by the Head of State, acting on the
advice of Cabinet, if that person:
(a) has qualifications and/or experience in economics
or management finance; or
(b) has qualifications and/or experience in
telecommunications engineering or
telecommunications business management; or
(c) has legal qualifications with telecommunication
background.
(3) Prior to the commencement of a Tribunal
proceeding, each member shall be required to state that
he or she has:
(a) no personal interest or involvement in the matter
under dispute; and
(b) no association of any nature with any of the
disputing parties which may be perceived as
affecting the impartiality of the member.
(4) A Tribunal member shall be entitled to receive a
sitting fee, allowance and other expenses approved from
time to time by the Minister.
(5) The Head of State, acting on the advice of
Cabinet, may at any time revoke the appointment of any
member of the Tribunal if such member:
(a) becomes of unsound mind or otherwise becomes
permanently unable to perform his or her
functions by way of health;



2008, No. 18 Telecommunications Amendment 5

(b) is convicted of an offence punishable by a term
of imprisonment exceeding five (5) years;
(c) fails without reasonable excuse to carry out any
of the functions conferred or imposed on him
or her under this Act; or
(d) engages in such activities as are reasonably
considered prejudicial to the interest of the
Tribunal; or
(e) has an interest in the proceedings which the
member has failed to disclose.

11D. Convening Tribunal hearings-(1) The
Tribunal shall be convened by the Presiding Member as
soon as is necessary for the Tribunal to hear and
determine any dispute referred to the Tribunal in
accordance with this Act.
(2) The Tribunal shall convene at such time and
place, and shall conduct its proceedings as determined
by the Presiding Member.

11E. Tribunal proceedings-(1) Subject to this Act,
the Tribunal shall have the powers and protections
applying to a Commission of Inquiry under the
Commissions of Inquiry Act 1964, including:
(a) protections in accordance with sections 5 and 9 of
that Act; and
(b) powers as provided by section 6 of that Act; and
(c) a power to hear persons having an interest in a
matter which is the subject of a Tribunal
proceeding as provided by section 7 of that
Act.
(2) A person who, after being summoned or ordered
to attend before a Tribunal or to produce any books,
papers, writings, or documents to a Tribunal:
(a) fails to appear according to the requirements of
such a summons; or
(b) refuses to be sworn or to give evidence or to
make answer to such questions as may be put
to the person by any member of a Tribunal
relating to the subject of the inquiry; or



6 Telecommunications Amendment 2008, No. 18

(c) fails to produce any such books, papers, writings,
or documents,
commits an offence and shall be liable to a fine not
exceeding 50 penalty units, or to imprisonment for a
term not exceeding six (6) months, or both.
(3) Each Tribunal proceeding shall be conducted so
as to accord the principles of natural justice to any party
as far as is practicable having regard to the need in any
given case to proceed expeditiously to determine the
appeal.
(4) Nothing in subsection (3) shall affect the right of
the Tribunal to direct that:
(a) sworn statements be submitted by persons
intending to provide evidence or make
submissions to a Tribunal; and
(b) the right to cross examine any witness shall be
restricted only to matters which the Tribunal
considers to be of such a highly probative
nature that they need to be tested under cross
examination; and
(c) each party, and any interested person permitted to
participate in a Tribunal proceeding, prepare
and submit written submissions, and that
these be provided to other parties and their
representatives on terms determined by the
Tribunal; and
(d) any other things be done or orders be complied
with to permit the timely determination of a
dispute.
(5) The Tribunal may make final and binding
determinations in relation to any matter of procedure,
and make orders to that effect.

11F. Government may be represented in any
proceeding-(1) In all Tribunal proceedings, the Attorney
General may elect to represent the Government, and in
any such case, the Government shall be regarded as a
party to the dispute.



2008, No. 18 Telecommunications Amendment 7

(2) No order for the payment of any costs associated
with any Tribunal proceedings may be made against the
Government.

11G. Tribunal decisions-(1) All decisions of the
Tribunal shall be validly made if a majority of members
resolve to make the decision.
(2) The Tribunal may:
(a) confirm, modify or reverse the decision or order
of the Regulator;
(b) refer the decision or order back to the Regulator
for re-consideration by it, either generally or
in relation to any matter specified by the
Tribunal;
(c) order that the decision of the Regulator to which
an appeal relates shall not have effect until
the appeal is determined;
(d) dismiss the appeal;
(e) order a party to refund to any specified service
provider any amount that has been paid to
that party in excess of a revised order
imposed by the Tribunal;
(f) subject to section 11F(2), order costs to be paid.
(3) A decision of the Tribunal shall be final and
binding on all parties, and all persons named in any
order made by a Tribunal.

11H. Government ministries and agencies to assist
Tribunal-(1) All government ministries and agencies
shall cooperate with the Tribunal and shall make
available, at no cost, any document or record in its
custody which the Tribunal requires, or which may assist
in the consideration and determination of a dispute.
(2) This section applies notwithstanding any
provision of any law to the contrary.



8 Telecommunications Amendment 2008, No. 18

11I. Appeal shall bar litigation-(1) No proceedings
relating to any telecommunications dispute may be
commenced in any Court after an appeal has been filed
under this Part.
(2) This section does not prevent any action taken by
way of judicial review in relation to a proceeding of the
Tribunal.

11J. Enforcement of orders - Any person who is
directed by the Tribunal or under a legal obligation to
implement an order made by a Tribunal under this Act,
and who refuses or fails to implement the order, commits
an offence and shall be liable upon conviction:
(a) in the case of a natural person to a fine not
exceeding 100 penalty units or to a term of
imprisonment not exceeding 12 months, or
both; or
(b) in the case of a company or other incorporated
body, to a fine not exceeding 5,000 penalty
units for a first offence and 10,000 penalty
units for a subsequent offence.”

5. Additional grounds for revoking or refusing
renewal of a licence - The Principal Act is amended by
inserting after section 18 a new section 18A as follows:

“18A. Revocation upon conviction for an
offence - Notwithstanding section 18, a licence shall be
deemed to be revoked if the licensee is convicted of any
offence under the laws of Samoa which involves:
(a) an element of dishonesty;
(b) the making of some financial gain from the
public or any section of the public by the
failure to observe any legal obligation;
(c) the failure to obtain a licence or permit that is
required by law in the course of any aspect of
the licensee’s business.”



2008, No. 18 Telecommunications Amendment 9

6. Interim interconnection charges - The Principal Act
is amended by inserting after section 39 the following
sections:

“39A. Interim interconnection charges-(1) The
Regulator shall have the power to direct a service
provider to implement interconnection charges on an
interim basis, either:
(a) pursuant to the process set out in this section; or
(b) based on a rate agreed to by the service providers
pursuant to section 39B.
(2) Where the Regulator intends to impose an interim
interconnection charge, the Regulator shall request the
service providers to provide, within 14 days from the
date of the request reports containing:
(a) recommendations as to the appropriate interim
charge;
(b) the basis for the recommended interim charge;
and
(c) any other matter determined by the Regulator.
(3) 14 days after making the request for reports under
subsection (2), the Regulator shall consider the reports
that have been submitted and any other matter that the
Regulator considers relevant in determining the interim
interconnection charge.
(4) Before the Regulator finalises the interim
interconnection charge, the Regulator shall notify the
service providers of the interim interconnection charges
that are to be imposed.
(5) The service providers may make submissions to
the Regulator within seven (7) days of the receipt of the
notification under subsection (4) of the intended
interconnection charge if any of them do not agree with
the proposed charge.



10 Telecommunications Amendment 2008, No. 18

(6) The Regulator, after receipt and consideration of
submissions (if any) from the service providers, shall
then issue interim interconnection charges which shall be
in force for any period of time determined by the
Regulator, but the period shall not exceed six (6)
months.
(7) Notwithstanding subsection (6), the Regulator
shall have the power during the period of an interim
interconnection order:
(a) to vary the interim interconnection order; or
(b) to extend the interim interconnection order for
any other period provided such extended
period does not exceed six (6) months; or
(c) to cancel the interim interconnection charge.
(8) In varying, extending or cancelling an interim
interconnection order pursuant to subsection (7), the
Regulator shall adopt as far as is appropriate in the
circumstances, the process set out in subsections (2) to
(5).
(9) Notwithstanding section 36, any interim
interconnection order imposed by the Regulator under
this section need not be cost based.
(10) A failure by a service provider to provide any
report or submission under this section shall not prevent
the Regulator from proceeding with determining the
interim interconnection charge.
(11) Any service provider that disagrees with the
interim interconnection charge imposed by the Regulator
under this section may appeal to the Tribunal in
accordance with Part IIA, but no such appeal shall
operate to affect the validity of the interim charge
pending the outcome of the appeal.

39B. Service providers to agree on
interconnection charges-(1) The Regulator may direct
the parties to enter into negotiations to determine and
agree upon an agreed interconnection charge.



2008, No. 18 Telecommunications Amendment 11

(2) If the service providers do not reach an
agreement within two (2) weeks from the date of the
Regulator directing the parties to negotiate, the
Regulator shall impose interim interconnection charges
in accordance with section 39A.”

7. Consequential amendments-(1) Section 71 of the
Principal Act is amended by deleting section 71 (2) (b).
(2) Section 72 of the Principal Act is amended by
deleting section 72 (2) (b).
(3) Section 79 of the Principal Act is deleted.

8. Civil liability - Section 78 of the Principal Act is
amended by inserting subsection (4) as follows:

“(4) The government and the Regulator shall not be
liable for any costs or damages in any legal proceedings
challenging any action taken under this Act, or for any
failure or refusal to take any action which is authorized
by this Act.”

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The Telecommunications Amendment Act 2008 is
administered by the Ministry of Communications and
Information Technology.