The ECTEL Licensing Framework

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The ECTEL Licensing Framework

• David A. Cox
• General Counsel
• ECTEL

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A LICENCE What it means.

• A permit from an authority to own or use
  something, do a particular thing or carry on a
  trade.
• Without a licence the activity would be illegal.
• It is official or legal permission to carry on an
  activity.
• An agreement between licensed entity (Licensee)
  and granting authority (e.g. a regulator)
• Bedrock of most regulatory regimes - even
  general authorization schemes are a type of
  licensing scheme.
• Not permission by bargaining!!!

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Purpose of a Licensing System

• To authorize conduct that is generally illegal in
  order to regulate (control) it
• To set reasonable, predictable, and objective
  standards for undertaking an activity
• To raise revenues
• To promote market fairness, social equity, and
  protect the public interest
• To manage scarce resources
• Promote investment.
• NOTE A licensing process is NOT intended to be
  a contractual negotiation.

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Treaty on ECTEL Licensing

• ECTEL shall -
• Article 4(1)(d) Promote an objective and
  harmonised regulatory regime in
  telecommunications of contracting states.
• Article 5(1)(d) - Recommend to the Contracting
  States the type of telecommunications networks or
  services which should be subject to an individual
  licence and class licence, respectively, and
  exemptions, if any.

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Treaty on ECTEL Licensing Cont.

• Article 5(1)(d) - Recommend to the Contracting
  States the type of communications networks,
  services and radio equipment which should be
  subject to frequency authorisation, and
  exemption, if any.
• Article 5(1)(h) - Review applications for
  individual licences submitted by a Contracting
  State, and to recommend applicants who satisfy
  the relevant technical and financial requirements
  for individual licences.

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Treaty on ECTEL Licensing Cont.

• Article 5(1)(i) - Recommend to the Contracting
  States terms and conditions to be included in a
  licence, particularly with respect to the
  provision of universal service.
• Article 5(1)(k) - Monitor, in collaboration with
  the Contracting State, the effectiveness of the
  licence for the purpose of this Treaty and make
  the appropriate recommendation to the Contracting
  State including recommending suspension or
  revocation of the licence.

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Treaty on ECTEL Licensing Cont.

• Article 5(1)(l) - Recommend to the Contracting
  States an appropriate fee structure for licences
  or other matters for or in relation to the
  conduct or regulation of telecommunications.

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Treaty on ECTEL Licensing A Summary.

• (1) Co-ordinate (Harmonisation)
• (2) Design (types of networks, etc)
• (3) Standard setting (establish and implement
  technical legal standards, etc)
• (4) Review (applicants, policies, etc)
• (5) Monitor
• (6) Police!

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Licensing The Relevant Provisions

• A person shall not establish or operate a
  telecommunications network or provide a
  telecommunications service without a licence.
  (Per Sec. 29(1) Telecommunications Act No 27 of
  2000, St. Lucia.)

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Licensing The Relevant Provisions. Cont.

• Where a frequency authorisation is necessary for
  or in relation to the operation of a
  telecommunications network or a
  telecommunications service, a person shall not
  operate that network or service without that
  authorisation. (Per sec. 29(2) of
  Telecommunications Act No 27 of 2000, St. Lucia.)

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Licensing The Relevant Provisions. Cont.

• A person who wishes to land or operate submarine
  cables within the territory of Saint Lucia for
  the purpose of connecting to a telecommunications
  network shall first obtain a licence, in addition
  to any other approvals, licences or permits
  required under the law in force in Saint Lucia.
  (Per sec. 29(3) of Telecommunications Act No 27
  of 2000, St. Lucia.)

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Licensing The Relevant Provisions. Cont.

• A person who contravenes the previous sections
  commits an offence and shall be liable on
  indictment to a fine not exceeding one million
  dollars or to imprisonment for a period not
  exceeding ten years. (Per sec. 29(4) of
  Telecommunications Act No 27 of 2000, St. Lucia.)

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Types of Licences

• A Minister may grant
• An individual licence
• A class licence
• A frequency authorisation in respect of a
  licence or (note!)
• A special licence.
• Per sec. 7 St. Lucia Telecoms Act, No.27 of 2009.

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The Individual Licence.

• Means a licence granted to a particular person in
  accordance with the relevant section of the Act
  on terms specific to that person
• Similar to Individual user concept from
  software e.g. terms and conditions apply to YOU
  only, for use on one computer.
• Similarly, licence applies to individual company
  only, not to others.

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Individual Licences The Basics

• NTRCs cannot consider applications for
  individual licences.
• Telecoms Act of St. Lucia s. 30 (1) (2) (3)
  states that NTRC is to submit applications
  immediately to ECTEL for consideration.
• Upon receipt of the recommendation from ECTEL,
  NTRC forwards the application and recommendation
  to the Minister.
• Minister is required to give reasons for his
  refusal if he refuses
• Minister can not grant a licence unless ECTEL
  recommends.

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Individual Licences The Basics. Cont.

• S.32 St. Lucia Act outlines list of factors
  Minister may consider in deciding to grant
  licence.
• Examples of factors include
• (a) Purpose of Treaty
• (b) Recommendation of ECTEL
• ( c) Promotion of Universal Service
• (d) Interests of subscribers

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The Class Licence.

• Means a licence, as distinct from an individual
  licence, issued on the same terms to each
  applicant of a category of users in respect of
  the operation of a type of telecommunications
  network or telecommunications service specified
  under the relevant section of the Act.
• Applies to a category all at once all those who
  meet the definition (engaged in the type of
  service or network) are covered by the licence.
• The Commission shall upon receipt of the
  application determine, whether the particular
  applicant falls within the definition of a class
  licence. (Per sec. 33(2) SLU TA No. 27 of 2000.)
  

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CLASS LICENCES The Basics.

• Article 11 (1) (a) (b) of the Treaty authorizes
  NTRCs to consider applications for the purpose
  of supplying telecommunications services.
• Legislation in contracting states allow NTRCs to
  grant a class licence after a procedure has been
  followed.
• S. 33 of the Telecoms Act of St. Lucia mandates
  applicants to submit a request in the prescribed
  from with the prescribed fees.
• Terms and conditions of class licences cannot be
  changed without ECTELs permission.

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SPECIAL LICENCES

• Granted when there is an emergency or other
  exigent circumstance exists.
• Duration shall not exceed 10 days.
• Minister shall immediately inform ECTEL and the
  NTRC of the grant of a special licence. (s. 35
  St. Lucia Act).
• Act provides no guidance or definitions for
  emergency or exigent circumstances.

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FREQUENCY AUTHORIZATION

• An authorization granted by the Minister to use
  radio frequencies in connection with the
  operation of a network or the provision of
  services under an individual license or class
  licence or otherwise (Article 1 Treaty)
• ECTEL makes recommendations relating to the
  management of frequency authorizations (Article 5
  (j) Treaty).
• An FA must be granted in respect of a licence
  (but is also a type of licence.)

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FREQUENCY AUTHORIZATION

• Where a frequency authorization is necessary or
  relates to the operation of a telecommunications
  network or a telecommunications service, that
  person shall not operate that service without
  authorization (section 29 (2) St. Lucia.
• The Commission upon receipt of an application
  must consult with ECTEL before recommending to
  the Minister that an authorization be granted.
  (s.36 St. Lucia Act).

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Schedules to Licences Frequency Authorisations
Mandatory Terms.

• (Part 2 of Second Schedule St. Lucia Act)
• Examples of mandatory terms include
• (a) period of the licence and procedure for
  renewal or variation
• (b) stipulation that licence only takes effect
  upon payment of fees
• (c) payment of annual anniversary fees and
  renewal fees
• (d) requirement to comply with directions made by
  the Commission
• (e) requirement to supply information upon
  request
• (f) contribution to universal service
• (g) submission of complete financial audited
  reports.

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Non Mandatory Terms

• Examples of non-mandatory terms include
• (a) the networks and services which the licensee
  is or is not entitled to operate
• (b) the duration of the licence
• ( c) provision of services to the blind, deaf,
  physically handicapped and other disadvantaged
  persons
• (d) provisions of services to rural or sparsely
  populated areas or other specified areas
• (e) the interconnection of the licensees network
  with those of other operators
• (f) the sharing of telecommunications
  infrastructure
• (g) prohibitions of anti-competitive conduct.

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Summary

• Licence is an authorization to operate a
  telecommunication network or provide a
  telecommunications service or use radio
  frequencies.
• Three types of licences individual, class and
  special licence.
• Applications for individual licences and
  frequency authorizations must be passed to ECTEL
  for consideration.
• NTRCs cannot vary the terms of any licences, as
  the authority to determine the contents of
  licences is vested in law to ECTEL.

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THE END!

• THANK YOU!