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COMMENCEMENT OF COMMUNICATIONS ACT

The Communications Act 2006 comes into effect today. It repeals the Telecommunications Act 2000 and its subsidiary legislation (although some of their provisions are maintained). The new Communications Act and five sets of regulations are available on the GRA's website [www.gra.gi.] Also published on the website today are a number of Directions made by the Minister for Communication and several Notices issued by the GRA covering matters such as the General Conditions which apply to companies providing electronic communications networks and services.

The Minister has also issued a public consultation concerning his intention to limit the number of certain radiocommunications licences for the provision of certain networks or services. The closing date for receipt of comments is the 5th of July 2006. The consultation is published on the GRA's website.

The most important changes introduced by the Communications Act are:

  • a common regulatory framework for the telecommunications, media and information technology sectors, referred to jointly as the "electronic communications sector";
  • all networks and services are governed by the same regulatory framework and rules;
  • all electronic communications services and networks are provided under a regime of general authorisations;
  • changes the way in which operators with Significant Market Power will be identified and regulated;
  • extends the obligation to negotiate access and interconnection to all operators of public electronic communications networks.

This means that, unlike the Telecommunications Act, which only applied to the telecommunications sector, the new law applies to telecommunications, broadcasting, information technology, Internet-based services and spectrum management. It establishes common rules for all electronic communications networks (fixed or wireless) as well as for broadcasting networks (terrestrial, satellite and cable), Internet access and IP services.

The new law however only applies to transmission and not the content of services delivered over electronic communications networks. It does not therefore regulate broadcasting content or certain information society services.

Technological neutrality

Linked to convergence, the new law introduces technological neutrality. This means that The Telecommunications Act was not technologically neutral (e.g., different rules applied to services provided over mobile and fixed telecommunications networks).

Single system of general authorisations

The dual system of "individual licences" and "general authorisations" is abolished. This means that a person wishing to provide an electronic communications service or network is only required to notify the regulator of his intention to do so. He does not need an explicit decision of entitlement (i.e., the need to apply for an individual licence) to provide the service or network.

However, all such persons will still have to comply with general conditions that are applicable to the provision of his service or network. They will also still have to apply for and be granted (a) a licence if they require the allocation of radio spectrum and (b) an individual right if they require the allocation of numbers. They will also be required to make an application to the Minister if they need to be granted rights of way to install facilities.

In addition, specific obligations can still be imposed ex ante on:

  • individual operators in relation to access and interconnection;
  • operators who are designated as having Significant Market Power; and
  • operators who need to comply with universal service obligations.

This will require the regulator to define relevant markets, carry out market analyses and make determinations as to dominance.

Related to the new SMP definition, the new law introduces the following further new provisions:

  • the regulator will be under an obligation to remove SMP obligations where it finds that a given market is effectively competitive;
  • the European Commission may, in certain circumstances, prevent the regulator from defining a market in the way it proposes to do, notably where the regulator seeks to depart from a European Commission recommendation on market definition.

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