Topic 8 Communication Law
1. Discuss
the legislations that regulate
the communications and
multimedia industry; and
2. Discuss the statute that deals with communication law. ?
INTRODUCTION
The
Communications and Multimedia
Act 1998 (CMA) is
a legislation that
regulates the communications and multimedia industry. Preceding the Act,
what is
now known as
the communications and
multimedia industry used
to be the
telecommunications, broadcasting and IT industries. These three
industries were regulated by two
different legislations (see Figure 8.1).
Figure 8.1: Separate legislations for telecommunications
and broadcasting industry The
telecommunications industry was regulated by the Telecommunications Act 1950 and the broadcasting industry was
regulated by the Broadcasting Act 1988.
However, the IT industry was not regulated by a specific
legislation. The CMA integrates these three industries to become the
communications and multimedia industry
(refer to Figure 8.2).
Figure 8.2: Communication and Multimedia Industry
The CMA is divided into five regulatory frameworks i.e.
procedural, economic, technical,
consumer and social regulation (refer to Figure 8.3).
Figure 8.3: Regulatory framework
Source: Explanatory Statement to the Communications and
Multimedia Bill p. 141 In the telecommunications, computer
and broadcasting industry,
convergence connotes the blurring
of the traditional lines delineating each industry as one or the
other develops.
On the same
basis, the Malaysian
Communications and Multimedia
1998 was enacted.
When the Communications and
Multimedia Act 1988
came into force
on 1st April,
1999, these two
legislations were repealed
(Section 273). However, it does not affect existing general laws, for
example, laws on defamation, copyright,
illegal content and national security.
The driving force that led to the enactment of the Communications and
Multimedia Act 1998 was the need for a
single body to implement the supervisory duties of the communications and multimedia sectors. The
objects of the Act are to promote the
national policy objectives
under section 3(2)
for the communications and
multimedia industry, to establish a licensing and regulatory framework
in support of national policy objectives
for the communications and multimedia industry, to establish
the powers and
functions for the
Malaysian Communications and
Multimedia Commission and
to establish the
powers and procedures for
the administration of the Act,
Section 3(1). The Act has 11 Parts with
282 sections and these can be divided into five different regulatory frameworks, namely, procedural
(that also deals with the regulatory
authorities), economic, technical, consumer and social regulation.
8.1
PROCEDURAL REGULATION
Procedural
Regulation comprises parts
II, III and
V. Part II,
Ministerial powers and
procedures, explains the
four types of
Minister’s powers. Ministerial directions, determinations, declarations and
regulations are subordinate
instruments that can
be issued by
the Minister for
the purpose of
promoting transparency, a
register of all the instruments issued by the Minister must be kept by the Commission (Sections 9, 12, 15). The ministerial direction refers to the
power of the Minister to issue directions to
the Commission with respect
to the Commission’s powers, performance of
functions and duties under the Act (Section 7). Nevertheless, the
direction must not be inconsistent with
the Act. The ministerial determination, refers
to the power
of the minister
to make determinations on
any matter specified
in the Act
without consultation with
licensees or persons (Section 10).
Ministerial declaration is
a declaration made
by the minister
concerning conditions or benefits
of licences (Section 13).
Lastly, the
Minister has the
power to make
regulations on recommendations of
the Commission for the purposes of:
(a) The
procedures for the Commission and the Appeal Tribunal in the exercise of their powers and functions under
the Act;
(b) The form of,
and requirements for written authorisations, assignments and licences granted or issued under the
Act;
(c) The procedures
for the assignment
of rights to
the spectrum or
numbers including
mechanisms for rate-based assignment;
(d) Any fees,
charges or rates to be imposed;
(e) The procedures
for the implementation of
a system of
universal service provision including the quality of
service standards;
(f) The procedures for
the use of
network facilities, network
services,
applications services and
content applications services
in emergency or
distress situations;
(g) The
compounding of offences;
(h) Any redress,
including compensation or penalties in respect of a breach of or offence against any subsidiary
legislation;
(i) Any matter
for which this Act makes express provision; and
(j) Such other
matters as are necessary for giving full effect to the provisions of this Act and for their due
administration [Section 16(1)].
Another
important element in
the workings of
the regulatory regime
is the Appeal
Tribunal. The Appeal
Tribunal under Part
II of the
Act may be
established by the Minister and it shall convene on an ad hoc basis
[Section 17(1)]. The primary function of
the Appeal Tribunal is to review decisions made by the Commission
upon appeal by
a person affected
by such a
decision (Section 18).
The Appeal Tribunal shall consist of a chairman who is currently a High
Court Judge and
at least two
other members who
have knowledge of
the communications and
multimedia industry, engineering, law,
economics or commerce, or public administration [Sections
17(3) and 19]. Any decision made the Appeal Tribunal is final and binding on
the parties to the appeal and is not
subject to further appeal (Section 18(2). Part V deals with the powers and procedures
of the Malaysian Communications and Multimedia Commission. The
Commission has power
to issue specific
instrument and mechanism which include directions, determinations,
conduct a public inquiry
and investigation, gather
information, monitor and
provide a
report to the Minister on all significant matters relating
to the services provided and review all
rules and regulations made under the Act. The Commission is also a point of reference for dispute resolution. One of the aims of the Act is to promote
self-regulation in the industry. This is
done through the
introduction of voluntary
industry codes. These
are codes developed
by industry players
who have a
primary function to
formulate and implement voluntary industry
codes to serve as
a guide for
the industry to
operate. The formulation of the code may be done by the forum’s own
initiatives or upon request by the
Malaysian Communication and Multimedia Commission (MCMC)
(Section 95) failing
which mandatory standards will
be imposed (Section 104). Under the CMA 1998, there are various forums
which may each formulate their own voluntary industry
codes for example,
the technical standards
forum (Section 184),
access forum (Section
152), consumer forum
(Section 189) and
content forum (Section
212). Examples of
registered voluntary codes
are the General
Consumer Code of
Practice for the
Communications and Multimedia
Industry Malaysia and The Malaysian Communications and Multimedia
Content Code which
was registered on
17 October 2003
and 1 September 2004
respectively. Four bodies
has been designated
to formulate voluntary
industry codes namely, the
Communications and Multimedia Consumer Forum (CfM), the Communications and Multimedia Content Forum
(CMCF), the Malaysian Access Forum and
the Technical Standards Forum. To
promote transparency of the regulatory regime Section 81 of the Act
requires the Commission to maintain a
register in both physical and electronic form, of all matters
which are required
to be registered
under the Act
and its subsidiary
legislation. The register
may be accessed
at http://www.mcmc.gov.my/ registers/registers.asp.
8.2
ECONOMIC REGULATION
Economic
regulation actually deals
with matters concerning licensing, competition
and access to services.
Provisions on licensing
aims to control
and monitor the
entry of service
providers (Communications and
Multimedia Bill 1998, Explanatory Statement Para 71). There
are two types of licences under the Act.
A person may either apply for an individual licence [Section 27(1)] or
operate under a
class licence that
the Minister has
granted [Section 44(1)].
The licence type
is divided into
these two but
there are four
categories of services
for each type
of licence, network
service, network facilities
service, applications service
and content applications service.
On 17th September, 2002,
the Minister issued
class licences for
applications service, network
facilities and network
services. At the
same time, the
Minister also issued the
Ministerial Guidelines on class licences for network facilities and network services (http://www.mcmc.gov.my). Tables
8.1 and 8.2
show the type
of licenses and
category of services
under the Act.
Table 8.1: Type of Licenses
Type of License
Category of Service
Individual Licence
? Network Facilities
? Network
? Applications
? Content Applications
Class Licence
? Network Facilities
? Network
? Applications
? Content Applications
Table 8.2: Category of Services Category of Service
Explanation
Network
Provide
facilities and infrastructures such
as satellite earth
stations, Facilities broadband fibre optic cables,
telecommunications lines and exchanges, radio communications transmission equipment, mobile
communications base stations, and broadcasting
transmission towers and equipment. They are the fundamental building block
of the convergence model upon which network, applications and content
services are provided. Network Provide the
basic connectivity and
bandwidth to support
a variety of applications. Network
services enable connectivity or
transport between different networks. A
network service provider is typically also the owner of the network facilities.
However, a connectivity service may be provided by a person using network facilities owned by
another. Applications Provide
particular functions such
as voice services,
data services, content- based services,
electronic commerce and
other transmission services. Applications services are
essentially the functions or capabilities.
Content A special
subset of applications
service providers including
traditional Applications broadcast services
and newer services
such as online
publishing and information services.
During the transition period (1 April 1999 to 1 April
2000), the Communications and Multimedia (Licensing) Regulation
1999 was passed.
This regulation has
since been repealed
and substituted by
the Communications and
Multimedia (Licensing) Regulation 2000
and the Communications and
Multimedia (Licensing) Amendment
Regulation 2002. These regulations elaborate further on matters concerning licensing including
procedures for application. Topic 2 of
this part deals with competition regulation. Competition regulation in the act lists down three clear prohibitions
namely:
(a) Prohibition on anti-competitive conduct
(section 133);
(b) Prohibition
on entering into collusive agreements (section 135); and
(c) Prohibition
on tying or linking arrangements (section 136).
Section 133 prohibits
a licensee from
engaging in any
conduct which has
the purpose of substantially
lessening competition in a communications market. The definition
of substantial lessening
competition is published
in the form
of guidelines issued
by the
Commission (Malaysian Communications and
Multimedia Commission, Guideline
On Substantial Lessening
Of Competition RG/SLC/1/00(1) available at
http://www.mcmc.gov.my/facts_figures/
codes_gl/index.asp). Besides these three clear prohibitions, the Act
also provides that the Commission may
determine a licensee to be in a dominant position in a communications market and may further direct
this dominant player to cease any
conduct which, has the effect of substantially lessening competition in
the market (Section 137 and 139). Guideline
on Dominant Position
in a Communications Market
explains what is
meant by how
the commission will
determine „dominant position‰ for
this purpose (Available at
http://www.mcmc.gov.my/facts_figures/codes_gl/ index.asp). The Commission has also issued an
information paper on the process
for assessing allegation for
anti-competitive
conduct (Available at
http://www.mcmc.gov.my/what_we_do/competition/competition.asp) and recently has published a document as part of
a public inquiry on the assessment of dominance in
the communications market (http://www.mcmc.gov.my/ index.asp).
Topic 3 of Part VI deals with access to services. Provisions on access
to services is important to
ensure sharing of
infrastructure and minimise
duplication which will in due course optimise the resources and
increase co-operation amongst the
operators or service providers. It also ensures that the service
providers can gain access to the necessary
facilities and services on reasonable terms and conditions. This
is to encourage
downstream activities to
flourish, thus creating
a more market environment, one
that is able to offer consumers more choice and
value-for-money
services. To date,
the Malaysian Communications and
Multimedia Commission has determined an ÂAccess ListÊ which sets out the
type of facilities or services that are
subject to the access obligations under the Act. The Commission has also issued various
public enquiry reports and information
papers on this matter which includes the following:
(a) A Report on a
Public Enquiry Under Section 65 of the Communications and Multimedia Act 1998 on Access
Pricing;
(b) A Report on a
Public Enquiry Under Section 65 of the Communications and Multimedia Act 1998 on Cost of
Capital;
(c) A Report on a
Public Enquiry Under Section 65 of the Communications and Multimedia Act 1998 on Local Access
Funding;
(d) A Report on a
Public Enquiry Under Section 65 of the Communications and Multimedia Act 1998 on Access List
Determination;
(e)
Guideline on
Provision of Dial-Up
Internet Access Service
Using New Special Service Number Range 1508 A
XXXXX; and
(f)
Clarification on Mandatory Standard of
Access Agreements (http://www.mcmc.gov.my/what_we_do/access/access.asp).
8.3
TECHNICAL REGULATION
The
Communications and Multimedia Act
1998 establishes a
framework to promote
the effectiveness of
technical regulation by
facilitating the technical
interoperability of networks, to promote the efficient allocation of
resources and to promote the safety,
security and integrity of network services and applications services. Technical regulation can be divided
into three parts:
(a) Spectrum
assignment;
(b) Numbering and
electronic addressing; and
(c) Technical
standards.
Let us now discuss this further. Spectrum assignment is a new feature
introduced by the Act. Under the previous
regulatory regime, providers are given radio communication licences
(Regulation 3 of the Radio
communications Regulation 1995).
There are 3 types of assignment:
(a) Spectrum
assignments;
(b) Apparatus
assignment; and
(c) Class
assignment
Section 157.
Assignment means the right to use the spectrum, numbers or electronic
addresses (Section 6) and this right
which is enforced upon the licensees can be transferred or dealt to another person. Section 162 gives
power to licensees to transfer or deal
with any or
all of the
rights assigned under
spectrum assignment. Similar
provisions as regards to apparatus assignment is provided for in section
167. Class assignment
means that anyone
may use any
frequency allocated under
class assignment for
a determined specified
purpose (Section 169). Spectrum management involves providing a responsive and flexible approach to meet the needs of spectrum users, making adequate
provision of spectrum for public and
community services, maximising
the overall public
benefit derived from
use of the spectrum by ensuring its efficient
allocation, encouraging the use of efficient
wireless technologies and
practises to enable
operation of a
wide ranges of
services with an
adequate quality of
service, supporting the
CMA policy objectives of the Government and providing
Malaysian views in the development of international agreements
in Radio communications. (http://www.mcmc.gov. my/what_we_do/spectrum/index.asp). Under section 172, the Commission may
develop a spectrum plan which defines
how the spectrum
shall be used
and the methodology for
assignment and reassignment
of the spectrum.
The Spectrum plan
is a vital
document which is
used to manage the allocation and assignment of our national band, as a
reference for the
ITU approved allocation, and
the availability of services using
the frequency and
the conditions to
use them. (http://www.mcmc.gov. my/what_we_do/spectrum/plan.asp). The spectrum
plan is available
at
http://www.mcmc.gov.my/what_we_do/spectrum/plan.asp. The Act requires the Malaysian Communications
and Multimedia Commission to
develop a numbering
and electronic addressing
plan setting out
rules about matters relating to the use, transfer,
assignment and portability of numbers and
electronic addresses (Section 179). In pursuant of this the Commission
has issued the Numbering
and Electronic Addressing
Consultation Paper dated
26 April 2002.
Finally, topic three deals with technical standards that
has to be observed by the service
providers. Under the Communications and Multimedia Act 1998, it is an offence
to use any technical equipment or
systems which hinder
network interoperability or
compromise public safety (Sections 182 and 183). The
Communications and Multimedia Act
1998 allows the
Malaysian Communications and Multimedia
Commission to designate one or more industry
forums and register certifying agencies or classes of certifying
agencies (Section 186). Under
the Communications and
Multimedia (Technical Standards)
Regulations 2000, Regulation
27(1) provides that
“no person shall
undertake or conduct any activity in a designated skill
area unless that person is certified”.
8.4
CONSUMER REGULATION
Do you know
what consumer regulation
is? The
primary purpose of
consumer regulation is
consumer protection. Provisions
under this topic
are quality of
service, required applications services,
resolution of consumer
disputes, regulation on rates and
universal service obligation. For the purpose of this Part, the Commission designated a consumer forum
which prepared a consumer code. The
General Consumer Code of Practice for the Communications and Multimedia Industry
Malaysia which was
developed by the
Communications and Multimedia
Consumer Forum of
Malaysia (CfM) was
registered on 17
October 2003. The objective of the Code is to provide
model procedures for:
(a) The
adherence to consumer requirements;
(b) The handling
of customer complaints and disputes;
(c) The creation
of an inexpensive
mediation or process
other than the
court and procedures for
compensation of the customers in case of a breach of the consumer code;
(d) The
protection of consumer information;
(e) To endeavour
to achieve the relevant national policy objectives of the Act;
(f) To provide
benchmarks for the
communications and multimedia
service providers for the
benefit of consumers;
(g) To promote a
high level of consumer confidence in service delivery from the industry; and
(h) To provide
guidelines for self-regulation among the industry (Section 5 of the Consumer Code). Other
than the code,
the Commission has
issued various determinations on
mandatory standards for quality of service listed below: (a)
Commission
Determination on the
Mandatory Standards for
Quality of Service (Broadband Access
Service); (b) Commission
Determination on the
Mandatory Standards for
Quality of Service (Digital Leased Line
Service); (c) Commission Determination on
the Mandatory Standards for
Quality of Service (Public Payphone
Service); (d) Commission Determination on
the Mandatory Standards for
Quality of Service (Content Applications
Services); (e) Commission Determination on
the Mandatory Standards for
Quality of Service (Dial Up Internet Access
Service); (f) Commission Determination on
the Mandatory Standards for
Quality of Service (Public Cellular Service);
and (g) Commission Determination on
the Mandatory Standards for
Quality of Service (Public Switched Telephone
Network Service). The Commission
has also published
a guideline on
complaints handling which
provides for the
process for complaints handling. According to
the rate regulation,
Section 197 provides
that rates may
be set in
accordance with the
market rates. The Communications and Multimedia (Rates) Rules 2002 came
into effect 1 March 2002. One important part of this section is the
provision on universal service. Universal
service is an
obligation imposed by
the government on
service providers to
promote the widespread availability and usage of services throughout
Malaysia by encouraging
the installation of
these services in
underserved areas and
for underserved groups within the
Community (Section 202). This service obligation ensures basic services are available or
accessible by the public regardless where
they are. A Report
on a Public
Inquiry on a
System of Universal
Service Provision was
issued by the Commission on 12th March, 2001 and in the report the
method on how universal
service was to
be implemented was
laid down and
the terms „underserved areas‰ and „underserved groups‰
were defined.
8.5
SOCIAL REGULATION
Social
regulation is mainly
concerned with content
application services. Under
this part (Part IX), three types of content applications services is
mentioned. They are content
applications service, closed content applications service
and limited content
applications service. A
closed content applications service
is exempted from any provisions under Part IX (Section
207) and a limited content application
which is a
service of a
limited appeal due
to its limited
target and availability, may
be subject to
a class licence
but otherwise exempted
from any provision
under this Part
(Section 209). Section
211 of the
CMA provides that
content should not
be indecent, obscene,
false menacing,
offensive in character with
intent to annoy,
abuse, threatens and
harass. The content
code, which was
registered on 1
September 2004 explains
further the prohibition
of section 211.
The content code
is available at http://www.cmcf.org.my (Content
Forum) or http://www.mcmc.gov.my (Malaysian Communications and Multimedia
Commission).
SELF-CHECK 8.1
1. Who is
regulated under the
Communications and
Multimedia Act 1998?
2. How many
license types are there under the Communications and Multimedia Act 1998?
3. Name the
regulatory authorities under the Act.
ACTIVITY 8.1
Access the content code and discuss with your coursemates the
prohibition under Section 211 of
the Communications and Multimedia Act 1998.
The
Communications and Multimedia
Act 1998 regulates
three traditionally distinct industries.
? The
Malaysian Communications and
Multimedia Commission is
the regulatory authority
responsible for this industry.
? The Act is divided into five regulatory frameworks i.e.
procedure, economic, technical,
consumer and social. Individual Licence Voluntary Industry
Code Malaysian Communications and Multimedia Commission
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