TOPIK 8 12 ABCR3203 COMMUNICATION LAW
LEARNING OUTCOMES
By the end of this topic, you should be able to:
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1988 came into force on 1st April, 1999, these two legislations were repealed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 MinisterÊs 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 CommissionÊs 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 forumÊs 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 Facilities ..>> Provide facilities and infrastructures such as satellite earth stations,
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 Applications ..>> A special subset of applications service providers including traditional
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 robust 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
LEARNING OUTCOMES
By the end of this topic, you should be able to:
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 MinisterÊs 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 CommissionÊs 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 forumÊs 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 Facilities ..>> Provide facilities and infrastructures such as satellite earth stations,
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 Applications ..>> A special subset of applications service providers including traditional
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 robust 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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