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Consolidated Acts of Samoa 2014 |
SAMOA
Arrangement of Provisions
PART I
PRELIMINARY
PART II
THE REGULATOR
7A Alternative arrangements for the appointment of a Regulator
PART IIA
TELECOMMUNICATIONS TRIBUNAL
11A.The establishment of the
Telecommunications Tribunal
11B.Presiding member
11C. Other tribunal members
11D. Convening Tribunal hearings
11E. Tribunal proceedings
11F. Government may be represented in any proceeding
11G. Tribunal decisions
11H. Government ministries and agencies to assist Tribunal
11I. Appeal and judicial review
11J. Enforcement of orders
PART III
TELECOMMUNICATIONS LICENCES
18A. Revocation upon
conviction for an offence
PART IV
UNIVERSAL ACCESS
PART V
RADIO SPECTRUM
MANAGEMENT
PART VI
COMPETITION POLICY
PART VII
INTERCONNECTION
39A. Interim interconnection charges
39B. Service providers to agree on interconnection charges
PART VIII
TARIFFS
PART IX
RELATIONS BETWEEN SERVICE PROVIDERS AND CUSTOMERS
PART X
TELECOMMUNICATIONS EQUIPMENT
PART XI
NUMBERS
PART XII
ACCESS TO PROPERTY
PART XIII
NATIONAL SERCURITY AND PUBLIC EMERGENCIES
PART XIV
DISPUTES, OFFENCES AND ENFORCEMENT
72A . Dispute resolution
72B. Mediation
75A. Divulging information from telephone conversation
75B. Divulging personal information obtained in course of duties
PART XV
MISCELLANEOUS
Schedule
AN ACT to establish a new legislative framework for the telecommunications sector, and to repeal and harmonize certain provisions of the Post Office Act 1972, the Postal and Telecommunications Services Act 1999 and the Post and Telecommunications Internet Act 1997.
[Assent date: 29 June 2005]
[Commencement date 27 July 2005]
BE IT ENACTED by the Legislative assembly of Samoa in Parliament assembled as follows:
PART I
PRELIMINARY
(2)This Act commences, in whole or parts or sections or paragraphs thereof, on a date or dates nominated by the Minister.
(3)Notice of commencement of this Act, in whole or parts or sections or paragraphs, shall be published in Samoan and English in the Savali
and one other newspaper circulating in Samoa.
2. Interpretation– In this Act, unless the context requires otherwise:
“Act” means the Telecommunications Act 2005;
“affiliate” means, in relation to any one person, any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person;
“broadcasting service” means the transmission of radio or video programming to the public on a free, pay, subscription or other basis, whether by cable television, terrestrial or satellite means, or by other electronic delivery of such programming;
“class licence” means a licence issued under sections 13 and 15 without the need for persons to whom the licence applies having to apply for that licence;
“commencement date” means the date or dates on which this Act commences, in whole or parts or section or paragraphs, as specified in section 1(2);
“control” means the power to determine the actions of another person in any manner, whether directly through the ownership of shares or other securities or indirectly through an agreement or arrangement of any type;
“exemption order” means an order issued by the Regulator under section 14;
“Government” means the Government of the Independent State of Samoa;
“individual licence” means a licence issued pursuant to sections 13 and 15 to an individual person upon the application of that person;
“interconnection “means the physical and logical linking of telecommunications networks used by the same or a different service provider in order to allow the users of the one service provider to communicate with users of the same or another service provider and includes the making available of telecommunications facilities or services by one service provider to another for the purpose of providing telecommunications services;
“licence” means an individual licence or a class licence issued pursuant to this Act, but does not include a radio spectrum licence or a licence issued prior to the coming into force of this Act;
“licensee” means a person who holds a licence under this Act;
“Minister” means the Minister responsible for Communications and Information Technology;
“Ministry” means the Ministry responsible for Communications and Information Technology;
“Office of the Regulator” means the entity established by section 9;
“order” means a written order made by the Regulator under this Act;
“prior licence” means an authorisation for the operation of a telecommunications network or provision of a telecommunications service issued prior to the coming into force of this Act;
“radio spectrum licence” means a licence issued pursuant to section 22;
“reference interconnection offer” has the meaning assigned to it in section 37;
“regulations” means regulations made by the Head of State under section 81;
“Regulator” means the person appointed pursuant to section 6 to head the Office of the Regulator;
“rule” means a rule made by the Regulator pursuant to this Act;
“Samoa” means the Independent State of Samoa;
“service provider” means a person that provides a telecommunications service to the public or that owns or
operates a telecommunications network used to provide telecommunications services to the public;
“telecommunications equipment” means equipment intended to be connected directly or indirectly to a telecommunications network in order to send, transmit or receive telecommunications services;
“telecommunications facility” means any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications;
“telecommunications network” means any wire, radio, optical or other electromagnetic system for routing, switching or transmitting telecommunications services between network termination points;
“telecommunications service” means a service provided by means of a telecommunications network, and includes the provision of telecommunications facilities (in whole or part) and any related equipment to a customer by lease, sale or otherwise;
“terms of service” means the general terms and conditions upon which a service provider shall provide telecommunications services to customers and which are set out in a document prepared in accordance with Part IX. Once approved by the Regulator, the terms of service is, together with this Act, the regulations, rules, orders and approved tariffs, binding upon a dominant service provider and its users;
“this Act” includes regulations and rules made under the Act;
“Universal Access Fund” means the Fund established pursuant to section 21.
3. Objectives of this Act–The objectives of this Act are:
(a) to facilitate the development of the telecommunications sector in order to promote social and economic development; and
(b) to promote universal access to telecommunications services at affordableprices; and
(c) to promote the efficient and reliable provision of telecommunications services, relying as much as possible on market forces, such as competition
and private sector investment, to achieve this objective; and
(d) to promote the introduction of advanced and innovative information and communications technologies to meet the needs of the people of Samoa; and
(e) to encourage sustainable foreign and domestic investment in the telecommunications sector; and
(f) to establish a framework for the control of anti-competitive conduct in the telecommunication sector; and
(g) to promote efficient interconnection arrangements between service providers; and
(h) to protect the interests of subscribers and other customers of telecommunications services; and
(i) to define and clarify the institutional framework for policy development and regulation of the telecommunications sector, as well as the separation of government policy and regulatory functions from those of providing telecommunications services; and
(j) to promote efficient management and use of radio spectrum and other scarce resources; and
(k) to establish a fair, objective and transparent licensing regime for service providers; and
(l) toestablish an efficient type approvalregime for telecommunications equipment; and
(m) to establish measures to enforce the implementation of this Act and to prohibit certain types of conduct contrary to the orderly development and regulation of the telecommunications sector.
4. Application of this Act– (1) This Act binds the State.
(2) This Act applies to any act or omission or event which occurs in Samoa or any other place.
5. Repeal of Acts– The Acts, or parts or sections of the Acts, listed in the Schedule are repealed.
PART II
THE REGULATOR
6. Appointment of Regulator–Subject to sections 7, 8 and this section:
(1) There shall be appointed by the Head of State, acting on the advice of Cabinet, a Regulator who shall have and exercise the responsibilities,
functions and powers conferred by this Act and any applicable law.
(2) The appointment of the Regulator shall be for a term of 3years, which term may be renewed by the Head of State, acting on the advice
of the Cabinet, for additional terms of 3years.
(3) A person may not be removed as Regulator prior to the completion of a 3 year term of an appointment unless the person:
(a) at the time of appointment and while holding the position of Regulator, has a conviction or is convicted for any offence, in Samoa or elsewhere—
(i) involving dishonesty or corruption; or
(ii) where the penalty for such offence includes imprisonment for one year or longer (irrespective of whether such penalty has been or is imposed concerning such conviction); or
(b) is an un-discharged bankrupt; or
(c) is determined by a medical practitioner to be unable to perform the Regulator’s responsibilities, functions, duties and powers due to any physical or mental incapacity; or
(d) breaches the Code of Conduct detailed in section 19 of the Public Service Act 2004.
(4) The Head of State, acting on the advice of Cabinet, may appoint the Minister or another person to exercise the responsibilities,
functions and powers conferred by this Act and any applicable law on the Regulator, on an interim basis, during:
(a) the period until the first Regulator is appointed;
(b) any period of time after a Regulator ceases to hold office and before a replacement is appointed; and
(c) a period of temporary absence or incapacity of the Regulator.
(5) A person appointed under subsection (4) may exercise all of the responsibilities, functions and powers conferred on the Regulator
by this Act and any applicable law notwithstanding any other provision of this Act.
(6) An appointment under subsection (4) may not continue for a period longer than 6 months.
7. Disqualification– (1) Subject to this section, a person is not eligible to be appointed or to continue as the Regulator or as a member of the professional staff of the Regulator if the person, directly or indirectly, as owner, shareholder, director, officer, partner or otherwise, has any pecuniary or proprietary interest in:
(a) a service provider; or
(b) a manufacturer or supplier of telecommunications equipment, except where the supply is incidental to the general merchandising
of goods by wholesale or retail.
(2) Where any interest prohibited by subsection (1) vests in the Regulator or a member of the professional staff by will or succession
for the benefit of the Regulator or a member of the professional staff, as the case may be, such interest shall be absolutely disposed
of within 3 months of vesting, and any
failure to act in accordance with this subsection shall make the Regulator or member of the professional staff, as the case may require,
liable under subsection (1).
(3) For the purpose of this section:
(a) a pecuniary or proprietary interest shall include, but is not limited to, a pecuniary or proprietary interest held by a spouse or parent or child or brother or sister of the Regulator or member of the professional staff, as the case may require; and
(b) the professional staff of the Regulator shall be any member of staff of the Regulator nominated as such by the Regulator, as a
class of such persons or individually, or both.
7A. Alternative arrangements for the appointment of a Regulator– (1)Despite 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.
8. Responsibilities, functions and powers of the Regulator– (1) The Regulator shall carry out the following:
(a) advise the Minister on policy for the telecommunications sector;
(b) implement this Act, the regulations and other elements of the legal and regulatory framework for the telecommunications sector;
(c) issue individual and class licences, and design and run the process for issuance of such licences;
(d) monitor and enforce compliance by licensees with the conditions of their licences;
(e) amend or revoke licences in accordance with this Act and the regulations;
(f) define network termination points, if required for the proper interpretation and administration of this Act, the regulations and rules;
(g) prescribe procedures for the approval of telecommunications equipment for attachment to telecommunications networks in Samoa, using the least onerous method available, such as approval of equipment previously approved for attachment in specified countries or regions;
(h) establish a radio spectrum plan and manage radio spectrum allocated to the telecommunications sector;
(i) regulate interconnection between telecommunications networks of different service providers;
(j) establish and manage a numbering plan and assign numbers to service providers;
(k) resolve disputes between service providers, and between customers and service providers.
(l) institute and maintain appropriate measures for the purpose of preventing dominant telecommunications service providers from engaging in or continuing anti-competitive practices;
(m) represent Samoa in international telecommunications organizations, in cases where the Minister decides the Regulator is the appropriate representative;
(n) carry out any responsibilities, functions and powers assigned to the Regulator in any universal access program or arrangements established pursuant to Part IV;
(o) maintain records of licences and licence applications, equipment approvals and applications and interconnection agreements and, except where the Regulator considers it justified for reasons of commercial confidentiality, make the documents in such records available to the public;
(p) publish procedures, guidelines and interpretations to facilitate the implementation of this Act;
(q) make rules for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof by the Regulator;
(r) make orders respecting any matter or thing within the jurisdiction of the Regulator under this Act, a regulation or rule, including orders to compel a person to comply with or implement the purposes of this Act, a regulation, rule or licence, and, upon publication by the Regulator such orders shall have the same legal force as a rule;
(s) on the initiative of the Regulator or upon request by another person, investigate complaints against licensees or other service providers, and conduct such other investigations as the Regulator deems necessary to ensure compliance with this Act, a regulation, rule or order, and issue an order in respect of anything prohibited, required or permitted to be done under this Act, a regulation, rule or order;
(t) comply with the Code of Conduct detailed in section 19 of the Public Service Act 2004;
(u) subject to section 11 in exercising the Regulator’s powers and performing duties under this Act, a regulation or rule, determine any question of law or fact, and despite any other law, the Regulator’s determination on a question of fact is binding and conclusive for all purposes, including but not limited to any proceedings in any Court, tribunal or other adjudicative body; and
(v) take such other actions as are reasonably required to carry out this Act, the regulations and rules, and to perform such other
responsibilities, functions, and powers conferred on the Regulator under any other law.
(2) The Regulator shall carry out the responsibilities, functions and powers of the Regulator with a view to implementing the objectives
set out in section 3.
(3) The Regulator shall act independently in performing the responsibilities, functions and powers of the Regulator set out in this Act
and other laws, and in this regard:
(a) the Regulator shall act in a manner that is separate from, and not accountable to, any service provider, including a service provider owned by the Government; and
(b) the orders and rules made and the procedures used by the Regulator shall be impartial with respect to all service providers and other market participants; provided however that nothing in this section shall be interpreted to prevent the Regulator from—
(i) consulting with any person or organisation on any matter related to the Regulator’s responsibilities, functions and powers; or
(ii) making a decision that is in accordance with this Act but that has a differential or prejudicial impact on a service provider or other market participant.
9. Office of the Regulator– (1) There is established an Office of the Regulator, which shall function in accordance with this section.
(2) The Regulator shall be responsible for the management of the Office of the Regulator.
(3) The Office of the Regulator shall consist of the Regulator, the staff of the Office of the Regulator and employees and such other
persons as may be seconded or appointed in accordance with this section.
(4) Except as provided in this Act, the Regulator and the Office of the Regulator shall function under the laws governing the public
service and the finances of the Government of Samoa, and in particular:
(a) the staff and employees up to Principal level of the Office of the Regulator are appointed and employed by the Regulator, whilst contractual employees including the post of the Regulator are appointed and employed under the Public Service Act 2004; and
(b) all staff and employees appointed by the Regulator under paragraph (a), except contractual employees, shall be under the direction and control of the Regulator; and
(c) the budget of the Office of the Regulator shall be approved pursuant to the national budgetary process for the Government taking
into account any fees collected pursuant to a regulation made under section 10(1) and (3).
(5) The Minister, acting on the advice of the Chief Executive Officer of the Ministry and of the Regulator, may by notice in writing:
(a) designate1or more persons employed by the Ministry or other Ministries or Government organisations to work with the Office of the Regulator on a secondment basis. Such secondments may be part-time or full time, and shall last for such period of time as indicated in the notice; and
(b) determine that the Office of the Regulator may share or otherwise utilise support staff, office premises and other resources of
the Ministry, or another Government organisation.
(6) A person who has been appointed or seconded to the Office of the Regulator and to whom the Regulator delegates a responsibility or
function or power in writing, shall perform such of the responsibilities, functions and powers of the Regulator, as are specified
in the delegation, and a delegation under this subsection may:
(a) authorise a person to make orders or issue licences;
(b) restrict the delegation to specific types of matters, or to a specific period of time;
(c) be subject to terms, conditions or restrictions; and
(d) be revoked by notice in writing.
(7) In addition to the persons appointed or seconded to the Office of the Regulator under this section, the Regulator may appoint such
consultants as may be necessary for the efficient performance of the functions of the Regulator.
(8)All persons appointed or seconded under this section shall work under the direction of the Regulator in the discharge of their functions,
powers and duties.
(9) The Regulator shall conduct the affairs of the Office of the Regulator in an open and transparent manner. To this end, the Regulator
shall, from time to time, publish or cause to be published, notices, rules and procedures governing the operation of the Office of
the Regulator and the Office’s dealings with the public.
(10) The Regulator shall cause the Office of the Regulator to establish an official web site to increase the transparency of the Office’s
affairs to persons inside and outside of Samoa.
(11) All rules, orders, notices and other important documents issued by the Office of the Regulator regarding the regulation of the telecommunications
sector shall be posted on the Regulator’s official web site, and published in any other media that the Regulator considers
necessary or appropriate to provide adequate notice to interested persons.
(12) Within 6 months after June 30 of each year the Regulator shall cause the Office of the Regulator to prepare and provide to the Minister
an annual report on the work of the Office of the Regulator, such report to include the following:
(a) a summary of the activities of the Office of the Regulator;
(b) financial statements and accounts and audit report on such statements and accounts (including the Universal Access Fund) in a form approved and audited by or under the direction and control of the Controller and Auditor General;
(c) a list of licences in force and issued;
(d) a list of interconnection agreements filed with the Regulator;
(e) a summary of material litigation involving the Regulator;
(f) a report on the Universal Access Fund;
(g) a summary of rules and major orders made in the period since publication of the last annual report;
(h) a description of major procurement and outsourcing activities undertaken by the Regulator;
(i) a list of staff, employees and consultants appointed or seconded to the Office of the Regulator;
(j) such other information as the Minister may determine by notice in writing.
(13) The Minister shall table the annual report in the Parliament at the first available opportunity.
10. Licence, radio spectrum and numbering fees– (1)The Head of State, acting on the advice of the Cabinet may make regulations prescribing:
(a) licence fees, including licence application fees and annual licence fees; and
(b) radio spectrum usage fees; and
(c) fees for the use of telecommunications numbers.
(2) In prescribing the level of fees for the purposes of subsection (1) the following principles must be taken into consideration:
(a) licence fees must be levied on different licensees and users of spectrum and numbers in an impartial and competitively neutral manner;
(b) licence fees may be based on a percentage of the revenue obtained by the licensee in providing the licensed telecommunications service;
(c) the licence fees may be used in whole or part to cover the costs of the Office of the Regulator.
(3) Fees required to be paid under this section constitute a debt due to the Government and may be recovered in a court of competent
jurisdiction.
11. Appeal of orders of the Regulator to the Telecommunications Tribunal– (1)An appeal from an order, or a directive, or a 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) anon-refundable bank cheque in the amount of $100,000; 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.
(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, or a directive, or a decision, or exercise of discretion
of the Regulator which is the subject of the appeal.
(5) The Notice of Appeal must set out the following:
(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.
(6) Subject to section 11G(2)(c), an order, or directive, or decision, or exercise of discretion of the Regulator appealed under this
section shall remain in full force pending the Tribunal’s decision on such appeal.
(7) An appellant may only withdraw an appeal upon application to and with permission of the Tribunal.
(8) The Tribunal may refuse or permit withdrawal of an appeal:
(a) where issues of costs (incurred from a hearing) remain outstanding; or
(b) where it is in the public interest to continue; or
(c) where reasons provided by the appellant in his or her application are reasonable and justified noting that the deposit provided
with the Notice of Appeal is non-refundable.
(9) If an appeal is withdrawn:
(a) any interim order of the Tribunal, other than an order made in respect of costs, shall immediately cease to have effect;
(b) no fresh appeal may be brought by the appellant in relation to an order, or directive, or decision, or exercise of discretion of the Regulator which was the subject of the appeal withdrawn; and
(c) the amount paid under subsection (2)(a) will not be refunded to the appellant.
PART IIA
TELECOMMUNICATIONS TRIBUNAL
11A. The establishment of the Telecommunications Tribunal– (1) The Telecommunications Tribunal is established.
(2) When conducting a proceeding in accordance with this Act, the Tribunal shall be comprised of a presiding member and 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.
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 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 or experience in economics or management finance; or
(b) has qualifications or experience in telecommunications engineering or telecommunications business management; or
(c) has legal qualifications with a background in telecommunication law and regulation.
(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 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;
(b) is convicted of an offence punishable by a term of imprisonment exceeding 5 years;
(c) fails without reasonable excuse to carry out any of the functions conferred or imposed on him or her under this Act;
(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
(c) fails to produce any such books, papers, writings, or documents, –
commits an offence and is liable to a fine not exceeding 50 penalty units, or to imprisonment for a term not exceeding 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) affects 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 has the power to control its own processes and may make rules in relation to a matter of practice and procedure to facilitate
the just and timely resolution of the matters before it.
(6) Without limiting subsection (5), the tribunal may make rules in relation to:
(a) the holding of pre-hearing conferences, including confidential pre-hearing conferences, and requiring the parties and any interveners to attend a pre-hearing conference;
(b) dispute resolution processes;
(c) receipt and disclosure of evidence, including but not limited to pre-hearing receipt and disclosure and pre-hearing examination of a party on oath, affirmation or by affidavit;
(d) the exchange of records and documents by parties;
(e) the filing of written submissions by parties;
(f) the filing of admissions by parties;
(g) specifying the form of notice to be given to a party by another party or by the tribunal requiring a party to diligently pursue an application and specifying the time within which and the manner in which the party must respond to the notice;
(h) service and filing of notices, documents and orders, including substituted service;
(i) requiring a party to provide an address for service or delivery of notices, documents and orders;
(j) providing that a party’s address of record is to be treated as an address for service;
(k) procedures for preliminary or interim matters;
(l) amendments to an application or responses to it;
(m) the addition of parties to an application;
(n) adjournments;
(o) the extension or abridgement of time limits provided for in the rules;
(p) the transcribing or tape recording of its proceedings and the process and fees for reproduction of a tape recording if requested by a party;
(q) establishing the forms it considers advisable;
(r) the joining of applications;
(s) exclusion of witnesses from proceedings;
(t) the effect of a party’s non-compliance with the tribunal’s rules;
(u) access to and restriction of access to tribunal documents by any person;
(v) witness fees and expenses;
(w) applications to set aside any summons served by a party.
(7) In an application, the tribunal may waive or modify one (1) or more of its rules in exceptional circumstances.
(8) The tribunal must make accessible to the public any rules of practice and procedure made under this section.
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.
(2) No order for the payment of any costs associated with any Tribunal proceedings may be made against the Government.
11G. Tribunal decisions– (1)Subject to subsection (4), all decisions of the Tribunal are validly made if a majority of members resolve to make the decision.
(2) The Tribunal may:
(a) confirm, modify or reverse the order, directive, decision or exercise of discretionof the Regulator;
(b) refer the order, directive, decision or exercise of discretionback to the Regulator for re-consideration by it, either generally or in relation to any matter specified by the Tribunal;
(c) order that the order, directive, decision or exercise of discretion of the Regulator to which an appeal relates shall be modified or 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 is final and binding on all parties, and all persons named in any order made by a Tribunal.
(4) In the absence of a majority or if the Tribunal so authorises, the presiding member of the Tribunal may:
(a) make decisions on matters of procedure; or
(b) hear and determine any preliminary or interlocutory matter, before the Tribunal hears any substantive matter.
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.
11I. Appeal and judicial review– (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.
(3) Subject to this section, any person may seek judicial review of a decision of the Tribunal, and an application for a judicial review
shall be made within 28 days of the decision being made and in accordance with the rules of court.
11J. Enforcement of orders– A 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 is liable upon conviction:
(a) for 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) for 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.
PART III
TELECOMMUNICATIONS LICENCES
12. Requirement to hold licence– (1)A person shall not:
(a) provide a telecommunications service to the public for direct or indirect compensation; or
(b) own or operate a telecommunications network used to provide a telecommunications service to the public for direct or indirect
compensation, –
except in accordance with a licence or an exemption order.
(2) For the purposes of this section:
(a) the public includes persons in Samoa or elsewhere; and
(b) the provision of telecommunications services to the public includes the provision or offering of such a service to any segment
of the public, including the resale of telecommunications services obtained from another person, even if only one person is provided
or offered such a service.
(3)All telecommunications services and telecommunications networks, other than those described in subsection (1), may be provided without
a licence.
13. General provisions related to licences– (1)Licences shall be issued by the Regulator, and shall be signed by the Regulator or a delegate of the Regulator to whom authority has
been delegated under section 9.
(2) A licence is a unilateral grant of permission from the Regulator to provide a telecommunications service or operate a telecommunications
network, and for all purposes it is not be regarded as a contract or bilateral agreement.
(3)Licencesare to be in writing, and the Regulator shall make copies of them available for inspection by the public.
(4) In all circumstances where a licence is required, the following shall be made publicly available by the Regulator:
(a) the applicable licensing procedures and licensing criteria; and
(b) the period of time normally required to reach a decision concerning an application for a licence.
(5) The reasons for denial of a licence shall be provided in writing by the Regulator to an applicant upon request.
(6)Licences for service providers that provide the same telecommunications services or own or operate the same telecommunications networks
shall not unfairly discriminate between such licensees.
(7) The Regulator may issue licences under section (1) notwithstanding:
(a) any law, including but not limited to this Act, the Postal Services Act 2010 and the Postal and Telecommunications Services Act 1999; or
(b) any agreement, contract, arrangement, licence or other provision in existence at the commencement date.
14. Exemption orders– (1)The Regulator may make an order exempting specified activities or classes of persons from the requirement to hold a licence.
(2) An exemption order may be made subject to such conditions as the Regulator deems necessary and that are consistent with this Act,
regulations and rules.
15. Types of licences– (1) The Regulator may issue 2 types of licences:
(a) individual licences; and
(b) class licences.
(2) The rules shall specify which type of telecommunications services require individual licences and class licences. Until such a rule
comes into force, the Regulator may issue an order prescribing which types of telecommunications services require individual licences
and class licences.
16. Licensing procedures– (1)The Regulator may determine the procedures and criteria for issuing a licence.
(1A) The procedures and criteria determined under subsection (1) must be fair and objective.
(2) The procedures and criteria for issuing licences shall be:
(a) published in Samoan and English in the Savali and one other newspaper circulating in Samoa; and
(b) posted on the Regulator’s official web site.
17. Licenceconditions– (1) The Regulator shall establish the conditions of all licences.
(2)Licence conditions shall be kept to a minimum and used only where rules of general application cannot adequately provide regulatory
controls that the Regulator considers necessary to implement this Act.
18. Amendment and revocation of licences– (1) The Regulator may amend or revoke a licence if:
(a) the amendment or revocation has been requested or agreed to by the licensee;
(b) the licensee has been in breach of a material licence condition or this Act or a regulation, rule or order made under this Act;
(c) changes to international treaties, commitments, recommendations, standards or the laws of Samoa require an amendment or a revocation; or
(d) the Regulator decides that the amendment or revocation is required to implement this Act in a manner consistent with the objectives
listed in section 3.
(2) Prior to amendment or revocation of a licence pursuant to this section, the Regulator shall notify the licensee in writing that the
Regulator is considering the relevant action, and shall consider any comments made by the licensee in a timely manner.
(3) Notice under subsection (2):
(a) shall give the licensee at least 14 days from service of the notice to prepare comments on the relevant actions;
(b) shall set out any procedures the Regulator will use in considering the relevant action; and
(c) may invite comments from other interested parties or the public.
(4)If the Regulator amends or revokes a licence under this section, the Regulator shall provide the licensee with reasonable time to
comply with the amendment or revocation.
(5)If a licence is revoked, the Regulator shall take into account continuity of service to customers and include in the revocation order
such terms and conditions as the Regulator deems appropriate.
(6)Further procedures related to the amendment or revocation of a licence may be set out in rules or orders.
18A. Revocation upon conviction for an offence–Despite section 18, a licenceis taken to be revoked if the licensee is convicted of an offence under the laws of Samoa which involves:
(a) an element of dishonesty; or
(b) the making of some financial gain from the public or any section of the public by the failure to observe any legal obligation; or
(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.
19. Term and renewal– (1) The term of a licence shall be stated in the licence.
(2)Subject to subsection (3), upon application of the licensee, a licence shall be renewed by the Regulator on the same conditions.
(3)The Regulator may renew a licence on new conditions or deny the renewal of a licence if:
(a) the licensee has been in breach of one or more material licence conditions, or this Act, or a regulation, rule or order made under this Act; or
(b) changes to—
(i) any international treaty to which Samoa is a party; or
(ii) any commitment or recommendation or standards applicable to the Government or Samoa; or
(ii) any applicable law, require a renewal on new conditions or denial of a renewal, as the case may require; or
(c) the Regulator decides that a renewal on new conditions or the denial of a renewal is required to implement this Act in a manner consistent with the objectives listed in section 3.
PART IV
UNIVERSAL ACCESS
20. Universal access policy– (1) The Regulator may propose, and the Minister may approve, a policy setting out specific objectives and related principles and service
obligations relating to the provision of universal access to telecommunications services in Samoa.
(2) In preparing a universal access policy, the Regulator shall consider the following:
(a) the objectives for the development of universal access;
(b) the basic telecommunications services to be included in universal access obligations;
(c) the geographical areas in which specified levels of universal access should be achieved;
(d) the costs of the universal access service obligations.
(3) In preparing a universal access policy, the Regulator shall ensure that any universal access obligations of service providers:
(a) are administered in a transparent, non-discriminatory and competitively neutral manner; and
(b) are not more burdensome than necessary for the universal access objectives to be achieved.
(4) The Regulator shall consult with interested parties when preparing a universal access policy.
(5) Part III of the Public Bodies (Performance and Accountability) Act 2001 relating to Community Service Obligations does not apply to Part IV of this Act.
21. Universal Access Fund– (1) Following approval of a universal access policy, the Minister, by notice in writing, may establish a Universal Access Fund to be
used to subsidize the net costs of providing universal access.
(2) A Universal Access Fund established under this section shall be administered by the Regulator and in accordance with any financial
and administrative directions issued in writing by the Chief Executive Officer of the Ministry of Finance.
(3) The Universal Access Fund shall be operated out of a separate account from the Ministry or the operational accounts of the Regulator.
(4) Subject to subsection (5), if the Minister has established a Universal Access Fund under subsection (1), the Minister by notice in
writing may:
(a) require individual licensees to contribute to that fund and determine the amount of contributions to be made by those individual licensees; and
(b) determine the disbursement procedures of that fund.
(5) The disbursement procedures of the Universal Access Fund shall be competitively neutral and market-oriented.
PART V
RADIO SPECTRUM MANAGEMENT
(2) In relation to radio spectrum management, the Regulator shall carry out the following:
(a) advise the Minister on matters relating to the use or management of the radio spectrum;
(b) conduct public inquiries relating to the use or management of radio spectrum, where the Regulator determines such inquiries to be necessary or useful for the Regulator’s management of the radio spectrum;
(c) prepare and publish a national radio spectrum plan and any other required radio spectrum plans, frequency band plans, marketing plans and plans for the migration of spectrum users to different bands;
(d) ensure that the use of the radio spectrum is consistent with any applicable international treaties, commitments, protocols and standards;
(e) intervene in and resolve interference disputes, where such disputes are not resolved by the disputing parties to the satisfaction of the Regulator;
(f) make advisory guidelines relating to the use of radio spectrum, where the Regulator determines such guidelines to be necessary or useful for the Regulator’s management of the radio spectrum;
(g) issue radio spectrum licences to authorise persons to use the radio spectrum and make transmissions by radio;
(h) administer matters related to radio spectrum fees, including fees established by regulation under section 10;
(i) determine, allocate and assign frequency bands or any other matters relating to the transmission of radio communications (whether by satellite, terrestrial or other transmissions);
(j) perform such other radio spectrum-related functions as are conferred on the Regulator by another Act or by a regulation or rule.
(a) classes or other types of radio spectrum and radio equipment;
(b) requirements for radio spectrum licencesauthorising the use of the radio spectrum;
(c) requirements for authorisation for the use of radio apparatus;
(d) technical requirements and standards in relation to radio equipment, interference-causing equipment and radio-sensitive equipment;
(e) procedures, conditions and restrictions applicable to the use of the radio spectrum and radio equipment.
(2) The rules under subsection (1) are binding on all users of the radio spectrum or radio apparatus in Samoa.
24. Interference disputes and coordination– (1)In resolving radio spectrum interference disputes, the Regulator may:
(a) appoint an arbitrator to settle the dispute in accordance with the provisions of the Arbitration Act 1976; or
(b) assign staff or technical experts retained by the Regulator to mediate the dispute, and failing successful mediation, to report to the Regulator on possible resolutions of the dispute; or
(c) issue an order to resolve the dispute, with or without receipt of a report pursuant to paragraph (b).
(2) The Regulator shall consult with and coordinate the use of the radio spectrum with other countries, international users and international
organisations, such as the International Telecommunications Union, as required by law or treaty in force or as otherwise determined
by the Regulator.
PART VI
COMPETITION POLICY
25. Functions and duties of Regulator regarding competition– (1) The Regulator shall perform the following functions and duties in relation to competition among service providers in telecommunications markets in Samoa:
(a) promote efficient and sustainable competition for the benefit of end-users;
(b) establish an open and transparent regulatory framework that minimizes regulatory and other
barriers to entry into telecommunications markets;
(c) make orders defining markets and relevant markets for the purpose of this Act;
(d) make orders designating dominant service providers in relevant markets in Samoa, based on their market share and other factors as determined in accordance with section 26;
(e) monitor and prevent abuses of a service provider’s dominant position, pursuant to section 27;
(f) monitor and prevent practices that would restrict competition, in accordance with section 28;
(g) review and decide upon proposed transfers of control of service providers, in accordance with section 31;
(h) undertake market reviews from time to time to evaluate market conditions and the state of competition in those markets;
(i) dispose of complaints and resolve disputes related to anti-competitive practices in a timely and impartial manner.
(2) Wherever a conflict arises between the provisions of this Act and the provisions of any other legislation regulating competition
in telecommunications markets in Samoa, including but not limited to the Fair Trading Act 1998, the provisions of this Act prevail.
(3) The Regulator may issue an order that authorises a person to provide a telecommunications service and to construct and operate telecommunications
facilities, notwithstanding that a service provider has been granted exclusive rights by licence, agreement or otherwise, to engage
in such service provision, construction or operation, provided that:
(a) the Regulator has given the service provider with exclusive rights notice of—
(i) the Regulator’s intention to issue an order under this subsection; and
(ii) at least 21 days to comment before such an order is made; and
(b) after taking into account any comments received under paragraph (a), the Regulator has made an order that the service provider with exclusive rights has unreasonably failed or refused to provide such services, or to construct and operate such facilities.
26. Designation of dominant service providers– (1)A service provider whose gross revenues in a specific telecommunications market constitutes 40% or more of the total gross revenues
of all service providers in that market, is taken to be designated a dominant service provider in that market, unless the Regulator
specifies otherwise in an order.
(2)The Regulator may designate a service provider with less than 40% of the total gross revenues in a specific telecommunications market
as a dominant service provider if, either individually or acting together with others, the service provider enjoys a position of
economic strength affording it the power to behave to an appreciable extent independently of competitors or customers.
(3)The Regulator shall post and maintain on its official web site a current list of all dominant service providers specifying the markets
in which such providers have been designated to be dominant.
(4)Orders designating dominant service providers shall specify and define the relevant markets for which a service provider is designated
to be dominant and the circumstances relied on by the Regulator to support any findings regarding dominance.
27. Abuse of dominance– A dominant service provider is prohibited from undertaking activities or actions that abuse the service provider’s dominant position, and for the purposes of this section the following types of actions and activities shall be considered an abuse of dominant position:
(a) failing to supply essential facilities to a competitor within a reasonable time after a request and on reasonable conditions, or discriminating in the
provision of interconnection or other telecommunications service providers; except under circumstances that are objectively justified based on differences in supply conditions, including different costs or a shortage of available facilities or resources;
(b) bundling of telecommunications services, whereby the service provider requires, as a condition of supplying a service to a competitor,services that the competitor does not require;
(c) offering a competitor more favourable terms or conditions that are not justified by cost differences if the competitor acquired another service that the competitor does not require;
(d) pre-emptively acquiring or securing scarce facilities or resources, including but not limited to rights of way, required by another service provider for the operation of such service provider’s business, with the effect of denying the use of the facilities or resources to such service provider;
(e) supplying competitive telecommunications services at prices below long run average incremental costs or such other cost standard as may be established by the Regulator;
(f) using revenues or the allocation of costs from one telecommunications service to cross-subsidize a competitive telecommunications service with the objective of lessening competition, except where such cross subsidy is specifically approved by order of the Regulator or by approval of tariffs for relevant telecommunications services;
(g) failing to comply with the interconnection obligations of a dominant service provider specified in Part VII;
(h) performing any of the following actions, where such actions have the effect of impeding or preventing a competitor’s entry into, or expansion in, a market—
(i) deliberately reducing the margin of profit available to a competitor that requires wholesale telecommunications services from the dominant service provider, by increasing the prices for the wholesale telecommunications services required by that competitor, or decreasing the prices of the retail telecommunications services in markets where they compete, or both;
(ii) requiring or inducing a supplier to refrain from selling to a competitor;
(iii) adopting technical specifications for networks or systems to deliberately prevent interoperability with a network or system of a competitor;
(iv) failing to make available to other service providers on a timely basis technical specifications, information about essential facilities or other commercially relevant formation which is required by such other service providers to provide telecommunications services and which is not available from other sources; and
(v) using information obtained from competitors for purposes related to interconnection of supply of telecommunications services by the dominant service provider to compete with such competitors;
(i) any other action or activity engaged in by a dominant service provider that the Regulator determines in accordance with section 29 to have the effect, or likely to have the effect, of materially restricting or distorting competition in a telecommunications market.
28. Other anti-competitive practices–No person shall engage in a practice restricting or distorting competition in telecommunications markets, including the following:
(a) arrangements between 2 or more service providers that directly or indirectly fix the prices or other terms or conditions of telecommunications services in telecommunications markets;
(b) arrangements between 2 or more service providers that directly or indirectly determine which person will win a contract or business opportunity in a telecommunications market; and
(c) arrangements between 2 or more service providers to apportion, share or allocate telecommunications markets among themselves or other service providers.
29. Determination of abuse of dominance and anti-competitive practices– The Regulator may, on application by any person, or on the Regulator’s own initiative, determine:
(a) whether or not the actions or activities of a dominant service provider constitute an abuse of the dominant service provider’s dominant portion within the meaning of section 27;
(b) whether or not the actions or activities of any service provider amount to an anti-competitive practice within the meaning of section 28; and
(c) that an action or activity of a service provider under section 27 or 28 is authorised and is not to be considered to contravene this Act, on the grounds that the action or activity isin the public interest and is otherwise consistent with the objectives set out in section 3.
30. Remedies for abuse of dominance and anti-competitive practices– (1)If the Regulator determines that the actions or activities of a service provider constitute an abuse of the service provider’s dominant position or an anti-competitive practice within the meaning of this Act or a regulation or rule, the Regulator may issue an order to:
(a) require one or more persons named in the order to take one or more of the following actions—
(i) cease the actions or activities specified in the order immediately, or at such time specified in the order, and subject to such conditions specified in the order;
(ii) make specific changes in actions or activities specified in the order, as a means of eliminating or reducing the abusive or anti-competitive impact; or
(b) impose a financial surcharge not exceeding $100,000 on a service provider whose actions constitute—
(i) an abuse of the service provider’s dominant position; or
(ii) an anti-competitive practice; or
(c) require the service provider involved in the abusive action or activity or anti-competitive practice and any persons affected by such action, activity or practice to meet and attempt to determine remedies to prevent or eliminate continuation of such action, activity or practice, and to resolve any remaining dispute; or
(d) require the service provider responsible for the abusive or anti-competitive action or activity specified in the order to publish an acknowledgement and apology for such action, activity or practice in Samoan and English in the Savali and one other newspaper circulating in Samoa, in such a form and at such time as the Regulator specifies in the order; or
(e) require the service provider to provide periodic reports to the Regulator to assist in determining whether the action or activity
is continuing and to determine their impact on telecommunications markets, competitors and customers.
(2) A financial surcharge imposed under subsection (1)(b) shall be payable to the Treasury Fund.
(3) For the purpose of removal of doubt, the Regulator may revoke a licenceif a licensee fails to pay a financial surcharge imposed under
subsection (1)(b).
31. Transfers of control of serviceproviders– (1) Subject to this section, no approvals shall be required for the transfer of control of a service provider.
(2) No transfer of control of a service provider shall be effected without the prior approval of the Regulator if:
(a) a dominant service provider or an affiliate of a dominant service provider is:
(i) the person ultimately acquiring control of the service provider; or
(ii) the person whose control is being transferred; or
(b) as a result of the transfer, a person, alone or with affiliates, would control service providers whose gross revenues in a specific
telecommunications market constitutes 40% or more of the total gross revenues of all service providers in that market.
(3) No transfer of control that requires approval under subsection (2) shall be completed or have any legal force or effect unless the
person applying for approval of the transfer has received written approval for the transfer from the Regulator.
(4) Applications for transfers of control that require approval under subsection (2) shall include such information on the proposed transfer
transaction as the Regulator may require. Such information shall, at a minimum, include the following:
(a) the identification of all persons involved in the transfer transaction, including buyers and sellers, their shareholders and affiliated companies, and any other persons that have a greater than 5% ownership interest in all such persons;
(b) a description of the nature of the transaction and a summary of its commercial terms;
(c) financial information on the persons involved in the transaction, including their annual revenues from telecommunications markets, identified by specific markets, value of assets devoted to telecommunications business and copies ofany recent annual or quarterly financial reports;
(d) a description of the relevant telecommunications markets in which the persons involved in the transaction operate.
(5) The Regulator may request additional information regarding an application for a transfer of control that requires approval under
subsection (2) at any time.
(6) Subject to subsection (7), within 90 days of receipt of a duly completed application for a transfer of control that requires approval
under subsection (2), the Regulator shall:
(a) approve the transfer of control without conditions; or
(b) approve the transfer of control with such conditions as are reasonably related to promoting the development of open and competitive telecommunications markets in Samoa and maximising the benefits of the transaction for telecommunications customers; or
(c) deny the transfer of control; or
(d) issue a notice initiating an investigation of the proposed transfer of control, and following such investigation the Regulator
shall take one of the actions set out in paragraphs (a), (b) and (c).
(7) The Regulator shall only deny a transfer of control or attach conditions to a transfer of control under this section if the Regulator
determines, acting reasonably, that the transfer would have serious anti-competitive effects which would outweigh any positive effects
for telecommunications customers.
PART VII
INTERCONNECTION
32. Functions and duties of the Regulator regarding interconnection– The Regulator shall perform the following functions and duties in relation to interconnection of telecommunications networks:
(a) promote adequate, efficient and cost-oriented interconnection of telecommunications networks and access by service providers to telecommunicationsfacilities ofother service providers, in order to permit interoperability of telecommunications services that originate or terminate in Samoa and to promote the development of competitive telecommunications service markets;
(b) establish an open, non-discriminatory and commercially viable regulatory framework for interconnection and access with a view to minimizing regulatory and other barriers to entry into telecommunication markets;
(c) promote interconnection arrangements, including by facilitating negotiations between parties to reach interconnection agreements;
(d) ensure that interconnection agreements otherwise meet the objectives of this Act;
(e) determine which service providers are dominant service providers in a telecommunications market;
(f) if considered appropriate by the Regulator, regulate the prices for interconnection and access services by dominant service providers in a telecommunications market for interconnection;
(g) ensure that dominant service providers in a telecommunications market for interconnection publish a reference interconnection offer in accordance with section 37 and any regulations, rules and orders applicable to interconnections;
(h) resolve disputes related to interconnection in a timely and impartial manner;
(i) make orders specifying the terms of interconnection that shall be provided by one or more service providers, including direct, indirect and virtual interconnection arrangements.
33. Interconnection by all service providers– (1) Upon receipt of a written request by another service provider, a service provider shall enter into good faith negotiations to enter into an interconnection agreement to:
(a) connect and keep connected the telecommunications networks of both service providers; and
(b) provide access to such telecommunications facilities, including but not limited to central offices and other switching equipment
locations, mast sites, towers, poles, subscriber access lines and underground facilities, as are reasonably requested in order for
the service providers to provide telecommunications to their customers. any co-location of facilities shall also be subject to section
68.
(2) The following actions or practices are taken to violate the duty in subsection (1) to negotiate in good faith:
(a) obstructing or delaying negotiations, or failing to make reasonable efforts to resolve outstanding disputes;
(b) refusing to provide information about a service provider’s own telecommunications services or telecommunications network or other facilities that are necessary for the interconnection arrangements;
(c) misleading or coercing a party into reaching an agreement the party would not otherwise have made;
(d) interfering in any way with a service provider’s ability to communicate with the Regulator, including having a service provider sign a non-disclosure agreement that preludes the service provider from providing information requested by the Regulator;
(e) refusing to permit amendment of the interconnection agreement to take into account changes in circumstances, including changes
to this Act, a regulation or rule.
(3)If the Regulator has not made an order otherwise, a service provider shall not be required to enter into an interconnection agreement
on terms that would, in the service provider’s reasonable opinion:
(a) cause or be likely to cause material danger, damage or injury to any person or to any property;
(b) cause material damage or otherwise interfere with the operation of the service provider’s facilities or the provision of the service provider’s telecommunication services; or
(c) not be reasonable, having regard to technical or economic constraints.
(4) Service providers and other interested parties may at any time request the Regulator to issue an order that clarifies or interprets
the interconnection rights or obligations set out in this Act, a regulation, rule or order.
34. Interconnection by dominant serviceproviders– (1) Sections 35, 36, 37 and 38 apply only to service providers that the Regulator has designated as dominant service providers
for interconnection purposes in one or more telecommunications markets.
(2) The Regulator may issue an order to designate a service provider as being a dominant service provider for interconnection purposes
in one or more telecommunications markets if the Regulator considers that:
(a) the service provider is a dominant service provider designated under section 26; or
(b) the service provider, either individually or jointly with others, enjoys a position equivalent to that of a dominant service provider.
35. Requests for interconnection– (1) Interconnection arrangements which are offered by dominant service providers designated in accordance with section 34, in addition to meeting the requirements of section 33, shall:
(a) be consistent with this Act and any rules and orders made by the Regulator before the date of the offer, including any guidelines prescribed therein relating to interconnection charges and quality of service; and
(b) be no less favourable than any reference interconnection offer that has been approved by the Regulator for the service provider; and
(c) meet all reasonable requests for interconnection with the dominant service provider’s telecommunications network at any technically feasible point; and
(d) in all other respects, incorporate reasonable terms and conditions, including technical standards and specifications.
(2)A dominant service provider designated under section 34 shall ensure that the dominant service provider:
(a) applies similar conditions to all interconnecting service providers under similar circumstances; and
(b) provides interconnection to interconnecting service providers under substantially the same conditions and of substantially the same quality as it provides for the dominant service provider’s own telecommunications services, or those of the dominant service provider’s affiliates; and
(c) makes available on request all necessary or reasonably required information and specifications to service providers requesting interconnection; and
(d) only uses information received from a service provider seeking interconnection for the purposes for which such information was supplied and does not disclose the information or otherwise use the information to obtain a competitive advantage.
36. Interconnection charges– (1) Interconnection charges of dominant service providers designated under section 34 shall be cost-based. The Regulator may approve
a plan to phase in this requirement over time, taking into account the financial impact on the affected dominant services providers.
(2) In establishing charges for interconnection, dominant service providers designated under section 34 shall comply with any rules or
orders applicable to interconnection, including any pricing, costing and cost separation guidelines established by order of the Regulator.
(3) The Regulator may require the interconnection charges of any dominant service provider designated in accordance with section 34 to
be approved by the Regulator in advance, including the power to direct such dominant service provider to implement charges determined
by the Regulator.
37. Reference interconnection offers– (1)A dominant service provider designated under section 34 shall:
(a) prepare a reference interconnection offer for approval by the Regulator within the time period specified by order of the Regulator; and
(b) periodically update the reference interconnection offer as determined by order of the Regulator; and
(c) publish its approved reference interconnection offer by—
(i) filing a copy with the Regulator, who shall publish the reference interconnection offer on the Regulator’s official web site;
(ii) making a copy available to the public in the dominant service provider’s principal business offices; and
(iii) sending a copy to any service provider on request.
(2)A reference interconnection offer shall:
(a) comply with any rules or orders applicable to interconnection, including any applicable guidelines for the form and content of a reference interconnection offer established by order of the Regulator; and
(b) include a full list of services to be supplied to service providers, setting out the associated terms and conditions, including the charges for each service.
38. Publication of interconnection agreements– (1)A dominant service provider designated under section 34 shall, within 10 days after execution of an interconnection agreement, file
a copy of the agreement with the Regulator.
(2) Subject to subsections (3), (4) and (5), the Regulator shall place a copy of all interconnection agreements filed with the Regulator
under subsection (1) on the Regulator’s official web site.
(3) Subject to subsections (4) and (5), a service provider may designate information contained in an interconnection agreement that the
service provider has filed with the Regulator under subsection (1) as confidential, and request that such confidential information
be excluded from the copy of the interconnection agreement placed on the Regulator’s official web site.
(4) For the purposes of this section, unless the Regulator determines otherwise, the following shall not be considered confidential:
(a) details of interconnection charges; and
(b) essential terms and conditions of interconnection, other than interconnections charges.
(5) The Regulator shall determine what other information shall be treated as confidential under this section and resolve in a final and
binding manner all disputes regarding disclosure of information designated as confidential in interconnection agreements submitted
to the Regulator under this section.
39. Non-compliant interconnection agreements–If the Regulator decides that an interconnection agreement is not in compliance with this Act, or the requirements of any regulation, rule, order or licence, the Regulator may issue an order requiring one or more of the parties to the interconnection agreement to amend the agreement in accordance with any directions or other requirements specified in the order.
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) under the process set out in this section; or
(b) based on a rate agreed to by the service providers pursuant to section 39B.
(2)If 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)Fourteen 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 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.
(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 6 months.
(7)Despite 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 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)Despite 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 does 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 pursuant to 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.
(2) If the service providers do not reach an agreement within 2 weeks from the date of the Regulator directing the parties to negotiate,
the Regulator shall impose interim interconnection charges under section39A.
PART VIII
TARIFFS
40. Tariff filing and approval– (1) Dominant service providers shall file with and obtain the approval of the Regulator for all tariffs, rates or charges for telecommunications
services in markets the Regulator has designated then as dominant.
(2) The Regulator may issue an order to remove any requirement for dominant service providers to file and obtain approval of tariffs
under this Part where the Regulator determines that:
(a) competitive market forces will be sufficient to protect the interests of customers;
(b) there is not a significant risk of harm to competitive markets as a result of the removal of the requirement to file and obtain
approval of tariffs;
(3) Tariffs for telecommunications service provided by the dominant service providers shall be based on the cost of efficient service
provision and shall not contain excessive charges which are made solely as a result of the service provider’s dominant position.
(4) The Regulator may issue an order to require a change in the tariffs for telecommunications services provided by a dominant service
provider where such tariffs are in contravention of subsection (3). Such an order shall nominate the new tariff amount and give reasons
for the required change.
(5) Tariffs that are subject to filing with and approval by the Regulator under this section shall enter into force only after they have
been approved by an order of the Regulator. An agreement or arrangement between service providers and a customer to apply such a
tariff, other than one approved by the Regulator, is prohibited and, despite any other law, shall be regarded for all purposes as
void.
(6) Unless the Regulator makes an order to the contrary, a dominant service provider shall not be required to file or obtain approval
of tariffs for services that are provided in markets where the service provider is not designated to be a dominant service provider.
(7)Service provider shall not:
(a) charge for or accept tariffs, rates, charges or other consideration; or
(b) impose terms or conditions, –
that are contrary to an applicable tariff approved by the Regulator.
41. Publication of tariffs– (1)Unless the Regulator orders otherwise, when a dominant service provider files a tariff or schedule of tariffs with the Regulator, the service provider shall:
(a) from the date on which the tariff or schedule of tariffs is filed until the tariff is approved:
(i) publish an electronic copy on the service provider’s web site; and
(ii) maintain a paper copy available to the public at the service provider’s main business offices; and
(b) within 10 days from the day on which the tariff or schedule of tariffs is filed, place a notice in Samoan and English in the Savali and one other newspaper circulating in Samoa detailing the tariff or schedule of tariffs and advising that such tariff or schedule
is subject to the Regulator’s approval.
(2) Unless the Regulator orders otherwise, a dominant service provider shall maintain a complete and up to date schedule of its Regulator
approved tariffs:
(a) in an electronic copy on the dominant service provider’s web site; and
(b) in a paper copy available to the public at the dominant service provider’s main business offices.
42. Tariffs for services to other service providers – Tariffs charged by a dominant service provider to other service providers:
(a) shall be filed with and subject to approval by the Regulator in accordance with section 40; and
(b) shall comply with any orders made by the Regulator in relation to such tariffs.
43. General principles for tariff regulation– (1) The Regulator may issue an order to adopt any approach to tariff regulation of service providers that is consistent with this Act,
including, but not limited to, price cap regulation, rate-rebalancing and other forms of cost-based regulation.
(2) The Regulator shall not regulate the tariffs of a service provider so as to deny that service provider the right to earn a reasonable
return on the service provider’s investment for the service provider’s tariff-regulated services.
44. Cost studies– (1) Subject to subsection (3), the Regulator may issue an order to require a dominant service provider and other specified service providers
to prepare, file or otherwise participate in the development of a cost study of the dominant service provider’s telecommunications
services if the Regulator determines that a cost study would be an effective and necessary means of preventing anti-competitive conduct
or would otherwise be effective and necessary in implementing any scheme of tariff regulation.
(2)If the Regulator requires a service provider to prepare or file or otherwise participate in the development of a cost study:
(a) the service provider shall file with the Regulator a study of the service provider’s costs of providing the different categories of service; and
(b) the Regulator shall issue an order on the cost categories, form, approach, procedures and timing of the cost study; and
(c) the purpose of the cost study shall be to determine the costs to the service provider of providing different types of telecommunications
services.
(3) The Regulator shall consult with any service provider the Regulator proposes to be required to prepare or file a cost study before
the regulator makes an order under subsection(1)
45. Price cap regulation method– (1) Subject to subsection (4), the Regulator may issue an order to require a service provider to propose or otherwise participate in
the development of a method of price cap regulation.
(2)If the Regulator requires a service provider to propose a method of price cap regulation:
(a) the service provider shall file with the Regulator a proposal for implementation of a method of price cap regulation of the service provider’s service tariffs; and
(b) the proposal shall identify the proposed starting tariffs for relevant services, proposed groupings or baskets, the application
of price cap formulas and the specific proposed price cap formulas for price cap regulation.
(3) The Regulator may issue an order:
(a) prescribing guidelines for the development of a proposal for a method of price cap regulation; or
(b) setting out directions for the further development of a proposal that has been filed with the Regulator.
(4) The Regulator shall consult with the service provider the Regulator proposes to be required to propose a method of price cap regulation
before the Regulator makes an order under subsection (1).
PART IX
RELATIONS BETWEEN SERVICE PROVIDERS
AND CUSTOMERS
46. Repealed.
47. Fair dealing practices– (1) A service provider shall only charge a customer for the specific telecommunications service or equipment that the customer has ordered.
The customer shall have no liability to pay for any telecommunications service or equipment that the customer has not ordered.
(2) Service providers shall provide customers with invoices:
(a) in writing (although invoices may be provided electronically if the customer consents);
(b) on a regular basis;
(c) in a plain and simple format;
(d) that provide accurate information on the services provided and the amounts due for each service;
(e) that clearly indicate the method of calculation of tariffs for any service for which invoices are based on the length of calls or other measure of usage; and
(f) that comply with this Act and any regulations, rules and orders dealing with customer invoices.
(3) Service providers shall retain accurate records of all customer invoices for a period of at least 6 months from the billing date
and make such records available to the Regulator upon request.
(4)If the Regulator has a concern about billing systems or practices, the Regulator may require service providers to publish information
on billingsystemsor practices or to take such other steps relating to a service provider’s billing systems or practices as
the Regulator may consider appropriate.
(5) No service provider shall make, or cause to be made, any false or misleading claim or suggestion regarding:
(a) the availability, price or quality of the service provider’s telecommunications services or equipment; or
(b) the telecommunications services or equipment of another service provider.
(6) For the purposes of section 47(5), a claim or suggestion is misleading if, at the time the claim or suggestion was made, the service
provider knew or reasonably ought to have known that such claim or suggestion was false or misleading in any material respect or
that such claim or suggestion was reasonably likely to confuse or mislead the person to whom the claim or suggestion was made.
(7) The Regulator may issue an order to regulate or prohibit the use by any person, whether or not that person is a service provider,
of the telecommunications network of a service provider to provide unsolicited telecommunications, to the extent that the Regulator
considers such order necessary to reduce or eliminate the nuisance caused by such telecommunications.
48. Confidentiality of customer information– (1) Subject to this Act, a service provider shall not disclose information concerning a customer without the customer’s written
consent or unless disclosure is required or permitted by the Regulator or by law.
(2) Upon request, a customer is permitted to inspect any service provider’s records regarding the customer’s service. A
customer shall have the right to require that any customer informationaboutsuch customer contained in aservice provider’s records
that the customer can demonstrate is incorrect, be corrected or removed by the service provider.
(3) Subject to subsection (4), all customer-specific information, and in particular billing-related information, shall be retained by
a service provider only for billing purposes or other lawful purpose, and retained only for so long as is permitted by rule made
by the Regulator, or as otherwise permitted by law.
(4) A service provider may, with the written approval of the Regulator, use customer-specific information for purposes other than those
set out in subsection (3), including, but not limited to, marketing and sales of additional services.
49. Confidentiality of customer communications– (1) Service providers shall take all reasonable steps to ensure the confidentiality of customer communications.
(2)Service providers shall not intercept, monitor, alter or modify the content of a customer communication, except as provided for in
subsection (3) or sections 69 and 70 or otherwise in this Act.
(3) For the purposes of tracing and locating a source of harassing, offensive or illegal calls, or as otherwise provided under the laws
of Samoa:
(a) a customer may make a direct request to a service provider to monitor calls to the customer’s telephone; or
(b) if a customer is not satisfied that a service provider is monitoring calls to the customer’s telephone in response to a
request to do so by the customer, the customer may request that the Regulator issue an order that directs a service provider to monitor
calls to the customer’s telephone;
(4)If the regulator has issued a direction under paragraph (3)(b) to a service provider, the service provider shall provide the Regulator
with information obtained from the service provider’s monitoring of the customer’s telephone including the telephone
numbers that are the source of the harassing, offensive or illegal calls and the times and dates of such calls.
(5) The Regulator may refer any information obtained under subsection (4) to the police.
50. Protection of personal information– (1) A service provider shall be responsible for customer information and customer communications in the custody or control of the service
provider or the service provider’s agents.
(2) A service provider shall operate the service provider’s telecommunications network with due regard for the privacy of the service
provider’s customers. Except as permitted or required by law, or with the consent of the person to whom the personal information
relates, a service provider shall not collect, use, maintain or disclose customer information or customer communication for undisclosed
purposes.
(3) The purposes for which customer information is collected by a service provider shall be identified at or before collection, and a
service provider shall not, subject to this section, collect, use, maintain or disclose customer information for undisclosed purposes.
(4) Service providers shall ensure the customer’s information is accurate, complete and up to date for the purposes. Service providers
shall ensure that customer information and customer communications are protected by security safeguards that are appropriate to the
sensitivity of such information and communications.
51. Access by Government authorities–Nothing in this Act is to be interpreted to prohibit or infringe upon the rights of the Government, Government agencies and authorities to exercise their rights to access otherwise confidential information or communications relating to a customer. Such access shall be made under the laws of Samoa.
52. Customer complaints– (1) Service providers shall identify a specific person or group of persons to receive complaints from customers.
(2) Service providers shall establish procedures to deal with complaints of customers. The procedures and any amendments thereto, shall
be subject to approval by the Regulator. The procedures shall be published in a suitable manner that is approved by the Regulator.
(3) Disputes between a service provider and a customer, which the parties cannot resolve among themselves, shall be subject to sections
72, 72A, 72Band 73.
(4) Service providers shall not disconnect or otherwise change any of the telecommunications services then being provided to a customer
and which are the subject of a complaint or dispute, other than under the terms of service approved by Regulator pursuant to section
54 or as permitted by order made by the Regulator.
53. No unjustified discrimination– (1) Unless otherwise specifically permitted by the Regulator, dominant service providers shall offer all customers the same terms and
quality of service, including tariffs charged, unless different terms are objectively justified, based on differences in supply conditions,
including different costs or a shortage of available facilities or resources.
(2) A dominant service provider shall be obliged to justify any different terms and quality of service under subsection (1) to the satisfaction
of the Regulator, or to cease the practice upon receipt of an order from the Regulator requiring the dominant service provider to
do so.
54. Terms of service– (1) The Regulator may issue an order requiring a service provider to submit draft terms of service to the Regulator for approval. The
order shall specify the schedule for preparation, approval and implementation of the terms of service.
(2) Draft terms of service must be consistent with this Act, the rules, licence conditions and orders made by the Regulator, and shall
describe the basic terms of the business relationship between the service provider and the service provider’s customers in
the provision and use of telecommunications services
(3) The Regulator shall approve all draft terms of service, with or without changes made by the Regulator, after consultation with the
service provider and other interested parties, as determined by the Regulator. Once approved, theterms of service will replace the
customer terms of service then in use by a service provider and shall become binding on the service provider and the service provider’s
customers.
(4) The Regulator may issue an order discontinuing a requirement for service providers to submit draft terms of service to the Regulator
for approval where the Regulator determines that such approval is no longer required to protect the interests of customers.
55. Information on terms of service– (1)A dominant service provider shall at all times maintain on the service provider’s web-site, in both Samoan and English, the following information:
(a) the current version of the service provider’s terms of service;
(b) all of the service provider’s approved tariffs and proposed tariff changes which have been filed with the Regulator, under section 40;
(c) the official web site address and other contact information for the Regulator, together with a clear statement that the service provider is regulated by the Regulator under this Act and that customers and other service providers may contact the Regulator if they are unable to resolve disputes with the service provider; and
(d) an easy to follow navigation system that allows a customer to locate the above information.
(2) A service provider designated under section 46 shall maintain current paper copies of the service provider’s terms of service,
all of its approved and pending tariffs and the other information described in subsection (1)(c) at all of the service provider’s
business offices, and such document shall be made available for public inspection, without charge, during normal business hours.
(3) If required by an order of the Regulator, a service provider shall include in the introductory pages to every telephone directory
published by, or on behalf of, the service provider:
(a) the current version of the service provider’s terms of service; and
(b) a reference to copies of the service provider’s approved and pending tariffs being available for inspection at the service provider’s business offices; and
(c) the other information described in subsection(1)(c).
(4) A service provider designated pursuant to section 46 shall provide, upon request and at a reasonable charge, paper copies of the
service provider’s schedule of approved tariffs to any customer who requests them.
56. Telephone directories–If required by an order of the Regulator, a service provider shall provide customers with a telephone directory under the terms and conditions, as the Regulator may nominate in the order.
57. Quality of service– (1)A dominant service provider shall provide telecommunications services that meet specific quality of service standards. These standards
shall be developed by the Regulator in consultation with the service provider and may be included in the service provider’s
licence or established by order of the Regulator.
(2) The Regulator may amend, add or delete quality of service standards established pursuant to subsection (1), following consultation
with the affected service provider.
(3) When quality of service standards have been established pursuant to subsection (1), a service provider shall deliver written reports
to the Regulator each quarter, in accordance with the following:
(a) quality of service reports shall—
(i) be in a form determined by the Regulator; and
(ii) set out the service provider’s actual results for each quality of service standard; and
(b) if a quality of service report indicates that a standard has not been achieved, the service provider shall provide an explanation
to the Regulator as to why the standard was not achieved and what specific steps the service provider has taken or intends to take
to achieve the standard.
(4) The Regulator shall advise a service provider, within 30 days of receipt of any quality of service report, whether the Regulator accepts
the explanation provided for any standard that was not achieved. If the Regulator does not reply within in the 30 day period, the
explanation provided is deemed accepted.
(5) If the Regulator does not accept the explanation under subsection (4), the Regulator shall issue an order setting out the additional
steps that the service provider shall take and the time within which those steps shall be taken for the service provider to achieve
such standards, including but not limited to:
(a) any additional reporting requirements the service provider shall adhere to until the standard is achieved; and
(b) what, if any, specific refunds or other customer remedies are to be implemented by the service provider as a result of the service
provider’s failure to meet such standard.
(6) When a service provider provides the Regulator with a quality of service report under this section, the service provider shall also
publish the report on the service provider’s website.
(7)If the Regulator concludes that it is in the public interest, the regulator may require a service provider to publish in Samoan and
English in the Savali and one other newspaper circulating in Samoa all or parts of the service provider’s quality of service
reports and the Regulator’s reporting requirements.
58. Access to customer premises– (1)The service obligations of a dominant service provider extends to the installation, operation, maintenance and repair in good working
order of all telecommunications facilities that are owned or provided by the service provider and located on the customer’s
property.
(2) A service provider has the right to enter a customer’s premises or property if the service provider’s telecommunications
facilities are located within the customer’s premises on the following conditions:
(a) the service provider has given the customer notice that is reasonable in the circumstances;
(b) the service provider dispatches only properly identified and qualified personnel;
(c) the service provider has received the consent of the customer for such access;
(d) the service provider’s personnel interfere as little as possible with the customer’s activities, premises and property.
59. Liability, refunds and damages–The Regulator may issue an order or rule establishing provisions concerning the liability of, refunds by and damages to be paid by service providers to customers.
PART X
TELECOMMUNICATIONS EQUIPMENT
60. Telecommunications Equipment– (1) The Regulator may issue an order to do one or more of the following:
(a) decide that certain types of telecommunications equipment proposed to be attached to telecommunications network that are used to provide telecommunications service to the public require approval for such attachment;
(b) publish criteria for certification and establish standards for approval of telecommunications equipment for use in connection with telecommunications services or telecommunications networks;
(c) identify domestic or foreign organizations or testing facilities for approval of telecommunications equipment for use in connection with telecommunications service or telecommunications networks;
(d) maintain a register of certified or approved types of telecommunications equipment, criteria for certification and standards for
approval.
(2) The Regulator may enter into mutual recognition agreements with authorities in other countries to provide for mutual recognition
of, certification and approval of telecommunications equipment in other countries or Samoa.
PART XI
NUMBERS
61. National Numbering Plan– (1) By order the Regulator shall prepare, publish and manage a National Numbering Plan and shall assign numbers and number ranges to
service providers and customers in accordance with the National Numbering Plan.
(2) In preparing and managing the National Numbering Plan, the Regulator shall have due regard for the existing allocation and assignment
of numbers.
(3) The National Numbering Plan shall take into account any existing or proposed regulation for the establishment of fees for telecommunications
numbers under section 10.
(4) The Regulator may modify the National Numbering Plan by publishing a notice to customers and service providers at a reasonable time
prior to the date when the modification is to me into force.
(5) The National Numbering Plan shall be consistent with the requirements of international agreements, commitments, conventions, regulations
and recommendations to which Samoa has subscribed or is otherwise subject to.
(6) All service providers shall be required to use numbers assigned to them by the Regulator in accordance with the National Numbering
and shall ensure that these numbers are used efficiently and in accordance with the National Numbering Plan.
62. Use of numbers– (1) Service providers and customers shall not have any property rights in numbers.
(2) A service provider shall only change a customer’s number:
(a) on request of the customer; or
(b) if a fixed service customer’s location changes; or
(c) if the change is required by the National Numbering Plan; or
(d) if the service provider has reasonable grounds for doing so and if the service provider has given reasonable advance written notice to the customer in question, stating the reason for and anticipated date of the change. In cases of emergency, oral notice with subsequent written confirmation shall be sufficient.
63. Number portability– (1) The Regulator may, after consultation with affected service providers and other interested parties, issue an order directing one
or more service providers to develop or to assist in the development of a number portability implementation plan, for approval and
implementation by order of the Regulator.
(2) In considering whether to implement number portability, the Regulator shall have due regard to the costs of such portability and
the availability of technology that permits such portability in Samoa on a cost-effective basis.
(3)The Regulator can by order impose on a service provider a charge to meet the Regulator’s costs in developing and introducing
number portability and the ongoing costs of administering number portability.
64. Service provider selection– (1) The Regulator may, after consultation with the affected service providers and other interested parties, issue an order directing
one or more service providers to develop or to assist in the development of a service provider selection or service provider pre-selection
plan, for approval and implementation by order of the Regulator.
(2) In considering whether to implement service provider selection or service provider pre-selection, the Regulator shall have due regard
to the costs of such capabilities and the availability of technology that permits the intended capabilities on a cost-effective basis.
(3)The Regulator can by order impose on a service provider a charge to meet the Regulator’s costs in developing and introducing
service provider selection or service provider pre-selection.
PART XII
ACCESS TO PROPERTY
65. Access to Government land and facilities– (1)A service provider may apply to the Regulator for assistance if the service provider cannot, on commercially reasonable terms:
(a) obtain the consent of the Government or a Government agency or authority having jurisdiction over government land or a government facility to construct, maintain or operate telecommunication network facilities on such land or facility; or
(b) gain access to a pole, duct, tower or other supporting structure of a telecommunications, electrical power or other utility transmissionsystemconstructed
on Government land ora Government facility, orwhich is owned or controlled by the Government or a Government Agency or Authority.
(2) Upon receipt of an application for assistance under subsection (1), the Regulator shall consult with the Government, Government Agency
or Authority and attempt to find a solution acceptable to both,the service provider and the Government, Government Agency or Authority,
as the case may require.
(3) If the Regulator’s actions under subsection (2) fail to produce an agreement between the parties involved:
(a) the Regulator may exercise such other powers under this Act or other Acts, as the Regulator considers appropriate to resolve the matter; or
(b) the matter may be submitted by the Regulator or a party to the Ombudsman for an order by the Ombudsman to grant or refuse the required consent or access, as the case may be, on such terms and conditions as the Ombudsman may determine. In determining the matter the Ombudsman shall have regards to—
(i) the objectives of the Act set out in section 3;
(ii) any submission provided by the Regulator or the parties;
(iii) the likely effect and consequences of any decision to grant or refuse the required consent or access on the parties, the public and any customers of the service provider; and
(iv) any other relevant matter.
(4) The parties to any order made by the Ombudsman under subsection (3) shall comply with such order as if the order had been made by
the Regulator.
(5)If the Ombudsman issues an order granting the use of or access to Government land or facilities under subsection (3), the Ombudsman
shall include in the order the amount which theserviceprovider shallpay totheGovernmentas compensation for the service provider’s
use of or access to Government land or facilities
66. Access to private land and facilities– (1) Where a service provider:
(a) requires access to private land or private facilities (other than customary land or facilities located on customary land) to provide telecommunications services; and
(b) cannot, on commercially reasonable terms, reach an agreement for such access with the owner of the private land or private facility,
–
the service provider may apply to the Regulator for assistance either in reaching an agreement with the owner of the private land
or private facility or for the exercise of other powers to obtain the required access.
(2) Upon receipt of an application for assistance under subsection (1), the Regulator shall take the steps the Regulator deems necessary
to mediate between the concerned parties.
(3) If the Regulator’s mediation under subsection (2) fails to produce an agreement between the parties involved:
(a) the Regulator may exercise such other powers under this Act or other Acts, as the Regulator considers appropriate to resolve the matter; or
(b) the matter may be submitted by the Regulator or a party to the Supreme Court or District Court for such court to make an order granting or refusing the required access on such terms and conditions as the court may determine, having regard to—
(i) the nature of the private land or private facilities;
(ii) the nature of the access required;
(iii) the importance of such accessin maintaining or improving telecommunications services for Samoa;
(iv) whether any payment or other consideration can compensate the owner if access is ordered by the Court;
(v) the impact on the owner and other residents on the land or facilities if such access is ordered;
(vi) the objectives of this Act set out in section 3;
(vii) any submission provided by the Regulator or the parties; and
(viii) such other matters as the Court considers relevant.
(4) Subject to subsection (5), if the Supreme Court or District Court makes an order granting access under subsection (3), the Court
shall include in the order what compensation (if any) the service provider shall pay to the owner of the private land or private
facility.
67. Access to customary land and facilities– (1)If a service provider:
(a) requires access to customary land or facilities located on customary land to provide telecommunications services, and
(b) cannot, on commercially reasonable terms, reach an agreement with the person responsible for the customary land or facilities,
–
the service provider may apply to the Regulator for assistance either in reaching an agreement with the person responsible for the
customary land or facilities or for the exercise of other powers to obtain the desired access.
(2) Upon receipt of an application for assistance in accordance with subsection (1), the Regulator shall take the steps the Regulator
deems necessary to mediate between the concerned parties.
(3) If the Regulator’s mediation under subsection (2) fails to produce an agreement between the parties involved:
(a) the matter may be submitted by the Regulator or a party to the Ministry of Natural Resources and Environment or the Land and Titles Court for resolution under this Act or the Alienation of Customary Land Act 1965 or the Taking of Land Act 1964, or other Acts and procedures dealing with customary land;
(b) if the matter is dealt with under paragraph (a), the Regulator may provide such reasonable assistance the Regulator deems necessary as part of the process of dealing with the customary land, including the making of an order certifying whether the purpose for which the land or facilities is required is a public purpose under the Taking of Land Act 1964; and
(c) the Regulator may exercise such other powers under this Act or other Acts as the Regulator considers appropriate to resolve the
matter.
(4) Despite any other law, if the matter is before the Land and Titles Court, the Court shall have the jurisdiction to make an order
granting or refusing the required access on such terms and conditions as the Court may determine, having regard to:
(a) the nature of the customary land or facilities;
(b) the nature of the access required;
(c) the importance of such access in maintaining or improving telecommunications services for Samoa;
(d) whether any payment or other consideration can compensate the owner if access is ordered by the Court;
(e) the impact on the owner and other residents on the land or facilities if such access is ordered;
(f) the objectives of the Act set out in section 3;
(g) any submissions provide by the Regulator or the parties; and
(h) such other matters as the Court considers relevant.
(5) Subject to subsection (5), if the Land and Titles Court makes an order granting access under subsection (3), the Court shall include
in the order what compensation (if any) the service provider shall pay to the person responsible for the customary land or facilities.
(6) The Taking of Land Act 1964 applies to this section, with necessary adaptations and modifications.
68. Co-location– (1) Service providers with existing telecommunications network facilities shall allow other service providers to co-locate their telecommunications
network facilities on those existing facilities, including but not limited to exchange premises and other switching equipment locations,
land, roof tops, mast sites, towers, conduits and poles, where such co-location is economically feasible and no major additional
construction work is required.
(2) The party requesting co-location shall compensate the party required to provide co-location for such an amount as the parties may
agree or, where the parties are unable to agree, as may be determined by the Regulator.
(3)If the parties are unable to agree on the conditions of co-location, either or both parties may apply to the Regulator to mediate
and, if mediation fails, the Regulator may issue an order to resolve any outstanding issues between the parties.
(4)Before making an order under subsection (3), the Regulator shall take into account any comments submitted by the parties, including
any issues raised in those comments relating to safety or interference with the parties’ networks and personnel.
PART XIII
NATIONAL SECURITY AND PUBLIC EMERGENCIES
69. National security– (1) Despite any other law, a service provider shall comply with any written request, direction or other requirement of the Attorney General
regarding access to any part of the service provider’s telecommunications network or telecommunications services or related
information in connection with national security requirements or the prevention, detection or prosecution of any breach of the laws
of Samoa.
(2) A service provider shall provide any facilities or capabilities, required for compliance with subsection (1)at the service provider’s
expense, but may apply to the Regulator for an order dealing with the treatment of any substantial additional expense. The Regulator
may consider such application in connection with any tariff approval application or recovery of the costs of universal access obligations,
and make an order regarding the recovery of such additional expense.
(3) For the purposes of subsection (1), the Attorney General may determine that any event or matter concerns national security or the
prevention, detection or prosecution of any breach of the laws of Samoa.
70. Public disaster and state of emergency– (1) In case of a public disaster or state of emergency, service providers shall comply with any directions issued by the Commissioner
of Police or the Chief Executive Officer of the Ministry responsible for disaster co-ordination to respond to or alleviate problems
faced by the public or the Government related to such disaster or emergency.
(2) Service providers may apply to the Regulator for compensation or other assistance with the demonstrated costs of complying with subsection
(1), but not for loss of revenues during any period of service suspension. The Regulator shall consider any such application under
this Act and other applicable laws of Samoa, and may make an order regarding the recovery of such costs.
(3) For the purposes of subsection (1), the Commissioner of Police or the Chief Executive Officer of the Ministry responsible for disaster
co-ordination may determine that any event or matter is a public disaster.
PART XIV
DISPUTES, OFFENCES AND ENFORCEMENT
71. Service provider disputes–If service providers have been unable to agree on the resolution of a matter that is related to the Regulator’s powers under this Act or other laws of Samoa, then following reasonable efforts to reach an amicable settlement, one or more service providers may apply to the Regulator for assistance in resolving the dispute.
72. Customer disputes - Where a service provider and customer have been unable to resolve a matter among themselves, the customer may apply to the Regulator for assistance in resolving the dispute.
72A. Dispute resolution – (1) An application made under section 71 or 72 shall be made in such manner as the Regulator may require.
(2) After receipt of an application under section 71 or 72, the Regulator shall determine whether:
(a) to conduct or arrange mediation of the dispute pursuant to section 72B; or
(b) to deny the application for assistance in resolving the dispute.
(3) The Regulator may deny an application for assistance in resolving a dispute made under section 71 or 72 if it determines that:
(a) reasonable efforts have not been made to reach an amicable settlement;
(b) there are alternative means available for resolving the dispute consistent with this Act; or
(c) the dispute is frivolous or vexatious.
(4) The costs of dispute proceedings include the costs of the Regulator and the parties, including without limitation legal and expert
fees and expenses, including without limitation travel expenses.
(5) The Regulator may make orders for either party to pay advances on account at any time during the dispute proceeding.
(6) At the end of the dispute proceeding, or if an application made under section 71 or 72 is withdrawn, the Regulator may make such
order for costs as it sees fit under the circumstances.
72B. Mediation – (1) If the Regulator refers the dispute to mediation pursuant to section 72A(2), the Regulator may appoint any one (1) or more of its
officers or employees, expert consultants or professional mediators to conduct the mediation.
(2) The Office of the Regulator shall administer financial and organisational matters relating to the mediation.
(3) Subject to subsection (4), the Regulator shall offer the parties the opportunity, acting in agreement with one another and with the
facilitation of the Regulator, to:
(a) select the mediator or mediators;
(b) set the terms of engagement of the mediator or mediators;
(c) set the time and place of any mediation meetings; and
(d) determine any matters of process for the mediation.
(4) If the parties fail to agree on any matter under subsection (3), the Regulator shall determine the matter.
(5) The Regulator may for good reason consistent with this Act reject any mediator selected by the parties and the agreed terms of engagement.
(6) Mediation under this section may include:
(a) consulting with the parties together or separately to facilitate communication between them;
(b) assisting the parties to understand their respective perspectives, objectives and constraints;
(c) guiding the negotiation process and seeking a mutually acceptable resolution to the dispute; and
(d) if full resolution cannot be achieved, clarifying the remaining unresolved issues.
(7) Sections 8 to 11 only, other than section 8(3) and all other sections, of the Alternative Dispute Resolution Act 2007 apply, with the necessary modifications, to mediations conducted under this section.
73. Alternative dispute resolution– (1) Parties to a dispute may agree to refer that dispute to private mediation or arbitration or another dispute resolution procedure.
(2) Service providers submitting a dispute to arbitration shall notify the Regulator by delivering to it a copy of the submission to
arbitration at such time as it is entered into by the parties.
(3) The dispute resolution procedure agreed to by service providers shall not exclude the application of or otherwise be inconsistent
with the provisions of this Act or any relevant regulation, rule, order, licence or decision or other act of authority under this
Act.
(4) The Regulator shall endeavour to perform any reasonable role, if any, assigned to it in a dispute resolution procedure under subsection
(1) consistent with its functions, duties and powers under this Act and other laws of Samoa.
(5) The role of the Regulator under subsection (4) may include without limitation:
(a) mediating between the parties;
(b) approving a notice provided by one party to another;
(c) providing an opinion on a matter;
(d) appointing an expert to decide the matter;
(e) making an award of costs relating to the procedure; and
(f) proposing or appointing one (1) or more suitable persons to carry out the required role.
(6) The Regulator may decline to carry out a role provided for it in a dispute resolution procedure under subsection (1) if it considers
that the procedure or the role is not appropriate.
(7) A procedure or role is not appropriate for the purposes of subsection (6) if:
(a) it is inadequate for its purpose or cannot be effectively implemented;
(b) it places unsustainable demands on the Regulator’s resources, including the available time of the Regulator; or
(c) it is inconsistent with the provisions of this Act or any regulation, rule, order, licence, decision or other act of authority
under this Act, or is otherwise unlawful.
(8) The Regulator’s costs under this section, including but not limited to any travel or other expenses incurred by or on behalf
of the Regulator in connection with the Regulator’s assistance or intervention, shall be paid to the Regulator by the parties
to the dispute, and the Regulator may request an advance on account against such costs.
74. Telecommunications and computer offences– (1) No person shall:
(a) fraudulently, maliciously, or with dishonest or otherwise unlawful intent, use or attempt to obtain any telecommunications service without payment of the lawful charge therefore; or
(b) intentionally, without right and with dishonest or otherwise unlawful intent, access or attempt to access the whole or any part of a telecommunications network or computer system by infringing security measures, with the intent of obtaining telecommunications or computer data; or
(c) intentionally, without right and with dishonest or otherwise unlawful intent, intercept or attempt to intercept a transmission not intended for public reception of telecommunications or computer data to, from or within a computer system; or
(d) intentionally, without right and with dishonest or otherwise unlawful intent, damage, delete, deteriorate, alter or suppress or attempt to damage, delete, deteriorate, alter or suppress telecommunications or computer data;or
(e) intentionally, without right and with dishonest or otherwise unlawful intent, hinder or disrupt or attempt to hinder or disrupt the functioning of a telecommunications network or computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing telecommunications or computer data;or
(f) intentionally, without right and with dishonest or otherwise unlawful intent, use, possess, produce, sell, procure for use, import, distribute or otherwise make available or attempt to use, possess, produce, sell, procure for use, import, distribute otherwise make available a device, including but not limited to a computer program, for the purpose of committing any of the offences established in paragraph (a), (b), (c), (d) or (e);or
(f) intentionally, without right and with dishonest or otherwise unlawful intent, use, possess, produce, sell, procure for use, import, distribute or otherwise make available or attempt to use, possess, produce, sell, procure for use, import, distribute or otherwise make available a computer password, access code or similar data by which the whole or any part of a telecommunications network or computer system is capable of being accessed with intent that such network or system be used for the purpose of committing any of the offences established in paragraph (a), (b), (c), (d) or (e);or
(g) use, or cause or suffer to be used, or attempt to use or cause or suffer to be used, any telecommunications network for the purpose of disturbing, annoying, irritating, offending or harassing any person by any means, including but not limited to:
(i) a call or other contact, with or without speech or other sound; or
(ii) the transmission of data or images (video or otherwise); or
(h) wilfully damage or attempt to damage any telecommunications network or related telecommunications facility.
(2)A person who contravenes a provision of subsection (1) commits an offence and is liable to the penalties provided in section 75.
75. Other offences and penalties– (1)A person who contravenes or attempt to contravene a provision of this Act or a regulation or rule made under this Act or breaches a licence condition or fails to comply with an order made by the Regulator or the Ombudsman under this Act commits an offence and is liable:
(a) for a natural person, to a fine not exceeding 50 penalty units for a first offence and 100 penalty units for a subsequent offence; or
(b) for 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; or
(c) in addition to paragraph (a),for a natural person who is a director, manager, officer, employee or agent of a company or other
incorporated body and who is responsible for the contravention, breach or failure by the company or incorporated body, to imprisonment
for a term not exceeding 2 years.
(2)A person who:
(a) knowingly makes or attempts to make any false or misleading or incomplete declaration, application, information, return or statement for the purpose of obtaining or assisting another person to obtain a licence, consent, permission or other act of authority under this Act; or
(b) knowingly provides, supplies or otherwise gives, or attempts to provide, supply or otherwise give, to the Regulator or any person acting under or on behalf of the Regulator or any person acting under or on behalf of the Regulator any false, misleading or incomplete document, statement or information concerning this Act; or
(c) wilfully obstructs or hinders or attempts to obstruct or hinder the Regulator or any person acting under or on behalf of the Regulator
in the execution of any responsibility, duty or power of the Regulator under this Act, –
commits an offence and is liable to the penalties provided under subsection (1).
(3)If an offence under subsection (1) or (2) is committed or continued on more than one day, the person who committed the offence is
liable for a separate offence for each day on which the offence is committed or continued.
75A. Divulging information from telephone conversation– (1) Subject to subsection (2), an employee of a service provider who discloses without good and sufficient cause any information obtained
from a telephone conversation overheard in the course of that employee’s duties, commits an offence and is liable to a fine
not exceeding 50 penalty units or to imprisonment for a term not exceeding 6 months, or both.
(2) Subsection (1) does not apply where the disclosure is:
(a) reasonably necessary for the enforcement of the criminal law; or
(b) reasonably necessary for the protection of the public revenue; or
(c) otherwise required or authorised by or under law.
75B. Divulging personal information obtained in course of duties– (1) Subject to subsection (2), an employee of a service provider who without good and sufficient cause discloses or uses any information or document:
(a) that relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b) was obtained in the course of that employee’s duties, –
commits an offence and is liable to a fine not exceeding50 penalty unitsor to imprisonment for a term not exceeding 6 months, or both.
(2) Subsection (1) does not apply where the disclosure or use is:
(a) reasonably necessary for the enforcement of the criminal law; or
(b) reasonably necessary for the protection of the public revenue; or
(c) otherwise required or authorised by or under law.
76. Judicial enforcement– (1) An order of the Regulator may be made an order of the Supreme Court under subsection (2) and may be enforced in the same manner as
an order of the Court.
(2) An order of the Regulator may be made an order of the Supreme Court by filing with the Registrar of the Court a copy of the order
certified by the Regulator.
(3) For the sake of removing any doubt:
(a) the Regulator may enforce any order of the Regulator whether or not the order has been made an order of the Supreme Court; and
(b) an order of the Regulator made an order of the Supreme Court under this section shall be enforced from the date of the order of the Regulator and not from the date of filing such order with the Court under subsection (2).
77. Monitoring and enforcement– (1) Despite any other law, in addition to any other powers contained in this Act, the regulations, rules, licences or orders or under any other law, the Regulator shall, for the purposes of exercising the Regulator’s responsibilities, functions and powers under this Act, have the power to make orders to:
(a) require the production of documents and information by licensees and any other persons;
(b) search premises and seize documents, equipment and other items;
(c) require attendance and examination of witnesses under oath or affirmation or otherwise; and
(d) require persons to undertake specific actions or to cease specific actions in the event of a breach of this Act, the regulations,
rules or orders or under any other law.
(2) The Commissioner of Police and all police officers shall provide such reasonable assistance to the Regulator as the Regulator requires
in undertaking the Regulator’s responsibilities, functions and powers under this Act and any other law.
78. Civil liability– (1) Subject to any limitation of or exemption from liability imposed in accordance with this Act or any other Act, a person who has sustained
loss or damage as a result of any act or omission that is contrary to this Act, or a regulation, rule or order made under this Act
may, in the Supreme Court or the District Court sue for andrecover an amount equal to the loss or damage from any person who engaged
in, directed, authorised, consented to or participated in the act or omission.
(2) An action may not be brought in respect of any loss or damage referred to in subsection (1) more than 2 years after the day on which
the act or omission occurred.
(3) Nothing in subsection (1) or (2) apply to any action for beach of a contract to provide telecommunications services or any action
for damages in relation to a rate charged by a service provider.
(4) The Government and the Regulator are not 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 authorised by this Act.
79. Repealed.
PART XV
MISCELLANEOUS
80. Civil protection for the Regulator– (1) Claims made by or against the Regulator are to be made under the Government Proceedings Act 1974.
(2) Despite any other law, other than the Constitution, no action, suit or proceedings for any act or omission in connection with the
responsibilities, powers or duties imposed on the Regulator by this Act shall be brought or maintained against:
(a) any person who has been or is the Regulator where such person has been or is acting ingood faith; or
(b) any person who has been or is acting under the authority of the Regulator under the Act where such person has been or is acting in good faith.
81. Regulations– (1) The Head of State, acting on the advice of Cabinet, may make regulations for such matters as are contemplated by or necessary for
giving full effect to the provisions of this Act and for the due administration thereof.
(2) Without limiting subsection (1), regulations may be made for the creation of offences concerning this Act and to prescribe fines
for such offences not exceeding 100 penalty units.
82. Evidence by certificate – Despite any other law, in any proceedings under or concerning this Act, including but not limited to a prosecution for an offence, a certificate signed by or on behalf of the Regulator and stating:
(a) that on any date a person was or was not the holder of a licence issued pursuant to the Act;
(b) that on any date the Regulator had made or otherwise issued or amended or revoked or cancelled a rule, order, licence, direction, guideline or other act of authority under this Act;
(c) the content of a rule, order, licence, direction, guideline or other act of authority made or otherwise issued or amended or revoked
or cancelled by the Regulator under this Act, –
shall be sufficient evidence of the facts stated in the certificate and such certificate shall be presumed to be so signed unless
the contrary is proved.
83. Service of notices etc–(1)If, under this Act, a notice, order, letter, other document or act of authority is required or permitted to be served on any person, the notice, order, letter, other document or act of authority may be served:
(a) for service on the Regulator, by—
(i) delivering the notice, order, letter, other document or act of authority to the Office of the Regulator during normal business hours; or
(ii) sending the notice, order, letter, other document or act of authority by pre-paid post or facsimile transmission to the postal address or facsimile address, as the case may require, of the Office of the Regulator; and
(b) for service on any other person, by—
(i) delivering the notice, order, letter, other document or act of authority to the person at the nominated address in Samoa of the person in any application made by the person to the Regulator or to the nominated address in Samoa of the person in any licence or other act of authority affecting the person issued or signed by or on behalf of the Regulator;
(ii) delivering the notice, order, letter, other document or act of authority, during normal business hour, to the address in Samoa of any solicitor acting as legal representative for the person; or
(iii) sending the notice, order, letter, other document or act of authority by pre-paid post or facsimile transmission to the Samoan postal address or facsimile address, as the case may require, nominated by the person in any application made by the person to the Regulator or nominated in any licence or other act or authority affecting the person issued or signed by or on behalf of the Regulator; or
(iv) sending the notice, order, letter, other document or act of authority by pre-paid post or facsimile transmission to the Samoan
postal or facsimile address, as the case may require, of any solicitor acting as legal representative for the person.
(2) For all purposes in the case of service by pre-paid post, service is taken to have been effected 2 days after the date of postage.
(3) For all purposes in the case of service by facsimile transmission:
(a) service is deemed to have been effected upon completion of transmission without evidence of garbling or incomplete transmission;
(b) a printed or copied signature is sufficient for any notice, order, letter, other document or act of authority served by facsimile transmission.
84. Amendments to Schedule – The Schedule may be amended by the Minister, acting on the advice of Cabinet, by notice published in Samoan and English in the Savali and one other newspaper circulating in Samoa.
85. Savings and transitional provisions– (1) All references in law or any document or act of authority to the Department of Post Office or Ministry of Posts and Telecommunications
or successors shall be read as referring to the Ministry unless the context otherwise requires.
(2) Insofar as they are not inconsistent with the provisions of this Act, every regulation, order, document and act of authority under
or concerning the legislation set out in the Schedule to this Act, so far as they are subsisting or in force at the time of the repeal
of such legislation, shall continue and have effect under the corresponding provisions of this Act until such time as they are altered,
amended or cancelled, as the case may require, under the provisions of this Act and, where there is any question or concern as to
what is a corresponding provisions of this Act, the Minister by notice in writing may for all purposes declare a provision of this
Act to be a corresponding provision.
(3) Despite the provisions of this Act, all applications and other matters arising out of or under the provisions of the legislative
set out in the Schedule to this Act which are not determined or otherwise dealt with under such provisions at the date of the commencement
of this Act shall be determined or otherwise dealt with under the corresponding provisions of this Act with such modifications, adaptations
and alterations as the Minister may determine in writing from time to time.
(4) Despite the provisions of this Act, if this Act does not provide or provides insufficient or inadequate provision for the transition
from the legislation set out in the Schedule to this Act, the Minister, by notice published in Samoan and English in the Savali and
one other newspaper circulating in Samoa, may make such provisions as the Minister deems necessary in order for all matters under
or concerning the legislation set out in the Schedule and this Act to be properly and effectively determined or otherwise dealt with
under the provisions of this Act.
86. Transitional provisions for prior licences–Despite the provisions of this Act:
(1) At any time after the commencement of this Act, the holder of an existing licence (a “prior licence”) issued prior to
the coming into force of this Act may apply to the Regulator to revoke the holder’s prior licence and apply to operate under
a new licence issued in accordance with this Act.
(2) If the holder or a prior licence does not apply for conversion of a prior licence in circumstances where the holder is permitted
to do so under this section within 6 months after the commencement of this Act, the Regulator may issue an order revoking the prior
licence and issue a new licence in accordance with this Act.
(3) In all other respects, the operation of telecommunications networks and the supply of telecommunications services under prior licences
shall be subject to the licensing and other requirements of this Act, and all applicable regulations, rules, orders and licensing
procedures.
(4) The Regulator’s powers to grant a licence under this Act shall apply notwithstanding any law, agreement, contract, arrangement
or prior licence (howsoever called) issued to a person and in existence at the time of the commencement of the Post Office Amendment Act 2004.
(5) If:
(a) the Minister has granted a licence under the Post Office Act 1972 or the Post Office Amendment Act 2004; or
(b) the Regulator has granted a licence under this Act; and
(c) the Attorney General and the Chief Executive Officer of the Ministry of Finance have advised Cabinet in writing that the grant
of such licencehas adversely affected the rights of a person under an existing agreement, contract, arrangement, licence or other
provision (howsoever called), –
Cabinet, in its absolute discretion, may authorise the provision of compensation to such person in the form of money, concessions,
benefits or otherwise in such amount and/or form as the Attorney General and the Chief Executive Officer of the Ministry of Finance
in writing may recommend.
(6) In the event of any inconsistency between the provisions of this section and the provisions of section 85, the provisions of this
section prevail.
SCHEDULE
(Sections 5, 84 and 85)
REPEALED ACTS
1. Post and Telecommunications Internet Act 1997.
2. Post Office Act 1972 – Parts II, V, VI, IX, and X.
REVISION NOTES 2008–2014
This is the official version of this Act as at 31 December 2014.
This Act has been revised by the Legislative Drafting Division from 2008 to 2014respectively under the authority of the Attorney General given under the Revision and Publication of Laws Act 2008.
The following general revisions have been made:
(a) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.
(b) Insertion of the commencement date
(d) Other minor editing has been done in accordance with the lawful powers of the Attorney General, where appropriate:
(i) “Every” and “any” changed to “a/an”
(ii) Present tense drafting style:
- “shall be” changed to “is/are”
- “shall have” changed to “has”
- “hereby” and “from time to time” removed
(iii) Offence provisions
- “shall be guilty” changed to “commits”
(iv) Use of plain language
- “notwithstanding” changed to “despite”
- “pursuant to” or “in accordance with the provisions of” changed to “under”
- “in the case of” changed to “for”
- “where” changed to “if”
- “deemed” changed to “taken”
(v) Numbers in words changed to figures
(vi) Removal of superfluous terms such as “the provisions of”
(vii) Removal of “and” from “and/or”
(viii) Adopting practice of placing “and” or “or” at the end of each paragraph where appropriate.
(ix) “the foregoing provisions of this section”, “the preceding subsection” and similar wording changed to the actual section/subsections
(x) “the provisions of” deleted where appropriate
(xi) Empowering provisions for the Schedule inserted.
Since the publication of the Consolidated and Revised Statutes of Samoa 2007the Act has been amended–
By the Telecommunications Amendment Act 2007, No. 23
Section 2 - Insertion of new definitions and amendments to existing definitions by section 3.
Section 10, 12(1) - omittedand substituted by its current form
14(1), 16(1) 21(4)
34(2)(a), 38(4), 63(3)
64(3), 71(2)(b) and
72(2)(b)
Section 13(8), - omitted
47(8), 60(2), 66(5),
85(4), and 86(7)
Section 20 - subsection (2) omitted and subsection (4)(b) substituted with its current form by section 9.
Section 26(1) - amended by substituting the words “shall be designated” to “is deemed to be designated”
Section 32(e) - omitted the words “for inter-connection
Section 40 - subsection (2)(c) was omitted and subsection (7) substituted with its current form.
Section 46 - repealed
Section 49 - subsection (3)(c)(d) and (e) are omitted and new subsections (4) and (5) inserted after subsection (3)
Section 52 - subsection (1) and (2) amended by omitting the words “other than service providers”
Section 55 - subsection (1) partly amended and subsection (3) substituted with its current form.
Section 57 - partly amended and subsection (6) substituted with its current form.
Section 58 and 73 - partly amended
Section 75A - inserted after section 75
and 75B
By the Telecommunications Amendment Act 2008, No.18
Section 7A - inserted after section 7
Section 11 - deleted and replaced by current form
Part IIA - inserted after Part II section 11, containing sections 11A, 11B, 11C, 11D, 11E, 11F, 11G, 11H, 11I and 11J
Section 18A - inserted after section 18
Section 39A - inserted after section 39
and 39B
Section 71(2)(b) - deleted
and 72(2)(b)
Section 78 - new subsection (4)
Section 79 - repealed
By the Audit Act 2013, No.22
Section 9(12)(b) reference to “Chief Auditor” changed to “Auditor General”
By the Telecommunications Amendment Act 214, No 13
Section 2 definition of “telecommunications service” substituted
Section 3(l) words substituted
Section 8(1)(u) words inserted
Section 9(4)(a)&(b) substituted
Section 11(1), (4) & (2)(a) words substituted
Section 11 new subsections (6) to (9) inserted
Section 11C(2)(c) words substituted
Section 11E(5) substituted and new subsections (6) to (8) inserted
Section 11(G)(1), (2)(a)(b)&(c) words substituted
Section 11(G)(4) new subsection inserted
Section 11I section heading substituted and new subsection (3) inserted
Section 52(3) words and numbers omitted and substituted
Section 71 ‘(1)’and subsection (2) omitted
Section 72 substituted
Sections 72A & 72B news sections inserted after section 72
Section 73(1) words substituted
Section 73(2) substituted
Section 73(3) to (8) new subsections inserted after subsection (2)
This Act is administered by
the Ministry of Communication and Information Technology.
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