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Communications and Broadcasting Act 2018


REPUBLIC OF NAURU

COMMUNICATIONS AND BROADCASTING ACT 2018

______________________________

No. 21 of 2018
______________________________

An Act to repeal the Telecommunications and Regulatory Affairs Act 2017, to establish the Nauru Communications Authority and to provide for its powers and functions and for related purposes

Certified: 10th May 2018

Table of Contents


PART 1 - PRELIMINARY
1 Short title
2 Commencement
3 General objectives of the Act
4 Definitions


PART 2 –COMMUNICATIONS AUTHORITY OF NAURU
5 Establishment of the Nauru Communications Authority
6 Members of the Authority
7 Registrar of the Courts to recommend member for service providers
8 Criteria for appointment of members of the Authority
9 Removal of a member
10 Remuneration of the members
11 Functions of the Nauru Communications Authority
12 Powers of the Authority
13 Delegation of the powers and functions of the Authority
14 The Head of the Authority
15 Staff of the Authority
16 Code of conduct of the Authority
17 Finance of the Authority
18 Charges and fees
19 Meetings of the Authority
20 Annual report and accounts


PART 3 – DECISION MAKING PROCESS OF THE AUTHORITY
21 Consultation
22 Decisions
23 Restrictions on draft proposed decisions
24 Enforcement of the decision of the Authority


PART 4 – TARIFFS
25 Tariffs
26 Compulsory notification of tariffs by service providers to the Authority
27 Tariffs to be provided every 6 months
28 Change of tariffs within 6 months
29 Chief Regulator may issue notice to provide tariffs
30 Publication of tariffs
31 Complaints in relation to tariffs
32 Authority may fix tariffs
33 Service providers to comply with tariffs


PART 5 – COMMUNICATIONS LICENCE
34 Licensed systems
35 Application for individual or class licences
36 Licence conditions
37 Special licence conditions for network providers
38 Criteria for issuing licences
39 Variation, suspension and revocation of licences
40 Period of licence
41 Renewal of an existing licence


PART 6 – SPECTRUM MANAGEMENT
42 Spectrum management functions
43 Interference by service providers
44 Spectrum coordination
45 Interfering equipment and apparatus of an unlicensed person


PART 7 – INTERCONNECTION
46 Interconnection by all service providers
47 Interconnection disputes


PART 8 – RELATIONS BETWEEN SERVICE PROVIDERS AND SUBSCRIBERS
48 Confidentiality of subscribers’ information
49 Confidentiality of subscriber communications


PART 9 – STANDARDS FOR EQUIPMENT AND APPARATUS
50 Equipment
51 Mutual recognition agreements
52 Approval of equipment
53 Declaration of infringing equipment
54 Equipment causing interference
55 Determination of technical standards
56 Non-application of standards for radio and television
57 Licensing of apparatuses
58 Register of approved types of equipment


PART 10 – NUMBERS
59 National numbering plan


PART 11 – ACCESS TO PROPERTY
60 Rights of entry in respect of existing works and lines
61 Removal or trimming of trees
62 Offence for failure to comply with this part
63 Compensation
64 Protection of equipment and apparatus
65 Allocation of frequencies to the Republic


PART 12 – ENFORCEMENT
66 Authorised officers
67 Powers of authorised officers
68 Obstruction of authorised officers
69 Offences
70 Protection of communications and other information
71 Prohibition on interfering or modification of communication
72 Unlicensed transmissions
73 Protection of facilities
74 Prosecution under other laws
75 Remedies
76 Presumptions as to equipment


PART 13 – APPEALS AGAINST DECISION OR ORDER OF THE AUTHORITY
77 Appeals
78 Respondent’s notice
79 Powers of the Supreme Court
80 Appeals to be heard by single judge or Full Court


PART 14 – FAIR COMPETITION IN COMMUNICATIONS INDUSTRY
81 Application of this Part
82 Communication services markets
83 Substantial market power
84 Competition guidelines
85 General prohibition on anti-competitive conduct
86 Anti-competitive agreements
87 Prohibition on anti-competitive practices
88 Prohibition on misuse of substantial market power
89 prohibition on discrimination
90 Merger or acquisition of interest
91 Authorisation
92 Offence and penalty under this part


PART 15 – SOCIAL CONTENT REGULATION
93 Broadcasting and content standards
94 Matters for broadcasting and content standards
95 Cabinet directions to be complied with
96 Enforcement
97 Censorship
98 Religion
99 National interest
100 Education
101 Offence


PART 16 – INTERNET SERVICE PROVIDERS AND HOST SERVICE PROVIDERS
102 Take-down notices
103 Oopt-out filtering
104 Mandatory filtering
105 Internet service providers shall report child pornography material


PART 17 – NATIONAL SECURITY AND PUBLIC EMERGENCIES
106 National security
107 National emergency and state of disaster
108 National emergency numbers


PART 18 – MISCELLANEOUS
109 Duties and liabilities of staff
110 Liability of the authority
111 Offence by corporation
112 Liability for acts of employees and agents
113 Damage to communication facilities
114 Regulations


PART 19 – REPEAL, SAVINGS AND TRANSITIONAL
115 Repeal of Act
116 Saving of Wireless Telegraphy Regulations 1976 and existing licences
117 Savings and transitional provisions

Enacted by the Parliament of Nauru as follows:

PART 1 - PRELIMINARY

  1. Short title

This Act may be cited as the Communications and Broadcasting Act 2018.

  1. Commencement

This Act commences upon certification by the Speaker.

  1. General objectives of the Act

The general objectives of the Act are to:

(a) separate the role, functions and powers of the Department of Information, Communication, Technology and Media and the Nauru Communications Authority;

(b) establish the Nauru Communications Authority;

(c) establish the powers and functions of the Authority;

(d) facilitate and promote the development of the Telecommunications sector in order to promote social and economic development;

(e) promote accessibility of quality telecommunication services to all Nauruans regardless of location;

(f) promote efficient, competitive and reliable communications services;

(g) promote fair and sustainable competitive environment for all service providers;

(h) provide a mechanism for consideration of complaints for the provision of telecommunication services;

(i) encourage sustainable foreign and domestic investments in the Telecommunications sector;

(j) establish a licensing regime which is fair and sustainable for all service providers; and

(k) monitor retail rates and charges for the provision of telecommunication services.
  1. Definitions

In this Act, unless the context requires otherwise:

‘apparatus’ means any object integral for the purpose of effecting radio communications but does not include a satellite;

‘Authority’ means the Nauru Communications Authority established under section 5;

‘broadcasting’ means a transmission service in which transmissions (whether sound transmission, television transmission or other transmission) are intended for direct reception by the public;

‘cable’ – means: optic fibre, copper, or other conducting cables;

‘carry’ includes transmit, emit, switch and receive;

‘communications’ means the carriage of communications by means of guided or unguided electromagnetic energy or both:

(a) whether between persons and persons, things and things or persons and things;

(b) whether in the form of sounds, signs, signals, data, text, visual images (animated or otherwise) or any other form, or any combination of them; and

(c) whether or not the communication has been subjected to rearrangement, computation or other process by any means in the course of its transmission, emission or reception;

‘communications network’ means any equipment used to provide telecommunications services;

‘communication services’ means the provision of communications;

‘connection’ includes a link, and connection otherwise than by means of physical contact;


‘content’ means text, sound, still picture, moving picture or other audiovisual representation, tactile representation or any combination of the preceding which is capable of being created, manipulated, stored, retrieved or communicated electronically, however, organised, formatted or programmed for delivery to end users;


‘content applications service’ means:


(a) a broadcasting service (including a service that delivers content that enhances or provides information about content delivered by a broadcasting service);

(b) a service for delivering subscription content;

(c) an on-line information service (for example, a dial-up information service or audio-text service);

(d) an on-line entertainment service (for example, a video-on-demand service or an interactive computer game service);

(e) any other on-line service (for example, an education service provided by the government); or

(f) a service or a class of service of a kind specified in a declaration made by the Cabinet as falling within this definition, but which shall not include an internet service.

‘content standards’ mean content standards made by the Minister in accordance with section 93;

‘court’ means the District or Supreme Court as the circumstances may deem fit;

‘Department’ means the Department of Information, Communications, Technology and Media;

‘document’ includes information which is wholly or partially electronically stored, transmitted and reproduced;

‘equipment’ includes any equipment capable of effecting telecommunications, whether by transmission or reception or both and, also includes lines, guide wires, stays, towers, poles, cables, switches, and any other thing used for the provision of a telecommunications service, but does not include any apparatus;

‘facility’ means any line, equipment, tower, mast, dish, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or intended for use, in connection with a telecommunications system, or any part of the infrastructure of a telecommunications system;

‘foreign aircraft’ means an aircraft other than an aircraft which is registered in Nauru in accordance with the Civil Aviation Act 2011;

‘foreign vessel’ means a vessel other than a vessel which is registered in Nauru in accordance with the Shipping Registration Act 1968;

‘Government’ means the Government of the Republic of Nauru;

‘intercept’ in relation to a communication passing over a system, means listening to or recording the communication, by any means, in its passage over the system without the knowledge of the person making the communication, but does not include the reception of a broadcasting transmission;

‘interconnection’ means the linking of telecommunications networks in order to allow the subscribers of one of those network providers to communicate with subscribers of the other network provider;

‘interference’ in relation to telecommunications, means interference to, or with, telecommunications that is attributable, whether wholly or partly and whether directly or indirectly, to an emission of electromagnetic energy by any equipment;

‘licence’ means a licence issued under this Act;

‘service providers’ means a person who holds a licence under this Act;

‘licenced system’ means a system licenced under section 34;

‘line’ means:

(a) a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy;

(b) includes any pole, insulator, casing, fixing, tunnel or other material used or intended to be used for supporting, enclosing, surrounding, or protecting any such wire or conductor;

(c) also includes any part of any line; and

(d) does not include apparatus;

‘Minister’ means the Minister for Telecommunications;

‘premises’ includes residential premises;

‘network’ means any wire, radio, optical or other electromagnetic system for routing, switching or transmitting communication services;

‘network provider’ means the holder of network licence;

‘numbers’ means any identifying numbers that need to be allocated to enable telecommunications intended for a person to be received by that person, and includes, but is not limited to, telephone numbers and IP addresses;

‘officer’ in relation to the Department, includes the Chief Regulator;

‘order’ means a written order by the Chief Regulator under this Act;

‘provide’ in relation to a system or service, includes construct, operate and maintain;

‘provider’ means any network provider, service provider or holder of a spectrum licence;

‘radio broadcasting’ means the transmission of sound intended for direct reception by the general public;

‘radio communications’ means any transmission, emission, or reception of signs, signals, wiring, images, sounds, or intelligence of any nature by electromagnetic waves of frequencies between 9 kilohertz and 300 gigahertz, propagated in space without artificial guide;

‘regulations’ means regulations made under section 114;

‘rule’ means a rule made by the Chief Regulator under this Act;

‘satellite’ means any object placed in geostationary orbit relative to the Earth for the reception and re-transmission of electro-magnetic energy, either with or without artificial guide, consisting of sounds and visual images;

‘Secretary’ means the Head of Department responsible for Communication services;

‘service’ means a communications service provided or to be provided, for use by the public;

‘service provider’ means a provider of a communications service to the public and holds a service provider licence;

‘service provider licence’ means a right to provide a communication service which does not require a spectrum licence;

‘spectrum licence’ means a right to use radiotelecommunications frequencies and includes a deemed spectrum licence;

‘state of disaster’ means a state of disaster declared under section 26 of the National Disaster Risk Management Act 2016;

‘subscriber’ means an end-user who is for the time being connected to a communications service provided by a service provider;

‘subscriber equipment’ means equipment or a system of equipment which is used or intended for private use in telecommunications;

‘system’ means all or any part of the infrastructure or facilities of a service;

‘telephone’ includes landline, mobile, voice over internet protocol;

‘television broadcasting’ means the transmission of sound and visual images intended for direct reception by the general public;

‘the public’ means the people, or a part of the people of Nauru;

‘use’ in relation to equipment and systems, includes provide or connect;

(2) A reference to a system or service includes a reference to a part of that system or service.

(3) A reference to use of equipment includes a reference to the connection of the equipment to the system.

(4) Equipment may be connected to a system whether or not the equipment is comprised in or is in physical contact with any part of the system.

(5) Except where the context otherwise requires, references in this Act to the Republic, a foreign country, a place or any waters include references to the space including the atmosphere and outer space.

(6) Any determination as to the nature or classification, for the purposes of this Act, of any service, system, equipment or other thing connected with telecommunications shall be made by the Regulator.

PART 2 –COMMUNICATIONS AUTHORITY OF NAURU

  1. Establishment of the Nauru Communications Authority
(5) The Authority shall be independent and impartial in the exercise of its powers and functions.
(6) The Authority shall perform its functions and exercise its powers under this Act in a manner that does not discriminate amongst service providers and, between subscribers and service providers.
  1. Members of the Authority
  2. Registrar of the Courts to recommend member for service providers
  3. Criteria for appointment of members of the Authority
  4. Removal of a member

A member appointed under section 6 shall be removed as a member of the Authority where he or she:


(a) becomes disqualified under section 8(3);

(b) contracts any services for personal gain at a special or discounted cost from service providers;

(c) commits a serious breach of the terms and conditions of appointment;

(d) fails to perform or discharge the functions, powers or duties under this Act; or

(e) takes direct or indirect interest or receives any form of remuneration from a service provider.
  1. Remuneration of the members

The Minister in consultation with the Cabinet shall:

(a) fix the remuneration of the Chief Regulator; and

(b) fix the sitting allowance and other benefits for the other members of the Authority.
  1. Functions of the Nauru Communications Authority

The functions of the Authority shall be to:

(a) implement and enforce the provisions of this Act and any other regulatory framework for the communications sector;

(b) grant, renew, suspend and revoke licences;

(c) monitor the use of communication services on any ship or aircraft within the exclusive economic zone;

(d) act as the duly appointed representative of the Republic at the meetings of international bodies or authorities which have the purpose of designating international standards in the communications industry;

(e) in consultation with service providers, subscribers, members of the public and other stakeholders to monitor retail rates and charges for the provision of communication services;

(f) regulate interconnection between communications networks of different service providers;

(g) establish and manage a numbering plan and assign numbers to service providers;

(h) assist in the timely resolution of disputes between service providers;

(i) ensure the timely resolution of disputes between service providers and subscribers;

(j) determine competition matters in the communication industry in accordance with this Act;

(k) consult with relevant service providers, subscribers or stakeholders on any matters in which they have a legitimate interest or whose rights are affected;

(l) maintain all records of the Authority including the licences;

(m) recommend to the Minister to make such regulations or orders for the due administration of the work of the Authority;

(n) publish procedures and guidelines to assist in the implementation of this Act;

(o) implement any policy directions which are consistent with the intent and purpose of this Act and any other relevant laws; and

(p) advise the Secretary or Minister on matters connected with its functions, including the operation of this Act and of any other law relating to its functions.

  1. Powers of the Authority

The Authority shall have the power to do all things that are necessary or convenient to be done, for or in connection with the performance of its functions, which shall include the power to:

(a) enforce this Act, regulations and policies for the communications sector;

(b) grant licences in accordance with this Act and the regulations;

(c) monitor and enforce compliance by service providers with the terms and conditions of their licences;

(d) vary, suspend or revoke licences in accordance with this Act and the regulations;

(e) prescribe procedures for the approval of any communications apparatus or equipment for attachment to communications networks;

(f) determine interconnection disputes between communications networks of different service providers in a fair and just manner;

(g) monitor and enforce a numbering plan and assign numbers;

(h) make orders for any matters that are contemplated by or necessary for giving full effect to the provisions of this Act and the regulations;

(i) institute proceedings in the District or Supreme Court to compel a person to comply with any Order or decision of the Authority;

(j) on its own initiative or upon receipt of a complaint by a person, investigate complaints against service providers and conduct any other investigations that it deems necessary to ensure compliance with this Act, regulations or an Order or decision of the Authority;

(k) investigate and where necessary, recommend prosecution by the Director of Public Prosecutions against any person operating communication services or otherwise acting in contravention of this Act; and

(l) take any other actions that are reasonably required to implement this Act, the regulations and performing or exercising any other functions, responsibilities, duties and powers that may be conferred on the Authority under any other law.
  1. Delegation of the powers and functions of the Authority
  2. The Head of the Authority

The Chief Regulator shall be:

(a) the head of the Authority; and

(b) responsible for the administration and management of the Authority.
  1. Staff of the Authority
  2. Code of conduct of the Authority

The members and the staff of the Authority shall be bound by the prescribed Code of Conduct of the Authority.

  1. Finance of the Authority

The funds of the Authority shall consist of monies appropriated by the Parliament and such funds shall be expended for the purposes of the performance of the functions and the exercise of powers under this Act.

  1. Charges and fees
  2. Meetings of the Authority
(6) For the purposes of a hearing and determination of a dispute, the Authority is not bound by the rules of evidence ordinarily applied by the courts.
  1. Annual report and accounts

PART 3 – DECISION MAKING PROCESS OF THE AUTHORITY

  1. Consultation
  2. Decisions
  3. Restrictions on draft proposed decisions
  4. Enforcement of the decision of the Authority

An Order or decision made by the Authority shall be enforced by the District Court upon an application by the Authority or any other party.

PART 4 – TARIFFS

  1. Tariffs

For the purposes of this Part:


(a) ‘retail communication services’ means communication services provided to retail subscribers but does not include wholesale access service or interconnection services provided to other service providers;

(b) ‘tariff’ means in relation to any retail communication services, the amount payable by a subscriber for that service including any discounts, promotions, rights, privileges or other benefits conferred on or made available to the subscribers as part of the subscription.
  1. Compulsory notification of tariffs by service providers to the Authority

A service provider shall within 30 days of the coming into effect of this Act provide to the Authority in writing its current tariffs in respect of any matters prescribed by the regulations.

  1. Tariffs to be provided every 6 months

A service provider shall notify the Authority in writing of its current tariffs at an interval of every 6 months.

  1. Change of tariffs within 6 months

A service provider shall notify the Authority of any change of tariffs implemented or imposed within less than the 6 months of the preceding reporting period.

  1. Chief Regulator may issue notice to provide tariffs
  2. Publication of tariffs
  3. Complaints in relation to tariffs
  4. Authority may fix tariffs
  5. Service providers to comply with tariffs

PART 5 – COMMUNICATIONS LICENCE

  1. Licensed systems
  2. Application for individual or class licences
  3. Licence conditions
  4. Special licence conditions for network providers
  5. Criteria for issuing licences

In considering whether to grant an application for a licence, the Authority shall take into account the following:


(a) the experience of the applicant in the provision of the communication services and the nature of the licence applied for;

(b) the financial viability and technical abilities of the applicant;

(c) the extent to which granting the licence will impact upon existing infrastructure investment and incentives for future investments;

(d) the extent to which the applicant will further the objectives and policies for communication services;

(e) existing demand on any equipment or spectrum the applicant wishes to use;

(f) the public interest in achieving maximum benefit from the spectrum; and

(g) any agreement between the Republic and any other country or countries that makes provision for or in relation to communication services.
  1. Variation, suspension and revocation of licences
  2. Period of licence
  3. Renewal of an existing licence

PART 6 – SPECTRUM MANAGEMENT

  1. Spectrum management functions
  2. Interference by service providers
  3. Spectrum coordination

The Chief Regulator shall consult and coordinate the use of the spectrum with other countries, international users and international organisations as required by any law or treaty in force or as otherwise determined by the Authority.

  1. Interfering equipment and apparatus of an unlicensed person

PART 7 – INTERCONNECTION

  1. Interconnection by all service providers
  2. Interconnection disputes

before determining the terms and conditions of the interconnection agreement or making a decision.

PART 8 – RELATIONS BETWEEN SERVICE PROVIDERS AND SUBSCRIBERS

  1. Confidentiality of subscribers’ information
  2. Confidentiality of subscriber communications

PART 9 – STANDARDS FOR EQUIPMENT AND APPARATUS

  1. Equipment

The Authority may:


(a) publish the criteria for certification and establish standards for approval of equipment and apparatuses;

(b) require that any specified types of equipment proposed to be attached to a communications network be approved;

(c) identify and publish domestic or foreign organisations or testing facilities for approval of equipment and apparatuses for use in connection with communication services or networks;

(d) maintain a list of certified or approved types of equipment and apparatuses; or

(e) publish a list of equipment which are deemed to be approved on the basis of:
  1. Mutual recognition agreements

The Authority may enter into recognition agreements with authorities in other countries to provide for the recognition, certification and approval of equipment and apparatuses.

  1. Approval of equipment

the Authority may seize and destroy the equipment.

  1. Declaration of infringing equipment

Where the Authority determines that a type, class or brand of equipment fails to meet the requirements of the Act or is likely to cause a threat or a danger to a person or any property or otherwise interferes with the lawful operation of any communication services, the Authority may by notice in the Gazette declare that type, class or brand of equipment to be infringing equipment.

  1. Equipment causing interference

Any equipment which persistently causes interference to service providers and which is not capable of being modified so as to prevent the interference is an infringing equipment.

  1. Determination of technical standards
  2. Non-application of standards for radio and television

This Part does not apply to radio or television receivers used by a residual user to receive a broadcasting service.


  1. Licensing of apparatuses

The Authority may grant licences for the installation, operation or use of any apparatus by the Ports Authority, Civil Aviation Authority or meteorological service and on any ship or on any aircraft that operates predominantly within the exclusive economic zone of the Republic.

  1. Register of approved types of equipment

The Authority shall establish and maintain a register of all approved types of apparatus and equipment which shall be accessible to the service providers or members of the public on the payment of prescribed fees.

PART 10 – NUMBERS


  1. National numbering plan

PART 11 – ACCESS TO PROPERTY

  1. Rights of entry in respect of existing works and lines
  2. Removal or trimming of trees
  3. Offence for failure to comply with this Part
  4. Compensation
  5. Protection of equipment and apparatus

Any existing equipment or apparatus fixed to or installed over or under any land that a network provider owns, has possession of or controls at the commencement of the Act, is deemed to be lawfully fixed or installed and continued to be fixed or installed.

  1. Allocation of frequencies to the Republic

PART 12 – ENFORCEMENT

  1. Authorised officers
  2. Powers of authorised officers
  3. Obstruction of authorised officers
(2) A person who commits an offence under this section is liable upon conviction to a fine not exceeding $10,000 or to a term of imprisonment not exceeding 2 years or to both.
  1. Offences
  2. Protection of communications and other information

a communication or the contents or substance of a communication or any information or the contents of any document that comes to his or her knowledge or to which he or she has access to in the course of his or her duties or his or her connection with the Authority, commits an offence and upon conviction is liable to a fine not exceeding $10,000 or to a term of imprisonment not exceeding 2 years or to both.

(3) Nothing in this section applies to anything done:
  1. Prohibition on interfering or modification of communication

A staff of the Authority, a service provider or his or her employee, agent or contractor who otherwise than in the proper course of his or her duties, intentionally and without lawful excuse modifies or interferes with the contents of a communication sent by means of a communications network commits an offence and upon conviction is liable to a fine not exceeding $10,000 or to a term of imprisonment not exceeding 2 years or to both.

  1. Unlicensed transmissions
  2. Protection of facilities

A person who damages, removes or tampers with any facility or system or any part of a facility or system with the intention of interfering with, preventing or obstructing the transmission or delivery of a communication commits an offence and upon conviction is liable to a fine not exceeding $50,000 or to a term of imprisonment not exceeding 12 months or to both.

  1. Prosecution under other laws

Nothing in this Act prevents any person from being prosecuted under any other written law for any act or omission which constitutes an offence against this Act or from being liable under any other written law to any punishment or penalty higher or other than that prescribed by this Act but no person shall be punished more than once for the same offence.

  1. Remedies

A person who has suffered loss or damage caused by interference may at any time apply to the Court for:

(a) an order that appropriate measures be taken in order to prevent or mitigate any further interference; and

(b) damages for any loss suffered as a result of the interference including loss of any benefit that the person might reasonably have been expected to obtain but for the interference.
  1. Presumptions as to equipment

PART 13 – APPEALS AGAINST DECISION OR ORDER OF THE AUTHORITY

  1. Appeals
  2. Respondent’s notice
  3. Powers of the Supreme Court

The powers of the Supreme Court for the purposes of the appeal shall be to:

(a) give leave to appeal out of time;

(b) extend time within which a notice of appeal may be filed or within which any other matter or thing may be done;

(c) grant any amendment to the notice of appeal or respondent’s notice;
(d) order payment of security for costs;
(e) order costs of the appeal or any interlocutory applications;
(f) dismiss the appeal;
(g) reverse or vary the decision or Order of the Authority; or
(h) allow the appeal and refer the matter for the Authority to reconsider.
  1. Appeals to be heard by single judge or Full Court

PART 14 – FAIR COMPETITION IN COMMUNICATIONS INDUSTRY

  1. Application of this Part

This Part applies to:


(a) a service provider; and

(b) a person or a class of persons engaged in conduct that requires a communications licence under the Act.
  1. Communication services markets

For the purposes of this Part, the definition of a communication services market for a particular communications service or the product or service used in connection with a relevant product or service shall include:


(a) the applicable service; and

(b) all other products or services that are reasonably substitutable for the applicable service having regard to:
  1. Substantial market power
(2) The list of matters that shall be taken into account in sub-section (1) does not preclude the consideration of any other relevant matter in determining whether a service provider has substantial market power in a communication services market under this Part.

(3) In the absence of sufficient evidence to the contrary, a service provider shall be presumed to have substantial market power in a communication services market if the gross revenue derived by the service provider from the products or services supplied by the service provider in that communication services market is greater than or equal to 60 percent of the total revenue derived by all market participants in the relevant communication services market.

(4) Nothing in this section precludes a finding that two or more service providers possess substantial market power within the same communication services market.

(5) For the purposes of this section:
  1. Competition guidelines

The Authority may make such guidelines as it considers necessary or convenient for or in connection with the performance of its functions under this Part.


  1. General prohibition on anti-competitive conduct

A service provider shall not engage in any conduct which has the purpose or is likely to have the effect of substantially lessening competition in a communication services market.

  1. Anti-competitive agreements
  2. Prohibition on anti-competitive practices

any goods or services from another service provider.


(4) A service provider shall not supply a relevant product or service, to a person with a requirement that the person shall not re-supply that relevant product or service at a price:

a price specified by the service provider.


(5) A service provider shall have imposed a requirement on a person in contravention of subsection (4) if it:

a price specified by the service provider.


(6) A service provider does not contravene subsection (1), (2), (3) or (4) in respect of any conduct if the service provider is able to establish that the relevant conduct did not have the purpose or have the effect or likely effect of substantially lessening competition in any communication services market.
  1. Prohibition on misuse of substantial market power
(3) The Authority may by an Order published in the Gazette define ‘a sustained period’ for the purposes of subsection (2).

89 Prohibition on discrimination


(1) Subject to subsection (3) a service provider with substantial market power in a communication services market shall not in the supply of any relevant product or service make the relevant supply to a person on terms that are less favourable than the terms on which the same relevant supply is made to another person.

(2) For the purposes of determining whether a service provider has contravened subsection (1) regard may be had to the following terms on which the relevant supply is made by a service provider to a person:

(3) Nothing in this section prevents a service provider with substantial market power from making a relevant supply to a particular person on terms different to that on which a relevant supply is made to another person in circumstances where the difference results from the service provider making reasonable allowance for:

90 Merger or acquisition of interest


(1) A service provider shall not directly or indirectly acquire any interest in:

without the prior written consent of the Authority.


(2) A service provider or a person acting on behalf of a service provider may make a written application to the Authority to provide its written consent for a service provider to obtain a prohibited interest.

(3) The Authority may make rules regarding what information shall be included in an application in order for it to be a valid application for written consent in accordance with subsection (3).

(4) Upon receipt of a valid application, the Authority shall provide its written consent for a service provider to acquire a prohibited interest unless the Authority is satisfied that the acquisition by a service provider of the prohibited interest:

of substantially lessening competition in a communication services market.


(5) Before making rules under subsection (4) the Authority shall carry out a consultation with the service providers, subscribers or any other stakeholders in accordance with the regulations.
  1. Authorisation
(10) During the period in which an authorisation is in force, the Authority may revoke an authorisation if the Authority is satisfied that:

(11) Nothing in this section precludes a service provider from applying for an authorisation for the conduct that has been the subject of an authorisation that:

92 Offence and penalty under this Part

A person who contravenes one or more provisions of this Part commits an offence and upon conviction is liable to a fine not exceeding $50,000 or to a term of imprisonment not exceeding 2 years or to both.

PART 15 – SOCIAL CONTENT REGULATION

  1. Broadcasting and content standards

The Cabinet may by regulations make standards for content applications services supplied in the Republic which shall apply to all service providers that supply a content applications service.


  1. Matters for broadcasting and content standards

The Cabinet may make regulations under this Part which may include:


(a) the restrictions or prohibitions relating to the supply of unsuitable content or particular types of content;

(b) the methods of classifying content;
(c) the restrictions or prohibitions relating to advertising content;
(d) the representation of the Republic’s culture and national identity; and
(e) restrictions on the hours during which broadcasting services or services for delivering subscription content may be supplied.
  1. Cabinet directions to be complied with

A service provider shall comply with any directions of the Cabinet given under this Part.


  1. Enforcement

The Authority shall enforce or require any service provider to comply with the regulations made under this Part of this Act.


  1. Censorship

A service provider shall not knowingly and with unlawful intent supply any content which:


(a) is indecent or obscene;

(b) displays excessive violence;

(c) is blasphemous;

(d) is treasonous or seditious; or

(e) will contravene the laws of the Republic.
  1. Religion

The Cabinet may require a service provider to supply without any charge divine worship content or other content of a religious nature during such periods as the Cabinet may determine.


  1. National Interest

The Cabinet may require a service provider to supply without charge such content relating to national interest matters as the Cabinet may determine.


  1. Education

The Cabinet may require a service provider to supply with reasonable fee or without charge such educational content as the Cabinet may determine.


  1. Offence

A service provider who supplies content applications services contrary to the provisions of this Act, commits an offence and upon conviction is liable to a fine not exceeding $10,000 or to a term of imprisonment not exceeding 2 years or to both.


PART 16 – INTERNET SERVICE PROVIDERS AND HOST SERVICE PROVIDERS


  1. Take-down notices
(2) The Authority may either in response to a complaint or on its own initiative, investigate whether a hosting service provider is hosting prohibited content.

(3) Where after an investigation under subsection (1) the Authority is satisfied that the content hosted by a hosting service provider is prohibited content, the Authority may give the hosting service provider a written notice directing the hosting service provider to take such steps as are necessary to ensure that the hosting service provider ceases to host the content.

(4) A hosting service provider shall comply with a take-down notice issued to it under subsection (2) as soon as practicable but in any event within 7 working days after the notice was received by the hosting service provider.

(5) Each hosting service provider shall have in place a procedure for receiving and responding to take-down notices.

(6) As soon as practicable after a hosting service provider receives a take-down notice under subsection (2) it shall where practicable notify the person who made the offending content accessible to the public that the offending content is subject to a take-down notice.
  1. Opt-out filtering
  2. Mandatory filtering
  3. Internet service providers shall report child pornography material

If an internet service provider or hosting service provider:


(a) becomes aware that a communications service provided by the internet service provider or hosting service provider can be used to access material on a particular webpage, website or internet protocol address that the internet service provider or hosting service provider has reasonable grounds to believe is child pornography material; or

(b) is advised of a webpage, website or internet protocol address where child pornography material may be stored or made available to the public, -

the internet service provider or hosting service provider shall, within a reasonable time of becoming aware or being informed of those details, report those details to the Nauru Police Force.

PART 17 – NATIONAL SECURITY AND PUBLIC EMERGENCIES

  1. National Security
  2. National emergency and state of disaster
  3. National emergency numbers

PART 18 – MISCELLANEOUS

  1. Duties and liabilities of staff
  2. Liability of the Authority
  3. Offence by corporation

If a corporation commits an offence under this Act, a person who at the time of the commission of the offence was a director, chief executive officer, manager, secretary, or other similar officer of the corporation or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the corporation or was assisting in such management:


(a) may be charged jointly or severally in the same proceedings with the corporation; and

(b) if the corporation is found guilty of the offence, shall be deemed to be guilty of that offence unless, having regard to the nature of the person's function in that capacity and to all circumstances, the person proves:
  1. Liability for acts of employees and agents

If any person would be liable under this Act to any punishment or penalty for an act, omission, neglect or default, that person shall be liable to the same punishment or penalty for every such act, omission, neglect or default of any employee or agent of the person's, or of the employee of the agent, if the act, omission, neglect or default was committed:


(a) by that person's employee in the course of the employee's employment;

(b) by the agent when acting on behalf of that person; or

(c) by the employee of the agent in the course of the employee's employment by the agent or otherwise on behalf of the agent acting on behalf of that person,

unless, having regard to the nature of the person's function in that capacity and to all circumstances, the person proves:


(i) that the offence was committed without the person's knowledge, consent or connivance; and

(ii) that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
  1. Damage to communication facilities
(3) A person causing damage to any communications facility, equipment or property shall be liable to make good the damage in the amount to be determined by a court of competent jurisdiction even though the person may have been imprisoned or fined or both.
  1. Regulations

The Cabinet may make regulations prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.

PART 19 – REPEAL, SAVINGS AND TRANSITIONAL

  1. Repeal of Act

The Telecommunications and Regulatory Affairs Act 2017 is repealed by the provisions of this Act.

  1. Saving of Wireless Telegraphy Regulations 1976 and existing licences
  2. Savings and transitional provisions

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URL: http://www.paclii.org/nr/legis/num_act/caba2018293