The Telecommunication industry in Trinidad and Tobago is regulated by the Telecommunications Authority of Trinidad and Tobago (the' Authority') under the Telecommunications Act. Currently there are two (2) mobile operators in Trinidad and Tobago. In this chapter, Luke Hamel-Smith, Partner in Hamel-Smith's Dispute & Risk Management Practice Group gives an overview of the legal and regulatory framework for the telecommunications sector in Trinidad and Tobago.
The Statutory Framework
The Telecommunications Act 2001 (as amended by the Telecommunications (Amendment) Act, 2004), came fully into force on June 30, 2004. The Regulations and Policies effected include the: Telecommunications (Fees) Regulations, Telecommunications (Interconnection) Regulations, Telecommunications (Access to Facilities) Regulations, Price Regulations Framework for Telecommunication Services in Trinidad and Tobago, Costing Methodology for the Telecommunication Sectors, List of Telecommunication equipment which have been certified and approved for use in Trinidad & Tobago; and Consumer Complaints Handling Procedure.
The Telecommunications Act was enacted to ‘establish a comprehensive and modern legal framework for an open telecommunications sector by permitting new providers of telecommunications services to enter the market and compete fairly. This is in keeping with the Telecommunications Annex of the General Agreement of Trade in Services (GATS) in which the Trinidad & Tobago Government has committed to establishing a competitive telecommunications environment in the country.
Regulation of Industry
The Telecommunications Authority of Trinidad and Tobago (the “Authority”) was established ‘with transparent regulatory processes to guide the sector’s transformation from virtual monopoly, in which Telecommunications Services of Trinidad and Tobago is the principal provider of telecommunications services, to a competitive environment, to monitor and regulate the sector so transformed and, in particular, to prevent anti-competitive practices.’ Thus the Authority is an independent body to regulate the industry.
The Telecommunications Act prescribes two types of instruments for authorising telecommunications and broadcasting operators to provide networks or services in Trinidad and Tobago: concessions and licences.
Applications for concessions and licenses may be made via two methods:
- General Application; and
- Response to Request for Proposal.
Currently, the Authority accepts general applications on a 'first come - first served' basis in relation to the provision of services or for the operation of networks in the following markets:
Domestic fixed telecommunications services;
International telecommunications provided that such applications propose to roll out new networks and/or facilities; and
Cable-based television services.
There is, however, a moratorium in relation to all applications for the provision of services or for the operation of networks in the following markets:
Domestic mobile telecommunications services;
Free-to-air television services; and
Free-to-air radio services.
Any person wanting to operate a public telecommunications network or provide a public telecommunications service or a broadcasting service, must be granted a concession to do so by the Government Minister in charge of telecommunications upon an application made to the Authority. A concession is not required for the operation or provision of any private or closed user group network or service.
Concessions require the concessionaire to pay annual fees to the Authority and impose conditions regarding matters such as universality, anti-competitive conduct and market dominance, public emergency telecommunications services, numbering resources, quality of service, and access to facilities.
Concession application fees range from one thousand Trinidad & Tobago dollars (TT$1,000) for niche or minor territorial virtual networks, to thirty two thousand dollars (TT$32,000) for domestic mobile networks and services. Annual concession fees are based on revenues.
Any person wanting to operate or use any radio communication service or any radio transmitting equipment, including that on board any ship, aircraft or other vessel in the territorial waters or airspace of Trinidad and Tobago must be granted a licence to do so by the Authority. The same applies to any person requiring the use of telecommunications spectrum.
Where the operation of a public telecommunications network or the provision of a public telecommunications or broadcasting service requires use of spectrum, the required licence applications are processed as part of the concession application.
Where radio transmitting equipment is used for a private or closed-user group communication service, licences are required for the radio transmitting equipment employed although a concession is not required.
Licence application fees are TT$32,000 for cellular mobile spectrum licences, and not more than TT$500 for all other types of licences. Annual licence fees vary widely, ranging from TT$10 per KHz pair for FM radio station licences to five hundred and forty two thousand, one hundred and sixty dollars (TT$542,160.00) per MHz pair for cellular mobile spectrum licences.
In an effort to promote fair and open competition, the Act provides for equal treatment of all similarly situated operators and providers of services except where special treatment is necessary for the introduction of competition. Specific obligations are imposed on operators or providers whose dominance is established in a particular market in accordance with the criteria laid down in the Act.
The Authority has expressed its intention to ensure minimal barriers to entry and competition in converged telecommunications markets by adopting, as far as practicable, a service and technology-neutral approach to authorising telecommunications networks, and public telecommunications and broadcasting services.
In furtherance of this, certain of its concessions authorise the concessionaire to provide any telecommunications service that can be provided on the relevant network. These are:
- its network-service concession (network-based), which authorises a concessionaire to own or operate a public telecommunications network in addition to providing public telecommunications services over that network; and
- its virtual network-service concession (service-based), which authorises a concessionaire to provide public telecommunications services, without an authorisation to own or operate a physical public telecommunications network, in a manner that is transparent to the end user. This type of concession is required where an entity is capable of providing multiple services (e.g. data, image, voice, video) over a single transmission medium that has been leased or otherwise obtained from an authorised network operator.
The concept of service neutrality does not apply to:
concessions to own or operate a public telecommunications network without the provision of public telecommunications or broadcasting services,
concessions to provide a specific public telecommunications service without an authorisation to own or operate a telecommunications network; or
concessions to provide a broadcasting service.
Concessionaires must ensure that their system can interconnect with other providers in order to allow users of one provider to communicate with users of another provider and to have access to the services of such other provider. The Act requires the Authority to establish guidelines and standards to facilitate interconnection and has provisions dealing with such matters as interconnection agreements, number portability, dialing parity and telephone number access. The Authority has produced the Telecommunications (Interconnection) Regulations, 2006 with the intention of ensuring that there is fair competition and interoperability among telecommunications service providers. It also has prepared a Costing Methodology for the Telecommunications Sector Document.
In March 2008, TSTT and Digicel were interconnected. The incumbent operator, TSTT, is required to offer a standard form of interconnection or Reference Interconnection Offer to the operators/service providers. While required to offer a standard Reference Interconnection Offer, TSTT is entitled to negotiate prices and the technical and other terms and conditions for the element of interconnection. In conducting these negotiations, all concessionaires are required to offer the same terms and conditions of any concluded interconnections agreement to any other concessionaire on a non-discriminatory basis.
Although the Act states that prices for telecommunications services are to be determined by providers in accordance with the principles of supply and demand in the market, it permits the Authority to establish price regulation regimes including setting, reviewing and approving prices:
If there is a dominant service provider in the market; or
If a provider cross-subsidises one of its telecommunications services with another such service provider by it; or
If the Authority detects anti-competitive pricing or acts of unfair competition.
The Authority may also regulate the prices of a dominant service provider by establishing caps on its prices. Prices and terms and conditions for public telecommunications services must be published.
The Act provides that the Authority shall regulate the use of the spectrum in order to promote the economic and orderly utilisation of frequencies for the operation of all means of telecommunications. In accordance with the Act, in August 2004 the Authority published a proposed Spectrum Plan for Accommodation of Public Mobile Telecommunications Services and in December 2006 it published a Spectrum Plan for the Accommodation of Broadband Wireless Access Services.■