Telecommunications Act 1986

[28 July 1986]

[preamble and words of enactment omitted]

PART I

PRELIMINARY

Short title and commencement

1 This Act may be cited as the Telecommunications Act 1986.

[commencement provisions omitted]

[this Act was brought into operation on 20 February 1987 by BR 2/1987]

Interpretation

2 In this Act, unless the context otherwise requires�

"Bermudian air space" means a radius of 180 nautical miles from the aerodrome in Bermuda;

"Bermuda Regiment" means the regiment raised and maintained in Bermuda under the Defence Act 1965 [title 7 item 21];

"broadcasting" means the act of transmitting or re-transmitting radiocommunications intended for direct reception and use by any member of the public without charge and cognate ex pressions shall be construed accordingly;

"Carrier" means a person who either alone or in conjunction with others, owns or operates a public telecommunication ser vice and provides telecommunication facilities or services with general or limited clientele, whether for permanent, occa sional or accidental purposes and includes a person who pro vides�

(a) "cable television service" meaning a service under com mon ownership and control providing programmes to per sons for their instruction, information and amuse ment by means of visual images and sounds conveyed by wire communication from a common centre but does not include�

(i) any such service that serves�

(a) fewer than five dwelling houses; or

(b) persons in one or more contiguous multiple unit dwellings under common ownership, control or manage ment; and

(ii) any service for which�

(a) no fee or charge is levied or made in respect thereof;

(b) the transmission includes only matter which is being simultaneously broadcast to the public in Bermuda by a broadcasting station licensed under this Act;

(b) "subscription radio service" meaning a service under com mon ownership and control providing programmes to authorized subscribers for their instruction, informa tion and amusement by means of visual images or sounds conveyed by radiocommunication from a com-
mon centre but does not include any service for which�

(i) no fee or charge is levied or made in respect thereof;

(ii) the transmission includes only matter which is be ing simultaneously broadcast to the public in Bermuda by a broadcasting station licensed under this Act;

"circuit" means a connection between one place and another place whereby transmission at a distance and reception of signs, signals, writing, images and sounds or intelligence of any nature is possible by electromagnetic or optical systems or by both, either along wires, cables or optical fibres joining those places or partly by wires or cables and partly by radio communication or wholly by radiocommunication or partly or wholly by light;

"Commission" means the Telecommunications Commission es tab lished under section 7;

"Commissioner" means a person appointed under section 7 to be a member of the Commission;

"Convention" means the International Telecommunication Con ven tion currently in force which is applicable to Bermuda or to which Bermuda is a party, and includes any modifications thereof, or any agreements or regulations made under it from time to time which are applicable to Bermuda or to which Bermuda is a party;

"decryption" means the act of returning to its original state a sig nal which has been encrypted and cognate expressions shall have the same meaning;

"Department" means the Department of Telecommunications;

"encryption" means the changing of a signal whereby the aural or visual characteristics are modified or altered for the pur pose of preventing the unauthorized receipt of the informa tion conveyed by persons without authorized equipment, and cognate expressions shall have the same meaning;

"frequencies", or "radio waves", or "Hertzian waves" means elec tromag netic waves of frequencies arbitrarily lower than 3000 Gigahertz propagated in space without artificial guide;

"harmful interference" means any emission, radiation, induc tion, conduction or other electromagnetic effect which endan gers the functioning of a radionavigation service or other safety services or seriously degrades, obstructs or repeat edly inter rupts any radiocommunication service operat ing in accor dance with the regulations and the Conven tion, but does not include interference from a radio transmit ter operated on its allocated frequency in accor dance with the regulations and the Convention;

"licensee" means the holder of a licence for the time being in force under this Act;

"message" means any communication sent or received or made by telecommunication or given to a telecommunication officer to be sent by telecommunication or to be delivered;

"Minister" means the Minister responsible for telecommunica tions;

"Police" means the Bermuda Police Service;

"prescribed" means prescribed by regulations under section 59;

"private wire telecommunications system" means a system of in struments and lines not rented from a Carrier intended ex clu sively for the use of a particular person and not available for use by others, the circuit connections of which terminate at private locations and access to which cannot be obtained ordinarily from a public network;

"public telecommunication service" means the provision for hire or reward of�

(a) telecommunication services and telecommuni cation installations; or

(b) access and service or training or both to users in a scheme in order to facilitate the use of a telecommunication installation, by a person acting as manager of or agent or representative for or otherwise on behalf of a telecommunication company or body located outside Bermuda,

alone or in conjunction with others, for use by members of the public or by any person either within Bermuda or between Bermuda and any place outside Bermuda for the purposes of telecommunication;

"radio" means a general term applied to the use of radio waves, and cognate expressions shall be construed accordingly;

"radio apparatus" means any apparatus or article, or any part
thereof, intended for, or capable of, transmitting writing, signs, signals, pictures, visual matter, impulses and sounds by radio;

"radiocommunication" means telecommunication by means of ra dio waves and cognate expressions shall be construed ac cord ingly:

"radio station" means�

(a) apparatus other than generation apparatus capable of being used for the transmission or emission of writing, signs, signals, pictures, visual matter impulses and sounds of all descriptions whatsoever wholly or partly by means of Hertzian waves; or

(b) apparatus other than apparatus mentioned in section 3(6)(b) capable of being used for the reception of writing, signs, signals, pictures, visual matter impulses and sounds of all descriptions whatsoever wholly or partly by means of Hertzian waves; or

(c) apparatus referred to in paragraph (a) of this definition and apparatus referred to in paragraph (b) of this defini tion in combination;

"rates and charges� means the rates, the charges for, the terms and conditions applying to the offer of, and the provision of any services in connection with�

(i) the transmission of intelligence by telecom-munication and rental charges;

(ii) the rental of equipment;

(iii) the use of the lines of communication of a Carrier, whether derived from wire or radio facilities or incidental to radio communication of any kind; and

(iv) the interconnection of telecommunications facilities or networks, including the interchange of traffic between networks,

and includes single rates or charges, ranges or bands of rates or charges, and any ancillary rates or charges;

"regulations" means regulations under section 59;

"scheduled rates and charges" means rates and charges pub lished in the Gazette;

"signal" means information transferred over a telecommunica tion system by electromagnetic or optical means;

"specified Carrier" means a Carrier specified in the First Sched ule;

"telecommunication" means any transmission, emission or re cep tion of signs, signals, writing, images, sounds or intelli gence of any nature by wire, radio, optical, or other electro magnetic system and cognate expressions shall be construed accordingly;

"Telecommunications Inspector" means the person referred to in section 6(2);

"telecommunication installation" means any apparatus or equip ment maintained for or in connection with a public telecommunica tion service;

"telecommunication officer" means any person employed in con nection with a public telecommunications service or a gov ern ment operated telecommunication service other than a ser vice operated by the Police or Bermuda Regiment;

"telecommunication service" means a service consisting in the conveyance of anything by means of telecommunication whether or not the circuits are provided by the service provider or others;

"wire communication", "communication by wire" or "wire" means the transmission of writing, signs, signals, pictures and sounds of all kinds by aid of wire, cable, optical fibre, or other such like physical connection between the points of ori gin and the reception of such transmission, including all instru mentalities, facilities, apparatus, and services (including, the receipt, forwarding, and delivery of communica tions) inci dental to such transmission and cog nate expressions shall be construed accordingly.

[section 2 amended by 1993 : 31 effective 7 July 1993, by 1997 : 8 effective 27 March 1997; and by 1997 : 37 effective by notice in Official Gazette]

Application of Act

3 (1) Save as otherwise expressly provided, this Act shall not ap ply or have effect in relation to any telecommunication service operated by the Police or the Bermuda Regiment, except in so far as they relate to�

(a) the establishment of radio stations at permanent sites
approved by the Minister;

(b) the allocation of frequencies by the Minister;

(c) the approval by the Minister of the mode of transmis sion to be used in connection with radio stations and the power to be radiated therefrom;

(d) the prevention of harmful interference;

(e) distress calls, distress messages and distress signals;

(f) the manner of carrying on radiocommunication services governed by the Convention.

(2) At any time during which a proclamation of emergency un der section 14 of the Constitution [title 2 item 1] is in force, the Minister may provide by order that the provisions of this Act and of the Conven tion relating to the matters specified in paragraphs (a) to (f) of subsec tion (1) shall, notwithstanding anything to the contrary contained in the sub section, cease to apply to the Police and the Bermuda Regiment until such time as the Minister may revoke the order, and the said provisions shall thereupon cease to apply until the revocation of his order by the Minister or the proclamation of emergency ceases to be in force, whichever may be the earlier.

(3) Subject to subsection (1), a Government Department or a Government Board may operate a radiocommunication system, con struct a radio station, and import and manufacture radiocommunica tion equipment only under a permit granted by the Minister and in accor dance with this Act and any regulations made thereunder.

(4) Nothing in this Act authorizes the imposition of a fee for any permit granted by the Minister in respect of any telecommunication sys tem established or maintained by the Crown or in respect of any appa ra tus for telecommunication possessed or used by the Crown for the purposes of or in connection with any such telecommunication sys tem.

(5) Diplomatic or consular missions established in Bermuda may install and use a radio transmitter only with the consent of the Gov er nor.

(6) This Act shall not apply or have effect in relation to�

(a) any means of radiocommunication installed by the Gov ernment of the United States of America in a Leased Area as defined in the United States Bases (Agreement) Act 1952 [title 7 item 41] and used solely for military, naval or air force purposes:

Provided that radio apparatus and radio stations not used for military, naval or air force purposes shall not be installed and operated in such a Leased Area without the consent of the Minister and all questions relating to fre quencies, power and like matters used by apparatus de signed to emit electric radiation shall be settled by mu tual agreement between the Minister and the appropri ate United States authorities;

(b) any radio receiving apparatus which is designed primar ily for the direct reception and use by the general public of the transmissions of broadcasting services.

International obligations in the field of telecommunications

4 (1) The Convention shall form part of this Act in so far as it is applicable to Bermuda.

(2) The Minister shall be responsible for discharging or facili tat ing the discharge of any obligations in the field of telecommunications binding on the Government by reason of its being a member of an inter national organization or a party to or subject to an international conven tion or agreement.

Saving of Crown rights

5 Nothing in this Act shall prevent the Government from estab lish ing and maintaining any means of telecommunication.

Department of Telecommunications

6 (1) There shall continue in existence the Department of Gov ern ment known as the Department of Telecommunications which is charged with the duty of assisting the Minister in the discharge of his func tions under this Act and to fulfill any duties assigned to it under this Act or the regulations.

(2) Subject to section 61(5) of the Constitution [title 2 item 1] and to the general direction and control of the Minister, the Department shall be under the supervision of a public officer who shall be known as the Telecommunications Inspector and shall consist of that officer and such number of other public officers as may from time to time be autho rized by the Governor.

[Section 6 amended by 1997 : 8 effective 27 March 1997, and by 1998 : 20 effective 18 June 1998]

PART II

ESTABLISHMENT AND FUNCTIONS OF TELECOMMUNICATIONS
COMMIS SION

Establishment of Telecommunications Commission

7 (1) There shall be established a body to be called the Telecom munications Commission which shall advise the Minister in the dis charge of his functions under this Act and discharge such other func tions as may be imposed or conferred upon them by or under this Act or any statutory provision.

(2) The Commission shall consist of not less than five persons and not more than nine persons who shall be appointed as Commission ers by the Minister by notice in the Gazette to hold office dur ing good behaviour for such terms not exceeding three years at a time as may be specified in their respective letters of appointment. Ini tially two of the Commissioners shall be appointed for three years, two for two years and one for one year.

(3) The Second Schedule shall have effect in relation to the Commis sion.

Delegation of functions

8 (1) The Minister may, in writing, delegate to the Commission or any member thereof, or to any public officer, either generally or for any particular occasion, such of his functions under this Act as he consid ers necessary:

Provided that�

(a) no delegation made under this subsection shall pre clude the Minister from exercising or performing at any time any of the functions so delegated;

(b) nothing in this subsection shall authorize the Minister to delegate any power to grant, amend, suspend or re voke a licence to establish, maintain and operate a pub lic telecommunication service or a radio station for the pur pose of a broadcasting service or to amend any of the Schedules to this Act;

(c) no delegation made under this subsection shall prevent a person from making representations to the Minister af ter receiving written notice under section 13(4) from the Minister or his delegated representative;

(d) no person to whom the Minister has delegated any func tion under this section shall delegate such function to any other person.

(2) A reference in this Act to the Minister includes, in relation to any particular function of the Minister under this Act, a reference to any person authorized by the Minister to exercise or perform such func tion.

PART III

PROHIBITION OF ESTABLISHMENT AND MAINTENANCE OF TELECOMMUNICA TIONS ETC. EXCEPT UNDER LICENCE

Licence or permit for public telecommunication service

9 (1) Subject to subsection (3A), no person in Bermuda or on board any British ship or air craft that is registered in Bermuda shall establish, maintain or operate a public telecommunication service without first obtaining the grant of a li cence from the Minister under this Act or authorized by law.

(2) For the purposes of subsection (1) the Bermuda Telephone Company Acts of 1887, 1928, 1929 [1887:2, 1928:20 and 1929:28] and any amendments thereto shall together be deemed to constitute the grant of a licence authorized by law to the Bermuda Telephone Com pany.

(3) Subject to section 3 and subsection (3A) of this section, no person shall, save under and in ac cordance with a licence, permit or certificate granted by the Minister�

(i) construct, establish, maintain or operate any telecommunica tion system; or

(ii) possess or use any radio station, radio appara tus or any radio receiving apparatus not ex cluded from the application of this Act by sec tion 3(6)(b) or any apparatus of any kind that gener ates and emits radio waves, notwithstand ing that the apparatus is not intended for radio communication.

(3A) Notwithstanding subsection (1) and subsection (3)(ii), where�

(a) the Minister considers it necessary to allow the provision of public telecommunication service pending his decision whether to grant a licence, or for any other reason;

(b) the Minister considers it necessary to allow the possession or use of a radio station pending his decision whether to grant a licence, permit or certificate; or

(c) a person applies for temporary permission to provide public telecommunication service or to possess or use a
radio station,

the Minister may issue a temporary permit for the provision of such public telecommunication service or for the possession or use of such radio station, as the case may be.

(3B) A temporary permit shall be issued for a period not exceeding six months and shall be subject to such conditions as the Minister considers necessary.

(4) The grant of a licence, permit, or certificate under this Act, shall be in the discretion of the Minister except where a licence, permit or certificate is required in order to comply with any statutory provision rendering the establishment or maintenance of any means of telecom munica tion mandatory.

(5) Subject to section 3(4), a fee prescribed under the Government Fees Act 1965 shall be payable in respect of every licence, permit or certificate granted under this Act and different fees may be prescribed in respect of licences or permits, as the case may be, granted in respect of different classifications of public telecommunication services or radio stations.

(5A) A fee referred to in subsection (5) shall be paid either prior to the grant of a licence, permit or certificate referred to in that subsection or at such other time as may be specified in the Government Fees Regulations 1965.

Provided that, in the case of the Bermuda Telephone Company, the fee payable for the licence mentioned in subsection (2) shall be such periodic fee as may be prescribed under that Act.

(6) Nothing in any of the Acts mentioned in subsection (2) shall exempt the Bermuda Telephone Company from compliance with subsec tion (3)(ii).

(7) The fact that the person from whom any radiocommunica tion equipment is borrowed, leased or hired, or the person maintaining a means of telecommunication of which other equipment forms part or with which other equipment is connected, is the holder of a licence or per mit granted under this Act, does not exempt the person to whom the equipment is loaned, leased or hired, or the person maintaining, pos sess ing or using the equipment forming part of, or connected with, such means of telecommunication, as the case may be, from the necessity to obtain such licence or permit as may be required under this Act.

(8) Nothing in this section shall affect any private wire telecommunica tions system nor any system in the case of which the only agency involved in the conveyance of things thereby conveyed is light and the things thereby conveyed are so conveyed is to be capable of be ing received or perceived by the eye and without more.

[section 9 amended by 1990:24 effective 1 April 1990; and by 1997 : 8 effective 27 March 1997]

Licences in general

10 (1) Every licence, permit or certificate granted under this Act by the Minister, shall be valid for the period or until the day prescribed but, save as otherwise provided by the regulations, may be renewed.

(2) Any licence, permit or certificate granted under this Act by the Minister, shall be subject to the conditions (if any) prescribed and to such other conditions as the Minister specifies on the grant or renewal thereof, being conditions that the Minister considers necessary for the purposes of carrying out the objects of this Act.

Licence

10A No licence shall be granted under this Act to any person other than a body corporate to establish, maintain or operate a public telecommunication service.

[section 10A inserted by 1993 : 31 effective 7 July 1993]

Annual report etc to be submitted to Minister

10B (1) The secretary of a body corporate which operates a public telecommunication service shall submit to the Minister�

(a) on an annual basis not later than six months after the closing of its financial year or such longer period as the Minister may allow�

(i) a copy of its annual report;

(ii) a copy of its annual financial statement and its auditor�s report; and

(iii) a list of shareholders owning 1% or more of the total shares in the body corporate and specifying therein their nationality, the number of shares held by each and whether or not control of the body corporate is vested in persons possessing Bermudian status within the meaning of the Bermuda Immigration and Protection Act 1956;

(b) on a semi-annual basis, commencing at such time as may be specified by the Minister�

(i) a list of all of its telecom-munication services including the rates and charges for the services;

(ii) market size and market share estimates for each public telecommunication service offered by the Carrier; and

(iii) monthly traffic data for each public telecommunication service offered by the Carrier; and

(2) A secretary who contravenes subsection (1) commits an offence:

Punishment on summary conviction: a fine of $2,000 or imprisonment for 6 months.

[section 10B inserted by 1993 : 31 effective 7 July 1993; and amended by 1997 : 8 effective 27 March 1997]

Licences for public telecommunication services or broadcasting sta tions

11 (1) The Minister shall refer all applications for the grant of a li cence to establish, maintain or operate a public telecommunication ser vice or to operate a radio station for the purposes of a broadcasting ser vice to the Commission with a direction that they hold an enquiry on such matters as he may specify and report with recommendations to him within thirty days or such longer period as he may allow.

(2) Upon receipt of a direction by the Minister under subsec tion (1), the Commission shall fix a date for the hearing and notify the appli cant of the date, and shall publish a notice thereof in the Gazette; however, the Commission may as it thinks fit exclude any member of the public or any representative of the media from any proceedings of the hearing.

(3) The applicant shall have the right to give evidence, either in writing or orally, in support of his application and to produce witnesses.

(4) Carriers or persons possessing licences to operate broad cast ing stations, as the case may be, and any other interested parties may submit written or oral comments on the application.

(5) Upon receipt of a report under subsection (1), the Minister, after taking into consideration the recommendations of the Commission, may�

(i) grant the licence upon such terms and condi tions as he deems fit and appropriate; or

(ii) refuse to grant the licence for the reason stated; or

(iii) remit the matter to the Commission for further enquiry, report and recommendations within a period not exceeding thirty days or such longer period as he may allow.

(6) In a case mentioned in subsection (5)(iii) the Minister shall make and communicate his final decision to the applicant as soon as possi ble after receiving the second report and the recommendations of the Commission.

[section 11 amended by 1993 : 31 effective 7 July 1993]

Licences for broadcasting stations

12 (1) No licence shall be granted under this Act to any person other than a body corporate to operate a radio station for the purpose of a broadcasting service and no such licence shall be granted or renewed unless the Minister is satisfied that the control of such body corporate is vested in persons who possess Bermudian status in accordance with the Bermuda Immigration and Protection Act 1956 [title 5 item 16].

(2) The secretary of every body corporate operating a radio sta tion for the purpose of a broadcasting service shall submit annually to the Minister not later than six months after the closing of its financial year�

(a) a copy of its annual financial statement and auditor's re port; and

(b) a list of shareholders specifying their nationality and the number of shares held by each and in the case of a body corporate whether or not control is vested in per sons possessing Bermudian status within the meaning of the Bermuda Immigration and Protection Act 1956 [title 5 item 16].

Minister may issue or revoke licences

13 (1) Subject to this Act, the Minister may �

(a) issue�

(i) a licence, permit or certificate required by sec tion 9; and

(ii) a technical certificate or a radio operator's cer tifi cate required under the Convention or the regula tions;

(b) at any time upon an application in that behalf made by
a licensee or a permit or certificate holder, or of his own motion, vary any term or condition of a licence, permit or certificate issued under paragraph (a), where the Minister considers such variation necessary for the pur pose for which the original condition was imposed or for any other cause, but he shall not of his own motion vary any of the terms or conditions without first giving to the li censee or permit or certificate holder reasonable notice of his intention to make such variation and shall take into account any representations made to him by or on behalf of the licensee or permit or certificate holder;

(c) from time to time appoint such public officers within the Department and such other persons as he considers de sirable to be examiners for the purpose of examining ap pli cants for licences and permits to operate radio sta tions, or for certificates.

(2) A licensee or a permit or certificate holder may at any time request the Commission in writing, stating reasons, to review the terms or conditions of the licence, permit or certificate, as the case may be, and the Commission shall within thirty days or such longer period as the Minister may allow conduct such review and submit its recommenda tions to the Minister, and the decision of the Minister shall be final.

(3) The Department and the applicant may be represented dur ing a review, which may be held in camera at the request of either party.

(4) The Minister may, after giving the holder thereof written no tice and affording him a reasonable opportunity to make representa tions, revoke or suspend any licence, (other than a licence granted un der this Act or any other Act by the Minister to operate a public telecommu nica tion service or to operate a radio station for the purpose of a broad casting service), permit or certificate, issued under this sec tion where�

(a) the holder thereof has wilfully or negligently failed to op erate the facilities or services in respect of which the li cence, permit, or certificate was issued in accordance with the regulations or the terms or conditions of the li cence, permit or certificate or the Convention; or

(b) false statements of material facts, fraud or misrepre senta tion have been made or committed by the licensee, the permit or certificate holder in the application for the licence, permit or certificate, or related to any subse quent statement in connection with it required by him; or

(5) Notwithstanding subsection (4), the Minister may revoke or suspend any licence, permit, certificate, technical certificate or radio op erator certificate without giving the holder thereof written notice or af ford ing him an opportunity to make representations to him if the holder thereof fails to pay the fees relating thereto in the manner prescribed.

(6) Where�

(a) the Minister is satisfied that there may be grounds for revoking a licence granted under this Act to operate a public telecommunication service; or

(b) the Minister is satisfied that the control of a body corpo rate granted a licence to operate a radio station for the purposes of a broadcasting service is vested in persons who do not possess Bermudian status within the mean ing of the Bermuda immigration and Protection Act 1956 [title 5 item 16]; or

(c) the Minister is satisfied that a body corporate granted a licence to operate a radio station for the purpose of a broadcast ing service has failed to comply with any term, condition or limitation imposed upon it by the licence; or

(d) the Broadcasting Commissioners, established under the Broadcasting Commissioners Act 1953 [title 24 item 11] or any succeeding Act, have recommended to the Minis ter that a licence to operate a radio station for the pur poses of a broadcasting service should be revoked,

the Minister may request the Commission to enquire into the facts in ac cordance with its procedure and to report thereon to him and if after considera tion of the report the Minister is satisfied that the licence should be revoked, he may revoke the licence.

(7) A licence may be transferred with the consent of the Minis ter.

Minister may amend First Schedule

14 (1) Subject to subsection (8), no Carrier specified in the First Schedule shall impose rates and charges for a telecommunication ser vice operated by it or vary the amount thereof, unless notice in writing of the amount of such rates and charges or the proposed variation thereof has been given to the Commission pursuant to this section or to section 23, as the case may be, and the Commission has made an enquiry into the matter.

(2) Subject to subsection (3), where the Minister is of the opin ion that�

(a) a Carrier or a group of Carriers is in substantial control of a public telecommunication service so that there is in suffi cient competition to stimulate reductions in rates and charges and to provide adequate freedom of choice to the public; or

(b) a Carrier is not providing to the general public or any sec tion thereof or to another Carrier fair and reasonable access to its services or is making unjust or unreason able discrimination in rates, charges, practices, classifi cations, regulations, facilities or service; or

he may by order amend the First Schedule by adding thereto another Carrier.

(3) Before the Minister makes an order under subsection (2) he shall notify the Carrier concerned of his intention and shall allow the Car rier fourteen days, or such longer period as he may specify, to sub mit reasons in writing why it should not be included in the First Sched ule; and the Minister may direct the Commission to enquire into the mat ter and report to him within thirty days or such longer period as he may al low.

(4) When the Minister has added a Carrier to the list of speci fied Carriers in the First Schedule he shall direct the Carrier to submit to the Commission a list of its telecommunication services, and its rates and charges.

(5) On receipt of the submission made under subsection (4) the Commission shall publish in the Gazette a notice which shall�

(a) identify the Carrier;

(b) state that the Minister has added the Carrier to the list of specified Carriers in the First Schedule;

(c) state that the Carrier has submitted to the Commission a list of its telecommunications services and the rates and charges for such services; and

(d) specify a time and a place for the inspection of the matters referred to in paragraph (c),

and shall make such enquiry into the matter as the Commission may think fit for the purpose of ascertaining whether the rates and charges are just and reasonable and comply with the provisions of this Act or the regulations.

(6) In the exercise of their functions under subsection (5) the Commission shall apply mutatis mutandis the criteria laid down in sec tion 24(2).

(7) the Commission shall conclude their enquiries as expedi tiously as possible and in no case in more than sixty days and may give a direction�

(a) approving the rates and charges; or

(b) changing the rates and charges.

(8) Until the Commission give a directive under subsection (7) the rates and charges submit ted to the Commission by the Carrier under subsection (4) shall apply.

(9) The Minister may by order at any time amend the First Sched ule.

(10) The negative resolution procedure shall apply to an order of the Minister under this section.

[Section 14 amended by 1997 : 8 effective 27 March 1997]

Minister may give directives to Carriers

15 If, from any report submitted by the Commission, it appears to the Minister that a Carrier is acting in a manner not in accord, with the duties and obligations of a Carrier under this Act and that in conse quence it should take, or refrain from taking, or amend any actions, pro ce dures or practices or otherwise follow any recommendations con tained in the report of the Commission, the Minister may issue a direc tive to the Carrier accordingly, and the Carrier shall comply therewith.

[Section 15 amended by 1997 : 8 effective 27 March 1997]

Minister may give directions to Commission

16 (1) [Deleted by 1997 : 8]

(2) [Deleted by 1997 : 8]

(3) The Minister may, of his own volition, refer any matter re gard ing telecommunications to the Commission for their investigation and report and it shall be the duty of the Commission thereupon to hold such an enquiry and to report thereon to the Minister.

[Section 16 amended by 1997 : 8 effective 27 March 1997]

Minister may require Carrier to furnish information for an enquiry

17 (1) The Minister may, for the purposes of an enquiry, under
this Act, by notice in writing require a Carrier�

(a) to furnish, whether by periodical returns or other means, such estimates or other information as may be specified or described in the notice;

(b) to produce to an officer of the Department or to the Commis sion, any documents so specified or described;

(2) A notice under subsection (1) may specify the way in which and the period during which it is to be complied with.

(3) [Deleted by 1997 : 8]

[Section 17 amended by 1997 : 8 effective 27 March 1997]

Designation of inspectors

18 (1) The Minister may from time to time designate for such pe riod as he deems fit any officer of the Department to be an inspector for the purposes of this Act.

(2) The Telecommunications Inspector or an inspector may at any reasonable time enter any premises for the purpose of inspecting�

(a) any radio apparatus or radio station or any records maintained in connection therewith which are required to be kept by any provision of this Act or the regulations or by the Convention; or

(b) any apparatus or any records maintained in connection therewith which are maintained by a Carrier in connection with the provision of a public telecommunication service.

(3) The Minister shall provide every inspector with a written in strument of appointment and on entering any premises, pursuant to subsec tion (2), an inspector shall, if required to do so, produce his in stru ment of appointment to the person in charge of the premises.

(4) The owner or person in charge of any premises, entered by an inspector pursuant to subsection (2) and every person found therein, shall give the inspector all reasonable assistance in their power, and shall furnish him with such information as he may reasonably require.

(5) In this section "premises" includes any British ship, air craft, hovercraft, platform or rig registered in Bermuda whether within or out side Bermuda, or any structure or formation attached to any subma rine area adjacent to the coast of Bermuda in respect of which Bermuda has the right to the exploitation of the seabed and subsoil thereof and used for any purpose authorized by or pursuant to any Act.

[Section 18 amended by 1997 : 8 effective 27 March 1997]

Power of Commission to obtain information for an enquiry

19 For the purpose of an enquiry under this Act the commission shall have all the powers of a court of summary jurisdiction in relation to the summoning of witnesses, expert or otherwise, their examination on oath or otherwise and the compelling of the production of any docu ment, record or thing relevant to the subject matter of the enquiry.

Reports by Commission

20 (1) The Commission may, and if so directed by the Minister shall, make interim reports to the Minister on any matter submitted to them under this Act, and on the conclusion of the investigation con cerned shall make a final report to the Minister.

(2) Subject to subsection (3), the Minister shall forward a copy of any such report to the parties concerned and may also cause the re port to be printed.

(3) A report of the Commission shall be prepared and made public in accordance with the provisions of section 61A and 61B.

[Section 20 amended by 1997 : 8 effective 27 March 1997]

Interim and ex parte decisions

20A (1) The Minister or the Commission may make any decision under this Act on an interim basis and may make the final decision effective from the day the interim decision came into effect.

(2) The Minister or the Commission may make an ex parte decision whenever the Minister or the Commission, as the case may be, considers that the urgency of a particular case justifies such ex parte decision, so, however, that within fourteen days or such longer period as the Minister or the Commission may determine, after an ex parte decision is made under this subsection the Minister or the Commission, as the case may be, shall hold an inter partes enquiry for the purpose of making an interim or final decision.

[Section 20A inserted by 1997 : 8 effective 27 March 1997]

PART IV

CARRIERS

Duties of Carriers

21 (1) Subject to this section, it shall be the duty of every Carrier�

(a) to furnish telecommunication service upon any reasonable request therefor and on reasonable terms and conditions;

(b) to establish interconnection with other Carriers upon reasonable request and on reasonable terms and conditions;

(d) to establish and provide facilities for operating such through routes upon reasonable request and in accordance with reasonable rules;

(e) to maintain the confidentiality of any customer or other Carrier information;

(f) to refrain from any act or practice intended to or likely to have the effect of lessening competition;

(g) to refrain from marketing practices or advertisements which are false or misleading in a material respect;

(h) to provide other Carriers access to support structures including telephone poles, under-ground conduits and communications towers upon reasonable terms and conditions;

(i) to maintain existing services unless permitted by the Commission to discontinue such service;

(j) to display in a conspicuous place in the licensee's principal place of business or in such other place as may be specified in writing by the Minister every licence granted under this Act or other authority deemed to constitute the grant of a licence to establish, maintain or operate a public telecommunication service in such a manner that all terms and conditions subject to which the licence is granted are visible and legible; and

(k) to furnish to the Commission, in such form as may be specified by the Commission, copies of all agreements between Carriers including any amendments to any existing agreement between Carriers either before execution of such agreement or not later than ten days after the execution of such agreement.

(2) A Carrier shall comply with a request under paragraph (1)(a), (b), (c) or (d) within thirty days of the request or such longer period as the Commission may allow.

(3) For the purpose of paragraph (1)(k) any Carrier that is party to an agreement may furnish a copy of the agreement to the Commission on behalf of all the Carriers that are party to the agreement.

(4) Upon receipt of a copy of an agreement under paragraph (1)(k) the Commission shall within ten days either indicate its approval of such agreement or its intention to enquire into the agreement.

(5) Where the Commission approves an agreement and informs the Carrier in writing of such approval, the agreement shall either be executed within seven business days by all parties or remain in force as the case may be.

(6) If the Commission decides to enquire into any aspect of an agreement the Commission shall conclude its enquiries as expeditiously as possible and in no case in more than thirty days or such longer period as the Minister may allow and give a direction�

(a) approving the agreement;

(b) approving the agreement on a provisional basis;

(d) suspending the agreement or postponing the date upon which the agreement is intended to be executed to such other date as may be specified,

and the Carriers shall comply therewith.

(7) Where a Carrier has established to the satisfaction of the Commission that an existing service is unprofitable or loss-making, the Commission shall not refuse permission to discontinue that service unless�

(a) the Commission considers that it is in the public interest to refuse permission, having regard to the utility of the service, the availability of suitable substitutes and the degree of reliance on the service by the public or segments of the public; and

(b) the Commission is satisfied that the Carrier will be adequately compensated for the loss involved in continuing the service by the rates and charges it charges for other services it provides.

(8) No Carrier may disconnect another Carrier without the consent in writing of that Carrier or the Minister.

(9) A Carrier may only seek the permission of the Minister to disconnect another Carrier if�

(a) that Carrier fails to settle its accounts due within a period of thirty days after receipt of a written warning notice and within a further period of thirty days after receipt of a written notice of intention to seek permission for disconnection;

(b) that Carrier fails to comply with any term of the contract or agreement for the provision of the service;

(c) that Carrier fails to conform to the agreed technical specification for the provision and operation of the service; or

(d) there is other just and reasonable cause for disconnection.

(10) A Carrier which seeks the Minister's permission to disconnect another Carrier shall give notice to the Minister in writing not less than thirty days before the date of the proposed disconnection, informing the Minister of the reasons for the proposed disconnection, and the Minister shall forthwith refer the matter to the Commission for enquiry and report.

(11) Upon referral of a matter to the Commission under subsection (10), the Commission shall conclude its enquiry as expeditiously as possible and report to the Minister with recommendations within twenty days of the date of referral by the Minister.

(12) The Minister shall render a decision on a proposed disconnection of one Carrier by another within thirty days of receipt by the Minister of the notice by the Carrier under subsection (10).

[Section 21 substituted by 1997 : 8 effective 27 March 1997; and by 1999 : 17 effective 18 June 1999]

Enquiry into failure of a Carrier to discharge a duty

22 (1) A person other than a Carrier who is aggrieved by the failure of a Carrier to discharge a duty to which it is subject by virtue of this Act or any regulation or directive of the Minister or the Commission may make a written complaint on that account to the Commission and shall provide a copy of the complaint to the Carrier concerned.

(2) As soon as possible after the receipt of a complaint under subsection (1) the Commission shall investigate the matter and if the Commission is satisfied on the evidence submitted that there are prima facie grounds for the holding of an enquiry, the Commission shall hold an enquiry and shall report thereon to the Minister.

(3) On receipt of a report under subsection (2) the Minister may, after giving due consideration to the report, give such directive to the Carrier as he thinks fit and the Carrier shall comply therewith.

(4) A Carrier aggrieved by the failure of another Carrier to discharge a duty to which it is subject by virtue of this Act or any regulation may make a written complaint on that account to the Commission and shall provide a copy of the complaint to the Carrier concerned.

(5) Upon receipt of a complaint under subsection (4) the Carrier against which the complaint is made shall immediately attempt to resolve the dispute, but any party to the dispute may request the assistance of the Department in resolving the dispute.

(6) If the dispute is unresolved within thirty days after the complaint is received by the Carrier against which the complaint is made, any party to the dispute may submit the dispute to the Commission for resolution, or the parties to the dispute may�

(a) jointly agree to further negotiation or mediation; or

(b) jointly agree to submit the dispute to binding
arbitration in accordance with the provisions of the Arbitration Act, 1986.

(7) In the event the dispute is referred to the Commission pursuant to subsection (6), the Commission shall enquire into and render a decision on the dispute within forty-five days from the date of the referral.

(8) In its decision the Commission may direct one or more of the parties to take such action as is necessary to comply with the requirements of this Act and the regulations.

(9) The Commission may upon the recommendation of the Department or of its own initiative investigate any complaint made by a Carrier under subsection (4) and render a decision on the dispute and give such directive as the Commission thinks fit and the Carrier against which the complaint has been made shall comply therewith.

[Section 22 substituted by 1997 : 8 effective 27 March 1997; and by 1999 : 17 effective 18 June 1999]

Specified Carriers must give notice to Commission of charges

23 (1) Subject to this Act, no specified Carrier shall initiate a new telecommunication service or vary its rates and charges for existing telecommunication services unless it gives notice in writ ing of the new service and the proposed rates and charges therefor, the proposed variation in the rates and charges for the existing service and the amount thereof to the Commission and publishes a notice in accordance with subsection (2).

(2) A notice under subsection (1) shall be published in such form approved by the Commission on two separate days in not less than one local newspaper approved by the Commission and shall specify therein that any person may make objections and forward such objections to the Commission within twenty-one days from the second date of publication of the notice

(3) Where a notice under subsection (1) is given, then subject to subsection (4) or subject to the Commission giving a direction under section 24 a new service and the rates and charges therefor or a variation in the existing rates and charges shall not be introduced.

(4) Where the Commission is satisfied with the notice given under subsection (1) and informs the specified Carrier in writing or by notice published in the Gazette that it does not intend to inquire into the matter, the specified Carrier may introduce the new service and the rates and charges therefor or the variation in the existing rates and charges, as the case may be.

(5) [Deleted by 1997 : 8]

(6) [Deleted by 1997 : 8]

(7) [Deleted by 1997 : 8]

[Section 23 amended by 1993 : 3 effective 7 July 1993; and by 1997 : 8 effective 27 March 1997]

Carriers to maintain lists of rates and charges

23A (1) A Carrier shall at all times keep at its place of business in Bermuda or such other place approved by the Commission a current list of all its rates and charges and shall make the list available for inspection by any person without charge during business hours subject to such reasonable restrictions as the Carrier may impose.

(2) A Carrier shall prior to initiating a new telecommunication service or varying the rates or charges for existing telecommunication services as the case may be furnish to the Department in such form as may be specified by the Commission, notice in writing of the new service and the rates and charges therefor or the revised rates and charges for the existing service as the case may be and such information shall be available for inspection at the offices of the Department or such other location as may be specified by the Commission.

(3) A Carrier which contravenes any provision of this section is guilty of an offence and is liable on conviction by a court of summary jurisdiction to a fine not exceeding five thousand dollars and, in the case of a continuing offence, is liable to a further fine of five hundred dollars for each day during which the contravention continues.

[Section 23A inserted by 1997 : 8 effective 27 March 1997]

Decision of Commission

24 (1) On receipt of a notice under section 23(1) the Commission may, after making such enquiry into the matter as they may think fit, give a direction �

(a) approving the new service and the rates and charges in respect thereof; or

(b) approving the new service and the rates and charges in respect thereof on a provisional basis; or

(d) disallowing the new service and the rates and charges proposed therefor; or

(e) approving the variation in the existing rates and charges; or

(f) disallowing the variation in the existing rates and charges either wholly or in part; or

(g) postponing the date upon which the variation in the ex ist ing rates and charges is intended to be effective to such other date as may be specified; or

(h) otherwise setting out the terms and conditions upon which new rates and charges in respect of a new service or the variation of existing rates and charges may be made,

and subject to section 25(5), the specified Carrier shall comply there with.

(2) In the exercise of their discretion under subsection (1), or subsection (5) he Commission shall have regard inter alia to �

(i) the cost to the Carrier of the service in ques tion;

(ii) the desirability and need to subsidize other nonprof itable services offered by the Carrier in the pub lic interest;

(iii) the needs of the Carrier for adequate working capital and to establish reasonable reserves;

(iv) international accounting standards where applicable and modifications thereto;

(v) technological advances;

(vi) market conditions in Bermuda and overseas;

(vii) regulatory changes where applicable;

(viii) the need to afford investors a reasonable rate of return on their investment;

(ix) the question whether in the light of the foregoing, any pro posed tariff is just and reasonable and any rates and charges contained therein are applied equally to all per sons in substantially similar circumstances and condi tions;

(x) the question whether the Carrier, in respect of the application of rates and charges, the provision of ser vices and the use of its facilities�

(a) gives any preference or advantage to any person or to any particular de scription of telecommunication:

(b) subjects any person or any particular descrip tion of telecommunication to any disadvantage;

(xi) the public interest.

(3) The burden of proof to show that, on the balance of proba bili ties, any new service, the rates or charges in respect thereof or any variation in the rates or charges of an existing service are just and rea son able is upon the specified Carrier seeking to introduce the new ser vice or the variation, as the case may be.

(4) The Commission shall conclude their enquiries as expedi tiously as possible and in no case in more than thirty days or such longer period as the Minister may allow.

(5) On receipt of a complaint regarding a Carrier�s rates and charges, on the direction of the Minister, or of its own motion, the Commission may review the Carrier�s rates and charges after making such enquiry into the matter as the Commission may think fit and having regard to subsection (2), where applicable, and may give a direction changing the rates and charges for the service in whole or in part.

(6) Before the Commission gives a direction under subsection (5) the Commission shall notify the Carrier of its intention and shall allow the Carrier fourteen days or such longer period as the Commission may specify to submit reasons in writing why the direction should not be given.

[Section 24 amended by 1997 : 8 effective 27 March 1997]

Appeal to Minister against a direction of the Commission

25 (1) Any person aggrieved by a direction of the Commis sion under section 14, 22 or 24 may, within twenty-one days of being noti fied thereof, or such longer period as the Minister may allow, by notice in writing appeal to the Minister.

(2) For the purpose of an appeal under subsection (1), the Commis sion shall give reasons in writing for their direction.

(3) On an appeal under subsection (1) the Minister may, if he thinks fit, vary any direction of the Commission and such variation shall take effect on such date as the Minister may determine.

(4) The Minister shall give his decision as soon as possible af ter the hearing of the appeal but in no case later than sixty days after re ceipt of the notice of appeal.

(5) When a person gives notice of appeal to the Minister, the Minister may suspend the implementation of the direction of the Commission pending the outcome of the appeal.

[section 25 amended by 1993 : 31 effective 7 July 1993; and by 1997 : 8 effective 27 March 1997]

Unjust or unreasonable discrimination

26 It shall be unlawful for any Carrier to make any unjust or unrea son able discrimination in rates, charges, practices, classifications, regu lations, facilities, or services, directly or indirectly, by any means or de vice, or to make or give any undue or unreasonable preference or ad vantage to any particular person, or class of person, or locality, or sub ject any particular person, class of person or locality, to any undue or unreasonable prejudice or disadvantage.

(2) All rates and charges made by a Carrier must be just and reasonable.

[Section 26 amended by 1997 : 8 effective 27 March 1997]

Officers and agents of Carrier to aid investigation

27 It shall be the duty of all officers and agents of a Carrier where an enquiry or investigation under this Act is being held in relation to that Carrier, upon request by the Commission, to give the Commission all as sistance in connection with the enquiry or investigation which they are reasonably able to give and to furnish such estimates or information as have been requested, to produce all books and documents of the Car rier that are demanded by the Minister and to keep such records as have been specified by the Minister.

Charges for unauthorized telecommunication service not recover able

28 (1) No specified Carrier shall be entitled to recover in any court of law any charge for a telecommunication service which has been intro duced in contravention of this Act.

(2) Any charge made by a specified Carrier for a telecommuni cation service in excess of any amount permitted under section 23 or 24 shall be unenforceable to the extent of the excess.

Carriers may construct facilities on public roads etc.

28A (1) Any Carrier, with the prior consent in writing of the Minister responsible for Telecommunications and of the Minister responsible for Works and Engineering, may enter upon any public road now existing or which may hereafter exist or be made in Bermuda and may place thereunder or erect thereon in such places and positions and in such manner as the Minister responsible for Works and Engineering may sanction, any telecommunications line or lines with all necessary posts, supports, wires, pipes, and other apparatus; and with the like permission may at all times alter the position or arrangement of such posts, supports and pipes, and alter, diminish or add to the wires or other apparatus.

(2) The Corporation of the City of Hamilton or the Corporation of the Town of Saint George, as the case may be, shall have the like powers with respect to the streets of the said City and Town respectively as are conferred on the Minister responsible for Telecommunications and the Minister responsible for Works and Engineering by subsection (1) in reference to public roads, and the provisions of subsection (1) shall apply, mutatis mutandis, to the streets of the said City and Town as if the same were re-enacted with reference thereto:

Provided that the public traffic on the roads shall not be unreasonably impeded, obstructed or interfered with.

[Section 28A inserted by 1997 : 8 effective 27 March 1997]

PART V

SPECIAL PROVISIONS REGARDING RADIO

Radio communication equipment operated by Government Depart ment or Board

29 Subject to section 3, no Government Department or Government Board shall construct, install or operate any radiocommunication equip ment, without a permit from the Minister.

[section 29 amended by 1993 : 31 effective 7 July 1993]

Licence or permit for radio station

30 No person shall, on behalf of another person, install, place in op era tion, repair or maintain radio apparatus, radio receiving apparatus not excluded from the application of this Act or a radio station, for the possession, maintenance, installation and operation of which a licence or permit is required, if no such licence or permit has been granted by the Minister.

Operation of radio stations

31 (1) A radio station shall not carry out �

(a) unnecessary transmissions;

(b) the transmission of superfluous signals and correspon dence;

(d) the transmission of signals without identification except for�

(i) radiobeacons or certain other radio navigation services where identification signals are re moved in case of malfunction or other nonopera tional service as a means of warning that transmis sions cannot safely be used for naviga tional purposes;

(ii) survival-craft stations transmitting distress sig nals automatically;

(iii) emergency position - indicating radiobeacons;

(e) the transmission of signals containing profane or ob scene words or language;

(f) trials or tests except under such circumstances as pre clude the possibility of interference with other stations.

(2) The operation of a radio station shall be limited to the per for mance of such services as are specified in the licence.

(3) Radio apparatus and radio stations shall not radiate more power than is necessary to ensure a satisfactory service and shall be es tablished and operated in such a manner as not to cause harmful inter ference with other radio installations and other telecommunication ser vices. The equipment shall be maintained in a condition which complies with the Convention, the regulations and the terms and conditions of the licence.

(4) Radio apparatus shall only transmit on frequencies or in fre quency bands authorized by the Minister under section 33 and pre scribed in the licence or permit.

(5) The Minister may in writing authorize the Telecommunica tions Inspector to require by notice in writing to a licensee that in re spect of the radio apparatus which the licensee is licensed to operate the li censee shall perform such periodic tests, measurements and mainte nance as the Telecommunications Inspector deems appropriate and nec essary to ensure compliance with this Act, the Convention, the regula tions and the terms of the licence.

(6) A licensee served with a notice under subsection (5) shall keep a record in writing, signed by him or by the officer responsible, of the dates and times and results of the tests and measurements and the details of the maintenance, and the record may be inspected at all rea son able times by an officer of the Department and shall be kept for not less than one year.

(7) A radio station shall accept distress calls and messages with absolute priority regardless of their origin and shall immediately take such action with regard thereto as may be required by the Conven tion.

(8) A radio station may during a period of emergency in which normal communications facilities are disrupted as a result of a hurri cane, flood, earthquake or similar natural disaster, be used for emer-gency communications and may be operated in a manner other than that provided in the Convention, the regulations or specified in the li cence, and any such emergency use shall be discontinued as soon as substan tially normal communication facilities are again available.

Proprietary rights in respect of certain programmes

32 (1) Every person who is authorized by licence under this Act to make charges in Bermuda for the reception of any programmes, infor ma tion or other material included in a service to which this section ap plies shall be entitled to the proprietary rights therein conferred by this
section.

(2) This section applies to the following services in Bermuda �

(a) any cable television service;

(b) any subscription radio service; and

(c) any service (other than a broadcasting service) which con sists wholly or mainly in the sending, by means of a telecommunication system, of sounds or visual images or both and is provided for a person providing a service falling within paragraph (a) or (b).

(3) The rights conferred by this section are infringed by the manufac ture, possession, importation, sale or letting on hire of any ap paratus or device which is designed or adapted, or the publication of any information which is calculated, to enable or assist persons to re ceive the programmes, information or other material without payment.

(4) Subject to subsection (6), infringements of the rights con ferred by this section on any person shall be actionable at the suit of that person; and in any proceedings for such an infringement such re lief, by way of damages, shall be available as provided in subsection (7).

(5) Where rights conferred by this section on any person have been infringed by the manufacture, possession, importation, sale or let ting on hire of any apparatus or device, then, subject to subsection (6), that person shall be entitled in respect of the conversion by any other per son of the apparatus or device to all such relief, by way of an order for its delivery or otherwise, as he would be entitled to if he were its owner and had been its owner since the time of the infringement.

(6) A person shall not be entitled to recover damages from an other person by virtue of this section if, at the time of the infringement or conversion, that other, person was not aware, and had no reasonable grounds for suspecting that the rights conferred by this section on the first-mentioned person would be or had been infringed.

(7) Any person aggrieved by any infringement of the rights con ferred by this section may recover in the courts of Bermuda an award of statutory damages in the action in a sum of four hundred dol lars and in any case in which the court finds that the infringement was for busi ness purposes the court may increase the award of statutory dam ages to a sum of one thousand dollars.

(8) For the purposes of this section the occupier, or the person in control of any premises in which any programme, information or ma terial in a service described in subsection (2) is intercepted or received shall be prima facie liable to any person aggrieved by the infringement of rights conferred by this section.

(9) Nothing in this section shall affect any right, obligation, or liability under the Copyright Act 1956 [title 17 item 47], any statutory in stru ment made thereunder or any other applicable law.

Minister to determine frequencies

33 (1) The Minister shall, in accordance with the Convention, de termine the bands of frequencies or the individual frequencies which may be used by radio or other apparatus to which this Act applies and may determine the bandwidth, type of emission, power and call sign which shall be used.

(2) The assignment of a frequency or frequencies to any radio apparatus or radio station does not confer a monopoly of the use of such frequency or frequencies nor shall a licence or permit be construed as conferring any right of continued tenure in respect of any frequency or frequencies.

Labelling of radio apparatus

34 (1) No person shall mark or label any radio apparatus or radio receiving apparatus in such a manner as to indicate that such appara tus has been approved by the Minister if such apparatus has not been so approved.

(2) Each unit of radio apparatus or radio receiving apparatus that is marked or labelled contrary to subsection (1) shall be evidence of a separate contravention of that subsection.

Harmful interference

35 No person shall cause harmful interference.

Convention applies but regulations do not apply to foreign mobile stations on aircraft or ships

36 Unless otherwise provided in this Act, the regulations shall not apply to foreign mobile radio stations on aircraft or ships temporarily lo cated within Bermuda or Bermudian air space but the Convention shall apply to such stations.

Control of use of radio apparatus on vessels in territorial waters

37 (1) Save as otherwise provided in this section, no radio appa ra tus on board a vessel (other than a ship of war) shall be used while the vessel is in the territorial waters of Bermuda notwithstanding that a li cence, whether granted under this Act or under the law of any other coun try or territory, is in force in respect of such apparatus.

(2) When a vessel is proceeding through the territorial waters of Bermuda, radio apparatus on board the vessel may be used to communi cate on minimum power with the nearest coast station and for
naviga tional purposes, or, if communication with the nearest coast sta tion is impractical and the safe navigation of the vessel so requires, with a more distant coast station or another vessel.

(3) Radio apparatus on board a vessel that is in the territorial waters of Bermuda may be used, for the purpose of summoning assis tance on an occasion of danger to the life of any person or to the vessel, to communicate with the nearest coast station or if communication with the nearest coast station is impracticable, with a more distant coast sta tion or another vessel, or to communicate with stations in the maritime mobile satellite service.

(4) With the permission in writing of the Minister, radio appa ra tus on board a vessel that is in the territorial waters of Bermuda may be used in the carrying out of experimental tests.

(5) The Minister may permit the use, on such occasions or for such period as he specifies, of radio apparatus on board a vessel that is in the territorial waters of Bermuda.

Control of use of radio apparatus on aircraft in Bermuda

38 (1) Save as otherwise provided in this section, no radio appa ra tus on board an aircraft shall be used while the aircraft is in Bermu dian air space or on the ground in Bermuda except for the purpose of communica tion with a licensed ground station, for operational and commer cial control service, or for testing prior to flight of the apparatus used for air traffic control and air navigation purposes, notwithstanding that a licence, whether granted under this Act or the law of any other coun try or territory, is in force in respect of such apparatus.

(2) At all times when an aircraft is in Bermudian air space or is on the ground in Bermuda in an operational state a watch shall be maintained on the relevant traffic control service.

(3) The Minister may permit the use, on such occasions or for such periods as he specifies, of radio apparatus on board an aircraft that is in Bermuda air space or at an aerodrome in Bermuda for pur poses not specified in subsections (1) and (2).

PART VI

OFFENCES AND PENALTIES

Contravention of section 9 an offence

39 Any person who contravenes section 9 commits an offence:

Punishment on summary conviction: imprisonment for 2 years or a fine of $2,000 or both such imprisonment and fine.

Punishment on conviction on indictment: imprisonment for 5 years or a fine of $4,000 or both such imprisonment and fine.

Failure to comply with directives

40 Any Carrier which refuses or fails to comply with a directive issued to it�

(a) by the Minister under section 15 or 22(3);

(b) by the Commission under section 14, 22 or 24, or, as the case may be, such direction as varied by the Minister under section 25,

is guilty of an offence and liable on conviction by a court of summary jurisdiction to a fine not exceeding five thousand dollars for each day during which the refusal or failure continues.

[Section 40 substituted by 1997 : 8 effective 27 March 1997]

Failure to comply with a direction by the Minister under section 17 an offence

41 Any Carrier which refuses or fails after a reasonable delay to com ply with the terms of a notice given by the Minister under section 17 commits an offence:

Punishment on summary conviction: a fine of $500 for each day during which the refusal or failure continues.

Contravention of section 18 an offence

42 Any person who obstructs an inspector referred to in section 18 from entering any premises as defined in that section or hinders or ob structs him in the execution of his duty or who, being a licensee and hav ing been notified to make available any radio station or records for inspec tion, fails without reasonable excuse so to do commits an offence:

Punishment on summary conviction: a fine of $500 and in default of pay ment imprisonment for 6 months.

Enforcement of price control provisions

43 A specified carrier which initiates a new telecommunication service or imposes a change in its authorized rates and charges without giving notice thereof to the Commission as required by section 23 is guilty of an offence and is liable on conviction by a court of summary jurisdiction to a fine not exceeding five thousand dollars and, in the case of a continuing offence, is liable to a further fine of five hundred dollars for each day during which the offence continues.

[Section 43 substituted by 1997 : 8 effective 27 March 1997]

Unauthorized disclosure by member or staff of Commission of confi den tial information an offence

44 (1) Neither the Minister nor any member of the Commission, the staff of the Commission or the Department, shall reveal or in any manner communicate to any other person, except for the purposes of this Act and the regulations or as required by law�

(a) any information for which a confidentiality claim has been made by a Carrier under section 61B and not withdrawn by the Carrier or denied in accordance with that section; or

(b) any information in respect of a customer which is designated as confidential pursuant to the regulations.

(2) Any person who contravenes subsection (1) commits an of fence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $2,000 or both such imprisonment and fine.

Punishment on conviction on indictment: imprisonment for 2 years or a fine of $5,000 or both such imprisonment and fine.

[Section 44 amended by 1997 : 8 effective 27 March 1997]

Contravention of sections 30, 31 and 34 an offence

45 (1) Any person who contravenes any provision of sections 30, 31 and 34 or of any regulation concerning radio, radio stations and radio services commits an offence:

Punishment of an individual on summary conviction: imprisonment for 1 year or a fine of $2,000 or both such imprisonment and fine.

Punishment of a body corporate on summary conviction: a fine of $5,000 and in the case of a continuing offence a further fine of $1,000 for every day during which the offence continues.

(2) Where any person is convicted of an offence under subsec tion (1) the court, where it is proved to its satisfaction that the contra vention includes the illegal operation or possession of any apparatus, may order the confiscation of the apparatus and any antenna.

Contravention section 35 an offence

46 (1) Any person who wilfully contravenes any provision of sec tion 35 commits an offence:

Punishment of an individual on summary conviction: imprisonment for 2 years or a fine of $2,000 or both such imprisonment and fine.

Punishment of a body corporate on summary conviction: a fine of $5,000 and in the case of a continuing offence a further fine of $1,000 for every day during which the offence continues.

(3) Where the court finds that harmful interference has been caused, whether wilfully or not, it may direct that the person responsible shall bear the costs of any technical investigation made in order to es tablish the existence and cause of such harmful interference.

Contravention of section 37 or section 38 an offence

47 In the event of a contravention of section 37 or section 38 the master of the vessel or the captain of the aircraft, as the case may be, or the person at whose direction the radio apparatus was used, commits an offence:

Punishment on summary conviction: a fine of $2,000.

Transmitting or receiving messages by unlicensed means of telecommunication an offence

48 Any person who, knowing or having reason to believe that a means of telecommunication is being maintained in contravention of this Act, transmits or receives any messages by such means of telecommuni cation or performs any service incidental to the transmission or reception of any such message or delivers any message for transmission by such means of telecommunication or takes delivery of any message sent thereby commits an offence:

Punishment on summary conviction: a fine of $2,000.

Offences by telecommunication officer

49 Any telecommunication officer or employee of a Carrier or any person who has official duties in connection with a public telecommuni cation service, who �

(a) wilfully destroys, secretes or alters any message that he has received for transmission or delivery; or

(b) forges any message or utters any message that he knows to be forged; or

(c) wilfully abstains from transmitting any message or wil fully intercepts or detains or delays any message unless for legitimate service purposes; or

(d) otherwise than in pursuance of his duty or as directed by a court, copies any message or discloses any message
or the purport of any message to any person other than the person to whom the message is addressed,

commits an offence:

Punishment on summary conviction: imprisonment for 2 years or a fine of $1,000 or both such imprisonment and fine.

Destruction of messages by person other than telecommunication officer

50 Any person, not being a telecommunication officer or employee of a Carrier or a person who does not have official duties in connection with a public telecommunication service who �

(a) wilfully destroys, secretes, detains or delays a message intended for delivery to some other person; or

(b) having been required by a telecommunication officer to deliver up to him a message in the possession of that person and intended for delivery to some other person, refuses or neglects to do so; or

commits an offence:

Punishment on summary conviction: imprisonment for 12 months or a fine of $500 or both such imprisonment and fine.

Damaging telecommunication installation with intent

51 (1) Any person who damages, removes or interferes in any way whatsoever with a telecommunication installation or uses it with intent to �

(a) prevent or obstruct the transmission or delivery of a message; or

(b) intercept or discover the contents of a message; or

commits an offence.

(2) Any person who without authorization connects to or wilfully damages, removes or interferes with any telecommunication installation including any apparatus which is designed or adapted for use in connection with the running of a cable television service and, in particular

(a) any line, that is to say, any wire, cable, tube, pipe or other similar thing (including its casing or coating) which is so designed or adapted; or

(b) any structure, pole or other thing in, on, by or from which any telecommunication installation or apparatus is or may be installed, supported, carried or suspended,

commits an offence:

Punishment of an individual on summary conviction: for each offence a fine of $3,000 or imprisonment for 2 years or both such fine and imprisonment and in the case of a continuing offence a further fine of $500 for every day during which the offence continues.

Punishment of a body corporate on summary conviction: for each offence a fine of $5,000 and in the case of a continuing offence a further fine of $1,000 for every day during which the offence continues.

{Section 51 amended by 1993:31 effective 7 July 1993]

Transmission of false messages

52 Any person who transmits, or causes to be transmitted by telecommunication, a message that he knows to be false commits an of fence:

Punishment on summary conviction: imprisonment for 2 years or a fine of $500 or both such imprisonment and fine.

Improper use of public telecommunication service

53 (1) Any person who �

(a) sends, by means of a public telecommunication service, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) sends by those means, for the purpose of causing an noyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication ser vice; or

(i) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent; or

(ii) makes a telephone call, whether or not conver sation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number; or

(iii) makes or causes the telephone of another re-
peatedly or continuously to ring, with intent to harass any person at the called number; or

(iv) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or

(d) knowingly permits any telecommunication apparatus under his control to be used for any purpose prohibited by this section,

commits an offence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $2,000 or both such imprisonment and fine.

(2) Any person who by means of a public telecommunication service �

(a) obtains information from a computer which he is not authorized by the owner of the computer or the owner of the information to possess; or

(b) without the authority of the owner of the computer or the owner of the information changes information stored in a computer or in any way interferes with the pro gramme �

commits an offence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $2,000 or both such imprisonment and fine.

Punishment on conviction on indictment: imprisonment for 2 years or a fine of $5,000 or both such imprisonment and fine.

Every distinct contravention shall be a separate offence.

(3) Any person, be he a participant or not, in the act or acts penalised in subsection (2) who knowingly possesses any tape record, wire record, disk record or any other record of any information secured in the manner prohibited by subsection (2), or replays the same to any person or communicates the contents thereof whether complete or par tial either verbally or in writing or in any other manner to any other per son commits an offence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $2,000 or both such imprisonment and fine.

Punishment on conviction on indictment: imprisonment for 2 years or a fine of $5,000 or both such imprisonment and fine.

(4) For the purposes of subsection (2) "computer" means a pro grammable electronic device that can store and process data and from which data can be retrieved.

Contravention of section 61 an offence

54 Any person who contravenes section 61(2) to (6) commits an of fence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $2,000 or both such imprisonment and fine.

Punishment on conviction on indictment: imprisonment for 2 years or a fine of $5,000 or both such imprisonment and fine.

Contravention of section 62 an offence

55 Any person who fails to comply with a warrant under section 62 commits an offence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $1,000 or both such imprisonment and fine.

Obstruction of Minister an offence

56 Any person who wilfully obstructs the Minister or the Commis sion or any public officer in the exercise of any power conferred upon him or them, by this Act commits an offence:

Punishment on summary conviction: imprisonment for 6 months or a fine of $500 or both such imprisonment and fine.

Liability of directors, etc. where offence committed by corporation

57 Where a person by whom an offence under this Act is committed is a corporation and it is proved that the offence was committed with the consent or connivance of a director or other officer concerned in the management of the corporation, the director or other officer commits the like offence.

Liability of owner and manager of unincorporated specified Carrier

58 Where under this Act any obligation is imposed upon any speci fied Carrier which is not a body corporate or where any specified Carrier which is not a body corporate is declared by this Act to commit an of fence, such obligation shall be deemed to be imposed upon, and such offence shall be deemed to be committed by, both the owner and the manager of the undertaking.

PART VII

SUPPLEMENTARY AND MISCELLANEOUS

Minister may make regulations

59 (1) The Minister may, after consultation with the Commission, make regulations for the proper carrying out of the provisions and pur poses of this Act and for the implementation of those provisions of the Convention that are applicable to Bermuda and in particular, but with out prejudice to the generality of the foregoing, may by regulation provide inter alia for �

(a) the control and conduct of public telecommunication service including, without limiting the generality of the foregoing,�

(i) the regulation of the rates and
charges for the provision of public telecommunication services;

(ii) restrictions on the marketing and advertising of public telecommunication services;

(iii) the regulation and prevention of anti-competitive practices by Carriers;

(iv) the establishment and regulation of technical standards for equipment used in connection with the provision of or use of public telecommunication services including equipment used by Carriers and equipment to be connected to the networks of Carriers;

(v) the regulation of quality of service of public telecommunication services offered by Carriers;

(vi) the establishment and regulation of procedures and technical standards for the interconnection of the facilities of Carriers;

(vii) the establishment and regulation of procedures and technical standards for the construction of telecommunications lines on public roads, highways and other public places;

(viii) the establishment and regulation of procedures and technical standards for the use and sharing of support structures by Carriers; and

(ix) the classification of the various types of public telecommunication services;

(b) the classification of the various types of radio station, prescribing the nature of the services to be rendered, the frequencies to be used by each class of station and the qualifications of the operators and the technical support staff thereof, and for monitoring the use of frequencies;

(c) the prescription of the minimum performance specifica tions for equipment which may be used in each class of radio station, with particular reference to the power out put, necessary bandwidth, frequency stability and spuri ous emissions, and prohibiting the manufacture or im portation of radio apparatus which does not conform to the technical specifications prescribed in respect of such apparatus;

(d) the grant, revocation, suspension and renewal of li cences, permits and certificates, the various types of li cences, permits and certificates which may be issued by the Minister, the manner in which they may be applied for, their respective forms, the period of their validity and the delegation of functions in respect of such li cences, permits and certificates;

(e) the grant, revocation, suspension and renewal of li cences, permits or certificates for persons dealing in the course of trade or business in any apparatus for radio communications or in apparatus of any kind that gener ates or emits radio waves whether or not the apparatus is intended or capable of being used for radiocommuni cations;

(f) the grant, revocation, suspension and renewal of li cences, permits or certificates for persons who demon strate with a view to sale in the course of trade or busi ness any apparatus or material for radio com mu ni ca tion;

(g) the examination of persons in connection with the oper ation of apparatus for radiocommunication, the grant and endorsement of certificates of competency in the op eration of such apparatus, the fees payable in respect of any such examination or the grant or endorsement of any such certificates, the authorization of persons to hold positions in radio stations and the cancellation or suspension of any such authority;

(h) watches, if any, to be maintained at the various classes
of radio stations;

(i) the inspection of radio stations;

(j) standby facilities to be maintained by radio stations for use in case of natural disasters or other emergencies;

(k) the prohibition or regulation of the sale or use of any apparatus or machinery causing or capable of causing harmful interference to radio reception;

(l) the prohibition or regulation of the sale, importation, or use of decryption or encryption devices and the regula tion of the price;

(m) the prohibition and control of electrical or radiated in terference with the working of apparatus for telecommu nication;

(n) the preservation of the secrecy of telecommunications not intended for public reception;

(o) the conditions and restrictions subject to which mes sages may be transmitted or received;

(p) the period for which, and the conditions subject to which, messages and other documents connected with a telecommunication service shall be preserved;

(q) the requirement that operators of radio stations or appa ratus observe the provisions of the Convention and pro viding penalties for the suspension of licences or per mits, for failure to observe those provisions;

(r) the control or use by Government of any radio station or apparatus during a state of emergency or war;

(s) the operation of foreign registered or licensed mobile ra dio stations while in or over Bermuda or its territorial waters or in Bermudian air space;

(t) mobile radio stations licensed in Bermuda which are not for the time being in or over Bermuda, Bermudian air space, or its territorial waters;

(u) the licensing of persons wishing to maintain or repair radio apparatus and the qualifications to be held by such persons;

(v) the regulation of the importation, sale, trading in and demonstration of radio apparatus and radio receiving apparatus not excluded from the application of this Act;

(w) the dismantling, sealing or confiscation of any radio sta tion, radio apparatus and radio receiving apparatus, not excluded from the application of this Act;

(x) generally regulating the conditions under which cable television service and subscription radio service may be established, maintained and operated;

(y) any other matter or anything which may be, or is re quired by this Act to be prescribed.

(2) Without derogating from the generality of subsection (1) regulations may in respect of a licence to operate a radio station for the purpose of broadcasting service provide �

(a) for the procedure to be followed where there is a transfer of financial interest in any undertaking operating a broadcasting service and for the revocation of any such licence where there is a change in the status of a person or persons having financial control of the undertaking contrary to the requirements of section 12(1); and

(b) for the procedure to be followed in respect of any such licence upon any recommendation of the Broadcasting Commissioners under the Broadcasting Commissioners Act, 1953 or any succeeding Act.

(3) Regulations made under subsection (1)(m) may �

(a) constitute the Minister as the sole authority for the making of tests and measurements in respect of electri cal or radiated interference;

(b) confer upon the Minister the power to determine the measuring apparatus to be used, the method by which and the conditions under which tests are to be made and the manner to be used in computing the amount of any such interference from readings afforded by the measuring apparatus;

(c) in respect of any specified class or classes of apparatus confer upon the Minister, with or without restriction, the power to fix, in such manner as may be specified in the regulations, the limits of any such interference at any frequency or within any frequency range, whether in substitution for or by way of amendment of limits, fre quencies or frequency ranges specified in any regula tions made under that paragraph, or otherwise.

(4) Regulations made under this section may provide that con-
traventions of specified provisions of such regulations shall be an offence and may provide penalties therefor but no penalty so provided shall ex ceed a fine of two thousand dollars or imprisonment for a term of twelve months, or both.

(5) The negative resolution procedure shall apply to regula tions made under this section.

[Section 59 amended by 1997 : 8 effective 27 March 1997]

Action for damages in the Supreme Court

59A (1) Subject to any limitation of liability imposed in accordance with this or any other Act, a person who has sustained loss or damage as a result of any act or omission that is contrary to any provision of this Act or any regulations made thereunder or any decision of the Minister or Commission as the case may be, may sue for and recover in the Supreme Court an amount equal to the loss or damage from any person who engaged in, directed, authorized, consented to or participated in the act or omission.

(2) Notwithstanding any other provision of law to the contrary, but subject to subsection (3), an action may not be brought in respect of any loss or damage referred to in subsection (1) more than two years after the day on which the act or omission occurred.

(3) Nothing in subsection (1) or (2) applies to any action for breach of a contract to provide public telecommunication services.

[Section 59A inserted by 1997 : 8 effective 27 March 1997]

Appeals to the Supreme Court

60 (1) Any person aggrieved by �

(i) a decision of the Minister under section 11, 13 or 25; or

(ii) a directive of the Minister under section 15 or 22,

may appeal on that account to the Supreme Court on a point of law or mixed fact and law.

(2) An appeal under subsection (1) shall be lodged in the Reg istry within twenty-one days after receipt of notification of such decision, directive or direction, or such longer period as the Court may allow.

(3) On any such appeal the Court may make such order, in cluding an order for costs, as it thinks fit.

(4) Section 62 of the Supreme Court Act 1905 [title 8 item 1] shall be deemed to extend to the making of rules under that section to regulate the practice and procedure on an appeal under this section.

(5) An appeal under subsection (1) shall not act as an automatic stay of the decision or directive of the Minister appealed from.

[Section 60 amended by 1997 : 8 effective 27 March 1997]

Privacy of communication

61 (1) Privacy of communication shall be inviolable except as pro vided in section 62.

(2) No person not being authorized by the sender or the ad dressee shall intercept any signal in the course of telecommunication and wilfully divulge or publish the existence, purport, effect or meaning of such intercepted signal to any person.

(3) No person not being entitled thereto shall receive, or assist in receiving any such intercepted signal and use the same or any infor mation therein contained for his own benefit or for the benefit of another not entitled thereto.

(4) No person having received such intercepted signal or having become acquainted with the same (or any part thereof), knowing that such information was so obtained, shall divulge or publish the contents, substance, purport, effect or meaning of the same (or any part thereof) or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto:

Provided that subsections (2), (3) and (4) shall not apply to the transmitting, receiving, divulging, publishing or utilizing the contents of any radio message or communication broadcasted or transmitted by am ateurs or others for the use of the general public or relating to ships or aircraft in distress:

Provided also, that it shall not be unlawful under this section for an operator of a switchboard or an officer, employee or agent of any Car rier the facilities of which are used in the transmission of a wire commu nication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a neces sary incident to the rendition of his service or the protection of the rights or property of the Carrier transmitting such communication:

Provided further, that said Carrier shall not utilize service ob serving or random monitoring except for mechanical, electronic, optical or service quality control checks; that it shall not be unlawful under this section for an officer, or employee or agent of Government in the normal course of his employment and in discharge of the radio monitoring re sponsibilities exercised by the Minister in the pursuance of his powers under section 59(1)(b) to intercept a communication transmitted by ra dio, or to disclose or use the information thereby obtained.

(5) No person, not being authorized by all the parties to any private signal shall tap any wire, cable or optical fibre or by using any other device or arrangement, shall secretly overhear, intercept, or record such signal in the course of telecommunication by using any electronic or other device:

Provided that it shall be lawful for any police officer or officer of a Carrier acting with the consent of the person renting a circuit to tap or trace such circuit, or by using any other device secretly to overhear, in tercept or record a communication passing over such circuit in order to detect an offence under section 53.

(6) No person, be he a participant or not in the act or acts pro hibited in this section shall knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured in the manner prohibited by this Act, or replay the same for any other person or persons, or communicate the contents thereof, either verbally or in writing, or furnish transcrip tions thereof, whether complete or partial, to any other person.

(7) Nothing contained in subsections (2), (5) and (6) shall ren der it unlawful or punishable for any police officer, or other person who is authorized by a written order of the Governor under the powers granted to him by section 62, or a person designated by him, to execute any of the acts declared to be unlawful in subsections (2) to (6) and sub section (8) shall not apply to evidence thus secured.

(8) Any message, communication or spoken word, or the exis tence, contents, substance, purport, effect or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in contravention of subsections (2) to (6) shall not be ad missible in evidence in any judicial, quasijudicial, legislative or adminis trative hearing or investigation.

Access to information

61A Subject to section 61B, the Commission shall make available for public inspection any information submitted to the Commission in the course of proceedings before it.

[Section 61A inserted by 1997 : 8 effective 27 March 1997]

Confidentiality of information

61B (1) A Carrier providing any information to the Minister, the Commission or the Department pursuant to this Act or the regulations may designate such information as confidential on the grounds that it is�

(a) a trade secret;

(b) financial, commercial, scientific or technical information which is confidential in nature and is consistently treated as such by the Carrier; or

(i) result in material financial loss or gain to any person;

(ii) prejudice the competitive posi-tion of the Carrier or others; or

(iii) prejudice contractual or other negotiations.

(2) A Carrier claiming confidentiality in respect of any information under subsection (1) must provide full justification for its claim and must also provide a version of such information without the confidential provisions and in a form that may be made available to the public.

(3) Upon receipt of a confidentiality claim pursuant to subsection (1) and after considering any representations of interested persons, the Minister, the Commission or the Department, as the case may be, shall assess such claim having regard to the public interest in disclosure, as well as the private interests of the Carrier and other persons identified by the Carrier, and shall determine whether disclosure of the relevant information is in the public interest.

(4) Following a decision by the Commission or Department, as the case may be, regarding disclosure of information, the Carrier or any interested person may appeal such decision to the Minister within five days of the decision and the Minister shall render a decision on any appeal within a further seven days.

(5) On appeal the Minister may uphold or vary any disclosure decision of the Commission or the Department as the case may be.

(6) A decision of the Minister under subsection (3) or (5) may be appealed to a Judge in Chambers.

(7) A decision of the Minister under subsection (3) or (5) shall be suspended pending the outcome of the appeal to the Judge in Chambers under subsection (6).

(8) When a decision has been rendered, and any appeals completed, under this section, the Carrier shall forthwith comply with the decision.

[Section 61B inserted by 1997 : 8 effective 27 March 1997]

Bermuda Consolidated Legislation

Telecommunications Act 1986