Jurisdiction - Myanmar
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Myanmar – Country Heralds New Telecoms Law.

24 October, 2013

 

Legal News & Analysis – Asia Pacific – Myanmar

 

The much anticipated Telecommunications Law No. 31 of Myanmar (Telecoms Law)1 was finally enacted on 8 October 2013. The main aspects of the Telecoms Law are highlighted below. The law comes at a time of unprecedented change in Myanmar, with new telecoms licences being announced recently and a comprehensive legislative and regulatory reform programme to modernise the legal and regulatory regime and attract investment.

 

1. Context

 

The Telecoms Law repeals the antiquated Myanmar Telegraph Act 1885 and Myanmar Wireless Telegraphy Act 1934 and will be the cornerstone of law and regulation for the telecoms sector in Myanmar.

 

There are some transitional provisions under the Telecoms Law, for example existing licences are presumed to have been issued under the Telecoms Law up to the date of expiry of the licence.

 

Further regulations to supplement the Telecoms Law are expected in due course, in areas such as licensing, spectrum, numbering, interconnection and access, universal service, tariffs, competition, infrastructure or site sharing and environmental measures.

 

2. Objectives

 

The main objectives of the Telecoms Law are provided in the law as being:

 

  • to support the modernisation and development of the State by means of telecommunications technology;
  • providing equal opportunities and transparent competition between local and foreign entities for developing high quality and suitable telecommunications services to users;
  • to establish a telecommunication network with nationwide coverage and create opportunities for the general public to make use of telecommunications services;
  • to protect telecommunications service providers, that establish and operate businesses, as well as users; and
  • to supervise telecommunications services, network facilities and licensed telecommunications equipment being used only for enhancing peace, stability and security.
 

3. Relevant Bodies

 

The main bodies referred to in the Telecoms Law are as follows:

 

Department of Telecommunications (“Department”)  The Department is the executive arm in relation to telecoms regulatory matters, and may perform the following main functions:

  • issue and renew licences;
  • assign frequency spectrum;
  • implement the national numbering plan and electronic addressing plan;
  • set technical and certification standards and procedures;
  • approve tariffs schemes and set consumer protection standards;
  • prescribe rules for access and interconnection;
  • prohibit anti-competitive conduct;
  • assist licensees in relation to the installation of network facilities where necessary; and
  • determine conditions, codes of practice and standards and issue orders and directions.
 

The Department may take administrative action in respect of a licensee if the licensee is found to have breached the Telecoms Law or failed to comply with licence conditions.

 

Any dispute among licensees in relation to the operation and provision of telecommunications services or network facilities or access and interconnection may be submitted to the Department for resolution. The Department may also resolve a dispute without submission from licensees if a dispute may harm the public interest.

 

An Independent Communication Commission (Commission) is to be formed within two years.2 

Ministry of Communications and Information Technology(“Ministry”)  The Ministry is the policy and strategy formulating body for the telecoms sector and supervises the Department.Ministry approval is required for a number of functions performed by the Department. Prior approval from the Ministry is also required for any prosecution under the Telecoms Law.

 

The Ministry will also determine licence fees, renewal fees, spectrum fees, fees for the allocation of numbers in accordance with the use of numbering and electronic addressing plans and amounts for overdue payment of those fees. 

 

The Ministry may, for public interest and with the approval of the Union Government, exempt any Government department, organisation or person from the requirement to obtain any authorisation or licence or pay any fees.

 

The Ministry may issue rules, regulations and by-laws with the approval of the Government and notifications, orders, directives and procedures, as necessary, for implementing the Telecoms Law. 

 

If a licensee in dispute with any other licensee(s) is dissatisfied with the decision of the Department, it may appeal to the Ministry and then to the Appeals Tribunal, or may demand relief from a court for matters which are not related to telecommunications technology.

National Telecommunications Advisory Committee (“Committee”)  The Committee will be formed by the Ministry, by issuing a notification with the approval of the Union Government, for the purposes of making recommendations and suggestions concerning technical standards, consumer protection and telecommunications development policy and related issues.The Committee may be chaired by the Union Minister of the Ministry or any designated person and will comprise representatives of the ICT industry, licensees, consumer groups, industry experts and the Department.
Appeals Tribunal  The Appeals Tribunal may be established by the Union Government, on the advice of the Ministry on an ad hoc basis, for the licensee to appeal against the administrative actions of the Ministry. Decisions of the Appeals Tribunal will be final and binding.The term of the Appeals Tribunal commences on the date of formation and ends on submission of the final decision report to the Union Government.

 

4. Regulatory Action And Indemnity

The Telecoms Law includes fairly wide ranging interception, inspection, supervision, control and suspension rights for the Department or Ministry. For example:

 

  • The Union Government may direct the relevant organisations as necessary to intercept any information or communications that may adversely affect the security of the State and the rule of law without infringing citizen’s fundamental rights.
  • The Ministry, or the department or organisation assigned by it, may, in respect of defense and security matters of the State or public interest, enter into the premises of the licensees to inspect, supervise, and may request the licensees to furnish any relevant documents.
  • On the occurrence of any public emergency, the Ministry may also, subject to the approval of the Union Government, order a licensee to suspend a telecommunications service, restrict specific forms of communication, jam or intercept any communication, hand over telecommunications equipment, or take temporary control of any telecommunications equipment.
 

The Ministry may also carry out such acts without the prior approval of the Government in matters of State emergency, national defence or security or natural disaster.

 

An equipment licensee must take measures to prevent any interference to the State’s security.

 

A licensee is also required to indemnify the State against any breaches or failures on the part of the licensee.

 

5. Licences

 

The Telecoms Law provides for the following licences:3

Facilities and services(to be approved by the Ministry) Network facilities Owning network facilities, leasing owned network facilities to another licensee or providing telecommunication services using owned network facilities
Network service Carrying information by means of telecommunications, excluding services provided solely on the customer side of the network boundary
Application service Providing a service using one or more network service, excluding services provided solely on the customer side of the network boundary
Equipment(to be approved by the Department) Telecommunications equipment Possessing or using telecommunications equipment deemed by the Ministry as requiring a licence, other than telecommunications equipment for use or provided by a licensee

 

Facilities and services licences have a minimum five year term and a maximum 20 year term. For equipment licences, the term will be as prescribed in the licence.

 

6. Fees

 

The Ministry will determine licence fees, renewal fees, spectrum fees, fees for numbering and electronic addresses, as well as amounts for fees which are overdue.

 

7. Foreign Investors

 

Entities with foreign shareholders may apply for licences, but the approval of the Union Government would be required for such licences. In practice the Union Government approval is likely to be obtained in conjunction with any permit obtained from the Myanmar Investment Commission.

 

Other laws and regulations will be relevant in this regard, including the State-Owned Economic Enterprises Law, which reserves telecommunications services for the Union Government unless otherwise approved in accordance with that law, and the Foreign Investment Law.

 

8. Tariffs

 

Licensees must submit proposed tariffs or changes to tariffs to the Department for approval and comply with the approved tariffs.

 

9. Equipment

 

The import, export, manufacture, sale or distribution of facilities or equipment may require authorisation or approval in relation to technical standards from the Department.

 

10. Cooperation And Sharing

 

A licensee may, in accordance with the law, co-operate with local or foreign individuals, department and organisations.

 

A licensee may enter into an agreement with any other licensee to share network facilities or for other purposes specified in its licence. No specific approvals are required under the Telecoms Law itself.

 

11. Joint Ventures Or Consortium

 

A licensee which wishes to enter into a joint-venture or consortium with another licensee must obtain approval from the Ministry

 

12. Land

 

Licensees will need to obtain the prior agreement of the owner of any land or building where network facilities are installed, connected or used that, in case of any change of ownership of the land or building, the network facilities can continue to be installed, connected or used.

 

The Department has the power to give certain directions in relation to access or use of the land or building in certain circumstances, involving:

 

  • requiring developers or owners of buildings or land to coordinate and provide space for the installation of network facilities within or on the building or land, within a suitable time frame;
  • instructing any licensee to install network facilities within a specified period; or
  • instructing the licensee to contribute wholly or partly to the costs and expenses incurred in installing network facilities.
 

13. International Gateways

 

Union Government approval is required in order to provide international gateways.

 

14. Access And Interconnection

 

A licensee which wishes to enter into an agreement with another licensee for access or interconnection to network facilities or services will need the approval of the Department.

Access and interconnection must be on an equitable and non-discriminatory basis and must not be of lower technical standard and quality than for the licensee’s own network facilities or services.

 

15. Universal Service

 

A fund for implementing basic telecommunications requirements throughout the country will be established and supervised by the Ministry. The Department, with the Ministry’s approval, may set universal service targets and universal service obligations for 

 

16. Competition

 

Licensees are prohibited from entering into any understanding, agreement, arrangement or contract for the purposes of unilaterally affecting rates, market sharing to reduce other competitors, preventing buying from a specific supplier or vendor of telecommunications equipment or unfair competition against competitors.

 

Licensees are also prohibited from restricting customers from acquiring telecommunications equipment or services from that licensee or from any other person.

 

17. Confidentiality

 

Licensees must keep confidential the information transmitted or received via telecommunications services, and not disclose such information to any unauthorised or irrelevant person except as required by law.

 

18. Penalties

 

There are a number of offences (including conspiring or abetting such offences) under the Telecoms Law and penalties as set out below:

 

Providing telecommunications services without a licence Imprisonment of not more than 5 years and a fine
Disturbing or altering technical standards or the original form of a telecommunications network without the approval of the owner Imprisonment of not more than 3 years, a fine or both 
Destroying a telecommunications network by virus or other means
Using any telecommunications network for stealing money or property or for fraud, misappropriation or mischief
Using any telecommunications network for the purposes of extortion, coercion, unlawful restriction, defamation, interference, undue influence or intimidation
Possessing or using telecommunications equipment without a license Imprisonment of not more than 1 year, a fine or both  
Communicating, receiving, transmitting, distributing or sharing incorrect information with dishonest intention
Prohibiting, obstructing or interfering with the transmission, reception, communication, conveyance or distribution of information without permission
Entering restricted telecoms service areas without permission
Prohibiting, obstructing, or disturbing the performance of any person assigned by a licensee
Disclosing any information which is kept under secured or encrypted systems to any unrelated person, unless in relation to litigation or as authorised by a court order to be disclosed
Using, keeping in possession, supplying or importing any network facility or telecommunications equipment which does not meet relevant technical standards
Prohibiting, preventing, obstructing or disturbing the performance of a civil servant assigned by the Department or an inspection team formed by the Department Imprisonment of not more than 6 months, a fine or both 
Breaching any rule, regulation, by-law, notification, order, directive or procedure under the Telecoms Law

 

1 An unofficial translation of the Telecoms Law was provided to Herbert Smith Freehills by local counsel in Myanmar.

 

2 It was provided in a draft of the Telecoms Law that the Department and the Ministry would prepare a transition plan for the transfer of regulatory functions undertaken by the Department to the Commission.

 

3 The concept of licences for content applications in a previous draft of the Telecoms Law was removed.

 

herbert smith Freehills

 

 

For further information, please contact:

 

Mark Robinson, Herbert Smith Freehills
[email protected]

 

Peggy Chow, Herbert Smith Freehills
[email protected]

 

Brett Sherrad, Herbert Smith Freehills
[email protected]

 

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