Telecommunications Bill 2012 - Bill No. 18 of 2012 – Nov 07, 20131343 07 Nov, 2013
Telecommunications Bill 2012 - Bill No. 18 of 2012 – Nov 07, 2013
Mr. Greenidge: Might I take the opportunity to say to the Comrade Prime Minister that I appreciated the humour in which he rounded off his very extensive presentation. I would like to also say that I think, on this side of the House, that we can embrace the proposal which he has and we ourselves had, as it may be recalled, attempted at the first reading to have the Bill directed to a Special Select Committee. I think one would want to try to give him the assurance that, given the importance of the Bill, we would do our best to ensure that it could be expeditiously handled in that Special Select Committee.
It is, of course, a fact that the Bill is very long. It is a big Bill; it something as of 97 pages with 95 clauses. It has a range of issues that warrant very close attention, notwithstanding the length of time that has being spent already in crafting it. I wish to emphasise that in addition to the amendments which came in August, on the very day that the Bill was laid the first time, we have apparently some more amendments today which somehow I have not seen, but I think also that adds to the need to explain as to why it would not be, perhaps, prudent to try to debate the Bill to any significant extent today.
I would like to start with a general observation. A general observation is to say that telecom is of course a very complicated area. The economic side is one that developed relatively recently the application of networks to pricing on the telecoms side, but on top of that there is a digital and telecommunications revolution, which is taking place, that has changed the entire nature of the sector. I am making this point not to suggest that I know anything special about area, but it is simply to say that it means that there are not only many changes the sector has undergone but we are not sure where it is going in the future. The actors, the services, the natures of the services are not easily predictable. Therefore it is important that the Government puts in place a framework for the regulation and oversight of the sector that is flexible and that takes account of the fact that this is not telecoms of 1940s or 1960s or 1990s even; it a radical new sector. If thought is just given to some of the areas, which have changed, apart from the technical things, it will be seen that there is the tremendous expansion in a number of areas. Wireless communication itself, the development of internet, which seems to be now the central source of global information, and business, and that is very important because it underlines the profitability of many businesses today and the capacity of many of the businesses to compete in the areas of services, is access to and relatively cheap internet. Guyana is not anywhere near, even within the region, among the most inexpensive place in which to acquire or to get access to the service and it is important if competitiveness is to mean anything that we address this particular problem.
The introduction of other areas, fibre-optic, digital, information technologies, and so forth, ought to result in significant cost savings. In other words, the cost at which transactions are carried out by businesses should be a lot cheaper with these revolutions that are taking place. Whilst one cannot doubt that prices have gone down in some areas, we know that the quality of the service, and the cheapness, there is, a lot needs to be done in that regard. There was a change from the era when the companies, from one country to another, used accounting rates and the developing countries themselves were losers in those arrangements.
Today the telecoms market seems to be built on competition, nationally and internationally. If that is the case where accounting rates would not have to be managed, it really must be sure that the regulatory arrangement is put in place to allow the companies that operated to be competitive otherwise, as is with the case with power, there will be a liability for the rest of the country - manufacturing, services and all the others.
I do not know, it might be a coincidence that the Prime Minister happens to have these - what my grandmother used to call – near malulous, in other words, a service that runs the risk of being a burden on others. I trust that it is something that you are going, Prime Minister, to be able to acquit yourself, not only the usual dexterity, but to ensure that in the end that we have what we need.
There are issues of the rebalancing of the rates, the movement from the old arrangement with subsidies and the deregulation of the competitive services which is also important. I mention this because of the arrangements which the Prime Minister just has been conducting for the discussions with GT&T and the needs of Digicel itself which it seems to have felt that it was under some pressure in that sort of arrangement that we have. The movement of new models of setting rates, again, in the draft Bill, there are arrangements for rates. The question is: Have the rates arrangement been indentified here are consistent with the latest best practice? I think that is important.
I think also it is important that in the midst of all these changes, which are taking place, that affect the sector there is a shift in focus from regulation to the promotion of the national IT sector. This is important again. When one looks at the documents, which is before us, I think that the balance of the weight is more than regulation than on the promotion of the IT sector as such. I think it is important to note that.
I would just like to touch very briefly on some of the specific areas that I would urge attention to be paid to when this Bill is taken to the Committee. As usual, we must pay attention to the issue of regulation and of the role of the state governance, the issue of governance. Let me jump straight to that one saying that if we look at this telecommunications Bill and we contrast it with the Prime Minister’s presentation it is very interesting. It is as if he spoke about two different things all together.
When I look at what is set out here in Part III (I am jumping, but forgive me for that I do not want to attempt to comprehend something, but it is just to highlight those areas that appear to be worthy of the attention in the Special Select Committee) the function of the Minister, the agency and the commission are, to me, astonishing. The draft Bill reads, “Subject to the provisions of this Act the Minister shall…” Normally I think in our older legislation, and it is in a lot of the jurisdictions that we know, a Minister’s function is to cause things to be done or to have the powers whereby it could be done. In this case there is a Minister with clearly superman’s powers. The Minister’s charge is to determine which telecoms network can be classified; to grant or to deny applications.
Now the Minister normally is entrusted with overseeing policy in an area; it is not with determining, granting and denying. These are functions of the bureaucracy. If the PPP, up to now, does not understand the problem that one has with the form of governance, it is this: that these are the functions of the professional services that the Minister will oversees, not his functions themselves. It is remarkable that there could be a Minister who may know very little about the sector that he is managing, given a technical sector such as this, and the power that is given to him is that he as the officer…The Minister shall “…determine which classes or descriptions, if any, operators and service providers, and their related telecommunications networks and telecommunications services, may be exempted…” It does not even give the flexibility of saying there will be the relevant technical bodies to do this and advice. It does not say that. I think that needs to be amended.
If we look further down, “give to any person…” - this is paragraph (k) – “…such directions or take other action…,” and so forth, “be responsible for preparing and promulgating regulations”… I think that needs to be looked at that when this matter comes to the Special Select Committee because these are not the powers of a Minister; they ought not to be the powers of a Minister; they give scope to Ministers to exercise those prejudices, discrimination that we always have in the past, in the pre-independency, being concerned about. It is the function of the Minister to ensure that the officials applied the rules in a manner that is devoid of that type of arbitrary nature and discrimination. That is the function of the Minister, policy oversight. It is not to carry out these functions. This really is a cause for concern and, as I say, I believe attention should be paid to that.
I am sure that in the discussion with the telecoms agencies that probably would not have been the focus of the discussion, but nonetheless I am sure that the power would have caused concern to those agencies. Let me say that I have seen from the telecommunications reform report, which you referred to, Prime Minister, in 2000 or there about, that one of the things that was identified, and identified in the Inter-American Development Bank (IDB) report on the telecommunications sector, is a problem of litigation arising from the disagreement over the exercising of power. If we have already started off with that problem then we should not compound it by giving powers to Ministers and having the lack of clarity between functions carried out by the Ministers, the politicians and the functions of the agencies under them. I think we should take the opportunity to try and clear that up.
Further on, of course, in the exercise of these functions, as you pointed out, Prime Minister, there are sanctions; there are tools available to the Minister to ensure that actions are taken in accordance with instructions given or the regulations as they stand. I note that here again, at clause 69 (a), paragraphs (i) and (ii), refers to the consequences of refusing or failing to obey the order of as Minister or the commission and to furnish information, and so forth.
The question of the types of sanctions has to be carefully looked at because one would need a system where competition lies at the heart of the operation of the sector. One would need sanctions and incentives which are actually consistent with a market, again, rather than regulations.
One gets the impression, in looking at the draft Bill that a considerable focus lies in the area of revenue raising as opposed to trying to manage the system by way of incentives so as to almost encourage a sort of self-regulation. That is another observation.
In relation to the Bill overall, my impression and that of those with whom we have spoken is that it is a very heavy Bill on the administrative and bureaucratic side. As I said, if there is an emphasis on regulation in an area that is becoming so complicated, then the question is: will the Government be able to staff the administrative and technical agencies which are supposed to carry this work and will it be able to finance an adequate level of skills in order to carry out this work?
Telecommunications regulations and problems in telecommunications are almost...if one looks at the areas, at least in economics, one would find that it is one of the most difficult of the areas and getting persons who are sufficiently experienced and qualified usually requires that a person has a range of skills, not only the technical ones that are normally in telecommunications, but accounting, economic and legal ones. Sometimes, an employer wants them embodied in one person. Again, that is an expensive proposition and given the experience we have in the loss of skills and the inadequacy of technical skills, does the Government want to build a set of regulations that is so complex and heavy that it demands of one skills which one does not have? That is one set of additional points I would like to draw to your attention and urge that the Committee pay some special attention to.
At the same time, I would like to say that the other observation is really the intent. The Bill and the explanatory note, which is at the back, do not really give an adequate explanation or discussion of the environment in which the Bill is to operate. One does not get the impression – and I am speaking now on the basis of comments from some of the technical officers – that the Bill really looks sufficiently to the future. It seems to focus a lot on what is and what was the case in the past. For the reasons I explained earlier, I think it would be useful to try and make it more flexible and to set it in a framework that allows us not to have to come back to major changes every two weeks but one which takes account of an evolving environment.
On the issue of convergence, which, Prime Minister, you did mention, my impression is that this area has not been sufficiently and carefully addressed. There is a situation in which there is a migration of multiple communication services onto a single network with all of the complications that that involves and one wonders whether on the integration side sufficient integration of these services has actually been captured here. Without attempting to express a preference, I am simply saying that that is an aspect which needs careful attention. On the issue of merging these industries, permitting the delivery of voice, data, video, voice over a single network platform and all of these, I am wondering whether we have the ideal or have found a good enough balance as set out here in the framework.
On the question of the regulations, that is the telecommunications agency and the broadcasting agency, is there any justification for considering putting them together, given what is happening in the system? They are competing and similar services and it is going to be hard to regulate them with separate agencies requiring similar skills. That needs to be looked at more carefully. That is one of the points I want to raise in that regard, Mr. Prime Minister, although there are some more details on that front.
Let me leave that for the moment and say, as a final set of points, that the question of the regulations is also one that requires a more careful definition of some of the services which have been identified and I am thinking in that regard of not only the private sector. In the former arrangement, the Government of Guyana (GoG) was the regulator. It was operating by and large at an arm’s length. There is a situation now where the legislation seems to be cast in a way that would allow the Government to actually be providing some services. I do not know whether that is the intention or not but, if it is the intention, then the problem of having an actor within the sector also serving as the regulator arises. This burning issue, which we have seen elsewhere, of conflict of interest arises and the question is: has the Government, because I have not seen any, built in to the regulative arrangements provisions that will ensure that no conflict of interest arises on the part of the Government which can be both an actor and a regulator in relation to the sets of objectives which have been set out in the document?
Those are the main points: ministerial responsibility, bureaucracy and the relevant skills needed for the bureaucracy, the discretion to be exercised by the Minister, and the extent to which telecommunications is being brought into the purview of the Public Utilities Commission (PUC), but that is perhaps more a question for the other Bill.
I would also want to say that amongst the tools available in the regulation and oversight of the sector, one needs to look carefully at the fact that there is a very interrelated market and it is important that the actors face, if you like, the same tools and sanctions across the different services that they can provide. In relation to issues that arise in relation to the various types of service providers, some of the definitions are not altogether clear, for example, laptops as opposed to some of the internet services. My impression is that some of those areas could do with a discussion that enables one to draw a finer distinction than is provided in the draft Bill, certainly as I understand it.
I would like to concur with the Prime Minister that the Bill, due to the complexity, due to a number of areas that need continued attention...and I do not agree with the Prime Minister who has said that some of these can be dealt with outside of the legislation. I think that we should try and do as good a job as we can before anything is enacted. Incidentally, in the presentation, he identified three areas that were still in need of further consideration. I was not able to capture those. I do not know whether I was writing slower than normal but I missed those. Maybe, when he winds up, he can remind us of what they are.
I thank you very much for the opportunity to speak on this matter. Thank you. [Applause]
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