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BHUTAN INFORMATION, COMMUNICATIONS AND MEDIA ACT 2006
PREAMBLE
An Act to provide for a modern technology-neutral and service sector-neutral regulatory mechanism which implements con- vergence of information, computing, media, communications technologies and facilitates for the provision of a whole range of new services; to implement new information and commu- nications technology (ICT) and media policy, particularly to emphasize the Government's priority to information, comm- unications and media industry, as an industry in itself and an important enabler for other areas of human activity, thus pro- moting universal service to all Bhutanese, especially in the remote and rural areas of the country; to facilitate privatization and competition in the establishment of ICT and media facilities and services; to encourage and facilitate investment in ICT and media industry; to give new statutory authority to the Ministry of Information and Communications over several new activities in the ICT and media industry; to make the existing regulatory body more capable and independent regulating all aspects of ICT and media industry; to realign and separate responsibilities of the Government and the regulatory body; to make provision for the effective use, management and regulation of radio fre- quency spectrum; to regulate ICT and media facilities and services with a view to facilitate fair competition among all players, both in the public and private sectors; and to ensure effective use of national ICT and media infrastructure and resources; and to encourage and facilitate an increased use of ICT for new e-services and to effectively regulate the activities related to cyberspace and media operations, including their unwanted contents.
This Bhutan Information, Communications and Media Act has been enacted by the 85th Session of the National Assembly on 5th of July 2006 corresponding to the 9th Day of the 5th Month of the Bhutanese Fire Male Dog Year.
CHAPTER ONE: PRELIMINARY
SHORT TITLE, EXTENT AND COMMENCEMENT
1. This Act shall:
(a) be cited as the Bhutan Information, Communications and Media Act 2006;
(b) come into force on 5th of July 2006 corresponding to the 9th Day of the 5th Month of the Bhutanese Fire Male Dog Year.
(c) extend to whole of the Kingdom of Bhutan or otherwise within the jurisdiction of Bhutan
REPEALS
2. With the enactment of this Act, provisions of any other Act, Rules, Regulations, Circulars and Orders shall become invalid to the extent of inconsistency with any provisions of this Act. Further, the Bhutan Telecommunications Act 1999 is hereby repealed except for Sections 1.1, 1.2 and 1.6, 2-18 and 21-32, and Schedule 1 dealing with Bhutan Telecom as a Corporation.
CHAPTER TWO: FUNCTIONS, RESPONSIBILITIES AND POWERS OF THE MINISTRY
MANDATE OF THE MINISTRY OF INFORMATION AND COMMUNICATIONS
3.
(1) In Bhutan, the development and functioning of the information, communications and media industry is premised on following three segments:
(a) Information content, which pertains to the creation of information by the original players (writers, composers, artists, photographers, and filmmakers); it also includes compilation of information and reference works, databases, statistical series and real-time information services that supply constant flows of information. Management, regulation and trading in intellectual property rights form an integral part of the content segment;
(b) Information processing, which is concerned with the processing of information using both hardware and software; and
(c) Information communications (delivery / distribu- tion), which is concerned with the establishment, operation and management of the commu- nications and dissemination network(s) through which information is transmitted. Commonly de- ployed such communications systems are:
(i) Telecommunications companies, cable television networks, satellite broadcasters, radio and television broadcasting networks or re-broadcasters, the Internet; and
(ii) Booksellers, libraries, authors, publishers, newspaper companies, journal publishers, drama theatres and movie halls, film- makers, radio and television programme producers, records, compact diskettes and cassette recording companies (in all print and electronic forms).
(2) All the three segments in Sub-section (1) constitute the Bhutanese information society and thus form the bases for and determine the scope of the broad mandate of the Ministry of Information and Communications.
(3) The Ministry, as the lead Governmental agency in Bhutan with respect to the achievement of the ICT and media policy objectives as determined from time to time by the Government, shall provide the necessary direction, coordination, encouragement, advice, and support to both the public and private sectors in all ICT and media matters.
(4) Within the broad mandate of the Ministry specified in Sub-sections (1), (2) and (3) above, the general functions, responsibilities and powers of the Minister shall be to:
(a) initiate, formulate and present to the Parliament specific legislations, including amendments to the existing ones, relating to all aspects of ICT and media;
(b) initiate, formulate and promulgate ICT and media policies and regulations to promote the growth of ICT and media industry. Such activities would comprise of the following components:
(i) Research, development and analysis;
(ii) Applications and infrastructure develop- ment;
(iii) Formulation of policy, legislation and regulations; and
(iv) Information dissemination and media content development;
(c) act as a `national information agency' to observe and monitor evolution of the Bhutanese information society through:
(i) continuous study on how effectively and extensively information sharing is adopted to pursue socio-economic development and public welfare activities across Governmental agencies, public and private institutions/offices;
(ii) people's access to choice of information using all ICT and media facilities and services; and
(iii) adopting and implementing gender equality policies and programmes in ICT and media.
FUNCTIONS RELATING TO RESEARCH, DEVELOPMENT AND ANALYSIS
4. In order to serve in a path-finding capacity to determine the appropriateness of a given technology and system suitable to the unique Bhutanese conditions, the Minister's functions relating to research, development and analysis shall be to:
(a) conduct research and recommend to all Governmental agencies and private sector for the adoption and use of software applications and ICT operating systems;
(b) draft guidelines for the development and quality control of software applications and recommend these guidelines to the relevant units of the Ministry for formulation as technical policy guidelines or Regulations, as appropriate;
(c) research networking hardware, software, and cabling;
(d) provide assistance (whenever required) to the Authority in the analysis of technical matters, including on interconnection, radio frequency interferences, and use of technical standards;
(e) prepare technical specifications for hardware and software and make recommendations about new technologies;
(f) carry out certification of hardware and software specifications, including locally assembled computers and evaluation and certification of system develop- ment;
(g) establish a system of education and training of ICT and media professionals, in consultation with other appropriate institutions (both public and private);
(h) provide technical co-ordination to the ICT units that are set-up in Governmental agencies and regional offices; and
(i) study the ICT and media private sector in terms of its opportunities, constraints and difficulties and accordingly propose for positive Governmental intervention.
FUNCTIONS RELATING TO APPLICATIONS AND INFRASTRUCTURE DEVELOPMENT
5. In order to provide concerted Government leadership and support in the development of ICT facilities, ICT services and media in Bhutan, the Minister's functions relating to applications and infrastructure development shall be to:
(a) encourage, facilitate and co-ordinate the creation of e-services, like e-government, e-commerce, e- learning, e-health, and e-marketing;
(b) identify areas of applications development needs in Governmental agencies and initiate appropriate development;
(c) plan infrastructure development, in consultation with the Authority and the public and private sectors;
(d) design and implement national ICT network projects, particularly interconnecting all the Dzongkhags and Gewogs, using appropriate technologies;
(e) design, promote and implement projects for the use of Dzongkha in all sections of ICT and media industry;
(f) act as an interface between the Government and private sector for planning appropriate ICT infrastructure and applications, and use to the maximum extent the private sector capabilities, by outsourcing, to meet the Government requirements;
(g) promote the swift and sustainable development of ICT facilities, ICT services and media within Bhutan;
(h) encourage investment and foster technological innovation in ICT and media;
(i) encourage major users of ICT services whose places of business are outside Bhutan to establish places of business in Bhutan;
(j) enable persons producing ICT products in Bhutan to compete effectively in the supply of such products both in and outside Bhutan;
(k) facilitate training on ICT for the members of the Government staff, private sector, and interested members of the general public; and
(l) organise workshops, seminars, meetings and other fora on emerging ICT and media, at the national, regional and international levels.
FUNCTIONS RELATING TO FORMULATION OF POLICY, LEGISLATION AND REGULATIONS
6. In order to ensure that the policy, legal and regulatory environment remains conducive to a healthy ICT and media industry in Bhutan, the Minister's functions relating to formulation of ICT and media policy, law and regulations shall be to:
(a) undertake systematic research of the existing laws of Bhutan (and of other countries) for their adaptation, where relevant and when required. This could also entail an in-depth research on various forms of ICT and media, including their impact on the society;
(b) prepare ICT and media policy, draft legislation and adopt regulations, taking into account the recommendations of the Advisory Committee and the Authority, suggestions of various units of the Ministry and views of other interested parties in Bhutan, particularly the private sector as well as the Dzongkhags and Gewogs;
(c) represent Bhutan and participate in regional and international organisations and negotiations relevant to ICT and media matters; and
(d) organise information sessions, whenever required, on policy and regulatory matters relating to ICT and media for the members of the Government staff, private sector, and interested members of the general public.
FUNCTIONS RELATING TO INFORMATION DISSEMINATION AND MEDIA CONTENT DEVELOPMENT
7. In order to make planned efforts in promoting a healthy media and ensuring its role in the appropriate socio-cultural and political development in Bhutan, the Minister's functions relating to information dissemination and media content development shall be to:
(a) promote and develop information and media services in order to make people understand the importance of information and its usage;
(b) develop national information strategies and standards for appropriate contents in information and media;
(c) monitor trends in ICT and media;
(d) facilitate the dissemination of the Government information by using the Government Web Portal and any other means;
(e) coordinate visits by foreign media personnel while in Bhutan;
(f) function as a Secretariat to the Advisory Committee and submit matters of interest for its deliberations and recommendations; and
(g) seek funding and technical assistance to promote professionalism in Bhutanese media.
TECHNICAL STANDARDS
8.
(1) The Minister may, by Regulations made after consultation with the Authority, establish standards in respect of the technical aspects of ICT and media and require the Authority to give effect to them. In this regard, the Minister shall, specifically:
(a) establish national ICT standards and ensure compliance with the Constitution and Convention of the International Telecomm- unication Union;
(b) facilitate training and certification of ICT and media personnel in accordance with the regulations adopted by regional or international bodies; and
(c) test and certify ICT equipment to ensure compliance with:
(i) international standards; and
(ii) environmental health and safety standards, including electromagnetic radiation and emissions.
(2) The Minister may, where he is convinced that to do so will achieve efficiency, economy and convenience in the regulation of ICT and media industry, by Regulation delegate to the Authority the performance of all or any of the functions under Sub- section (1) and the making of pertinent Rules.
COLLECTION AND PUBLICATION OF INFORMATION
9. (1) With a view to becoming aware of, and ascertaining the circumstances relating to ICT and media matters, the Minister may, so far as it appears to him practicable from time to time, collect information with respect to all activities related to ICT and media as carried out in Bhutan, and the persons by whom they are carried out.
(2) The Minister may publish, in such form and in such manner as he may consider appropriate, any information or results of a study or an ICT and media plan, as it may appear to him to be valuable to the public, including consumers, purchasers and other users or providers of ICT facilities, ICT services and media in Bhutan.
ICT AND MEDIA ADVISORY COMMITTEE TO ADVISE THE MINISTER
10.
(1) There shall be established for the purposes of this Act an advisory committee, to be called the ICT and Media Advisory Committee, as a "think tank" and adviser to the Minister on ICT and media matters.
(2) The functions of the Advisory Committee shall be to advise the Minister on the overall policy and legislative guidelines for positive development and operation of ICT and media industry in Bhutan, inter alia, and any matter connected with ICT and media referred to it by the Minister for advice, and to hold enquiries and receive statements from interested parties in connection with any matter on which its advice has been sought. Without prejudice to the generality of the foregoing, under general guidance of the Minister, the Advisory Committee shall:
(a) advise the Minister in establishing the national policy on all ICT and media matters (including the contents of ICT and media services) with a view to ensuring the efficient development and operation of all ICT and media as well as the compliance with the country's international commitments;
(b) examine long-term national plans for the development of ICT and media; and
(c) perform any other matter referred to it by the Minister.
(3) The Advisory Committee shall consist of such number of persons, not being less than three and not more than seven, as the Minister may from time to time appoint, who are, in the opinion of the Minister, qualified by education and training, and have significant practical experience in the field of culture, information technology, telecommunications, media, law, administration or business. In the appointment of the members of the Advisory Committee, the Minister shall attempt to provide equitable representation to the providers and users of ICT and media services, public interest groups and appropriate Governmental agencies.
(4) The appointment of a member of the Advisory Committee shall be for a period not exceeding three years, and such member shall be eligible for re- appointment. The Minister may at anytime revoke the appointment of any member of the Advisory Committee giving reason in writing for such action.
(5) The Minister may appoint any person qualified in accordance with Sub-section (3) to act temporarily in the place of any member of the Advisory Committee in the case of absence or inability to act of such member.
(6) The Minister shall appoint one of the members of the Advisory Committee to be the Chairperson thereof and a high ranking official of the Ministry shall ex- officio act as a Secretary of the Advisory Committee with the responsibility to record and maintain all the minutes and decisions of the meetings of the Advisory Committee.
(7) Any member of the Advisory Committee may at any time resign his office by an instrument in writing addressed to the Minister and from the date of the receipt by the Minister of such instrument, such member shall cease to be a member of the Advisory Committee.
(8) If any vacancy occurs in the membership of the Advisory Committee, such vacancy shall be filled by the appointment of another member and in making such appointment, the Minister shall have regard to the provisions of Sub-section (3).
(9) The names of all members of the Advisory Committee as first constituted and every change in the membership thereof shall be published by the Minister.
(10) The Advisory Committee shall meet at such times as may be necessary or expedient for the conduct of its business and such meetings shall be held at such places and times as the Advisory Committee may determine.
(11) The Chairperson may at any time call a special meeting of the Advisory Committee and shall call such meeting within fourteen days of the receipt of a written request for that purpose addressed to him by any two members of the Advisory Committee.
POWER TO MAKE REGULATIONS
11.
(1) In consultation with appropriate Governmental agencies, security institutions, the Authority, representatives of business enterprises and consumers, and providers of ICT facilities and ICT services and media, the Minister shall make Regulations but under only those provisions of the Act that specifically mention this power.
(2) Every Regulation made under this Act shall become effective after thirty days of its publication or on the date mentioned therein.
POWER TO REMOVE DIFFICULTIES
12. If any difficulty arises in giving effect to the provisions of this Act, the Minister may, by Regulation, make such provisions, not inconsistent with the provisions of this Act, as are necessary or expedient for removing the difficulty, provided that no such Regulation shall be made after the expiry of a period of three years from the commencement of this Act.
DIRECTIVES IN THE INTERESTS OF NATIONAL SECURITY AND INTERNATIONAL RELATIONS
13.
(1) If it appears to the Minister to be requisite or expedient to do so in the interests of the sovereignty, security, unity and integrity of Bhutan, or the interests of friendly relations with foreign States, he may, after consultation with a person to whom this Section applies, give to that person a directive requiring (according to the circumstances of the case) to do or not to do, a particular thing specified in the directive.
(2) The directive contemplated under Sub-section (1) would relate to:
(a) discharge, or facilitate the discharge of, an obligation binding on the Government by virtue of it being a member of an international organisation or a party to an international agreement;
(b) attain, or facilitate the attainment of, any other objectives the attainment of which is, in the Minister's opinion, requisite or expedient in view of the Government being a member of such an organisation or a party to such an agreement;
(c) enable the Government to become a member of such an organisation or a party to such an agreement; or
(d) matters relating to national security.
(3) A person to whom this Section applies shall give effect to any directive given to him by the Minister under this Section notwithstanding any other duty imposed on him by or under this Act.
(4) The Minister shall lay before the Cabinet a copy of every directive given under this Section.
(5) A person shall not disclose anything done by virtue of this Section if the Minister has notified that its disclosure is against the interests of the sovereignty, security, unity and integrity of Bhutan, or the interests of friendly relations with foreign States, or the commercial interests of some other person.
(6) The Minister may, in consultation with the Ministry of Finance, make compensation to the providers of public ICT systems and media services for the purpose of defraying or contributing towards any losses they may sustain by reason of compliance with the directives given under this Section.
(7) There shall be paid out of money provided by the Ministry of Finance any sums required by the Minister for making compensation under this Section.
(8) This Section applies to the Authority and to any person who is a provider of an ICT system and media service.
TAKING OVER TEMPORARY CONTROL OF ICT FACILITY OR ICT SERVICE OR MEDIA SERVICE IN PUBLIC INTEREST
14.
(1) In the event of an emergency where the sovereignty, security, and territorial integrity of Bhutan or any part thereof is threatened by an act of external aggression or armed rebellion, the Minister with specific consent and on behalf of the Cabinet, may by notification, in public interest, take over for a limited period the control and management of any ICT facility or ICT service or media service, suspend its operation or entrust any agency of the Government to manage it in the manner directed by the Minister for such period as provided for in the notification.
(2) If it appears necessary or expedient to do so, the Minister may, in public interest, at any time request the Authority to direct any licensee to:
(a) transmit in its ICT and media service specific announcements, in such a manner as may be considered necessary;
(b) stop any ICT and media service, which is prejudicial to the sovereignty, security, unity and integrity of Bhutan, the interests of peace, stability and well-being of the nation, or the interests of friendly relations with foreign States, or to public order, decency or morality, or communal harmony.
(3) It shall be the duty of the licensee to ensure strict and prompt observance of directions issued under Sub- section (2) by the Authority.
(4) Any take-over contemplated under Sub-section (1) shall only last for such duration as may be strictly necessary having regard to the exigencies of the situation. As soon as the public emergency ceases, the Minister shall return the control and management of the ICT facility or ICT service or media service to the person from whom it had been taken over, as far as possible in the same condition in which it had been taken over.
(5) The person from whom an ICT facility or ICT service or media service has been taken over under Sub-section
(1) shall be entitled to reasonable compensation for any direct harm, loss or injury suffered as a result of the take-over. The amount of such compensation payable shall be determined by the Authority.
(6) Any dispute arising in relation to the compensation payable under Sub-section (5) may be appealed to the Appellate Tribunal within thirty days of the determination by the Authority under Sub-section (5).
(7) Any owner or operator of an ICT facility or ICT service or media service who fails unreasonably to comply with an order under Sub-section (1) shall be deemed to have breached a condition of his licence granted under this Act and be subjected to the penalty prescribed therein.
INTERCEPTION OF COMMUNICATIONS
15.
(1) Notwithstanding anything contained in this or any other Act, the Minister or any officer specially authorized in this behalf by the Government, if satisfied that it is necessary or expedient to do in the interests of the sovereignty, security, unity and integrity of Bhutan, the interests of peace, stability and well- being of the nation, or the interests of friendly relations with foreign States or public order or to avoid incitement to the commission of an offence, may direct:
(a) any agency of the Government to intercept any communication by any ICT facility, ICT service or media service;
(b) any ICT facility, ICT service or media service provider that any content brought for communication by or communicated or received by him shall not be communicated or shall be intercepted or detained or shall be disclosed to the Government or its agency authorized in this behalf.
(2) The ICT facility, ICT service or media service provider shall, when called upon by any Governmental agency, which has been directed to carry out interception under Sub-section (1), extend all facilities and technical assistance for interception of the content of communications.
(3) Any ICT facility, ICT service or media service provider who fails to assist the agency referred to in Sub- section (2) shall be guilty of an offence as per the Penal Code.
(4) Save as otherwise provided under this Section, any person who intercepts any communication or causes any communication to be intercepted or discloses to any person any content, shall be guilty of an offence as per the Penal Code.
DIRECTIVES TO THE AUTHORITY ON BROAD POLICY MATTERS
16.
(1) The Minister may, by order, issue to the Authority directives of general application on broad ICT and media policy matters that are considered to be significant and special for national public interest.
(2) In framing such policy directives, the Minister shall consult appropriate Governmental agencies and take into account the Guiding Regulatory Principles for the Authority specified under Section 22 below.
(3) Any directive proposed to be made under Sub- section (1) shall be published at least sixty days before its proposed effective date, and a reasonable opportunity shall be given to interested persons to make representations to the Minister with respect to the proposed directive.
(4) The Minister shall consult the Authority with respect to a directive proposed to be made under Sub-section (1) before it is published.
(5) The proposed directive shall become effective only after approval by the Cabinet.
(6) A directive made under Sub-section (1) shall not apply in respect of a matter pending before the Authority.
(7) In exercising its licensing and regulatory functions, the Authority shall follow such policy directives.
(8) The Authority may request the Minister in a written communication for a review of any policy directive, and if any such request is made the Minister shall respond in writing with all expeditious despatch.
REPORTS FROM THE AUTHORITY
17. The Minister may request the Authority to make, within a reasonable time, a reasonable number of specific reports on matters within the Authority's jurisdiction under this Act.
CHAPTER THREE: THE BHUTAN INFOCOMM AND MEDIA AUTHORITY
ESTABLISHMENT OF THE REGULATORY AUTHORITY AND APPOINTMENT OF THE DIRECTOR AND MEMBERS
18.
(1) There shall be established a regulatory authority, to be called the Bhutan Infocomm and Media Authority, for the purpose of this Act and for the purpose of performing the functions assigned to it under this or any other Act.
(2) The Authority shall comprise not less than five and not more than seven members, one of whom shall be the Director. The members shall be appointed by the Minister on the advice of the Royal Civil Service Commission.
(3) The Authority shall elect a member from among the members as the Chairman and the Director of the Authority shall serve as the Member Secretary of the Authority during its meetings.
(4) To be appointed as a member, the individual must be a citizen of Bhutan, proficient, and have at least five years experience, in the field of information and communications technology, telecommunication, media, law, industry, or administration. Besides, the Minister shall satisfy himself that a nominee does not have any such financial, other interests or is under any legal incapacity as is likely to affect prejudicially his functions as a member.
(5) An appointment of an individual to hold the office as a member shall not be for a term less than three years and not exceeding five years from the date of his appointment, subject to Sub-section 7 of this Section below but previous appointment to that office shall not affect eligibility for re-appointment.
(6) A member may at any time resign from his office as a member by notice in writing addressed to the Minister. The resignation shall take effect from the date of acceptance of the notice or from such other date as may be agreed between the member in question and the Minister.
(7) A member of the Authority shall be removed from the office only by the Minister with the prior approval of the Royal Civil Service Commission, if he has:
(a) been adjudged insolvent;
(b) become physically or mentally incapable of acting as a member;
(c) been convicted of any offence that involves moral turpitude;
(d) acquired such financial or other interest as is likely to affect prejudicially his functions as a member; or
(e) so abused his position as to render his continuance in office prejudicial to the public interest. No member shall be removed from his office under Subsection (7), unless he has been given a reasonable opportunity of being heard in the matter.
(8) Where a vacancy arises whether by reason of death, resignation or removal of a member, it shall be filled as soon as practicable, in accordance with the criteria and procedure for appointment as specified in Sub-sections 2 and 4 of this Section. Any member appointed to fill a vacancy in accordance with this paragraph shall enjoy a term of office as under Sub- section 5 above of this Section.
(9) Where fresh appointments are to be made as a result of any or all of the existing members reaching the end of their terms, the Minister shall take the necessary steps to ensure that such appointments are made at least three months in advance of the date on which the existing member or members, as the case may be, will cease to hold office. Every newly nominated member shall assume office immediately after the term of office of the outgoing member comes to an end.
(10) There shall be paid to the members such remuneration, travelling and other allowances, as the Minister, in consultation with the Ministry of Finance, may determine.
(11) The Director of the Authority shall be appointed by the Minister on the advice of the Royal Civil Service Commission. Candidates for the position of the Director must satisfy the following criteria:
(a) He must be a citizen of Bhutan;
(b) He must be proficient, and have at least five years of experience in the field of information and communications technology, telecomm- unication, media, law, industry, or administration;
(c) The Minister shall satisfy himself that the candidate does not have any financial or other interests or is under any legal incapacity as is likely to affect prejudicially his functions as the Director;
(d) A person who is in the service of Government shall have to retire from the service or go on secondment before joining as the Director; and
(e) Where a vacancy arises whether by reason of death, resignation, or removal of the Director, it shall be filled as soon as practicable, by following the same procedure under this Section.
(12) The Director shall serve for a fixed term of five years or until attaining the age of sixty-five years, whichever is earlier, but previous appointment to that office shall not affect eligibility for re-appointment. However, he shall not serve for more than two consecutive terms.
(13) The Director may at any time resign from his office as the Director by notice in writing addressed to the Minister.
(14) The Director shall be removed from the office only by the Minister with the prior approval of the Royal Civil Service Commission, if he has:
(a) been adjudged insolvent;
(b) become physically or mentally incapable of acting as the Director;
(c) been convicted of any offence involving moral turpitude;
(d) acquired such financial or other interest as is likely to affect prejudicially his functions as the Director; or
(e) so abused his position as to render his continuance in office prejudicial to the public interest. No Director shall be removed from his office under this Section, unless he has been given a reasonable opportunity of being heard in the matter.
(15) The Director in consultation with the Royal Civil Service Commission may appoint or hire or dismiss such staff members as he thinks fit and necessary for the efficient and professional performance of all the functions and responsibilities of the Authority. In the appointment of personnel of the Authority, the Director shall ensure that, in addition to administrative support staff, the Authority shall have a sufficient number and a good balance of professionals appropriately qualified and experienced in administration, economics, legal and technical fields.
(16) There shall be paid to the Director and the staff members such remuneration, travelling and other allowances, as the Authority, by Rules made in consultation with the Ministry of Finance, may determine.
(17) The activities of the Authority shall be financed from:
(a) fees and other charges payable to the Authority under this or any other Act; and
(b) funds appropriated by the Ministry of Finance.
(18) The Government shall ensure, as far as practicable, that the Authority is adequately financed to enable it to exercise its functions and discharge its responsibilities as provided for in this Act.
MEETINGS OF THE AUTHORITY
19.
(1) The Authority shall meet at such times and places as may be determined by itself from time to time with a minimum of four times a year.
(2) In the case of a deadlock, the Chairman will have a casting vote. In the event that the Chairman is unable to attend any meeting of the Authority, the meeting shall be chaired by a member nominated by the Chairman for that particular session.
VACANCIES IN THE AUTHORITY NOT TO INVALIDATE ITS ACTS
20. No act, decision or proceeding of the Authority shall be deemed to be invalid by reason merely of the existence of any vacancy or any defect in the constitution of the Authority.
GENERAL MANDATE OF THE AUTHORITY
21.
(1) The development and efficient functioning of the ICT and media industry is highly dependant upon the ability of the Authority to effectively and efficiently regulate this industry in a competitive ICT and media market environment. Thus the Authority shall have all the regulatory powers that are necessary for its operation as a body independent of ICT and media market players.
(2) Given the rapid development of ICT and increasing convergence of information technology, telecommunications and media, the Authority shall have a comprehensive mandate in implementing laws, Regulations and Rules pertaining to ICT and media facilities, services as well as the contents of any form of information, communications and media. In particular, the regulatory functions of the Authority shall relate to:
(a) ICT facilities;
(b) ICT services;
(c) Spectrum management and radiocomm- unications; and
(d) Contents and media.
(3) The Director shall be the chief executive and the legal representative of the Authority and have powers of general superintendence and direction in the conduct of affairs of the Authority and shall exercise and discharge such powers and functions of the Authority that have been assigned to the Authority under this or any other Act.
GUIDING REGULATORY PRINCIPLES FOR THE AUTHORITY
22. The Authority, in exercising its functions and responsibilities, shall be guided by the following regulatory principles:
(a) that ICT and media services are made universally accessible at affordable rates to all areas of the country, particularly in the rural and remote areas;
(b) that there is increasing access to information for greater empowerment of citizens and to promote economic, social and cultural development;
(c) that quality, plurality, diversity and choice of ICT and media services are promoted;
(d) that modern and effective ICT facilities for ICT services and media are established taking into account the convergence of information technology, telecommu- nications and media;
(e) that the ICT and media industry is developed in a competitive environment and that market dominance in a converged environment is suitably regulated;
(f) that an open licensing policy allowing any number of new entrants (except in specific cases constrained by limited resources such as the spectrum) is promoted;
(g) that licensing criteria are transparent and made known to the public;
(h) that equitable, non-discriminatory interconnection across various ICT facilities, ICT services and media services are promoted;
(i) that introduction of new technologies, private investment in ICT facilities, ICT services and media services are encouraged;
(j) that the principle of a level playing field for all providers serving consumer interest, including existing providers on the date of commencement of the Act, is promoted;
(k) that no unnecessary regulatory burden is created for the private sector; and
(l) that security, national integrity, economic and socio- cultural interests of Bhutan are fully protected.
FUNCTIONS RELATING TO ICT FACILITIES
23. Some of the functions of the Authority in this regard shall be to:
(a) regulate, to a minimum required extent, all ICT facility providers;
(b) create an appropriately competitive and dynamic ICT market in Bhutan;
(c) ensure universal access;
(d) promote the development of ICT facilities in Bhutan, inter alia, by ensuring the economic health of the ICT facility providers; and
(e) encourage investment and foster technological innovation in the ICT facilities sector.
FUNCTIONS RELATING TO ICT SERVICES
24. Some of the functions of the Authority in this regard shall be to:
(a) regulate, to a minimum required extent, all ICT service providers;
(b) create competitive and dynamic ICT services market in Bhutan;
(c) ensure universal access to all ICT services at affordable rates;
(d) promote ICT development, inter alia, by ensuring economic health of the ICT service providers;
(e) encourage investment and foster technological innovation in the ICT services industry;
(f) protect the interests of the consumers, purchasers and other users (including, in particular, those who are disabled or are senior citizens) in respect of the rates charged for, and the quality and variety of ICT services provided; and
(g) investigate complaints by users and providers of ICT services of their failure to obtain redress from providers of public ICT services, including media services, in respect of rates, billings and services provided generally and to facilitate relief where necessary.
FUNCTIONS RELATING TO SPECTRUM MANAGEMENT AND RADIOCOMMUNICATIONS
25. In order to promote optimal use of the radio frequency spectrum, which is a limited resource, the Authority shall:
(a) plan, supervise, regulate and manage the use of the radio frequency spectrum, including the licensing and registration of radio frequencies and call signs to be used by all stations operating in Bhutan or on any ship, aircraft, vessel or other floating or airborne contrivance or spacecraft registered in Bhutan;
(b) plan and adopt radio frequency allocation management techniques for their utilization in accordance with international agreements;
(c) promote improvements in the effective and efficient use of the radio spectrum required for the provision of ICT facilities, ICT services and media services;
(d) if required by Rules, establish national technical standards relating to radiocommunications and ensure compliance with them; and
(e) investigate and resolve all allegations of interference and impose on licensees the conditions to respect the rights of use of the assigned radio frequencies by others.
FUNCTIONS RELATING TO CONTENTS AND MEDIA
26.
(1) For the regulation of the contents of ICT services or media, the Authority shall implement appropriate provisions of this Act and the relevant laws, Regulations, policies, and guidelines adopted by the Ministry and other Governmental agencies. For this purpose, the Authority may act on its own volition, or on the basis of a complaint brought by any public or private person.
(2) Without prejudice to the generality of the forgoing provisions, with respect to the contents of ICT services or media, the Authority shall:
(a) ensure that ICT and media facilities and services are owned and controlled to a maximum possible extent by Bhutanese citizens;
(b) impose necessary restrictions on cross-media ownership with a view to preventing anti- competitive practices and monopolies;
(c) ensure equitable treatment of political parties and politicians by all ICT and media services, particularly during election periods;
(d) develop codes of practice relating to the conduct of journalist, standard of programmes and advertisements and ensure that ICT services and media services adhere to such codes;
(e) encourage, and keep under review, measures aimed at maximizing the independence of editors and other journalists from proprietorial and other interference;
(f) ensure that the content of films intended for public exhibition, whether produced within Bhutan or outside, are not antithetical to the social, cultural and other values of the people of Bhutan; and
(g) protect the general public and more specifically vulnerable sections of the population such as children and young persons from undesirable influences such as the effects of excessive or gratuitous violence, obscenity, drug-taking and gambling as they appear in films.
RESPONSIBILITIES AND POWERS OF THE AUTHORITY
27.
(1) It shall be the duty of the Authority, so far as it is practicable from time to time, to regularly review ICT and media activities being carried out both within and outside Bhutan.
(2) It shall be the duty of the Authority, where it is requested by the Government to do so, to give information and advice with respect to any matter in respect of which any function of the Authority is exercisable, including advice on:
(a) ICT and media policies;
(b) Bhutan's positions and policies relating to ICT and media matters at the international, regional and national levels; and
(c) setting up technical standards and rules applicable to ICT systems and terminal equipment to ensure interoperability and efficient use of telephone numbers.
(3) The Authority shall have the powers, for the purpose of securing the effective performance of its functions and responsibilities under this Act, or in connection with or in consequence of the performance thereof, to do anything that appears to the Authority to be requisite, advantageous or convenient to do. The Authority shall have the power to exercise the functions assigned to it under this Act in the manner which is best calculated to:
(a) maintain and promote effective competition between persons engaged in commercial activities connected with ICT facilities, ICT services and media services in Bhutan and to promote efficiency and economy on the part of such persons;
(b) take action to prohibit, prevent and bring to an end any abuse of market power or anti- competitive behaviour within the ICT and media industry;
(c) ensure that the grant of licences will not result in eliminating or minimising competition or in one or more service providers becoming dominant to the detriment of other service providers or consumers;
(d) regulate the interconnection or sharing of facilities between or among ICT facility providers or ICT service providers, including its financial and technical aspects and to resolve disputes concerning the interconnection or sharing of facilities;
(e) ensure that licensees, permit-holders and other users of the radio equipment or devices comply with requirements laid down by relevant international, regional or national organisations in respect of equipment and technical standards and environmental health and safety standards, including electromagnetic radiation and emissions;
(f) ensure compliance by providers with international or other obligations entered into by the Government in relation to ICT and media matters;
(g) ensure that licensees and permit-holders are able to carry out their obligations to provide services free of undue delay, hindrance or impediment;
(h) ensure the proper maintenance of accounting systems by public ICT systems and media services providers;
(i) designate appropriate licensees as universal service providers to establish and/or approve universal service plans and to establish and manage a universal service fund for the financing of such universal service plans;
(j) grant licences, certificates and permits (as the case may be) and regulate ICT facilities, ICT services and media services as specified in this Act and determine and enforce licence conditions and determine fees (including fees for usage of spectrum) wherever required;
(k) recover the cost incurred by the Authority for the regulatory activities undertaken with respect to the ICT and media activities, but in imposing fees (including licensing fees) the Authority shall ensure that such fees are reasonable for their stated purposes;
(l) collect all fees, including licence fees, and any other charges levied under this Act;
(m) determine the categories of licences to be issued under this Act and to classify types of ICT facilities, ICT services, media services and radiocommunication services for the purpose of their effective regulation under this Act;
(n) plan, administer, manage and assign numbering for ICT services;
(o) determine appropriate tariffs and rates for licensed services, wherever considered necessary and keeping in view the ICT and media policy objectives and its Guiding Regulatory Principles specified in the Act;
(p) take steps to regulate or curtail the harmful and illegal content on the Internet and other ICT services and media services;
(q) establish such advisory bodies as it sees fit for the purpose of advising the Authority on any matter pertaining to the exercise, performance and discharge of his duties, functions and powers under this Act;
(r) conduct administrative processes and hearings to address and resolve technological issues, inter- provider disputes, consumer complaints and other matters which affect the structure and functioning of the ICT and media industry;
(s) issue and enforce guidelines and codes of practice governing the ICT and media industry, and in particular, in respect of the providers operating public ICT systems and/or providing public ICT services and media services;
(t) view, classify and certify every film, whether produced within Bhutan or imported from outside the country, intended for public exhibition within Bhutan;
(u) require the producers and/or owners of all films intended for public exhibition within Bhutan to furnish it with a copy of the script of the film and with at least one copy of the film in such format as it may think fit; and
(v) require any person who applies for a certificate for the purposes of public exhibition of any film to require the film to be exhibited before it or before any person or body specified by it in this behalf.
(4) Notwithstanding the provisions of Sub-sections (1) to
(3), the Authority may make a determination to refrain, in whole or in part and conditionally or unconditionally, till such time as it deems necessary, from the exercise of any power or the performance of any function in relation to an ICT facility or ICT service or media service or class of ICT facilities or ICT services or media services provided by a licensee, where the Authority finds as a question of fact that to refrain would be consistent with the ICT and media policy objectives.
(5) Where the Authority finds as a question of fact that an ICT facility or ICT service or media service or class of ICT facilities or ICT services or media services provided by a licensee is or will be subject to competition sufficient to protect the interests of users, the Authority shall make a determination to refrain, to the extent that it considers appropriate, conditionally or unconditionally, for a specified period of time, from the exercise of any power or the performance of any function in relation to the ICT facility or ICT service or media service or class of ICT facilities or ICT services or media services. However, the Authority shall not make a determination to refrain under this Section in relation to an ICT facility or ICT service or media service or class of ICT facilities or ICT services or media services if the Authority finds as a question of fact that to refrain would be likely to impair unduly the establishment or continuance of a competitive market for that ICT facility or ICT service or media service or class of ICT facilities or ICT services or media services.
PUBLICATION OF INFORMATION AND ADVICE
28.
(1) The Authority may carry out any study and publish its findings and arrange for other publications, in such form and in such manner as it may consider appropriate, of such information and advice as it may appear expedient to give to providers, consumers, purchasers and other users of ICT facilities, ICT services, media services or ICT apparatus in Bhutan.
(2) In arranging for the publication of any such information or advice, the Authority shall have regard to the need for excluding any matter which relates to the affairs of a person, where the publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that person.
(3) Without prejudice to the exercise of its powers under Sub-section (1), it shall be the duty of the Authority to encourage relevant associations to prepare, and to disseminate to their members, codes of practice for guidance in safeguarding and promoting the interests of consumers, purchasers and other users of ICT facilities, ICT services, or media services in Bhutan.
(4) The Authority may at any time make and use recordings of any programme broadcast by any licensee for the purpose of maintaining supervision over such programmes.
(5) The Authority may also require licensees to retain, for a period of at least six months, a recording of every programme broadcast by them, and to produce such recordings when demanded for the purposes of examination.
(6) The power to require a licensee to retain and produce such recordings, as per Sub-section (5) above, shall include the power to call for the scripts of any programme broadcast by the licensee.
HEARING OF COMPLAINTS AND RESOLUTION OF DISPUTES BY THE AUTHORITY IN CERTAIN CASES
29.
(1) The Authority shall:
(a) decide any dispute or matter
(i) between two or more ICT service or media service providers; and
(ii) between an ICT service or media service provider and consumers, arising out of enforcement of any provision of this Act;
(b) hear and determine any complaint from any person regarding contravention of the provisions of this Act, Regulations, Rules or orders made thereunder including contraventions relating to any formulated codes and technical standards, and of other terms and conditions subject to which any licence was granted.
(2) For purposes of Sub-section (1), the Authority shall pass such orders and issue such directions, as it deems fit, which shall be binding on the parties to the proceedings.
POWER TO REQUIRE INFORMATION
30.
(1) The Authority may, by notice in writing:
(a) require any person to produce, at a time and place specified in the notice, to the Authority or to any person appointed by it for the purpose, any documents which are specified or described in the notice and are in that person's custody or under his control; or
(b) require any person carrying on any business to furnish to the Authority such estimates, returns or other information as may be specified or described in the notice, and specify the time, the manner and the form in which any such estimates, returns or information are to be furnished; but no person shall be compelled for any such purpose to produce any documents, which he could not be compelled to produce in civil proceedings before the Court, or in complying with any requirement for the furnishing of information, to give any information, which he could not be compelled to give in evidence in such proceedings.
(2) A person who:
(a) intentionally alters, suppresses or destroys any document, which he has been required by any such notice to produce, shall be guilty of the offence of tampering with documents as defined under the Penal Code; or
(b) in furnishing any estimate, return or other information required of him under any such notice, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, shall be guilty of the offence of reporting of false information as defined under the Penal Code.
(3) If a person makes default in complying with a notice under Sub-section (1), the Court may, on the application of the Authority, make such order as the Court thinks fit for requiring the default to be made good, and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
POWER TO ESTABLISH ADVISORY BODIES
31.
(1) The Authority may establish for specified and limited time such ad hoc advisory bodies as it thinks fit consisting in each case of such members as it may from time to time appoint.
(2) It shall be the duty of an advisory body established under Sub-section (1) to advise the Authority on any matter:
(a) in respect of which any of the Authority's functions is exercisable; and
(b) which is referred to it by the Authority or is a matter on which it considers it should offer its advice.
(3) The Director shall submit to the Authority reports on each meeting of the advisory bodies established under Sub-section (1) as soon as practicable.
(4) The Authority may, in consultation with the Ministry of Finance, defray or contribute towards the expenses of an advisory body established under this Section.
ANNUAL AND OTHER REPORTS
32.
(1) The Authority shall, as soon as practicable, after the end of each calendar year, submit to the Government, through the Minister, a report on its activities during that year. Every such report shall include:
(a) a general survey of developments, during the year to which it relates, in respect of matters falling within the scope of the Authority's functions; and
(b) the issues taken up by the ad hoc bodies during that year.
(2) The Minister shall lay a copy of every report made by the Authority under Sub-section (1) before the Cabinet and shall arrange for every such report to be published in such manner as he may consider appropriate.
(3) The Authority may also prepare other reports as appear to it to be expedient and may arrange for any such report to be published in such manner as it may consider appropriate.
POWER TO MAKE RULES
33.
(1) The Authority may, by notification, make Rules consistent with this Act, the Regulations and directives to carry out effectively and efficiently all its functions and responsibilities under this Act, the Regulations and directives.
(2) Before making Rules, the Authority shall:
(a) publish a public notice in such manner as it considers appropriate,
(i) stating that it proposes to make Rules mentioning the specific provisions of the Act, the Regulations and/or directives;
(ii) setting out the general effect of the proposed Rules;
(iii) specifying an address, including an electronic address, from which copies of the proposed Rules may be obtained; and
(iv) specifying a time (not being less than thirty days from the date of publication of the notice) within which representations with respect to the proposed Rules may be made to the Authority;
(b) send a copy of a notice to the Minister; and
(c) consider any representations which are made to the Authority within that time.
(3) The Authority shall send a copy of any Rules adopted under any provision of this Act to the Minister, and if, within a period of thirty days from the receipt of such Rules, the Minister directs the Authority not to make the Rules, the Authority shall comply with the direction. If no such direction is received by the Authority, the adopted Rules shall be deemed to have become effective at the end of the said period of thirty days.
(4) The Minister shall not give a direction under Sub- section (3) above unless it appears to him:
(a) to be requisite or expedient to do so in the interests of the sovereignty, security, unity and integrity of Bhutan, or the interests of peace, stability and well-being of the nation, or the interests of friendly relations with foreign States; or
(b) the proposed Rules to be contrary to the provisions of this Act or any Act.
POWER TO ISSUE DIRECTION, GUIDELINE OR CODE OF PRACTICE
34.
(1) In order to carry out effectively and efficiently its functions and responsibilities under this Act, the Authority may by notification issue any guideline or code of practice consistent with this Act.
(2) The Authority may issue and from time to time review codes of practice relating to the standard of programmes and advertisements broadcast by ICT services and media licensees. Without prejudice to the generality of foregoing provision, any such code shall provide guidance in relation to:
(a) the showing of violence, or the inclusion of sounds or images suggestive of violence, drug- taking, sex, or cruelty, in programmes broadcast by licensees, particularly when those programmes are expected to be listened to or watched by large numbers of children;
(b) the avoidance of discrimination in any manner or on any ground in all broadcast programmes, including programmes consisting of news and current affairs; and
(c) the content and duration of advertisements that may be broadcast on commercial broadcasting services, including a stipulation as to whether advertisements which are directed towards any political end, or is inserted by or on behalf of any body whose objects are wholly or mainly of a political nature, may be allowed.
(3) The Authority may, for reasons to be recorded in writing, exempt any licensee from any provision in a code of practice established under Sub-section (2) for such time as may be specified.
(4) Any direction, guideline or code of practice issued under this Section, shall be adopted and published in such manner, as the Authority considers appropriate for bringing the contents thereof to the attention of persons likely to be affected by them.
INDEPENDENCE OF THE AUTHORITY
35. The "independence of the Authority" implies that:
(a) In the exercise of his powers and performance of his functions, each member of the Authority shall faithfully serve to achieve the objectives of this Act and not as a representative of the Government or of any other public or private person.
(b) Each member of the Authority shall respect the exclusively neutral, semi-judicial and independent character of the Authority.
(c) No member of the Authority shall request or receive instructions relating to the exercise of his powers and performance of his functions from any Government official or public or private person.
(d) Except as expressly entitled otherwise under this Act or the Regulations or the directives, the Minister, the Ministry, the Cabinet, the Royal Civil Service Commission, any individual representing the Government or any public or private person shall refrain from intervening in, and from attempting to influence, directly or indirectly, any process or decision, of the Authority.
CHAPTER FOUR: PROVISION OF ICT FACILITIES AND ICT SERVICES
REQUIREMENT OF LICENCE FOR PROVISION OF CERTAIN FACILITIES AND SERVICES
36.
(1) The Authority shall specify in Rules the ICT facilities and ICT services that are required to be licensed.
(2) Subject to the provisions of Sub-sections (3) and (4), a person shall:
(a) own or operate any ICT facility, or
(b) own or provide any ICT service, only with and under a valid licence in respect of such facility or service procured in accordance with the provisions of this Act.
(3) Sub-section (2) does not apply to a private ICT facility set up within a single set of private premises without any link or effect on public ICT system.
(4) For the purpose of removal of any doubt, it is clarified that licences for all media services, including broadcasting services shall be in the form of licences for ICT services.
(5) In order to achieve efficiency and economy in the performance of its functions and responsibilities, the Authority may, by Rules, make provision for the issuance of one consolidated licence where several licences or other authorisations might be required to be procured by one person under various provisions of this Act: Provided that all the applicable provisions and requirements under this Act and the Regulations are complied with and the inconsistencies, if there are any, are resolved in the light of the Guiding Regulatory Principles for the Authority as specified under Section 22 above and keeping in mind the interests of the applicant to be under minimum regulatory burden; Provided further that two broad categories of licences (i.e., facilities and services) are maintained pursuant to Section 40 below.
(6) Notwithstanding any provision of this Act, the Authority may, by Rules, exempt any class of providers of ICT facilities, ICT services and media services from the licensing requirement under this Act, subject to any conditions contained in the Rules, where the Authority, after holding a public hearing in relation to the exemption, is satisfied that the exemption is consistent with the provisions of this Act, the Regulations, the directives and the Guiding Regulatory Principles for the Authority as specified under Section 22 above.
OFFENCE FOR PROVISION OF CERTAIN FACILITIES AND SERVICES WITHOUT A LICENCE
37.
(1) A person who owns or operates any ICT facility or owns or provides any ICT service without a valid licence as required under Sub-section 36(2) above and a licensee who knowingly breaches any condition of his licence shall be guilty of an offence as defined under the Penal Code.
(2) In any proceedings for an offence under this Section it could, subject to Sub-section (3), be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.
(3) Where the defence provided by Sub-section (2) involves an allegation that the commission of the offence was due to the act or default of another person, the person charged shall not, without leave of a Court of competent jurisdiction, be entitled to rely on that defence unless, within a period ending seven days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.
(4) No proceedings shall be instituted in respect of an offence under this Section except by or on behalf of the Authority.
(5) Where a licensee has been convicted of an offence under Sub-section (1) the Authority may suspend this licence for such period as it considers appropriate or it may revoke the licence.
AUTHORITY MAY GRANT LICENCES
38.
(1) Having regard to the necessity of serving the public interest, ensuring competition and prevention of monopolies in the provision of ICT facilities and ICT services, the Authority may grant licences in accordance with the provisions of this Act.
(2) A licence granted under this Section may be granted to all persons, or to a particular person or either singly or jointly, for one or more categories as may be prescribed in the Rules.
(3) No licence shall be granted under this Act, if it conflicts with the provisions of this Act, the Regulations, the directives and the Guiding Regulatory Principles for the Authority as specified under Section 22 above, particularly in relation to ensuring fair access and promotion of competition.
(4) A licence granted under this Act may include:
(a) list of operations which the licensee may undertake pursuant to that licence;
(b) such conditions as appear to the Authority to be requisite or expedient having regard to the Guiding Regulatory Principles for the Authority as specified under Section 22 above;
(c) conditions requiring the rendering to the Authority of a payment on the grant of the licence or payments during the currency of the licence or both of such amount or amounts as may be determined by or under the licence;
(d) conditions requiring any licensee to comply with any Rules as the Authority may make from time to time under this Act;
(e) conditions to which the licensee is subject, including but not limited to pricing, service technical standards, universal service provision, infrastructure sharing, interconnection and frequency spectrum utilisation, programming; and
(f) conditions requiring any licensee to furnish to the Authority, in such manner and at such times as it may reasonably require, such documents, accounts, estimates, returns or other information it may require for the purpose of exercising its functions under this Act.
(5) The Authority may notify, by Rules, from time to time one or more schemes or plans for licensing containing such details as:
(a) eligibility conditions, including ownership, for issue of licences;
(b) scope of licences, facilities and services to be provided;
(c) cross-media restrictions having regard to accumulation of interest;
(d) restrictions or otherwise on the number of licences or extent of accumulation of interest in such licences by a person;
(e) renewal, revocation or suspension of licences;
(f) the conditions subject to which a licence may be transferred; and
(g) such other conditions as may be considered necessary from time to time.
(6) A licence granted under this Section shall be published in such manner as the Authority considers appropriate for bringing it to the attention of the persons for whose benefit it will ensure and to the general public.
(7) A copy of every licence granted under this Act shall be sent to the Minister.
PROCEDURE FOR THE GRANT AND RENEWAL OF A LICENCE
39.
(1) Except where provided otherwise in this Act, a person who wishes to apply for a licence or the renewal of a licence under this Act shall, in accordance with a procedure determined in the Rules by the Authority submit an application to the Authority for consi- deration by the Authority, and the application shall be in the prescribed form and accompanied by such fees as may be determined by the Authority in the Rules.
(2) The Authority shall where necessary, before granting a licence under this Section, amongst others, take into account the following matters:
(a) whether the applicant possesses the technical qualification necessary to fully perform the obligations attached to the licence for which the applicant is applying;
(b) whether the applicant is a fit and proper person to be granted a licence;
(c) whether the Guiding Regulatory Principles for the Authority as specified under Section 22 above be effectively implemented;
(d) whether the interests of subscribers, purchasers, and other users of ICT facilities or ICT services will be protected;
(e) whether competition among providers of ICT facilities and ICT services will be promoted;
(f) whether research, development and intro- duction of new ICT facilities and ICT services will be promoted;
(g) whether foreign and domestic investors will be encouraged to invest in the ICT and media industry; and
(h) whether the public interest and the security interest of Bhutan will be safely guarded.
(3) In determining, for the purposes of this Section, whether a person is a fit and proper person, regard shall be had to all relevant circumstances, including that person's:
(a) honesty, integrity and reputation;
(b) competence and capability; and
(c) financial soundness.
(4) The Authority shall provide reasonable opportunity to any interested person to present his views to the Authority on the application under Sub-section (1) and shall take into consideration such views in making the final determination for the purposes of this Section.
DURATION OF LICENCE
40. A licence granted under this Act shall be for the period specified in the licence or generally specified in the Rules. However, a licence:
(a) for an ICT facility shall be granted for a period not longer than twenty-five years;
(b) for an ICT service, including media service, shall be granted for a period not longer than fifteen years;
(c) may be renewed in accordance with the provisions of this Act; and
(d) may be suspended or revoked in accordance with the provisions of this Act.
LICENCE FEES
41.
(1) A licence granted under this Act shall be subject to the prescribed licence fees which shall be determined and specified in the Rules made by the Authority.
(2) The licence fees referred to in Sub-section (1) shall be payable directly by the applicant to the Authority prior to actual grant of the requested licence.
RENEWAL OF LICENCE
42.
(1) Where an application for renewal of a licence under Section 39 above is made, the Authority may refuse to renew that licence if the licensee is or has engaged in conduct that materially contravenes or contravened this Act, any Regulations, any directives or any Rules made under this Act or any condition of his original licence.
(2) Where the Authority has reasonable grounds for not renewing a licence under Sub-section (1), it shall inform the licensee by written notice as soon as practicable of its intention not to renew the licence.
(3) A licensee referred to under Sub-section (2) shall be given thirty days to make written representations to the Authority in respect of the refusal.
(4) The Authority shall consider any written represent- tations made under Sub-section (3) and shall inform the licensee within fifteen days of the receipt of the submission, of its decision on the matter.
(5) The licensee, if aggrieved by the decision under Sub- section (3), may appeal against such decision of the Authority to the Appellate Tribunal within thirty days of the receipt of the information under Sub-section (4).
MODIFICATION OF LICENCE
43.
(1) A licence granted under this Act may be modified in part or whole, including any terms and/or conditions therein, where the Authority and the licensee, by agreement in writing, agree to modify the licence.
(2) Notwithstanding the provisions of Sub-section (1) and subject to any special conditions concerning modification in the relevant licence, the Authority may, on the recommendation of the Minister and without the agreement of the licensee modify a licence for reasons of security of Bhutan.
(3) Where the Authority, on the recommendation of the Minister, considers that a licence should be modified for reasons of security of Bhutan, the Authority shall give to the licensee a written notice that:
(a) sets out the proposed modification;
(b) states the reasons for the proposed amendment; and
(c) invites the licensee to show within thirty days why the licence should not be so modified.
(4) The Authority may modify the licence if, after considering and having regard to all representations made within thirty days, the Authority considers the licence should be modified in:
(a) the manner set out in the notice; or
(b) some other manner consistent with the representations.
(5) The licensee, if aggrieved by the decision under Sub- section (4), may appeal against such decision of the Authority to the Appellate Tribunal within thirty days of the receipt of the information under Sub-section (4).
TRANSFER OF LICENCE
44.
(1) A person shall be permitted to transfer a licence granted under this Act, or any rights thereunder where prior written approval of the Authority has been obtained, and the transfer shall be deemed to be a licence issued by the Authority under this Act.
(2) The Authority may approve an application for the transfer of a licence under Sub-section (1) where the Authority is satisfied that the proposed transferee meets all the requirements of this Act, including those that are specified under Sub-section 39(2) above and will be able to undertake the obligations imposed by this Act or by the licence.
(3) The Authority shall, before approving the transfer of a licence, publish by notice the particulars of the proposed transfer.
(4) Any purported transfer which does not comply with this Section shall be invalid and of no legal effect whatsoever. In the event of any such transfer taking place, whether de jure or de facto, the Authority shall have the power, as soon as it comes to the notice of the Authority, to forthwith revoke the licence.
(5) Any person who is involved in effecting any purported transfer of a licence other than in accordance with the terms of this Section shall be guilty of the offence of forgery.
(6) The Authority may, at any time, carry out such enquiries and/or investigations as it may deem necessary where it suspects that there has been a transfer, whether de jure or de facto, of a licence contrary to the provisions of this Section. In exercising this power, the Authority may require any person to answer all questions related to the enquiry or investigation put to him by the Authority, and it may also enter upon and search premises where it reasonably believes that evidence relating to any transfer may be present.
OBLIGATIONS OF LICENSEES
45.
(1) The Authority may, from time to time, determine by Rules such obligations, conditions, restrictions, tariffs, and rates subject to which the licensee shall provide his facilities or services, as the case may be.
(2) Without prejudice to the foregoing provision, every ICT facility provider and ICT service provider shall wherever required or applicable:
(a) commence operation of his service within such period as may be specified by the Authority;
(b) maintain such documentary records as may be specified by the Rules;
(c) allow inspection of such facilities and such documentary records as may be specified by the Authority or by any person authorised by the Authority;
(d) provide such services to give effect to Universal Service Obligations as may be prescribed;
(e) provide such life saving services as may be prescribed;
(f) provide service to any person willing to pay on demand (within a reasonable period of time) and on a non-discriminatory basis;
(g) follow the codes and standards laid down and specified by the Authority;
(h) display his licence at a conspicuous place on his principal premises;
(i) not show undue preference to, or exercise undue discrimination in any manner or on any ground, against any person or group of persons, as respects any service provided, connection made or permission given in pursuance of such conditions as are mentioned in the foregoing paragraphs (whether in respect of the charges or other terms or conditions applied or otherwise); and
(j) publish, in such manner and at such times and such circumstances as are specified in the licence, a notice specifying the method that is to be adopted for determining, the charges and other terms and conditions that are to be applicable to such services so provided.
(3) No provider of ICT facility or ICT service, shall, without the prior approval of the Authority, give effect to any agreement or arrangement, whether oral or written, with another provider of ICT facility or ICT service respecting the:
(a) interchange of their respective ICT facilities and ICT services;
(b) management or operation of either or both of their ICT facilities or ICT services or any other ICT facilities or ICT services with which either or both are connected; and
(c) apportionment of rates or revenues between the providers.
(4) No provider of ICT facility or ICT service shall claim any limitation of its liability for any offence under this Act, unless such limitation has been a priori authorized or prescribed by the Authority.
(5) The Authority may call for any information from the licensee including information necessary for ensuring transparency or for ascertaining the true ownership of the licence or licensee.
(6) The Authority or any officer authorised by the Authority shall have power to inspect and obtain information, wherever necessary, from all licensees.
(7) It shall be the duty of every licensee to follow the relevant provisions of this Act, the Regulations, directives and the Rules and to carry out appropriate decisions, orders and directions of the Authority.
QUALITY OF SERVICE
46.
(1) ICT facility providers and ICT service providers shall make reasonable endeavours to ensure that their ICT facilities and ICT services are:
(a) reliable;
(b) provided with due care and professional skills; and
(c) rendered in accordance with the standards reasonably expected of a competent provider of those ICT facilities and ICT services.
(2) A complaint may be made to the Authority by any person who is dissatisfied with the facilities or services provided to him by an ICT facility provider or ICT service provider or who claims to be adversely affected by the actions of an ICT facility provider or ICT service provider.
(3) The Authority, may prescribe quality standards for the provision of ICT facilities and ICT services in relation to all ICT facility providers and ICT service providers.
(4) The Authority shall make Rules establishing procedures relating to the refusal, disconnection or interruption of ICT facilities or ICT services and the administration and resolution of subscriber complaints, without limitation, including requirements for and the determinations relating to the payments of the costs of proceedings, procedures for the resolution of subscriber complaints, the payment of compensation to subscriber and the upper limits of the licensee's liability, which shall be binding upon licensees.
(5) For removal of any doubt, it is clarified that the provisions of this Section apply to media services, including broadcasting services.
NON-DISCRIMINATION AND CONTINUITY OF SUPPLY
47.
(1) By giving reasons in writing, the providers of an ICT facility or ICT service may, subject to the Rules and procedures established under Sub-section 46(4) above:
(a) refuse to provide an ICT facility or an ICT service to any person; or
(b) discontinue or interrupt the provision of such an ICT service or ICT facility to a subscriber; only on grounds which are reasonable and non- discriminatory.
(2) A complaint may be made, within thirty days of the decision under Sub-section (1), to the Authority by the person who is dissatisfied with the decision of the ICT facility provider or ICT service provider.
ENFORCEMENT OF LICENCES AND LICENCE CONDITIONS
48.
(1) Subject to Section 49 below, where it appears to the Authority that:
(a) a licensee is contravening or has contravened any of the conditions or other terms of his licence; and
(b) it is requisite that an order be made; the Authority shall by an order make such provision, including the payment of a fine or fines, as appears to it requisite for the purpose of securing compliance with that condition or term.
(2) An order under Sub-section (1):
(a) shall require the licensee (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;
(b) may require the licensee (according to the circumstances of the case) to pay such fine or fines, as are specified in the order until such time as the licensee has fully remedied the breach of licence giving rise to the order;
(c) shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and
(d) may be withdrawn or suspended at any time by the Authority.
(3) In this Section and Sections 49 and 50 below, "contravention", in relation to any condition or term of a licence, includes any failure to comply with that condition or term and "contravene" shall be construed accordingly.
PROCEDURAL REQUIREMENTS
49.
(1) Before making an order under Section 48 above, the Authority shall give notice:
(a) stating that it proposes to make the order and setting out its effect;
(b) stating the relevant condition or term of the licence and the acts or omissions which, in its opinion, constitute or would constitute contra- vention; and
(c) specifying the time (not being less than thirty days from the date of publication of the notice) within which representations to the proposed order may be made, and shall consider any representations which are duly made and not withdrawn.
(2) After considering the representation, the Authority may:
(a) pass/confirm an order under Section 48 above; or
(b) propose modifications to the order contemplated to be passed under Section 48 above.
(3) Before passing an order with modifications, the Authority shall allow representations to be submitted by the licensee and shall consider them. Upon considering the representations, the Authority shall pass an appropriate order.
(4) At any stage between the issuance of the notice under Sub-section (1) and passing of the appropriate order under Sub-section (3) the licensee may express his consent to such order proposed to be passed by the Authority. The consent will amount to licensee's express waiver of a right of representation before the Authority and/or a right of appeal before the Appellate Tribunal or a Court and entitles the Authority to pass an order accordingly.
(5) As soon as practicable after an order is made, the Authority shall:
(a) serve a copy of the order on the licensee; and
(b) publish the order in such manner as it considers appropriate for the purpose of bringing the order to the attention of persons likely to be affected by it.
(6) The licensee, if aggrieved by an order passed by the Authority under Sub-section 2(a) or an appropriate order passed under Sub-section (3) shall have the right to appeal to the Appellate Tribunal within thirty days of the receipt of the order.
(7) Before revoking an order, the Authority shall give notice:
(a) stating that it proposes to revoke the order and setting out its effect; and
(b) specifying the time (not being less than thirty days) from the date of publication of the notice within which representations or objections to the proposed revocation may be made.
(8) Any notice under Sub-sections (1) or (7) shall be given by sending a copy of the notice to the licensee and by publication in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by it.
VALIDITY AND EFFECT OF ORDERS
50.
(1) If the licensee is aggrieved by an order and desires to question its validity on the ground that the making of it was not within the powers of Section 48 or 49 above or that any of the requirements of Section 49 above have not been complied with in relation to it, he may within thirty days from the date of service on him of a copy of the order make an appeal to the Appellate Tribunal.
(2) On any such appeal, the Appellate Tribunal may, if satisfied that the making of the order was not within the powers of Section 48 or 49 above or that the interests of the licensee have been substantially prejudiced by a failure to comply with the requirements of Section 49 above, quash the order or any provision of the order.
(3) It shall be the obligation of a licensee to be bound by and comply with the order till such time it remains in force.
SUSPENSION OR REVOCATION OF LICENCE
51.
(1) The Authority may suspend or revoke a licence granted under this Act where the:
(a) licensee contravenes the Act, the Regulations or Rules;
(b) licensee is in breach, or is about to breach, or has breached, any of the conditions of his licence;
(c) licensee is in default of payment of any licence fee prescribed;
(d) suspension or revocation is necessary in the interest of national security or in the public interest;
(e) financial circumstances of the licensee have deteriorated, or is likely to deteriorate, to such an extent that he may not be able to fulfil his obligations under the licence, or that his ICT facility or ICT service would not be financially viable any longer; or
(f) licensee, or any of his associates, by continuing to operate their ICT facility or service, posed a threat, or is likely to pose an imminent threat, to the public interest and/or security or integrity of Bhutan: Provided, however, that where it is, in the opinion of the Authority, necessary to take urgent action and it is not practicable to give the notice referred to above, the Authority may dispense with this requirement and the requirement to provide the licensee with a reasonable opportunity to make representations before the licence is suspended or revoked.
(2) Where the Authority has reasonable grounds for believing that a licence granted under this Act ought to be suspended or revoked, the Authority shall, before suspending or revoking the licence, give the licensee a fourteen days notice in writing of its intention to do so, specifying the date and the grounds on which it proposes to suspend or revoke the licence, and shall give the licensee an opportunity to:
(a) remedy the breach of the licence or a term or condition of the licence;
(b) submit to the Authority, within thirty days of the receipt of the notice, or such longer time as the Authority may specify a written statement of objections to the suspension or revocation of the licence which the Authority shall take into account before reaching a decision.
(3) The suspension or revocation of a licence referred to in Sub-section (2) shall take effect on the date specified by the Authority in the notice referred to in that Sub-section or such other date as the Authority specifies.
(4) Any person aggrieved by an order of suspension or revocation of a licence under this Section may prefer an appeal within thirty days of the receipt of the order to the Appellate Tribunal.
OWNERSHIP OF ICT AND MEDIA ENTERPRISES
52.
(1) Every ICT and media enterprise in Bhutan shall be required to disclose to the Authority the names and addresses of the persons holding ownership shares therein. This information shall be furnished in such form and at such time as may be prescribed in Rules made by the Authority for this purpose.
(2) All the shareholders, proprietors and directors of ICT and media enterprises in Bhutan shall be citizens of Bhutan, except where the Minister dispenses with this requirement by specifying in the Regulations.
(3) For the removal of doubts, it is hereby clarified that the requirements prescribed in this Section are in addition to any requirements laid down in the Companies Act of the Kingdom of Bhutan 2000 relating to shareholders, proprietors and directors of companies.
(4) Any person who acts in contravention of the provisions of this Section shall be guilty of an offence, as defined under the Penal Code. In addition to the penalties prescribed by the Penal Code for this offence, a Court may impose an additional fine of up to one thousand days of the daily minimum national wage rate.
PREVENTION OF MONOPOLISTIC AND OTHER SIMILAR PRACTICES
53.
(1) The Minister, after consultation with the Ministry of Trade and Industry, may by Regulations impose such limits on the ownership and control by one person as well as on cross-media ownership and control of ICT and media companies, as he may deem appropriate from time to time, in order to prevent monopolies or other similar practices in the ICT and media industry.
(2) Without prejudice to the generality of Sub-section (1), no person who owns or controls over twenty-five per cent of the total paid up capital of any other person engaged in the ICT and media business in Bhutan shall be entitled to apply for an appropriate licence under applicable provisions of this Act. However, if the Minister, after consultation with the Ministry of Trade and Industry, is of the opinion that it is necessary for the expansion of the ICT and media industry, he may by Regulation increase the above-mentioned limit.
DONATION FUNDS FROM FOREIGN SOURCES
54.
(1) No person shall receive on behalf of, or for the purposes of, ICT and media enterprise any donation funds or any benefits in kind from a foreign source without the prior approval of the Minister.
(2) For the purposes of this Section: "donation funds" shall include money, securities, movable or immovable property or any other valuable consideration whatsoever. "donation funds" or "benefits in kind" does not include:
(a) benefits by way of hospitality received by an ICT and media enterprise or its directors or employees from any foreign party, as long as the value of such hospitality does not exceed such reasonable amount as may be specified in Regulations made in this behalf by the Minister;
(b) moneys received by a broadcasting or newspaper enterprise by way of royalties or syndication fees for news, articles or features supplied by it to a foreign party, or by way of advertising revenue in respect of advertisements commissioned by a foreign party, in the normal course of business; "foreign source" includes the following:
(c) the Government of any country other than Bhutan or the agent of any such Govern- ment, whether resident in Bhutan or otherwise;
(d) any company, association or society incorporated or constituted outside Bhutan whether or not it has a branch office or place of business in Bhutan;
(e) any person who is not a citizen of Bhutan whether or not he is resident in Bhutan; or
(f) such other sources outside Bhutan declared in Regulations by the Minister to be a foreign source for the purposes of this Section.
(3) The Minister may grant the approval referred to in Sub-section (1) if he is satisfied that the donation funds from a foreign source are strictly intended for the explicit and direct professional and commercial development of the ICT and media enterprise.
(4) Where any donation funds from a foreign source are sent to an ICT and media enterprise or to any of its directors or employees without its or their prior knowledge, consent or solicitation, and the donation funds are intended for or given by the sender for the purposes of the ICT and media enterprise, that person receiving the funds shall, within seven days of the receipt thereof, report the circumstances and particulars of the donation funds received and the purposes for which the donation funds have been received, to the Minister for its approval.
(5) Where donation funds from a foreign source have been received in circumstances described in Sub- section (4), the Minister may make orders in relation to the donation funds. Such orders may include an order to expeditiously return them to the sender thereof or, if the sender cannot be traced, an order to donate the funds to any charity approved by the Government.
(6) Any person who contravenes or fails to comply with this Section shall be guilty of an offence, which shall be a felony of the third degree. In addition to the penalties prescribed by the Penal Code for this offence, a Court may impose any other penalty that it may deem appropriate, including the forfeiture to the Government of any funds, which are the subject of the charge.
FOREIGN PARTICIPATION IN THE ICT AND MEDIA INDUSTRY
55.
(1) No foreign Government or its agent or company shall be entitled to apply for and procure a licence under the provisions of this Act.
(2) The Minister, after consultation with the Ministry of Trade and Industry, may, however, adopt Regulations having regard to all the circumstances, including Bhutan's national interest, in order to entitle the Authority to issue permits to allow participation by foreign companies in the ICT and media industry under such terms and conditions as he may impose from time to time.
(3) Any foreign company, which wishes to participate in the ICT and media industry in Bhutan under the terms of Sub-section (2), shall apply to the Authority for a permit for this purpose. The form and manner of applications shall be prescribed in Rules made by the Authority in this behalf, which shall also prescribe the fees, if any, that may be payable for such permits.
(4) Notwithstanding anything contained in this Section, a domestic company operating within Bhutan under a licence issued under this Act may enter into commercial contracts with foreign companies for the sale or purchase of equipment, consumables, hardware or programming or other software, subject to any other law which may govern such contracts and subject to any other requirements or limits prescribed by the law or by Regulations made by the Minister.
(5) Any person who acts in breach of the provision of this Section shall be guilty of an offence, which shall be a felony of the fourth degree.
PROVISION OF UNIVERSAL SERVICE BY SPECIFIED CATEGORIES OF LICENSEES
56.
(1) The Authority may include a condition in the licence of a licensee that provides an ICT facility or ICT service, requiring such licensee to provide one or more categories of universal service specified under Section 59 below, provided that such requirement shall be transparent and non-discriminatory as between licensees that provide such a specified service or facility, and is not more burdensome than is necessary for the category of universal service required to be offered.
(2) A licensee who is required by its licence to provide one or more categories of universal service to any person shall do so on such terms, including as to price and the quality of service, as may be specified in the licence.
UNIVERSAL SERVICE FUND
57.
(1) There shall be established a fund known as the Universal Service Fund, which shall be managed by the Authority in accordance with Rules made by the Authority.
(2) The Authority may cause the Universal Service Fund to be sub-divided into one or more sub-funds for the purpose of administering or funding one or more categories of universal service.
PURPOSE OF THE FUND
58.
(1) The Universal Service Fund shall be solely used by the Authority to compensate any ICT facility provider or ICT service provider who is required to provide universal service by virtue of Section 56 above.
(2) The amount of compensation payable by virtue of Sub-section (1) shall be computed on cost-oriented rates in accordance with the Rules made by the Authority, and the conditions attached to the licence of the ICT facility or ICT service provider and such compensation shall be paid to the relevant ICT facility provider or ICT service provider by the Authority.
UNIVERSAL SERVICE CATEGORIES
59.
(1) The Authority may, by Rules specify:
(a) categories of universal service that are required; and
(b) categories of ICT facility providers and ICT service providers that may be required to provide one or more of such required universal services.
(2) For the purposes of Sub-section (1), the categories may include:
(a) public voice telephony services together with free calls to emergency services and directory assistance;
(b) Internet access together with free Internet access for schools and hospitals; and
(c) such other ICT facility or ICT service as the Authority may specify in licences.
PROVISION OF UNIVERSAL SERVICE BY PARTICULAR LICENSEE
60.
(1) The Authority may include a condition in the licence of any licensee that provides a specified ICT facility or ICT service, requiring such licensee to provide one or more categories of universal service.
(2) A licensee so required by its licence to provide one or more categories of universal service to any person shall be entitled to compensation as specified in Section 58 above.
CONTRIBUTIONS TO THE FUND
61.
(1) The Authority shall include a condition in the licence of each licensee that provides a specified ICT facility or ICT service, that each such licensee shall contribute to the Universal Service Fund or any one or more sub- funds of the Universal Service Fund.
(2) The Authority may, by Rule, prescribe the time, frequency and also the quantum or method for calculating the quantum of monies to be paid into the Universal Service Fund or any one or more sub- funds of the Universal Service Fund by each licensee providing a specified service or facility.
INTERCONNECTION
62.
(1) Subject to the provisions of this Section, a licensee that operates an ICT facility or ICT service shall not refuse, obstruct, or in any way impede another licensee in the making of any interconnection with its ICT facility or ICT service, as the case may be, and shall, in accordance with the provisions of this Section, ensure that the interconnection provided is made at technically feasible physical points.
(2) A licensee who wishes to make any interconnection shall make his request for interconnection in accordance with the provisions of this Section.
(3) A request by a licensee to make any interconnection with another licensee shall be in writing.
(4) A licensee to whom a request is made in accordance with the provisions of this Section shall, in writing, respond to the request within a period of thirty days from the date the request is made to him and, subject to Sub-section (5), provide the interconnection service in a reasonable time.
(5) A request by a licensee to make any interconnection with another licensee shall be refused only on reasonable grounds, which grounds shall be in writing.
(6) Any interconnection provided by a licensee pursuant to the provisions of this Section shall be provided at reasonable rates, terms, and conditions, which are not less favourable than those, provided to any:
(a) other part of the licensee's own business;
(b) non-affiliated supplier; or
(c) subsidiary or affiliate of the licensee.
(7) Without prejudice to the generality of Sub-section (6), the Authority shall prescribe the cost and pricing, technical standards and other guidelines on which the reasonableness of the rates, terms, and conditions of the interconnections will be determined.
INTERCONNECTION AGREEMENTS
63.
(1) Interconnection agreements between licensees shall be in writing, and copies of each agreement shall be submitted to the Authority within ten days of that agreement having been finalised and signed.
(2) Copies of interconnection agreements between licensees shall be kept in the register maintained by the Authority.
(3) The register referred to in Sub-section (2) shall be open to public inspection during normal working hours.
(4) The Authority shall adopt Rules, containing criteria and procedures to be followed by the licensees when negotiating interconnection agreements.
(5) Where parties cannot agree upon interconnection conditions and rates, the Authority may impose binding interconnection conditions and rates.
PRE-CONTRACT DISPUTES
64.
(1) Where, during negotiations for the provision of interconnection there is any dispute between the parties (hereinafter in this Section referred to as the "pre-contract dispute") as to the terms and conditions of such provision, either of them may refer the dispute to the Authority for resolution.
(2) The Authority may make Rules applicable to the resolution of pre-contract disputes by means of arbitration or other dispute resolution mechanisms.
(3) A decision of the Authority in relation to any pre- contract dispute shall be consistent with:
(a) any agreement reached between the parties as to matters that are not in dispute; and
(b) the terms and conditions set out in a Reference Interconnection Offer or any part thereof that is in effect with respect to the interconnection provider.
COST OF INTERCONNECTION
65.
(1) The cost of making any interconnection to the ICT facility or ICT service, as the case may be, of another licensee shall be borne by the licensee requesting the interconnection.
(2) The cost referred to in Sub-section (1) shall be based on cost-oriented rates that are reasonable and arrived at in a transparent manner having regard to economic feasibility, and shall be sufficiently unbundled so that the supplier of the interconnection facility or service does not have to pay for facility or service components that are not required for the interconnection facility or service to be provided.
INFRASTRUCTURE SHARING
66. The provisions of Sections 62 to 65 above inclusive shall, with necessary amendment, apply to such infrastructure sharing as the Authority may prescribe in the Rules.
NUMBERING
67.
(1) The Authority shall establish and manage a national plan for the allocation of numbers among licensees in accordance with the Rules made in that respect.
(2) The Authority shall, in managing the national plan for the allocation of numbers among licensees, pay due regard to the existing allocation of numbers.
(3) Subject to this Act, the Authority may make Rules imposing on any licensee, the responsibility to offer number portability if the Authority is satisfied on reasonable grounds that the:
(a) benefits likely to arise from the requirement to provide a particular form of number portability outweigh the likely cost of implementing it; and
(b) requirement will not impose an unfair burden on any licensee.
(4) In this Section, "number portability" means the ability of customers to change licensee without having to change their telephone numbers.
ICT APPARATUS STANDARDS
68.
(1) Subject to the provisions of Section 8 above, the Authority may by Rules establish or adopt appropriate standards for ICT apparatus, including radiocomm- unication apparatus, prescribing:
(a) types of ICT apparatus, the use of which shall not require such approval; and
(b) circumstances in which the use of ICT apparatus shall not require such approval.
(2) Any such standard shall be aimed at:
(a) protecting the integrity of the ICT facilities;
(b) ensuring the proper functioning of apparatus connected to ICT facilities; or
(c) avoiding radio or other interference with ICT facilities.
(3) Any Rule made under Sub-section (1) may, for the purposes of this Section, incorporate any technical standard, without publishing the text thereof, merely by reference to the number, title and year of issue thereof or to other particulars by which it may be identified sufficiently.
(4) The licensee shall, as a condition of his licence, connect only apparatus meeting such standards to ICT facilities.
(5) It shall be a condition of ICT facility use that subscribers connect it to only the apparatus that meets such standards. Failure to comply with such standards is a reasonable ground to refuse to provide, to discontinue or to interrupt the provision of the relevant ICT facility or ICT service under Section 47 above.
CERTAIN AGREEMENTS TO BE REGISTERED WITH THE AUTHORITY
69. Every agreement entered into or made by any ICT facility provider, ICT service provider and media service provider falling under one or more of the following categories shall, within thirty days from the making of such agreement, be registered with the Authority, including:
(a) Shareholders or promoters agreements;
(b) Change of ownership or control agreements, including those of their parent bodies in Bhutan or abroad, if applicable;
(c) Interconnection agreements; and
(d) Such other agreements as may be specified by Rules by the Authority.
REGISTER OF REGULATIONS, DIRECTIVES, RULES, LICENCES, AND ORDERS
70.
(1) Subject to any direction given under Sub-section (2), the Authority shall keep a register of Regulations, directives, Rules, licences and permits granted, codes of practice and sets of guidelines made, orders made, directions and notices issued, and agreements registered at its premises and in such form as it may determine: Provided however that if it appears to the Authority that the entry of any information in the register would be against the commercial interests of any person, it shall not enter that information in the register.
(2) In addition to the register under Sub-section (1), the Authority may maintain separate registers for different purposes under the provisions of this Act.
(3) All registers shall be kept up to date and be open to public inspection during normal working hours.
(4) Any person may, on payment of such fee as may be prescribed by an order so made, request the Authority to supply to him a copy of or extract from any part of the register, certified by the Authority to be a true copy or extract.
ENTRY UPON AND CONSTRUCTION OF ICT APPARATUS ACROSS ANY LAND
71.
(1) An ICT facility or ICT service provider may, for the purposes of providing its service, enter upon any land, including any street, road, footpath or land reserved for public purposes and construct and maintain ICT apparatus upon, under, over, along or across any land, street, road, footpath or waterway and alter, remove or replace the same, and may for that purpose attach wires, stays or any other kind of support to any building or other structure.
(2) In taking any action in terms of Sub-section (1), due regard shall be paid to the environmental policy of the Government, any relevant laws of the country and the following general principles:
(a) An ICT facility provider shall have a general obligation to:
(i) consult with and seek prior agreement from local authorities, persons with an interest in land and other parties that will be affected by the planned installation of ICT facilities;
(ii) minimise damage in the installation of ICT facilities;
(iii) repair without unreasonable delay the damage incurred in the installation of ICT facilities and leave the land in a condition reasonably similar to the one that existed before the installation of ICT facilities; and
(iv) act in good faith;
(b) local authorities and persons owning or having the care of any land that could be affected by the planned installation of ICT facilities shall have a general obligation to:
(i) not obstruct reasonable access to their land for the purposes which have been authorised under this Act;
(ii) seek agreement with ICT facility providers, wherever reasonable; and
(iii) act in good faith.
(3) The provisions of Sub-section (2), where appropriate, also apply to ICT service providers.
COMPULSORY PURCHASE OF LAND
72.
(1) Subject to Sub-section (2), the Minister may authorise an ICT facility provider to purchase compulsorily any land in Bhutan which is required by the ICT facility provider for, or in connection with, the establishment or operating of an ICT facility provider's system or as to which it can reasonably be foreseen that it will be so required, and any compulsory purchase of land shall be according to the Land Act if the government requires the land, and according to the prevailing market rate if an ICT facility provider requires it.
(2) No order shall be made authorising a compulsory purchase under this Section except with the consent of the Authority and the owner. The Authority shall not grant its consent unless it is reasonably satisfied that the ICT facility provider has exhausted all reasonable alternatives, and has behaved in accordance with the general principles in Sub-section 71(2) above.
(3) The power of purchasing land compulsorily under this Section includes power to acquire an easement or lease.
(4) Where an ICT facility provider has acquired any land under this Section, he shall not dispose of that land or of any interest or right in or over it except with the consent of the Authority, nor use it for any purpose other than a purpose authorised under this Act.
UNDERGROUND PIPES FOR ICT FACILITY PURPOSES
73.
(1) If any local authority and an ICT facility provider agrees that in a particular area, electricity supply and the ICT facilities of that ICT facility provider shall be provided by means of underground cable, that local authority may on any premises within the said area when installing such cable for an underground electricity supply line on the said premises, in accordance with the requirements of the provider, provide a conduit, pipe or other facility for the installation of an underground ICT facility line from a point of connection on the street boundary to a building on those premises.
(2) A copy of the agreement, including appropriate maps of the underground pipes or cables, referred to under Sub-section (1), shall be filed with the Authority within a period of fifteen days of the conclusion of the agreement.
(3) The costs of the provision of the said conduit, pipe or other facility shall be payable to the local authority in question and shall for the purpose of any law be deemed to be fees payable by the owner of the premises in question to the local authority in respect of the installation of the electricity supply line.
PIPES UNDER STREETS
74.
(1) An ICT facility provider may, after reasonable notice in writing to the local authority or person owning or having the care and maintenance of any street, road or footpath, construct and maintain in the manner specified in that notice any pipes, tunnels or tubes required for ICT apparatus under any such street, road or footpath, and may alter, remove and replace the same and may for such purposes break or open up any street, road or footpath and alter the position thereunder of any pipe (not being a sewer drain) for the supply of water, gas or electricity: Provided that the local authority or person to whom any such pipe belongs or by whom it is used shall be entitled at all times, while any work in connection with the alteration in the position of that pipe is in progress, to supervise that work, and the provider shall pay all reasonable expenses incurred by any such local authority or person in connection with any alteration or removal under this Section or any supervision of work relating to such alteration; Provided further that in case of damage caused during such alteration, removal and replacement, the concerned ICT facility provider shall be liable to pay an appropriate compensation.
(2) The ICT facility provider shall provide to the Authority as expeditiously as possible all the maps and plans as referred to under Sub-section (1) and the Authority may supply their copies to any interested person, subject to payment of such fee as may be prescribed by an order of the Authority.
REMOVAL OF ICT APPARATUS
75.
(1) Notwithstanding any provision of this Section, the Authority may make orders regarding the payment of the costs of removing or altering ICT facilities. Such orders shall be made in full accordance with the general principles under Sub-section 71(2) above. Any affected ICT facility provider or local authority or person can bring a request to the Authority to make such orders. The Authority shall hear all parties having a stake in such a request, and determine its orders expeditiously and in line with the principles of natural justice.
(2) If an ICT facility provider finds it necessary to move any ICT apparatus constructed upon, in, over, along, across or under any land, street, road, footpath or waterway, owing to any alteration of alignment or level or any other work on the part of any local authority or person, the cost of the alteration or removal shall be borne:
(a) by that local authority or person if the local authority or person requi