In our last article, we discussed the Malaysian Communications and Multimedia Commission Act 1998, which establishes the Malaysian Communications and Multimedia Commission (MCMC).
The Communications and Multimedia Act 1998 (CMA), on the other hand, details MCMC’s role as the regulator. Generally, it provides the policy and regulatory framework for the convergence of the telecommunications, broadcasting and Internet industries. Because of this, it repealed the Telecommunications Act 1950 and the Broadcasting Act 1988.
In this article, we shall discuss the provisions of the CMA and certain important subsidiary legislation in detail. It should be noted that there are numerous regulations related to the CMA and in the future, we will see the creation of more regulations to develop the regulatory framework and to take into account technological innovations in the mentioned industries.
The CMA’s objectives are as follows:
a) To promote national policy objectives for the communications and multimedia industry;
b) To establish a licensing and regulatory framework in support of national policy objectives for the communications and multimedia industry;
c) To establish the powers and functions of MCMC; and
d) To establish powers and procedures for the administration of the CMA.
The CMA also sets out the 10-point national policy objectives for the communications and multimedia industry which are as follows:
(a) To establish Malaysia as a major global centre and hub for communications and multimedia information and content services;
(b) To promote a civil society where information-based services will provide the basis of continuing enhancement to quality of work and life;
(c) To grow and nurture local information resources and cultural representation that facilitate the national identity and global diversity;
(d) To regulate for the long-term benefit of the end user;
(e) To promote a high level of consumer confidence in service delivery from the industry;
(f) To ensure an equitable provision of affordable services over ubiquitous national infrastructure;
(g) To create a robust applications environment for end users;
(h) To facilitate the efficient allocation of resources such as skilled labour, capital, knowledge and national assets;
(i) To promote the development of capabilities and skills within Malaysia’s convergence industries; and
(j) To ensure information security and network reliability and integrity.
The CMA then states that nothing in the Act shall be interpreted as permitting the censorship of the Internet. This is in line with the MSC’s Bill of Guarantees which provides that there will be no censorship of the Internet.
The CMA applies within and outside Malaysia. This is because it applies to any person outside Malaysia if the person is a licensee or provides relevant facilities or services under the CMA in Malaysia. However, the Minister of Energy, Communications and Multimedia has the power to exempt any person, place, premises or geographical area in Malaysia from the provisions of the CMA.
The Minister may issue directions to MCMC on the exercise of MCMC’s powers and the performance of MCMC’s functions and duties under the CMA. The direction must be consistent with the objects and provisions of the CMA.
Thereafter, MCMC must exercise its powers in a manner that is consistent with the direction. The direction shall come into operation on the date of registration or on such later date as the Minister specifies. Every Ministerial direction shall be registered by MCMC as soon as it is practical.
The Minister can also give a Ministerial determination on any matter specified in the CMA, without consultation with any of the licensees or other persons. Any determination will be consistent with the objects and provisions of the CMA. MCMC shall exercise its powers in a manner which is consistent with the determination.
Determinations must also be registered by MCMC. A determination shall come into operation on the date of registration or at a later date as the Minister may specify. The Minister may modify or revoke a determination.
MCMC must also maintain a register, in both physical and electronic form, of all matters which are required to be registered under the CMA and its subsidiary legislation. The public can inspect the register and make a copy of the register or parts of the register.
The register will contain:
(a) Individual licences granted by the Minister;
(b) Any special or additional conditions specified in an individual licence;
(c) Any written notice varying, revoking or imposing any special or additional conditions in an individual licence;
(d) Any written notice by the licensee surrendering its individual licence;
(e) Any written notice by the Minister suspending or cancelling an individual licence; and
(f) Any written notice approving the transfer of an individual licence or a change in beneficial ownership of an individual licence.
Definitions
The following phrases are essential to our discussion to be defined:
·Network facilities mean any element or combination of elements of physical infrastructure used principally for, or in connection with, the provision of network services, but does not include customer equipment.
·A network service means a service for carrying communications by means of guided and/or unguided electromagnetic radiation.
·An applications service means a service provided by means of, but not solely by means of, one or more network services.
There are basically four types of licences that can be granted under the CMA. The licensable activities it covers are:
1. Network Facilities Providers, who own facilities like broadband fibre optic cables, satellite earth stations, telecommunications lines and exchanges, radio-communications transmission equipment, mobile communication base stations and broadcasting transmission towers and equipment;
2. Network Service Providers, who provide basic bandwidth and connectivity to support a variety of applications. Network services enable connectivity between networks. A network service provider is typically also an owner of network facilities;
3. Applications Service Providers, who provide functions such as e-commerce, voice services, content-based services, data services and other transmission services. Applications services are basically functions and capabilities which are delivered to end-users;
4. Content Applications Service Providers are a subset of applications services providers, who include traditional broadcast services and newer services such as online publishing and information services.
Licensing can be further broken down into what is called an individual licence and what is called a class licence. If a person desires to perform any of the following activities, then he needs to apply for an individual licence or a class licence:
- Own or provide network facilities;
- Provide any network services; or
- Provide any applications services.
Other matters
The International Telecommunication Union (ITU), a United Nations organisation, is responsible for regulating the international use of the radio spectrum. The ITU Radio Regulations contain the international frequency allocation table (ITU Allocation Table). The ITU Allocation Table sets out the frequency bands that have been allocated to services and divides the world into three distinctive regions. Malaysia falls within the parameters of Region 3 in the ITU Allocation Table.
The CMA also provides for certain obligations on the part of network facilities providers when it comes to installation and access to network facilities. In this regard, the network facilities provider can apply to MCMC for a network facilities installation permit authorising the network facilities provider to carry out the installation of one or more network facilities. If certain criteria are fulfilled, MCMC will issue the permit.
Additionally, the CMA provides for powers of search persons and premises, to seize items relevant to the commission of an offence under the CMA, to obtain access to computerised data and to forfeit equipment.
More concerning is the provision that gives the right to the police to apply to the Public Prosecutor for the power to intercept or to listen to any communication transmitted or received by any communications, if the Public Prosecutor considers that the communication is likely to contain any information which is relevant for the purpose of any investigation into an offence under the CMA.
If equipment is seized and no relevant prosecution comes about within a month, the equipment is deemed forfeited if the owner does not make a claim for its return within that period.
It seems strange that there is a deemed forfeiture of equipment – what happened to the citizen’s right to enjoy the usage of his personal property?
Licensees are also obliged to assist MCMC or any other authority to prevent the commission of any offences under any written law and to preserve national security. There are also special powers to suspend licences, to intercept communications and to withdraw use of network facilities and applications service in case of emergency.
MCMC can also direct a licensee to develop a disaster plan for the survivability of and recovery of any network facilities, network service, applications service or content applications service in case of a disaster.
Conclusion
The CMA is a well thought out piece of legislation. It not only gives wide powers to MCMC as well as the Minister of Energy, Communications and Multimedia to regulate the communications and multimedia industries, but it also offers adequate protection to the consumer.
In addition, the CMA allows MCMC and the Minister to create regulations to allow the nurturing of the converging industries and create rules for circumstances and situations which are unforeseeable because of technological innovation.
Although there are not many cases arising from the CMA, it is not an indication that the industries’ players and other stakeholders are not mindful of the CMA and its provisions. Future cases can only add to the understanding and clarification of the CMA and its regulations.