TELECOMMUNICATIONS: SUBSIDIARY LEGISLATION

“connection to a telecommunication system” means either direct connection by wired, radio optical or other electromagnetic means, to the termination point of a telecommunication system, or the interworking point of such a system;

“license” means a service provider as defined under section 2 of the Act, and shall include a telecommunication system operator;

“number capacity” means a part of the numbering plan’s total number resource.

PART II
Telecommunication Networks and Services (regs 3-16)

3. General obligation

Every licensee shall-

(a) operate his telecommunication system or provide his telecommunication service in accordance with international telecommunication treaties and conventions which are binding on Botswana;

(b) take the necessary measures to ensure that telecommunication is maintained in the case of war or other crisis or emergency; and

(c) take the necessary measures to ensure that emergency calls or information is conveyed during an emergency or at any other time.

4. Obligation to apply numbering system

Every licensee shall comply with such numbering system as is determined by the Authority.

5. Allocation of numbering and address capacity

(1) The Authority shall allocate, to each licensee, a number or address capacity which the Authority considers reasonable taking into account the number of subscribers which the Authority has forecast, the need for operator codes, and any other relevant factor; and the Authority shall, when so allocating number capacity, specify, in writing, the purpose for which such capacity may be used.

(2) A licensee may apply in writing to the Authority to supply it with the number or address capacity which the Authority has allocated to it.

(3) A licensee shall use only the number or address capacity allocated to it in accordance with subregulation (1), and only for the purpose for which it has been allocated.

(4) The Authority may revoke the allocation of a licensee who does not use the number or address capacity allocated to it for the purpose for which it is to be used.

6. Right to enter upon land and construct lines, etc.

(1) A licensee may, for the purposes of providing a telecommunication service, and after giving not less than 14 days’ notice in writing to the local authority or person owning or having the care and management of any land, street, road, footpath, waterway or railway-

(a) enter upon such land, street, road, footpath, waterway or railway and there construct or maintain or remove any telecommunication line or pipe or conduct any other work necessary for such lines upon, under, over, along or across any such land, street, road, footpath, waterway or railway; and

(b) alter or cause to be altered the position, under the ground, of any pipe other than a sewer, drain or mains for the supply of water, gas or electricity.

(2) The local authority or person to which or to whom any such pipe belongs or by which or by whom it is used shall be entitled, while work in connection with the removal or alteration in the position thereof is in progress, to supervise that work, and the licensee shall pay all expenses incurred by such local authority or person in connection with such removal or alteration or in connection with the supervision of the work relating to such removal or alteration.

7. Gates in fences

(1) Where any fence erected on land over or under which a telecommunication line is constructed or is to be constructed renders or would render it impossible or inconvenient for the licensee to obtain access to that land for any purpose of the Act, the licensee may, at his expense, erect and maintain gates in that fence, and shall provide duplicate keys therefor, one of which shall be given to the owner or occupier of such land.

(2) A licensee intending to erect a fence on land over or under which a telecommunication line is constructed or is to be constructed shall give the owner or occupier of that land not less than 21 days’ notice, in writing, of his intention to do so.

8. Trees obstructing telecommunication lines

Where telecommunication is or may be interfered with or endangered by a tree or undergrowth, the licensee may, at his expense, cause such tree or undergrowth to be cut down or trimmed:

Provided that where circumstances permit the licensee may grant the owner or occupier of the land the opportunity of carrying out the necessary cutting down or trimming.

9. Electrical works, etc., to conform to requirements

(1) Any person intending to erect, move or alter any line for the transmission of electricity shall, before erecting, moving or altering such line, obtain the written approval of the licensee, and the licensee shall be entitled to require such alterations in the route or manner of constructing or moving the said line as shall ensure that the proposed line shall not injuriously affect any existing or proposed telecommunication line.

(2) Where any line for the transmission of electricity is so constructed as to injuriously affect any telecommunication line or any proposed telecommunication line, the owner of such line for the transmission of electricity shall make such alterations thereto as the licensee may determine:

Provided that if it is more economical or practical to do so, the licensee shall, at his own expense, move or alter the telecommunication line in question.

(3) The cost of any alteration made to, or movement of, existing lines for the transmission of electricity to avoid interference with proposed telecommunication lines shall be borne by the licensee provided that electricity line was lawfully erected; in all other cases the cost of alteration or movement shall be borne by the owner of the electricity line.

10. Height and depth of lines

(1) The height of aerial telecommunication lines along any land, street, road or footpath shall be at least 3m, and that of any aerial telecommunication line crossing any such land, street road or footpath shall be at least 5m above the surface of the ground; and a telecommunication line crossing a main road or railway shall be at least 60cm below the surface of the ground.

(2) Subject to the provisions of regulations 8 and 11, the licensee shall take such steps, at its own expense, as it considers it necessary to effect relief to the owner or occupier of any land who proves, to the satisfaction of the licensee, that he is obstructed in the free use of the land by reason of the insufficient height or depth of any telecommunication line.

11. Alteration of works at request of local authority or other person

(1) Where, as a result of any works undertaken by a local authority or any person, it becomes necessary to alter any pre-existing telecommunication line, the cost of such alteration shall be borne by such local authority or person.

(2) Where any telecommunication line passing over private property interferes with any building about to be erected on that property, the owner or occupier of that property shall so notify the licensee responsible for that line in writing, and also, at the same time, provide proof that such building is to be erected, and the licensee shall, within four weeks of receiving such notification and proof, cause the line to be altered in such a manner as will remove all obstacles to building operation.

(3) Where the owner or occupier of any land through which a telecommunication line passes requests a licensee to alter or move any telecommunication line for any other reason, the licensee shall, within 28 days of such request, either comply with the request or, if it does not so comply, so inform the owner or occupier in writing, giving reasons for his decision not to comply.

12. Damage to property or injury to persons

(1) A licensee shall, in carrying out any work required for its purposes, exercise due care and shall carry out such work with regard to the safety and convenience of the owners or occupiers of the land, street, road, footpath, waterway or railway upon which the work is carried out, and with minimum damage to the property of that owner or occupier or to telecommunication lines or other telecommunication infrustructure on, over, or under that property and shall make good all streets, roads, footpaths, waterways, railways, telecommunication lines or other infrustructure disturbed by such work.

(2) The licensee shall be liable for compensation for injury or damage caused to any property including telecommunication lines or other infrustructure if such injury or damage was caused wilfully or through the negligence of its employees.

(3) Any person who, either directly or indirectly by his servant or employee, by an animal, vehicle or thing owned by him or in his custody, with intention or through negligence, destroys or damages any line, mast, building or other component constituting telecommunication infrustructure, shall be liable to pay the owner or, if applicable, the user of the infrustructure , the cost of making good the destruction or damage.

13. Technical feasibility and compatibility

A licensee shall, in order to fulfil essential requirements, ensure that the network operations or services he provides are technically feasible and are compatible with the networks, operations or services provided by other licensees.

14. Essential requirements applicable to terminal equipment

Every service provider and every person who supplies telecommunication equipment shall ensure that any terminal equipment provided or supplied by him complies with the following essential requirements, that is to say that it-

(a) is electrically safe for users, subscribers or the employees of the telecommunication system operators;

(b) is electromagnetically compatible with other equipment to which it is or will be connected or used;

(c) is fitted with a device which will protect the telecommunication system of which it is a part or to which it is connected against electrical, electromagnetic or other similar damage;

(d) makes efficient use of the radio spectrum where applicable; and

(e) is capable of interworking with other telecommunication equipment for the purpose of establishing, modifying, charging for, holding or clearing real or virtual connections.

15. Limitation, interruption, termination, etc., of service

(1) A licensee may not limit, interrupt or terminate the provision of any telecommunication service unless-

(a) it is justified by essential requirements for the efficient provision of a telecommunication network or service;

(b) he is so ordered by an authorised officer acting in terms of section 23 of the Act; or

(c) it is justified on a commercial basis following the non-payment or other breach of contract on the part of a subscriber.

(2) A licensee shall, before he limits, interrupts or terminates the provision of a telecommunication service in terms of subregulation (1), give the subscriber concerned at least 14 days notice in writing.

16. Interconnection disputes

Where a dispute arises in negotiations relating to a network interconnection, the Authority shall, after hearing both parties in accordance with such procedures as it may determine, decide on the matter.

PART III
Radio Stations, Radio Communication Equipment, Licences, etc. (regs 17-20)

17. Obligation not to hamper communication

(1) A licensee shall ensure that he does not, in providing his service or operating his equipment, interfere with the frequency or operation of any other telecommunication service or radio equipment.

(2) A licensee shall, where any interference referred to in subregulation (1) occurs, take all steps necessary to eliminate the interference.

18. Tests

Subject to such directions as the Authority may issue, a licensee shall carry out such routine tests as may be necessary for the proper maintenance of his station.

19. Installation maintenance and repair authorisation

(1) The installation, maintenance, and repair of radio communication equipment-

(a) at a station where the power of the transmitter exceeds 500 watt DC input; or

(b) upon which the safety of life at sea or in the air depends,

shall not be undertaken other than by a person authorised in writing by the Authority.

(2) The Authority shall not authorise any person for the purposes of sub regulation (1) unless he satisfies such minimum technical qualifications, professional conduct and skills as the Authority may specify.

20. Distress signals

Radio stations shall comply with international regulations concerning distress signals, such as the group … — … (SOS) in radio telegraphy and the word “MAY DAY” in radio telephony and priority shall be given to any other communication.

PART IV
Equipment Type Approval (regs 21-28)

21. Equipment type approval

A licensee shall, before supplying, installing or using any telecommunication equipment, apply, in writing, to the Authority to have that equipment type approved.

22. Field tests

(1) A licensee shall, not less than four weeks before submitting an application to the Authority for the type approval of his telecommunication equipment, have that equipment field tested by the Authority or such body as may be approved by the Authority in order to assess the performance of the equipment in the telecommunication system.

(2) The licensee shall submit, with his application for the type approval of his telecommunication equipment, a certificate from the body referred to in subregulation (1) certifying whether or not the said equipment has been field tested, and certifying as to its performance in the telecommunication system.

23. Repair service precondition for type approval

(1) The Authority shall type approve telecommunication equipment only where the licensee concerned can demonstrate that he can arrange for an acceptable repair service in Botswana:

Provided that the Authority may, where it is satisfied that the standard of service will not be compromised, permit the licensee to have a service contact point in Botswana, which service contact point may then, where necessary, send the said equipment abroad for repairs or subcontract the repair service to such person as the Authority may approve.

(2) The Authority may, where it considers it appropriate, exempt a licensee from the requirements of type approval as specified in subregulation (1).

(3) A licensee who wishes to be exempted in terms of subregulation (2) shall apply to the Authority in writing for such exemption at the same time as he applies for type approval stating reasons in support of the application for the exemption.

24. Configuration of equipment for type approval

In type approving telecommunication equipment, the Authority shall ensure that the technical configuration of equipment corresponds to the equipment in respect of which an application for type approval is made.

25. Operating instructions

Every licensee shall ensure that operating instructions in respect of any telecommunication equipment supplied or installed by him are supplied in both English and Setswana to the user or the subscriber.

26. Validity time of type approval

A type approval in respect of any telecommunication equipment shall be valid for such time as the Authority shall stipulate.

27. Revocation of type approval

(1) The Authority may revoke a type approval for any of the following reasons-

(a) the telecommunication equipment does not comply with essential requirements when properly or correctly used for the purpose for which it was intended by the manufacturer;

(b) an acceptable repair service arrangement ceases to exist;

(d) the licensee supplied, with his application for type approval, any information which was false and which he knew to be false, and on which the Authority relied upon to make a decision to grant type approval.

(2) Where it revokes a type approval, the Authority may direct that the telecommunication equipment relating thereto should be withdrawn from the market, or should not be supplied, connected or used in relation to any telecommunication system.

28. Marking

(1) The Authority shall issue to a licensee, upon type approval of any telecommunication equipment, such symbol as shall be determined by the Authority, which symbol shall be permanently affixed, on a visible place, to the equipment.

(2) The Authority shall also issue, to the licensee, a type approval registration number which shall also be permanently affixed to the equipment by the licensee; and the licensee shall further affix, to the equipment, a mark identifying the type, batch or serial number thereof.

(3) No symbol or mark which is likely to be confused with the symbols or mark referred to in subregulation (1) shall be affixed to any telecommunication equipment.

(4) The Authority may, where it considers it appropriate, exempt a licensee from the marking requirements specified in subregulations (1) and (2).

(5) A licensee who wishes to be exempted in terms of subregulation (4) shall apply to the Authority in writing for such exemption at the same time as he applies for type approval stating reasons in support of the application for the exemption.

PART V
Confidentiality, etc., of Messages (regs 29-32)

29. Application

(1) The provisions of regulation 30 shall apply to all telecommunication messages and information regarding subscriptions regardless of the medium of the transmission.

(2) The provisions of subregulation (1) shall not apply to any information given to a subscriber in respect of his own subscription, or to information given to facilitate action in an emergency.

30. Divulging, etc., of messages

(1) No person shall intercept or tamper with a telecommunication message, divulge the contents or substance of such message to another person, or intercept, tamper with or divulge any information regarding a subscription unless-

(a) he has the consent of the sender or addressee of such message or of the subscriber concerned;

(b) he so intercepts or tampers with the message or information or divulges the contents or substance thereof in pursuance of his intention to maintain the technical operation or quality of any service provided, or in pursuance of any other duty under the Act or these Regulations; or

31. Forms

The Authority may require any person to complete a form supplied by it in connection with anything which requires to be done under these Regulations.

32. Penalties

Any person who contravenes any provision of these Regulations shall be guilty of an offence and shall be liable to a fine of not less than P10 000 but not more than P50 000 or to imprisonment for a term not exceeding 12 months or to both.

RADIO LICENCE (EXEMPTION) REGULATIONS

(under section 42(3)(e))

(13th August, 1999)

ARRANGEMENT OF REGULATIONS

REGULATION

1. Citation

2. Exemption from requirement to hold a radio licence

S.I. 98, 1999.

1. Citation

These Regulations may be cited as the Radio Licence (Exemption) Regulations.

2. Exemption from requirement to hold a radio licence

The Directorate of Corruption and Economic Crime is hereby exempted from the requirement under section 42(1) of the Act to hold a radio licence mandatory in order to-

(a) possess or operate a radio communication network;

(b) possess or operate radio communication equipment, whether in assembled or unassembled form; or