Why is the Caribbean plagued with flat-footed telecoms regulation?
A brief discussion on why the telecoms regulatory framework in the Caribbean appears to be ill-equipped to deal with some of the new developments that have occurred in the region.
In recent news reports from the Eastern Caribbean, the Council of Ministers of the Eastern Caribbean Telecommunications Authority (ECTEL), both as a group and member individually, have been expressing concerns regarding the attitude of telecoms operators in that region. To a considerable degree, much of that attention has been focussed on the merged Flow/LIME operation, and the changes that will eventuate following the completion sale of Columbus International Inc. to Cable & Wireless Communications plc in March.
One of the issues that has been of particular concern to ECTEL has been plans by the Flow to increase broadband Internet rates in all of the countries in which either Flow or LIME has a presence, namely, Saint Kitts and Nevis, Dominica, Saint Lucia, Saint Vincent and the Grenadines, and Grenada, According to a communiqué circulated by ECTEL on 19 October, at an earlier meeting in July 2015 with the “merging parties” had accepted the conditions proposed by ECTEL for approval of the integration of their business. Those conditions were in the process of being finalised, and ECTEL is not pleased that Flow has gone ahead and announced its intention to increase broadband Internet rates:
On 14th September 2015, ECTEL received in response an amended version of the draft Agreement from the merging parties. Having reviewed the amendments it was found that they rendered the Agreement unenforceable. The proposed amendments from the merging parties have therefore been rejected by ECTEL.
It is unacceptable that at this time when the wordings of conditions agreed to are being finalized, FLOW has announced its intention to increase broadband rates in the territories affected by the merger. This announcement goes against the spirit of the discussions between the merging parties and the Regulator. The Council demands that the merging parties honour the commitments including the provision of services at affordable prices, which have been made to the Regulator and also announced publicly.
Although one can empathise with ECTEL’s position on this matter, and are concerned about the implications of rate increases on consumers, the entire approach emphasises the extent to which the regulatory machinery in the Caribbean, not just in the eastern Caribbean sub-region, appear to be ill-equipped to competently address the ‘cut and thrust’ of a changing telecoms and ICT sector.
Across the region, most of the legislation that governs telecoms and/or ICT in individual countries is well over 10 years old, as reflected in Table 1. Many of those laws were drafted with a decided focus on regulating the fixed-line and mobile/cellular communications markets. Broadband Internet was not readily available, and generally, no structures were established to regulate Internet services on a whole. Policymakers were prepared to allow market forces (and the service providers) to determine prices, quality of service, etc.
|Country||Year Enacted||Overarching legislation|
|Anguilla||2003||Telecommunications Act 2003, as amended|
|Antigua & Barbuda||1951||Telecommunications Act, 1951 as amended (CAP 423)|
|Aruba||1934||Communications Act of 1934, as amended|
|Barbados||2001||Telecommunications Act, 2001 as amended (Cap 282B)|
|Bahamas||2009||Communications Act, 2009 as amended|
|Bermuda||2011||Electronic Communications Act 2011|
|Belize||2002||Telecommunications Act, 2002|
|Cayman Islands||2011||Information & Communications Technology Authority Law (2011 Revision)|
|Dominica||2000||Telecommunications Act 2000, as amended|
|Grenada||2000||Telecommunications Act 2000|
|Guyana||1999||Public Utilities Commission, 1999 as amended|
|Haiti||1969||Décret du 27 Septembre 1969|
|Jamaica||2000||Telecommunications Act 2000 as amended|
|Montserrat||1949||Telecommunications Act 1949, as amended|
|St. Kitts & Nevis||2000||Telecommunications Act 2000, as amended|
|St. Lucia||2000||Telecommunications Act 2000, as amended|
|St. Vincent & the Grenadines||2001||Telecommunications Act 2001|
|Suriname||2004||Wet Telecommunicatievoorzieningen (Telecommunications Act) 2004|
|Trinidad & Tobago||2001||Telecommunications Act 2001, as amended (Chap 47.31)|
|Turks & Caicos Islands||Telecommunications Ordinance, Chap 14.02|
Table 1: Primary telecoms legislation and year of promulgation in select Caribbean countries (Source: regulators websites)
However, as at 2015, the Internet has usurped both fixed-line and mobile/cellular in importance. It not only seen as critical driver of a country’s economic and social development, but also can foster wealth creation, improved productivity, efficiency and innovation among individuals and businesses. For its current import, it thus seems implausible that the regulatory framework for the Internet has not been developed with alacrity in order to address the demands of the current environment.
No basis in law
In having dated legislation still in effect, the needed policy and legal framework to properly guide stakeholders, and prescribe certain actions under specific circumstances, would not exist. Among the ECTEL Member States, and as early as 2006, work had commenced on new primary legislation, which would supersede and replace the Telecommunications Act, which was enacted in all of the countries. However, as at the time of publishing, that new Bill had not been promulgated.
Due to the current provisions of the Telecommunications Act, there was no basis in law on which the ECTEL countries could rely to guide their engagement with Flow on matters such as its intended rate increase, and quality of service issues, which have seemed to have worsen thanks the merger.
We note that the absence of the Electronic Communications Bill, the passage of that Bill, played a significant role in the behaviour of the two providers. We are bombarded with a plethora of complaints, immediately the merger has been approved, the requests for prices increase, and not only request but a demand, because so far as the providers are concerned, there is nothing law to prevent them from so doing.
(Source: West Indies News Network)
To address the issues that have emerged and in the absence of well-established policy and appropriate laws, the ECTEL has sought to engage the firm and have them accept certain terms and conditions regarding their operations and behaviour, which are not supported in policy or law. However, for a formal agreement to be established, both parties must be willing, and must agree on how they – individually and together – will be bound by the agreement. Should on party not be amenable, or amenable to the same degree, the options for recourse are likely to be contentious.
In summary, although it is not possible for laws to address every conceivable telecoms or regulatory situation that arises, it is critical, and to extent possible, that clear and transparent processes are established. Existing players and prospective investors get considerable comfort from operating in a well-conceptualised environment, in which they can understand the separation between politics, policy and regulation, and can develop robust business models.
Without a doubt, the Caribbean, both the countries and the region, has made considerable strides in the last 10—15 years with respect to telecoms and ICT development. However, since those earlier efforts, the momentum to continually refine and improve the environment has been declined, although the environment has been changing. Unless a concerted effort made – and soon – we will all continue to witness more floundering by our leaders when addressing critical matters for which a handshake will not suffice.
Image credit: Martin Fisch (flickr)