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REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

BR 78 / 2013

The Regulatory Authority, in exercise of the power conferred by section 62 of the Regulatory Authority Act 2011 read with section 16(2) of the Electronic Communications Act 2011, makes the following General Determination:

Citation

1 This General Determination may be cited as the Regulatory Authority (Exemptions and Class Licences) (No. 2) General Determination 2013.

Interpretation

2 In this General Determination unless the context otherwise requires all relevant terms shall have the meaning given in the Regulatory Authority Act 2011 and the Electronic Communications Act 2011.

3. General Purpose

(1) This General Determination establishes—

(a) an exemption for certain providers of passive infrastructure from the requirement to hold a communications operating licence; and

(b) a registration requirement for such providers.

(2) Accordingly, this General Determination adopts Attachment A to the Regulatory Authority (Exemptions and Class Licenses) General Determination 2013 (BR 46/2013), with amendments, as set out in the attachment hereto entitled “Exemption From Requirement to Hold a Communications Operating Licence”.

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

Terms and conditions of the General Determination

4 The Schedule has effect.

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

SCHEDULE

(Paragraph 4) BERMUDA REGULATORY AUTHORITY COMMUNICATIONS OPERATING LICENCES: EXEMPTION FOR PASSIVE INFRASTRUCTURE PROVIDERS MATTER: C13/847 This General Determination is made by the Regulatory Authority pursuant to Section 62(1) of the Regulatory Authority Act 2011 and, in accordance with Sections 16(1)(c), 16(2)(c) and 16(2)(d) of the Electronic Communications Act 2011, establishes an Exemption for Persons who provide Passive Infrastructure from the requirement to hold a communications operating licence by amending Attachment A to The Regulatory Authority (Exemptions and Class Licences) General Determination 2013, BR 46/2013, as set forth in the attached Exemption From Requirement to Hold a Communications Operating Licence.

1. I. DEFINITIONS

“ECA” means the Electronic Communications Act 2011;

“Exemptions and Class Licences Determination” means The Regulatory Authority (Exemptions and Class Licences) General Determination 2013, BR 46/2013.

“Official Website” means the website established by the Regulatory Authority pursuant to Section 18 of the RAA;

“Passive Infrastructure” means antennae, towers and other supporting structures, ducts, conduits, poles, masts, manholes, cabinets, and associated air-conditioning equipment, diesel electric generators, batteries, electrical supplies, and easements. For the avoidance of doubt, Passive Infrastructure does not include the other electronic communications network elements identified in the definition of Electronic Communications Network in Section 2 of the ECA, including but not limited to, circuit and packet (including Internet Protocol) switching and routing equipment, wireline transmission facilities (including lit and dark fibre), electricity cable systems, satellites, radio spectrum, radio apparatus and radio stations;

“Person” means a natural person or any company or association or body of persons, whether corporate or unincorporate, being a body which is empowered by law to sue or be sued in its own name or in the name of an officer or other person; and

“RAA” means the Regulatory Authority Act 2011.

2. II. INTERPRETATION

(a) unless the context otherwise requires, words or expressions shall have the meaning assigned to them herein, the ECA, RAA and Interpretation Act 1951;

(b) where there is any conflict between the provisions of this General Determination and the ECA or RAA, the provisions of the ECA or RAA, as the case may be, shall prevail;

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

(c) terms defined herein and in the ECA and RAA have been capitalised;

(d) headings and titles used herein are for reference only and shall not affect the interpretation or construction of this General Determination;

(e) references to any law or statutory instrument include any modification, re- enactment or legislative provisions substituted for the same;

(f) a document referred to herein shall be incorporated into and form part of this General Determination and a reference to a document is to a document as modified from time to time;

(g) expressions cognate with those used herein shall be construed accordingly;

(h) use of the word “include” or “including” is to be construed as being without limitation; and

(i) words importing the singular shall include the plural and vice versa, and words importing the whole shall be treated as including a reference to any part unless explicitly limited.

3. This General Determination shall be construed by reference to the Consultation

Document and Final Decision issued in the Public Consultation entitled “Communications Operating Licences: Exemption for Passive Infrastructure Providers,” Matter C13/847. Where there is any conflict between the Consultation Document and the Final Decision, the provisions of the Final Decision shall prevail. Where there is any conflict between the Final Decision and this General Determination, the provisions of this General Determination shall prevail.

4. III. LEGISLATIVE BACKGROUND AND PURPOSE

5. Determinations in order to carry out the provisions and purposes of the RAA.

Networks and all providers of Electronic Communications Services (collectively, “Electronic Communications”), within the territorial limits of Bermuda or between Bermuda and another country, to secure a licence.

6. Section 16(1)(c) of the ECA empowers the Regulatory Authority to grant

exemptions from the requirement to hold a COL. Section 16(2)(c) of the ECA authorizes the Regulatory Authority to grant exemptions from the requirement to hold a COL if:

(a) no conditions, or only limited conditions, need apply to the exempted group of communications providers or the provision of the exempted type or types of Electronic Communications; and

(b) no Regulatory Authority Fees or Government Authorization Fees are required in respect of the exempted providers of Electronic Communications.

7. REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

8. Authority is required to conduct a Public Consultation in order to adopt an Administrative Determination.

a Consultation Document entitled “Communications Operating Licences: Exemption for Passive Infrastructure Providers” on 6 June 2013, thereby initiating a Public Consultation inviting stakeholders and interested parties for their comments on a draft General Determination establishing an Exemption for Persons who provide Passive Infrastructure from the requirement to hold a communications operating licence that appeared as Appendix A to the Consultation Document. The Public Consultation was closed on

8 July 2013. In accordance with Section 72(4) of the RAA, the Regulatory Authority published a Final Decision in the Public Consultation, setting out its conclusions regarding the issues raised during the Public Consultation process.

9. This General Determination adopts the Exemption for Persons who provide

Passive Infrastructure from the requirement to hold a communications operating licence by amending Attachment A to the Exemptions and Class Licences General Determination, as set forth in the attached Exemption From Requirement to Hold a Communications Operating Licence.

1. IV. MAIN PROVISIONS

Infrastructure from the requirement to hold a COL and the amendment of the Exemptions and Class Licences General Determination

10. Pursuant to Section 62(1) of the RAA, and in accordance with Sections 16(1)(c),

16(2)(c) and 16(2)(d) of the ECA, the Regulatory Authority hereby determines that the Exemption for Persons who provide Passive Infrastructure from the requirement to hold a communications operating licence and the amendment to Attachment A to the Exemptions and Class Licences General Determination, as set forth in the attached Exemption From Requirement to Hold a Communications Operating Licence, are adopted.

2. Procedures that apply with respect to the registration of Persons who provide

11. Passive Infrastructure

16(2)(c) and 16(2)(d) of the ECA, the Regulatory Authority determines that the following procedures shall apply with respect to the registration of Persons who provide Passive Infrastructure.

12. A registration requirement will enable the Regulatory Authority to monitor

13. compliance with the conditions of the Exemption of Persons who provide Passive Infrastructure.

the Exemption will be subject to a registration requirement.

14. REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

15. Regulatory Authority electronically, using a form posted on the Official Website.

(a) name;

(b) address;

(c) telephone number, fax number and/or email address;

(d) a certification that the Person satisfies the conditions of the Exemption; and

(e) a certification that the Person will comply with the conditions of the Exemption.

16. In addition to the information required pursuant to Paragraph 15, a Person who

provides Passive Infrastructure will provide the Regulatory Authority with such periodic reports identifying the Passive Infrastructure that is currently being provided to licensees with COLs and any planned works relating to the Passive Infrastructure under their control, including maintenance, repair, expansion or the opening of ducts, poles and other infrastructure to allow for the installation of new lines, cabling, circuits, etc., as the Regulatory Authority may from time to time require, for the purpose of promoting coordination among holders of COLs that wish to utilise such Passive Infrastructure.

17. V. EFFECTIVE DATE; COMPLIANCE

18. published in the Gazette.

Persons who provide Passive Infrastructure pursuant to the Exemption must:

(a) register with the Regulatory Authority; and

(b) be in compliance with the Conditions of the Exemption.

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013

Exemption From Requirement to Hold a Communications Operating Licence

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) (NO. 2) GENERAL DETERMINATION 2013