QU OF NT AT A FE RU

BERMUDA

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

BR 46 / 2013

The Regulatory Authority, in exercise of the power conferred by section 62 of the Regulatory Authority Act 2011 read with sections 14(b) and 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) 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.

General purpose

3 This General Determination establishes—

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

(b) a class licence; and

(c) associated procedures.

Terms and conditions of the General Determination

4 The Schedule has effect.

REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

SCHEDULE

(Paragraph 4 )

BERMUDAREGULATORYAUTHORITY

COMMUNICATIONSOPERATINGLICENCES:EXEMPTIONSANDCLASSLICENCES

MATTER:C13/03



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 14(b) and 16(2) of the Electronic Communications Act 2011, and establishes: an Exemption for certain providers of Electronic Communications from the requirement to hold a communications operating licence, as set forth in Attachment A; a Class Licence, as set forth in Attachment B; and certain associated procedures.

1. I. DEFINITIONS

“Affiliate” means any entity that owns, or is owned by, another entity, as evidenced by the ownership of 25 per cent or more of the shares, stock or other securities or voting rights of the owned entity, including through an agreement or arrangement of any type;

“Class Licensee” means a Person who is entered on the Authorizations Register by the Regulatory Authority;

“Closed User Group” means a group of Persons who share a common business, economic or social interest or affinity, other than the need to communicate with one another or the provision of Electronic Communications;

“ECA” means the Electronic Communications Act 2011;

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

“Person” means a natural person or any company or association or body of persons, whether corporate or unincorporated, 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;

 2 1

 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

(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;

(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: Exemptions and Class Licences,” Matter C13/3. 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. In accordance with the ECA’s licensing framework, not all providers of Electronic

Communications are subject to the same licensing requirements. Sections 16(1)(a) and

(b) of the ECA provide for two categories of communications operating licences (“COLs”):  2

 3 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

(a) COLs (including Integrated Communications Operating Licences (“ICOLs”)) granted to individual Licensees; and

(b) Class COLs (or Class Licences), which are licences granted to Persons that meet the requirements of a particular class.

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. Section 14(b) of the ECA empowers the Regulatory Authority to establish a

licensing framework for the operation and provision of Electronic Communications, other than Public Electronic Communications, by General Determination establishing eligibility criteria, terms and conditions and applicable procedures.

8. In accordance with Sections 62(2) and 69(1) of the RAA, the Regulatory

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

a consultation document entitled “Communications Operating Licences: Exemptions and Class Licences” on 4 February 2013, thereby initiating a Public Consultation inviting stakeholders and interested parties for their comments on: a draft Exemption of certain providers of Electronic Communications from the requirement to hold a communications operating licence, a draft Class Licence, and a draft General Determination that appeared respectively as Appendix A, Appendix B and Appendix D to the consultation document. The Public Consultation was closed on 4 March 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.

10. This General Determination adopts the Exemption of certain providers of

Electronic Communications from the requirement to hold a communications operating licence and the Class Licence that appear respectively as Attachment A and Attachment B. It also adopts procedures associated with both the Exemption and Class Licence.

IV. MAIN PROVISIONS

 3

1.  4 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

11. Communications from the requirement to hold a COL and on the adoption of a Class Licence

16(2) of the ECA, the Regulatory Authority hereby determines that the Exemption of certain providers of Electronic Communications from the requirement to hold a communications operating licence and the Class Licence that appear respectively as Attachment A and Attachment B are adopted.

2. Procedures that apply with respect to the creation or elimination of a licence

12. exemption

16(2) of the ECA, the Regulatory Authority also determines that the following procedures will apply with respect to the creation or elimination of an exemption from the requirement to hold a COL.

13. In the case that the Regulatory Authority decides to grant an exemption for a

service for which a Class Licence is currently required, the procedure set forth below in Paragraphs 43 – 47 will apply.

14. In the case that the Regulatory Authority decides to require a Class Licence for

an Electronic Communications Service which is currently subject to an exemption, the procedure set forth in Paragraphs 48 – 50 will apply.

15. In the case that the Regulatory Authority identifies new Electronic

Communications with respect to which it considers that an exemption may be granted, it will issue a consultation document that specifies:

(a) the specific characteristics of the services for which the proposed exemption is to be granted;

(b) the justification for the proposed exemption; and

(c) the basis on which the Regulatory Authority has concluded that that the exemption is consistent with Section 16(2)(c) of the ECA.

16. The procedures for the creation or elimination of an exemption as outlined above

may be initiated by the Regulatory Authority, pursuant to a vote of the Board, either on its own motion or at the request of a Sectoral Participant. In any case in which a Sectoral Participant makes the request, the Sectoral Participant will be required to follow the procedures specified in the Regulatory Authority’s Administrative Rules for requesting initiation of a Public Consultation in order to adopt an Administrative Determination.

 4

17.  5 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

3. conclusion of the Public Consultation.

18. or elimination of a Class Licence

16(2) of the ECA, the Regulatory Authority determines that the following procedures shall apply with respect to registration and the creation, modification or elimination of a Class Licence:

(i) Registration process

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

20. compliance with the class-specific conditions as set out in Annexes A – E of the Class Licence.

Annexes A – E of the Class Licence will be subject to a registration requirement. The registration requirement will not apply to Persons that operate a single pay telephone.

21. A Person that is required to register with the Regulatory Authority to obtain a

22. Class Licence will do so electronically, using a form posted on the Official Website.

(a) name;

(b) address;

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

(d) the Class Licence for which it is registering;

(e) a certification that the Person meets the eligibility requirements for the Class Licence; and

(f) a certification that the Person will comply with all conditions of the Class Licence.

23. In addition to the information required pursuant to Paragraph 22, a Person that

seeks to register for a Class Licence to participate in or operate a Closed User Group network will:

(a) identify all members of the Closed User Group, including their Affiliates;

(b) describe the common interest of the members of the Closed User Group; and

(c) identify the members of the Closed User Group that are involved in the operation of the network.  5

24.  6 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

25. Licensee of the obligation to secure a licence or permit for Radio Spectrum, Radio Stations or Radio Apparatus.

26. Authority will provide public notice of the filing on the Official Website.

27. application within seven days after the Regulatory Authority has provided public notice.

will take one of the following actions:

(a) add the Class Licensee to the Authorizations Register;

(b) issue an order rejecting the registration; or

(c) request additional information needed to determine whether the Person is eligible for the Class Licence.

28. The Regulatory Authority will provide public notice, on the Official Website, in any

29. case in which it issues an order rejecting a registration.

30. Licensee’s name and contact information to the Authorizations Register.

required to submit an annual statement that:

(a) confirms (or updates) the Class Licensee’s contact information;

(b) certifies that the Class Licensee continues to meet the eligibility requirements for the Class Licence; and

(c) certifies that the Class Licensee has complied, and will continue to comply, with all conditions of the Class Licence.

(ii) Suspension and revocation of a Person’s status as a Class Licensee

31. The Regulatory Authority will suspend or revoke the status of a Person as a

Class Licensee when it concludes that the Class Licensee has:

(a) made false statements of material facts, committed fraud or made a misrepresentation in the registration statement or in its subsequent certifications;

(b) failed to comply with the terms of the Class Licence and the Applicable Regulatory Framework; or

 6

 7 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

(c) failed to pay to the Regulatory Authority any Government Authorization Fees or Regulatory Authority Fees or make any other required payment.

32. Prior to suspending or revoking a Person’s status as a Class Licensee, the

Regulatory Authority will provide the Class Licensee with written notice specifying:

(a) the action that the Regulatory Authority proposes to take;

(b) the factual and legal basis on which the Regulatory Authority proposes to take the proposed action;

(c) the time frame within which the Class Licensee may submit a written response regarding the proposed action;

(d) the actions that the Class Licensee must take to avoid suspension or revocation; and

(e) the timeframe in which such actions must be taken.

33. The Regulatory Authority will provide public notice, on the Official Website, that it

34. intends to suspend or revoke a Person’s status as a Class Licensee.

the Official Website. The Class Licensee may request confidential treatment in the manner specified in the Regulatory Authority’s Administrative Rules.

35. Interested parties may submit written comments regarding the Regulatory

Authority’s proposed suspension or revocation of a Person’s status as a Class Licensee within seven days after the date on which the Regulatory Authority posts the Class Licensee’s response on the Official Website.

36. After considering the Class Licensee’s submission and any comments filed, the

Regulatory Authority, pursuant to a vote of the Board, will issue a written order, which will be served on the Class Licensee and posted on the Official Website.

37. In any case in which the Regulatory Authority revokes a Person’s status as a

Class Licensee, the revocation will not become effective until at least ten days after publication of the order on the Official Website.

(iii) Modification of an existing Class Licence

38. The Regulatory Authority may modify an existing Class Licence.

39. Prior to modifying an existing Class Licence, the Regulatory Authority will conduct

40. a Public Consultation, pursuant to the procedures specified in the Regulatory Authority’s Administrative Rules.

 7

 8 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

(a) the proposed modification to be made to the Class Licence;

(b) the justification for the proposed modification;

(c) the basis on which the Regulatory Authority has tentatively concluded that the changes to the Class Licence will continue to meet the requirements of Section 16(2)(d) of the ECA; and

(d) the basis on which the Regulatory Authority has tentatively concluded that any proposed new conditions are consistent with the requirements of Section 50 of the RAA.

41. At the same time that the Regulatory Authority posts the consultation document

on the Official Website, it will serve notice on each member of the class listed on the Authorizations Register in the manner specified in the Regulatory Authority’s Administrative Rules.

42. Following the Public Consultation, the Regulatory Authority will issue a General

Determination specifying the modifications to be made and the date on which they will become effective.

(iv) Elimination of a Class Licence

43. The Regulatory Authority may eliminate an existing Class Licence.

44. Prior to eliminating an existing Class Licence, the Regulatory Authority will

45. conduct a Public Consultation pursuant to the procedures specified in the Regulatory Authority’s Administrative Rules.

(a) the justification for the proposed elimination of the Class Licence;

(b) the basis on which the service can be provided after the elimination of the Class Licence; i.e., pursuant to an exemption or an Individual Licence; and

(c) the basis on which the Regulatory Authority has tentatively concluded that that the grant of an exemption or an Individual Licence is consistent with Section 16(2) of the ECA.

46. At the same time that the Regulatory Authority posts the consultation document

on the Official Website, it will serve notice on each member of the class listed on the Authorizations Register in the manner specified in the Regulatory Authority’s Administrative Rules.

47. Following the Public Consultation, the Regulatory Authority will issue a General

Determination stating the date on which the Class Licence will be eliminated.

 8

 9 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013

(v) Creation of a new Class Licence

48. The Regulatory Authority may create a new Class Licence.

49. Prior to creating a new Class Licence, the Regulatory Authority will issue a

consultation document that specifies:

(a) the characteristics of the proposed Class Licensees;

(b) the proposed conditions applicable to all Class Licensees;

(c) the basis on which the Regulatory Authority has tentatively concluded that the class meets the requirements of Section 16(2)(d) of the ECA; and

(d) whether the Regulatory Authority proposes to require class members to notify or register before they are authorized to provide service.

50. Following the Public Consultation, the Regulatory Authority will issue a General

Determination that specifies:

(a) the characteristics of the class;

(b) the conditions applicable to all Class Licensees;

(c) any notification or registration requirement with which Class Licensees must comply; and

(d) the date on which the new Class Licence will become effective.

51. IV. EFFECTIVE DATE; COMPLIANCE

52. published in the Gazette.

be in compliance with the Conditions of the Exemption no later than 90 days after the effective date of this General Determination. Persons that provide Electronic Communications pursuant to the Class Licence must register with the Regulatory Authority no later than 90 days after the effective date of this General Determination. Persons that provide Electronic Communications pursuant to the Exemption or Class Licence that are currently operating facilities outside of their premises or campus not authorized by a COL must discontinue the use of such facilities within 120 days of the effective date of this General Determination or, if such a Person has applied for a new or normalized COL, within 120 days of the date on which the Regulatory Authority determines that the Person does not qualify for a new or normalized COL.

 9

 10 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013



Attachment A

 1 11 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013



Exemption From Requirement to Hold a Communications Operating Licence

 2 12 REGULATORY AUTHORITY (EXEMPTIONS AND CLASS LICENSES) GENERAL DETERMINATION 2013