The internet cafes, which provide internet telephone or VoIP services, have been criticized as illegal operations. The reason, I suppose, is because they are operating without a telecommunications licence. What the critics apparently do not recognise is that GT&T’s internet is also an unlicensed service. And this is only one of many services that GT&T is providing without a licence. Why pick on the little guys and leave the big guy to go free!
GT&T’s licence does not authorise it to provide internet services. The licence which was issued on December 19, 1990, when GT&T was still a state-owned corporation, lists the services that GT&T is entitled to provide and, not surprisingly, there was not even a suggestion of internet service. The World Wide Web, the foundation of the internet, was developed by Tim Berners-Lee in 1991 and, two years later, the commercial internet came into being. As far as I am aware, the 1990 licence has not been amended to add the provision of internet service.
It is interesting to note that ATN’s proposals submitted to the Government of Guyana (GoG) in December 1989 for the purchase of the utility listed all the services or activities in which the investors were interested. The list includes even a non-telecommunications business − the purchase and export of local timber. The purchase agreement was signed on June 18, 1990. There was no mention of internet services either in the investors’ proposals or in the purchase agreement. Internet service was never contemplated by the GoG or by ATN.
In addition to the omission of internet service, GT&T’s licence does not authorise it to run a telecommunication system with internet capability. The telecommunication system, as defined in Annexure A to its licence, is strictly a circuit switched network. GT&T was acquired as a licensed public switched telephone network or PSTN and there has been no legal change in its operating status. A traditional PSTN does not incorporate internet technology and, needless to say, in 1991, when GT&T was privatised, there was no PSTN anywhere in the world that provided internet services or even made use of internet technology. I hasten to say that the wisdom of allowing GT&T to use internet technology as an auxiliary to its circuit switched operations, or even to provide an independent internet service, is not the issue. The focus here is on the operational scope of its unamended 1990 licence.
Is a licence required for VoIP services? The answer is yes. The Telecommunicat-ions Act states that any person who desires to run a telecommunications system or to use such a system to provide any telecommunication service must obtain or be covered by a licence. There are exceptions but these do not extend to service to the public. But a licence suitable for VoIP services offered by the internet cafes would be a different type of licence from that granted to a network operator such as GT&T or Digicel. The Telecommunications Act provides for the grant of three types of licence: an individual licence, a class licence and a general licence. An individual licence is an authorisation granted, upon application, to a specific person or undertaking prescribing rights and obligations for the operations undertaken by that person or undertaking. The undertaking is not entitled to exercise the rights before actually receiving the authorisation. GT&T and Digicel are the holders of individual licences. A class licence is a licence granted to a class of persons which permits anyone in the class to provide specific services without the need for individual licences, subject to certain conditions. No application is required but the licensees usually have to register their operations with the licensing authority. A general licence is created by the licensing authority to cover all persons without the need for an application. In the 18 years since the Telecommunications Act has come into operation, no class or general licences have been issued, even though there is a pressing need. As will be shown later, this points to a major failure in the administration of the act.
GT&T’s internet service would require an individual licence with broadly similar conditions as the licences granted to its two competitors: i-NET and Solutions 2000. An important condition of the licence should be that GT&T’s internet service should be operated as a separate and independent business from GT&T’s network operations to minimize the difficult problem of unfair cross-subsidisation. Equal treatment is necessary for fair competition, an important requirement of the Telecommunicat ions Act. One should not rule out the possibility that the nature of their services, particularly the systems infrastructure, may justify a class licence to cover i-NET, Solutions 2000, GT&T’s internet service and similar operations.
For VoIP services, a class licence appears to be the most appropriate. A final determination will depend, inter alia, on the nature of the infrastructure on which the services are provided. A class licence granted to unnamed persons would have to be created by the licensing authority, without the need for individual applications.
The operation of GT&T’s internet service and the internet cafes point to a major failure of the licensing authority in its responsibilities under the Telecommunications Act. The licensing system is an essential basis for promoting the objectives of the act. The three types of licence that the act prescribes cater to the variety of operations or services in the sector. So far, only individual licences have been granted but numerous activities that qualify for such licences have been completely overlooked. GT&T’s internet service is one of the most glaring. There are, also, various types of activities that should be covered by either a general or a class licence but have been ignored and fall outside the purview of the regulator. I will provide two further examples.
I begin with the failure to grant individual licences. GT&T’s submarine cable between Guyana and Suriname is classifiable as a telecommunications system within the meaning of the Telecommunications Act. It is not a part of GT&T’s authorised system (“Applicable System” in the language of the act) and it is connected to GT&T’s network, apparently, without the required approval. Without a valid licence, the cable venture is an illegal operation. This is not the only case of GT&T’s failure to obtain an individual licence and not necessarily the most egregious.
Roger Khan’s eavesdropping laptop, described as a portable auto data processing machine, highlights the failure to issue a general licence that is absolutely necessary for the administration of the act. The laptop was being used for intercepting messages conveyed by the networks: GT&T, Cellink, Digicel and other systems, if any. Within the meaning of the act, Khan’s laptop is a connecting apparatus in that it is being used to connect (wirelessly) to the network systems to receive messages.
The Telecommunications Act requires that any telecommunications apparatus or telecommunications system not a part of another telecommunications system that is used or connected for use in transmitting or receiving messages conveyed by means of that system should be covered by a licence. The eavesdropping laptop clearly falls into this category and was obviously unlicensed and, therefore, in breach of the act. (This is a separate issue from the authority to import the equipment or the intercepting of calls).
But accusing Roger Khan of violating the act poses a dilemma for the licensing authority. Roger Khan is just one of tens of thousands of illegal users of connecting equipment. It may be surprising to some that such equipment includes ordinary telephones, and so we have the ridiculous situation of all telephone users together with Khan committing the same offence and liable to a penalty of $5,000, if convicted on a summary offence, or $10,000 or a year in jail, if convicted on an indictable offence. But, in reality, this is not a problem for telephone subscribers. The licensing authority has a statutory duty to create of its own volition a general licence to cover subscribers’ equipment. Governments do not normally authorise the use of spy equipment by private persons or even by telephone networks and so the general licence should be crafted to exclude such undesirable use.
If the licensing authority had done its job, no one could have claimed, as originally reported, that Roger Khan broke no law in using the equipment. This untenable situation should be dealt with sooner rather than later by the issue of a general licence, with the necessary exclusions.
Many persons will be surprised by what I have written and, no doubt, some will be very upset. But the licensing issue is of great importance to the public interest and to the orderly development of the telecommunications sector. Matters may come to a head in the negotiations to end GT&T’s monopoly and with respect to the renewal of its licence which expires on December 19, 2010, just 19 months away. This assumes that the government negotiators are fully seized of the significance of these issues. It is not sufficient to be upset. Anyone who disagrees should not hesitate to say why. The public interest would be well served.
Joseph A Tyndall
Public Utilities Commission