The Presentation of the
Problems in NRA’s
Enforcement Practices in
Telecom Cases With
International Aspects
Author
Nedzad Eminagic, dipl. iur.
Senior Telecommunications Lawyer
neminagic@rak.ba
Communications Regulatory Agency
Bosnia and Herzegovina
Geneva, 8 March 2005
ITU Seminar on Enforcing Telecommunications Law, Policy and
Regulations – Enforcement Practices
The Method Of The
Presentation
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The Method of this Presentation will include Case Study presentation of one
one telecom
Case having been processed before the Communications Regulatory Agency of Bosnia
and Herzegovina.
The names of the parties shall be excluded from the Presentation.
Presentation. They will be
referred as “The Company” and “The ISP”.
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The Case Study (I)
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In June 2003, “The Company”, which is a commercial bank, lodged the complaint before the
Communications Regulatory Agency of Bosnia and Herzegovina claim ing that “The ISP”, which is
an licensed ISP in Bosnia and Herzegovina, has prevented it from the use of .xxx domain. The
ISP Licence was issued by the Agency.
The domain .xxx is one of the International Generic Domains (.com,
(.com, .org, .net, .biz, .info...). The
registration of .xxx domain was done through “The ISP” before the
the International Registrar
authorized for registration of this domain. The domain name is consisted
consisted from the name of “The
Company” and domain extension, so it looks like “http://www.thecompany.xxx
“http://www.thecompany.xxx ”
“The Company” claimed that it paid for registration of the domain
domain to “The ISP” and used the
domain for some time until suddenly “The ISP” changed DNS code, hence it stopped “The
Company” and the Internet users from using the domain.
“The Company” started proceedings before WIPO - Arbitration and Mediation Center, claiming
that their Industrial Property Rights have been breached by “The ISP”.
In this proceedings “The Company” presented some documents as the
the evidence that it paid for
domain registration, as well as that it posses a valid Certificate
Certificate issued by the Institute for
Standards, Measuring and Intellectual Property of Bosnia and Herzegovina.
Herzegovina. By this Certificate the
individual brand name “The Company” was certificated and registered
registered as the intellectual property
of “The Company”.
After “The Company” started the complaint procedure before WIPO, “The ISP” also started civil
proceedings before Municipal Court in order to proof that it has a right to use domain name.
The Case Study (II)
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After receiving the complaint, the Agency firstly investigated w hether it has jurisdiction over the
Case.
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For establishing the jurisdiction it would be necessary to take into the account four thinks:
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The ISP is a licensed ISP provider in Bosnia and Herzegovina and the Agency has issued this
Licence;
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The Company was an user of the ISP services, precisely the domain
domain name registration;
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The Company started the International proceedings before WIPO and
and obtained a Decision
confirming the right to use domain name;
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The ISP started a civil proceedings before the Municipal Court (Court
(Court of First Instance) in order to
proof that it has an exclusively right to use domain name.
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The Case Study (III)
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The Agency established that:
The Article 45 of the Law on Communications of Bosnia and Herzegovina
Herzegovina gives the jurisdiction to
the Agency to act in
i(n accordance with their responsibilities)
responsibilities) even the parties started civil
proceedings before the Court:
Article 45
Complaints
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Notwithstanding the jurisdiction of civil courts,
courts, users or interested parties may refer
complaints, in particular complaints about the quality of service
service that have not been satisfactorily
resolved with the telecommunications operator to the Agency. The Agency shall endeavour to
resolve the complaints within a reasonable period of time. All parties
parties involved shall coco-operate in
this process and shall submit to the Agency all information and documentation required to assess
the situation. The Agency may specify the types of complaints it will handle and the method
used.
The Case Study (IV)
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But, the previous provisions of the Article 45 of the Law on Communications
Communications do not mean that the
Agency can resolve a matter which is the subject of Court’s jurisdiction.
jurisdiction.
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The Agency can act only against the violation of the Law on Communications,
Communications, Rules issued by the
Agency as well as the Licence conditions.
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The Agency decided to investigate if the domain registration was provided in accordance with the
Law on Communications and the ISP Licence.
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The Case Study (V)
The Law on Communications
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In the Article 3.4(d) of the Law on Communications it is stated that the Agency shall take all reasonable measures
that copyright and other intellectual property as well as personal
personal data and privacy is protected. In accordance
with this the Agency is responsible for intellectualintellectual-property aspect of the Case.
The Article 7.3(a) of the Law on Communications states: “Telecommunications
“Telecommunications operators shall meet the following
requirements: (a) Enter into a written contract with users ”
The General Licence For Provision Of The Internet Services
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The Article 1 of the Licence defines the reporting at distant server
server and World Wide Web (www) as one of the
Internet services. In accordance with this the Agency is respons ible to investigate the subject of the complaint.
The Article 2.1(j) of the Licence states: “No
“No aspect of the present License eliminates the obligation of the
the
Licensee to meet all legal or contracting obligations necessary for provision of Internet services. Any reference to
the rights mentioned in the present License, without fulfilment of such obligatory conditions, shall not be taken
into consideration by the Agency”
Agency”
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The Article 4.4 of the ISP Licence states:
“The Licensee is obliged to conclude a contract on provision of Services
Services with subscriber, in which the
provided Services shall be clearly stated, as well as the conditions
conditions under which the same shall be
provided. Provision on conditions for provision of services shall include the issue of temporary or
permanent disconnecting of subscriber or other restrictions that might be applied on subscriber, as
well as exact circumstances in which such restrictions may occur.
occur. Subscriber shall be made aware of
prices of Services, as well as where one can get information on changes of prices of Services. The Licensee is
obliged to inform their subscribers on forthcoming changes of pr ices fourteen (14) days in advance.”
The Case Study (VI)
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The Agency concluded that the Case should be investigated in a way
way to establish if domain
registration and disconnection was provided in accordance with the
the Law on Communications and
the Licence, but without interfering in the Municipal Court jurisdiction
jurisdiction over the issue.
The Agency communicated the complaint to “The ISP” and sent “The ISP” response to “The
Company” in order to get all necessary information on Case.
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The Case Study (VII)
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“The ISP” responded that it has concluded contract with “The Company”
Company” where it was
agreed mutually development of the banking software under the name
name “The
Company”, so the domain was allegedly registered to promote such a software.
The Agency established the facts that “The Company” paid for domain
domain registration
and it used the domain for some significant period. Also, no written
written contract was
concluded on domain registration.
The Agency finds that WIPO’s Decision on Case concludes that registration
registration was made
in bad faith, and that “The Company” has legitimate right to use their brand name.
“The ISP” failed to give any evidence which would proof that it really had such the
contract for software development, or that such the software even
even exist. The facts
that “The Company” paid for domain registration and used it clearly
clearly suggests that
“The Company” was customer which ordered domain registration for their own
purposes.
“The Company” has not been notified in advance that the stopping of the domain
usage will follow so it had not possibility to appeal against such
such the action or to
prevent possible damages.
The Case Study (VIII)
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Having established previous facts the Enforcement Panel of the Communications
Communications Regulatory Agency issued the
Decision where it finds:
The ISP has not substantiated their claims. It failed to prove the
he existence of any written agreement about
mutual development of the software and to explain why “The Compa ny” made a payment of the invoice for
registration of domain name “thecompany ” if the registration was made for purposes of the ISP. The ISP also
failed to explain why no written contract on service or any other
other written form of the agreement has been made.
At the same time, the ISP confirms that it enabled “The Company” to use domain name.
In these circumstances, it is reasonably to presume that the registration
registration was made in the name of “The
Company”. The ISP issued the invoice for registration of domain name, and the bank used domain name until 22
April 2003. The dispute arose from the fact that the ISP failed to conclude a written contract with their customer,
whether about registration or about latter use of domain name by “The Company”. The ISP also failed to conduct
any appropriate procedure or issue advanced warning before it stopped
stopped the bank to use domain names. Such a
procedure was obligatory pursuant to the Article 12.2 of the Licence.
Licence. The CRA has an opinion that “The
Company” has a right to use domain name “thecompany.xxx ” for which it paid to the ISP until the authorized
Court issue their decision on Case. The CRA cannot accept the unfair
unfair practice where the Internet users would be
prevented from services before any appropriate procedure has bee n conducted.
“The ISP” did not provide the service in a way defined by Licenc e and the Law on Communications and has thus
committed serious failures in provision of service and failed to precisely define the rights and obligations with
their user (“The Company”). It has thus committed violations of the Article 7.3 (a) of the Law on Communications
as well as the Articles 4.4 and 12.2 of the General License for Provision of the Internet Services. Given the
aforementioned, “The ISP” should be ordered to pay a fine in the amount of 350,00 KM. “The ISP” should also be
ordered to transfer the control of domain name “thecompany.xxx
thecompany.xxx ” to “The Company” until the final Court’s
Decision. “The ISP” should also be made aware that any future violation
violation of similar nature will entail a more
severe sanction, while the failure to obey by the order to trans fer the control of the domain may result in
revocation of the licence.
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The Case Study (IX)
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“The ISP” paid the fine and appeal against this Decision. It also
also informed the Agency that it
return the control over the domain to “The Company”. Its appeal against the Decision was
rejected as untimely. The Supreme Court of Bosnia and Herzegovina
Herzegovina currently decides upon this
issue.
In a mean time, after more than one year, “The Company” again lodged
lodged a complaint before the
Agency alleging that “The ISP” failed to enforce the Decision.
“The Company” claimed that from some date their web site and ee-mail addresses are blocked
since the domain is again blocked. This prevented “The Company” to receive the instruction for
payment of the pensions and disabled the Internet contacts with the customers.
The Case Study (X)
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The Agency found that “The ISP” did not transfer the control over
over domain .xxx then simply unlocked the domain
what made a false picture that “The Company” has a control ((in
in fact it had the access to domain).
domain).
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The Agency contacted the Registrar for help in enforcement of the
the Decision.
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The Registrar is the International Company sited in North America.
America.
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The Registrar was fully informed about WIPO’s and the Agency’s Decisions.
Decisions.
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The Registrar asked the Agency to issue the Constraint Order upon
upon they will decide if they will enforce the
Decision.
The Agency issued such the Constraint Order requesting that the control over the domain be transferred to “The
Company” until Municipal Court decide upon the Case. The appeal against this Constraint Order does not
postpone the enforcement
“The ISP” appeal against this Constraint Order.
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The Case Study (XI)
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The Registrar answered in following manner:
Hello;
After much deliberation and consideration, the following ee-mail will set forth Registrar’ position in
this matter.
Thank you for the time and effort you have both spent in trying to explain the matter.
Unfortunately, we remain at a disadvantage and are not in a position to be deci ding the
right of the CRA to opine on this matter .
Because “The ISP” is currently pointing the domain/website of “thecompany
“ thecompany . xxx
xxx”” to “the
company.ba
company.
ba”,
”, and the “The Company” does not appear to be suffering damages,
damages, and until such
time as the matter is clarified to us in a satisfactory manner, or the Bosnian Court orders us to do
so, we will not be changing the DNS for this domain.. It will remain the status quo.
This domain will also remain on registrar lock pending the final outcome of this matter, this
meaning that no changes will be allowed to be made to the registration
registration records or the DNS.
We would ask at this time that “The ISP” continue to act in good faith and continue to coco-operate
with the “The Company” and us by providing the hosting for the “Party
“Party A” in a manner conducive
to their daily business operations.
The Conclusions
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This Case shows that National Administrations (NRA) are highly restricted
restricted in decision making and
enforcement of their decisions when they decide in a telecom cases
cases with the International
aspects.
This Case also shows that there are no International mechanisms which would provide protection
to the customers for the Internet given services, when such the service was provided
internationally.
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This Case also shows that decisions issued by the International bodies are also not respected by
the domestic companies since they are not obliged to enforce these
these decisions.
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This situation establishes highly uncertainty for the customers since they may receive the service
without any possibility to protect their interests in a case of bad faith provided services.
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Such the situation can be resolved by establishing the Internati onal standards for provision of the
services only and the mechanisms for international recognition of the NRA decisions. The one
NRA should have a right to directly request another NRA for enforcement
enforcement of the first NRA’
decisions in a case that the provision of the services are regulated
regulated on the same basis and the
decision on case was issued in the same Decision Making Process.
This must be regulated by some interinter-administrations agreements or similar International
Instruments.
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Best regards
Nedzad Eminagic
Senior telecommunications lawyer
Communications Regulatory Agency
Bosnia and Herzegovina
neminagic@rak.ba
ITU Geneva, Presentation 8 March 2005
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