Strengthening of economic and trade related capacities and competences in SADC The SADC Communications Environment An Assessment of Communications Policies, Laws and Regulations in SADC Member States
P r e s e n t e d t o GIZ – Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH Germany / Botswana October, 2013
Assessment of SADC Communications Policies, Laws & Regulations Your contact person
within GFA Consulting Group GmbH is Christopher Smith Strengthening of economic and trade related capacities and competences in SADC The SADC Communications Environment: An Assessment of Communications Policies, Laws and Regulations in SADC Member States Short‐term Report Prepared by: Charley Lewis & Luci Abrahams, LINK Centre, University of the Witwatersrand, Johannesburg http://link.wits.ac.za Address GFA Consulting Group GmbH Eulenkrugstraße 82 22359 Hamburg Germany Phone +49 (40) 6 03 06 – 352 Fax +49 (40) 6 03 06 – 119 Prepared by: LINK Centre, University of the Witwatersrand E‐mail christopher.smith@gfa‐group.de 2
Assessment of SADC Communications Policies, Laws & Regulations 4.10 SEYCHELLES 4.10.1 TELECOMMUNICATIONS SERVICES Services Framework: The 2000 Broadcasting and Telecommunication Act appears to distinguish between telecommunications infrastructure and services, stating that “no person shall provide a... telecommunication service, except under, and in accordance with, a licence granted under the Licences Act” and that a licence “may authorise the licensee to operate a telecommunication facility for the purpose of providing the service for which the licence is granted”914. Spectrum provisions are inclusive of the licence. Licences are thus dealt with by the Seychelles Licensing Authority, which categorises telecommunications as follows: “fixed telephone line service/ Public Switched Telephone Network (PSTN); Public Land Mobile Networks… [including GSM & 3G]; Internet Access Service; Internet Resale Service; International Submarine Cable System”915. The licensing regime in the Seychelles is thus a vertical, technology‐specific framework rather than a converged (or horizontal or unified or multi‐service) one. But it is also not in accordance with the vertical framework as set out in W/120. FOCUS AREA 1: MARKET STRUCTURE Market Structure: BK Consultants suggest that the telephony market in the Seychelles comprises one fixed‐line operator, Cable and Wireless (Seychelles) Ltd, currently a subsidiary of Cable and Wireless Plc, UK, and two mobile operators, Cable and Wireless (Seychelles) Ltd, and AirTel Seychelles916. VoIP telephony is offered by 914
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
915
SLA (nd) ‘Guidelines for Submission of Project Memorandum (Telecommunications)’,
Seychelles
Licensing
Authority,
Victoria,
available
online
at
http://www.sib.gov.sc/Resources/SIB%20Guidelines/SIB%20General%20Application%20Form%
20for%20Telecommunications%20Licence.pdf.
916
BK (2008) ‘Country Profile: Seychelles, BK Consultants SA, Paris, available online at
http://www.bk-conseil.com/espaceinformation/documentation/ict/Seychelles_Country_Profile.pdf.
Used for the Seychelles because there is no corresponding BuddeComm report.
Prepared by: LINK Centre, University of the Witwatersrand 241
Assessment of SADC Communications Policies, Laws & Regulations at least one provider, Intelvision917. Wikipedia’s similarly dated entry lists three Internet Service Providers, viz Atlas, Intelvision and Kokonet918. Comparative figures for the telecomms market in the Seychelles are not available919. Seychelles: Fixed & Mobile Subscribers 20 Subscribers Market Share Cable and Wireless (fixed) Cable and Wireless (mobile) AirTel Seychelles (mobile)920 Total According to the ITU, the market in the Seychelles as at 2011 was broken down as follows: 27 900 fixed‐line subscribers921; 126 600 mobile subscribers922. This translates to a per capita market penetration rates in the telecommunications sector for the Seychelles as at 2011 of 32,1% for fixed‐line, 145,7% for mobile and 43,2% for the Internet (from 25,5%, 135,9% and 41,0% respectively in 2010923. 917
Intelvision
(nd)
‘Telephony’,
Intelvision,
Victoria,
http://www.intelvision.net/index.php?option=com_content&task=view&id=14&Itemid=33.
918
Wikipedia (nd) ‘Telecommunications in Seychelles’, Wikipedia, available online at
http://en.wikipedia.org/wiki/Telecommunications_in_Seychelles.
919
Neither Cable & Wireless nor Bharti Airtel provide subscriber figures for the Seychelles in
their annual reports.
920
AirTel Seychelles claims to enjoy 57% market share in the mobile communications sub-sector.
See: Economic Times (2012) ‘Bharti Airtel to buy Telecom Seychelles for Rs 288 crore’, The
Economic
Times,
Mumbai,
11
August
2010,
available
online
at
http://articles.economictimes.indiatimes.com/2010-08-11/news/27623658_1_airtel-brand-telecomseychelles-bharti-airtel-ceo.
921
ITU (nd) ‘Fixed-telephone subscriptions’, International Telecommunication Union, Geneva,
available
online
at
http://www.itu.int/ITUD/icteye/Reporting/ShowReportFrame.aspx?ReportName=/WTI/
MainTelephoneLinesPublic&ReportFormat=HTML4.0&RP_intYear=2011&RP_intLanguageID=
1&RP_bitLiveData=False.
922
ITU (nd) ‘Mobile-cellular telephone subscriptions’, International Telecommunication Union,
Geneva,
available
online
at
http://www.itu.int/ITUD/icteye/Reporting/ShowReportFrame.aspx?ReportName=/WTI/CellularSubscribersPublic&Repo
rtFormat=HTML4.0&RP_intYear=2011&RP_intLanguageID=1&RP_bitLiveData=False
923
ITU (2012) ‘Measuring the Information Society 2012’, International Telecommunication
Union,
Geneva,
available
online
at
http://www.itu.int/ITUD/ict/publications/idi/material/2012/MIS2012_without_Annex_4.pdf.
Prepared by: LINK Centre, University of the Witwatersrand 242
Assessment of SADC Communications Policies, Laws & Regulations AirTel Seychelles (formerly Telecom Seychelles) is 100% owned by Bharti AirTel of India, following its acquisition in 2010924. Cable & Wireless is 100% owned by Cable & Wireless (United Kingdom), which is in the process of selling its Monaco and Islands operation (under which Cable & Wireless Seychelles falls) to the Batelco Group (Bahrain)925. There is no market share breakdown and limited ownership information available in respect of Internet service providers. Atlas Seychelles is owned by Cable & Wireless Seychelles926. Intelvision is apparently South African‐owned927. International telecommunications access has been provided since 2012 by the Seychelles East Africa Submarine (SEAS ‐ with a capacity of 320 Gbit/s and a landing station at Beau Vallon, Victoria, which links Mahé to Dar es Salaam, Tanzania, and hence to other cables such as Seacom and EASSy928. Range of Services: All voice telephony services are offered by foreign entities. Market Share: 100% of the voice telephony market is controlled by foreign suppliers. 924
Bharti Airtel (2012) ‘Bharti Airtel Limited - Annual Report 2011-12’, Bharti Airtel, New Delhi,
p179,
available
online
at
http://www.airtel.in/wps/wcm/connect/da0af4004c35ea9f8f428f8e9700a476/Bharti-Airtel-AnnualReport-2012.pdf?MOD=AJPERES&CACHEID=da0af4004c35ea9f8f428f8e9700a476.
925
CWC (2013) ‘Transforming our business: Annual report 2012/13’, Cable & Wireless
Communications,
London,
p127,
available
online
at
http://www.cwc.com/assets/uploads/files/Publications/CWC_Annual_Report_2013_interactive.pdf
.
926
CWC (nd) ‘What Is Xnet’, Cable & Wireless (Seychelles), Victoria, available online at
http://www.seychelles.net/xnet.php.
927
Balancing Act (nd) ‘SA’s Intelvision launches itself as Seychelles’ Third Telecoms Operator,
Balancing Act, Issue No 302, Balancing Act, London, available online at http://www.balancingactafrica.com/news/en/issue-no-302/telecoms/sa-s-intelvision-lau/en.
928
eTN (2012) ‘Seychelles now connected by fiber optic underwater cable from Tanzania’,
eTurboNews,
Hawaii,
5
May
2012,
available
online
at
http://www.eturbonews.com/29123/seychelles-now-connected-fiber-optic-underwater-cabletanzania.
Prepared by: LINK Centre, University of the Witwatersrand 243
Assessment of SADC Communications Policies, Laws & Regulations Stakeholders: No such stakeholder grouping appears to exist. The government has established a 13 person National ICT Consultative Committee, with representation from government and operators929. FOCUS AREA 2: REGULATORY REGIME & STATE OF PLAY Restrictions on Scope of Licences: As indicated previously licences are categorised according to technology, viz: “fixed telephone line service/ Public Switched Telephone Network (PSTN); Public Land Mobile Networks… [including GSM & 3G]; Internet Access Service; Internet Resale Service; International Submarine Cable System”930. They are therefore not technology neutral. No copies of individual licences are available to verify this, however. Restrictions on Market Access: Although the legislation allows the Minister to restrict the number of suppliers931., there do not appear to be any such restrictions currently in place. The Seychelles Investment Board was established in 2004 to “promote, attract and retain investment“932 in a range of sectors, including ICT. Neither the 2000 Broadcasting and Telecommunication Act nor the 1986 Licences Act make any references to nationality. The Seychelles holds only observer status at the WTO and thus has made no GATS commitments whatever. No further information on restrictions applicable to either foreign investment or the commercial presence of foreign companies is available. Other Discriminatory Measures: 929
DICT (nd) ‘National ICT Consultative Committee’, Department of ICT, Republic of the
Seychelles, Victoria, available online at http://www.ict.gov.sc/homecnt/nictc.aspx,
930
SLA (nd) ‘Guidelines for Submission of Project Memorandum (Telecommunications)’,
Seychelles
Licensing
Authority,
Victoria,
available
online
at
http://www.sib.gov.sc/Resources/SIB%20Guidelines/SIB%20General%20Application%20Form%
20for%20Telecommunications%20Licence.pdf.
931
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Act 2 of 2000, Republic of the
Seychelles,
Victoria,
Section
11,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
932
SIB
(nd)
‘About
SIB’,
Seychelles
Investment
Board,
Victoria,
http://www.sib.gov.sc/index.php?option=com_content&view=article&id=389&Itemid=779,
Prepared by: LINK Centre, University of the Witwatersrand 244
Assessment of SADC Communications Policies, Laws & Regulations There do not appear to be limitations on the presence of natural persons other than the requirement to acquire either a Gainful Occupation Permit (GOP) or a Residence Permit933. No further information on discriminatory measures based in nationality is available. The Seychelles is ranked 103rd out of 183 countries in terms of ease of doing business by the World Bank934. Non‐discriminatory Regulatory Restrictions: No detailed information on telecommunications licensing procedures is readily available. The 2000 Broadcasting and Telecommunication Act assigns the responsibility for licensing to the Seychelles Licensing Authority935 but no further information is available on the latter’s website. In terms of the 1986 Licences Act, which covers a wide range of activities from plumbing to keeping a guest house, all licence applications are dealt with by the Seychelles Licensing Authority, although the Minister may exempt any entity from the requirement to hold a licence936. A telecommunications licence application form is available via the website of the Seychelles Investment Bureau, suggesting relatively open entry937. VoIP is now legal in the Seychelles (it was still prohibited in 2004938), but is subject to the acquisition of a VoIP‐specific licence, which prohibits the holder from providing “mobile VoIP services or any other services unless authorised to do so by the Minister”939. 933
SIB (nd) ‘Prior to Arrival in Seychelles’, Seychelles Investment Board, Victoria,
http://www.sib.gov.sc/index.php?option=com_content&view=article&id=388&Itemid=709
934
World Bank (2012) Doing Business 2012: Doing Business in a More Transparent World,
World
Bank,
Washington
DC,
available
online
at
http://www.doingbusiness.org/~/media/GIAWB/Doing%20Business/Documents/AnnualReports/English/DB12-FullReport.pdf.
935
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19, Sections 7 & 8.
936
Seychelles (1986) ‘Licences Act: Chapter 113’, Act 3 of 1986, Government of Seychelles,
Victoria, available online via http://www.seylii.org/sc/legislation/consolidated-act/113.
937
SLA (nd) ‘Guidelines for Submission of Project Memorandum (Telecommunications)’,
Seychelles
Licensing
Authority,
Victoria,
available
online
at
http://www.sib.gov.sc/Resources/SIB%20Guidelines/SIB%20General%20Application%20Form%
20for%20Telecommunications%20Licence.pdf.
938
Biggs, P (2007) The Status of Voice over Internet Protocol (VoIP) Worldwide, 2006’, The
Future of Voice, International Telecommunication Union, Geneva, p40, available online at
http://www.itu.int/osg/spu/ni/voice/papers/FoV-VoIP-Biggs-Draft.pdf.
939
Seychelles (2005) ‘Broadcasting and Telecommunication (VOIP Services) Regulations, 2005’,
Supplement to Official Gazette, Republic of the Seychelles, Victoria, 19 August 2005, Section 4,
available
online
at
http://www.seymediacom.org/uploads/2/8/2/1/2821898/voip_services_regulations.pdf.
Prepared by: LINK Centre, University of the Witwatersrand 245
Assessment of SADC Communications Policies, Laws & Regulations No information on any international gateway restrictions is available, although clearly foreign ownership of such a facility is allowed. The telecommunications legislation does have a relatively weak anti‐competitive interconnection provision, allowing an operator to withhold interconnection “if the proposed interconnection would materially restrict his ability to exploit the network capacity at his disposal in his own operations” 940. No evidence of any such instances is, however, available. FOCUS AREA 3: LEVEL OF COMPETITION Dominant providers: If the estimate of AirTel Seychelles that puts its market share at 57% is correct, both it and Cable and Wireless would appear to be dominant. Pricing: According to the International Telecommunication Union, the price of a monthly mobile basket of services for the Seychelles in 2008 was 1,5% of monthly gross national income per capita ‐ well below the average for sub‐Saharan Africa of 23%, making the Seychelles the cheapest out of 32 African countries surveyed. The corresponding percentages for fixed and broadband were 1,6% and 6,8% (3rd cheapest of 32 African countries)941. Competition Regulation: According to Bowman Gilfillan, there is a competition authority in the Seychelles, the Fair Trading Commission, which was established by the Fair Trading Commission Act of 2009942. The Fair Trading Commission applies the 2009 Fair Competition Act and the 2010 Consumer Protection Act943. The Commission has economy‐wide jurisdiction. The 2009 Fair Competition Act deals with abuse of dominance, which is defined to occur if a firm “holds such a position of economic strength so as to enable it to operate in a market independently without effective competition from clients, 940
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19, Section 30(2).
941
ITU (2009)
‘Information Society Statistical Profiles:
Africa’, International
Telecommunication Union, Geneva, pp 16, 37 & 40, available online at http://www.itu.int/ITUD/ict/material/ISSP09-AFR_final-en.pdf.
942
Bowman Gilfillan (nd) ‘Competition Law Africa’, Bowman Gilfillan, Johannesburg, available
online
at
http://services.bowman.co.za/Brochures/PracticeAreas/CompetitionAfrica/1709%20BG%20Comp
etition%20Africa%20LRVS.pdf, p40.
943
FTC (nd)
‘Legislation’, Fair Trading Commission, Victoria, available online at
http://www.ftc.sc/index.php?option=com_content&view=article&id=20&Itemid=93.
Prepared by: LINK Centre, University of the Witwatersrand 246
Assessment of SADC Communications Policies, Laws & Regulations competitors or potential competitors”944. Abuse of a dominant position includes a wide range of conduct, including: restricting market entry, “preventing or deterring... competitive conduct”, imposing prices that are “unfair... excessive, unreasonable, discriminatory or predatory”, “applying dissimilar conditions to equivalent transactions with other trading parties”, and “exclusive dealing, market restriction or tied selling” 945. The Act also provides for a defence against abuse of dominance in cases where, inter alia, the behaviour was intended to benefit both the economy and consumers, or where it was the result of the firm’s “superior competitive performance” 946. The Commission may impose orders on offending firms, or accept undertakings from them, or impose fines of up to 10% of turnover947. In the exercise of its powers the Fair Trading Commission has issued a series of guidelines dealing with the definition of relevant markets, assessing abuse of dominance, and determining collusive agreements948. Anti‐competitive Behaviour: There is no evidence available of anti‐competitive behaviour in the telecommunications sector. 4.10.2 BROADCASTING SERVICES Services Framework: Broadcasting licences in Seychelles are granted under the 2000 Broadcasting and Telecommunications Act, which refers to “broadcasting service” and [broadcasting] “transmission facility” licences949. As noted previously, these radio frequency provision is inclusive to such licences. 944
Bowman Gilfillan (nd) ‘Competition Law Africa’, Bowman Gilfillan, Johannesburg, p41,
available
online
at
http://services.bowman.co.za/Brochures/PracticeAreas/CompetitionAfrica/1709%20BG%20Comp
etition%20Africa%20LRVS.pdf.
945
Bowman Gilfillan (nd) ‘Competition Law Africa’, Bowman Gilfillan, Johannesburg, p42,
available
online
at
http://services.bowman.co.za/Brochures/PracticeAreas/CompetitionAfrica/1709%20BG%20Comp
etition%20Africa%20LRVS.pdf.
946
Bowman Gilfillan (nd) ‘Competition Law Africa’, Bowman Gilfillan, Johannesburg, p42,
available
online
at
http://services.bowman.co.za/Brochures/PracticeAreas/CompetitionAfrica/1709%20BG%20Comp
etition%20Africa%20LRVS.pdf.
947
Bowman Gilfillan (nd) ‘Competition Law Africa’, Bowman Gilfillan, Johannesburg, p42,
available
online
at
http://services.bowman.co.za/Brochures/PracticeAreas/CompetitionAfrica/1709%20BG%20Comp
etition%20Africa%20LRVS.pdf.
948
FTC (nd) ‘FCA Guidelines & Procedures’, Fair Trading Commission, Victoria, available
online at http://www.ftc.sc/index.php?option=com_content&view=article&id=24&Itemid=103.
949
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
Section
3,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
Prepared by: LINK Centre, University of the Witwatersrand 247
Assessment of SADC Communications Policies, Laws & Regulations There is no provision in the legislation for any distinction between public, commercial or community broadcasting. However, recent regulations distinguish between television and radio broadcasting, and provide for international, public, commercial, and, in the case of television, satellite and subscription sub categories950. The classification of broadcasting licences in the Seychelles is, nonetheless, in accordance with the provisions of W/120. FOCUS AREA 1: MARKET STRUCTURE Market Structure: OMD lists one national television station, several satellite television broadcasters, including DStv / MultiChoice, and two radio stations (AM Radio Seychelles and Paradise FM). The terrestrial broadcasters provide services in a mix of French, English and Creole951. Freedom House notes that all three broadcasters are operated by the state‐
owned and controlled Seychelles Broadcasting Corporation, and points to pro‐
government bias in programming content despite some moves towards greater independence under the new 20111 Seychelles Broadcasting Corporation Act952. The BBC further suggests that BBC World Service and Radio France Internationale are available on FM953. There also appears to be a South African‐owned cable television provider, Intelvision954. OMD puts television penetration in the Seychelles at 92% of households955. 950
Seychelles (2011)
‘Licences (Broadcasting and Telecommunication) (Amendment)
Regulations, 2011’, Supplement to Official Gazette, 10 October 2011, Government of the
Seychelles,
available
online
at
http://www.seymediacom.org/uploads/2/8/2/1/2821898/licences_broadcasting_and_telecommunic
ations_amendment_regulation_2011.pdf.
951
Koenderman, T (2013) ‘The Future of Media: South Africa & SADC Media Facts 2013’,
OMD
South
Africa
Johannesburg,
p30,
available
online
at
http://www.omd.co.za/media_facts/FOM029_Blueprint_OMD_mediafacts2013.pdf.
952
Freedom House (2012) ‘Seychelles: Freedom of the Press 2012’, Freedom House, New York,
available online at http://www.freedomhouse.org/report/freedom-press/2012/seychelles.
953
BBC (2012) ‘Seychelles Profile’, British Broadcasting Corporation, London, available online at
http://www.bbc.co.uk/news/world-africa-14094089.
954
Balancing Act (nd) ‘SA’s Intelvision launches itself as Seychelles’ Third Telecoms Operator,
Balancing Act, Issue No 302, Balancing Act, London, available online at http://www.balancingactafrica.com/news/en/issue-no-302/telecoms/sa-s-intelvision-lau/en.
955
Koenderman, T (2013) ‘The Future of Media: South Africa & SADC Media Facts 2013’,
OMD
South
Africa
Johannesburg,
p30,
available
online
at
http://www.omd.co.za/media_facts/FOM029_Blueprint_OMD_mediafacts2013.pdf.
Prepared by: LINK Centre, University of the Witwatersrand 248
Assessment of SADC Communications Policies, Laws & Regulations FesMedia doers not have a report for the Seychelles. Notwithstanding the pro‐government bias noted above, the 2011 Seychelles Broadcasting Corporation Act does make extensive provisions for broadcasting to be in the ‘public interest’, and does provide for oversight of the SBC by a Board whose composition includes for checks and balances956. Range of Services: According to the BBC “multi‐channel cable and satellite TV are widely available”, along with BBC World Service and Radio France Internationale on FM957. Market Share: There is no information on market share. Stakeholders: Despite recent moves towards a more independent broadcasting environment, the government has previously acted to quell a diversity on views, legislating in 2006 an “amendment to the Broadcasting and Telecommunications Act prohibiting politically affiliated groups from obtaining a license”958 following opposition party attempts to raise funds to apply for one. FOCUS AREA 2: REGULATORY REGIME & STATE OF PLAY Restrictions on Market Access: There do not appear to be formal limitations on the number of broadcasting suppliers. However, Freedom House cites excessive licensing fees as making the private broadcasting market “slow to develop” 959. As noted previously, there are no nationality provisions in the 2000 Broadcasting and Telecommunications Act. The 1994 regulations governing broadcasting licences do, however, contain some restrictive provisions that prevent foreign nationals from acquiring broadcast licences and require foreign broadcasters to incorporate locally. They also restrict cross media ownership and control. Licence applications are to be considered in the light of, amongst other things: 956
Seychelles (2011) ‘Seychelles Broadcasting Corporation Act, 2011, Act 2 of 2011, Republic
of the Seychelles, Victoria, available online at Seychelles Broadcasting Corporation Act, 2011.
957
BBC News: Africa, (2012) ‘Seychelles Profile’< http://www.bbc.co.uk/news/world-africa14094089> last accessed on 2 December 2012.
958
Freedom House (2012) ‘Seychelles: Freedom of the Press 2012’, Freedom House, New York,
available online at http://www.freedomhouse.org/report/freedom-press/2012/seychelles.
959
Freedom House (2012) ‘Seychelles: Freedom of the Press 2012’, Freedom House, New York,
available online at http://www.freedomhouse.org/report/freedom-press/2012/seychelles.
Prepared by: LINK Centre, University of the Witwatersrand 249
Assessment of SADC Communications Policies, Laws & Regulations (1) (a) the orderly development of sound broadcasting services; (c) the character of the applicant and where the applicant is a body corporate, the character of its directors or members of the board of management, as the case may be; (h) desirability of allowing control or to have a substantial interest in an undue amount of communications media in Seychelles; (2) Where the service area specified in an application is wholly within Seychelles, a licence shall only be granted to a citizen of Seychelles or to a body corporate incorporated or established by or under the laws of Seychelles.960. Other Discriminatory Measures: There do not appear to be any other discriminatory measures based on nationality. However, the high licensing fees referred to above may act as a deterrent to applicants. Non‐discriminatory Regulatory Restrictions: The situation for broadcasting licences is the same as that described above for telecommunication licences. The primary responsibility for licensing rests with the Seychelles Licensing Authority961, with the appropriate application form available on their website in this case962. The regulations governing broadcasting deal with the particulars required with the application, the criteria by which it will be assessed, and the code of conduct to which the licensee will be bound, but make no mention of the process and procedure963. As noted previously, the Minister has the discretion to bypass the licensing process964. The Minister is also involved in determining and policing some aspects of the code of conduct965. 960
Seychelles (1994) ‘Broadcasting and Telecommunication (Sound Broadcasting Services)
Regulations’, Republic of the Seychelles, Victoria, Section 4, available online at
http://www.seylii.org/sc/legislation/statutory-instrument/1994/21.
961
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic of the Seychelles, Victoria, Sections 7 & 8, available online at
http://www.seylii.org/sc/legislation/consolidated-act/19.
962
SLA (nd) ‘Application for a Licence in Broadcasting or to Install / Establish any Broadcasting
Services in accordance with the Licence (Broadcasting And Telecommunication) Regulations
1988’,
Seychelles
Licensing
Authority,
Victoria,
available
online
at
http://www.sla.sc/forms/Application%20for%20licence%20in%20broadcasting.pdf. . . . . . . . .
. . Curiously, the form refers to regulations that appear to have been superseded, and contains
some licensing categories that appear to refer to telecommunications licensing. . . . . . . . . . .
963
Seychelles (1994) ‘Broadcasting and Telecommunication (Sound Broadcasting Services)
Regulations’,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/statutory-instrument/1994/21.
964
Seychelles (1986) ‘Licences Act: Chapter 113’, Act 3 of 1986, Government of Seychelles,
Victoria, available online via http://www.seylii.org/sc/legislation/consolidated-act/113.
Prepared by: LINK Centre, University of the Witwatersrand 250
Assessment of SADC Communications Policies, Laws & Regulations It thus appears that licence allocation is on an open application basis, with most of the responsibility resting on the Seychelles Licensing Authority, but with some Ministerial involvement. Regulatory Best Practice: The 2000 Broadcasting and Telecommunications Act vests primary responsibility for the regulation of broadcasting with the Minister, but with some regulatory functions assigned to separate regulatory bodies966. For example, as previously noted, licensing is the responsibility of the Seychelles Licensing Authority. More recently a media regulator, the Seychelles Media Commission (SMC), has been established. The ambit of the SMC extends across both print and broadcast media. Its object to ”preserve the freedom of the media and to improve and main high journalism standards in Seychelles”967. Its responsibilities largely deal with content and the conduct of the media (it has recently published a Code of Conduct for the media968), but it also has an advisory function in respect of licence applications inter alia969. The structure and appointment process of the Seychelles Media Commission makes it relatively independent. Although all 7 members and the chairperson are appointed by the President, five of those appointees are from candidates put forward by a range of bodies including the Seychelles Media Association, the National Assembly, the judiciary, the Department of Information and the NGO sector970. 965
Seychelles (1994) ‘Broadcasting and Telecommunication (Sound Broadcasting Services)
Regulations’, Republic of the Seychelles, Victoria, Section 5, available online at
http://www.seylii.org/sc/legislation/statutory-instrument/1994/21.
966
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
967
Seychelles (2010) ‘Seychelles Media Commission Act, 2010’, Republic of the Seychelles,
Victoria,
available
online
at
http://www.seymediacom.org/uploads/2/8/2/1/2821898/smc_act_2010.pdf.
968
SMC (2013) ‘Code of Conduct for the Media in Seychelles’, Seychelles Media Commission,
Victoria,
3
May
2013,
available
online
at
http://www.seymediacom.org/uploads/2/8/2/1/2821898/smc_code_of_conduct.pdf.
969
Seychelles (2010) ‘Seychelles Media Commission Act, 2010’, Republic of the Seychelles,
Victoria,
Section
13(2),
available
online
at
http://www.seymediacom.org/uploads/2/8/2/1/2821898/smc_act_2010.pdf. Interestingly, advice
on licence applications is directed to the government and not to the Seychelles Media Commission.
970
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Chapter 19, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
Section
4,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
Prepared by: LINK Centre, University of the Witwatersrand 251
Assessment of SADC Communications Policies, Laws & Regulations FOCUS AREA 3: LEVEL OF COMPETITION Dominant providers: There is no information on market share. Competition Regulation: As noted previously a Fair Competition Commission with economy‐wide jurisdiction has been established, which acts against any agreements, business practices and conduct which has a damaging effect on competition. Anti‐competitive Behaviour: There is some limited evidence of anti‐competitive behaviour in the broadcasting sector. The Fair Trading Commission has made a preliminary prima facie finding of monopolistic behaviour against cable television provider, Intelvision971. 4.10.3 STATE OF LIBERALISATION WTO Commitments: The Seychelles has held observer status at the WTO since July 1995. Accession negotiations subsequently stalled, but were restarted in 2010. “Updated initial market access offers on goods and services”972 have apparently been made, but these are not publicly available. The Seychelles is a member of the Common Market for Eastern and Southern Africa, in addition to its membership of the Southern African Development Community (SADC). WTO Implementation: As noted above, the Seychelles has not yet made any commitments. On the basis of the information available, it would appear that there is no reason why the Seychelles should not be able to make full commitments in respect of cross‐
border supply and consumption abroad. In respect of commercial presence, there are some limitations affecting market access and national treatment that would need to be made in relation to the broadcasting sector. Similarly, in respect of the presence of natural persons, some general limitations would need to be noted. 971
FTC (2013) ‘The Commission Initial Report: Monopolistic Behaviour and Possible Abuse of
Dominance by Intelvision Ltd’, Case No FCA14, Fair Trading Commission, Victoria, 26 March
2013,
available
online
via
http://www.ftc.sc/index.php?option=com_remository&Itemid=47&func=fileinfo&id=134.
972
WTO (nd) ‘Accessions: Seychelles, Trade Organisation, Geneva, available online at
http://www.wto.org/English/thewto_e/acc_e/a1_seychelles_e.htm.
Prepared by: LINK Centre, University of the Witwatersrand 252
Assessment of SADC Communications Policies, Laws & Regulations MFN Barriers: There is no evidence of MFN inconsistent measures in the telecommunications sector. In respect of the World Bank’s MFN Tariff Trade Restrictive Index (TTRI), Seychelles is ranked 89th out of 181 countries973. 4.10.4 REFERENCE PAPER READINESS The Seychelles is currently not a WTO member. By way of comparison to the assessment below, the Regulatory Governance Index of Waverman and Koutroumpis, which is comprised of 18 elements within five categories that have limited overlap with the Reference Paper categories, places the Seychelles 31st out of 38 African regulators974. Regulatory Best Practice: 1. Competitive safeguards: Fully compliant (5/5). The 2000 Broadcasting and Telecommunications Act contains provisions empowering the Minister to act against any operators engaging in collusion, discriminatory access and abuse of dominance975. As noted above, the Fair Trading Commission is also empowered to act against collusive practices and abuse of dominance, and has done so. There do not, however, appear to be any provisions for dealing with concurrent jurisdiction between the Minister and the FTC. 2. Interconnection: Minimally compliant (1/5). As noted previously, the Act has very weak interconnection provisions. There is no requirement for the establishment and publication of interconnection guidelines and procedures, or for the publication of interconnection agreements or reference interconnect offers. The Act does provide for interconnection arrangements and pricing to be “fair and reasonable” 976, but does not deal with non‐discrimination, timeliness or points of interconnection. 3. Universal service: Partially compliant (3/5). Whilst the Act does include ‘universal service’ as a concept, there are no specific provisions covering the imposition of universal service obligations upon licensees. Nor are such obligations covered under the 1986 Licences Act. The 2000 Broadcasting and 973
World Bank (2010) ‘Seychelles Trade Brief’, World Bank, Washington DC, available online at
http://info.worldbank.org/etools/wti/docs/Seychelles_brief.pdf.
974
Waverman, L & Koutroumpis, P (2011) ‘Benchmarking telecoms regulation – The
Telecommunications Regulatory Governance Index (TRGI)’, Telecommunications Policy, No 35,
pp 450–468, doi:10.1016/j.telpol.2011.03.006.
975
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Section 33, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
976
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Section 30(5), Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
Prepared by: LINK Centre, University of the Witwatersrand 253
Assessment of SADC Communications Policies, Laws & Regulations Telecommunications Act does provide for the establishment of a universal service fund under the control of the Minister977. However, the fund does not appear to be in operation978. 4. Public availability of licensing criteria: Minimally Compliant (1/5). Despite the public availability of a telecommunications licence application form noted above, there are no specific provisions in either the law nor in publicly available regulation governing criteria, timeframes, terms and conditions or the furnishing of reasons for denial of licence applications. 5. Independent regulators: Partially Compliant (3/5). There is no independent regulator in the Seychelles, with all regulation undertaken by the Minister. Whilst this arrangement does not accord with international best practice, however, since there is no ownership by the state of any of the operators, the Ministry is effectively separate from and not accountable to any supplier of telecommunication services. There is no information available on the market impartiality of decisions and procedures. 6. Allocation and use of scarce resources: Largely Compliant (4/5). The 2000 Broadcasting and Telecommunications Act does contain provisions dealing with scarce resources, including frequency spectrum, numbers and rights of way979. However, there is no information available on procedures for the allocation and use of these. The national band plan is publicly available on the website of the Ministry980. Although the Seychelles is not yet a member of the WTO, there is not a great deal by way of policy and regulation in the telecommunications sector ‐ despite 977
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Section 28, Act 2 of 2000,
Republic
of
the
Seychelles,
Victoria,
available
online
at
http://www.seylii.org/sc/legislation/consolidated-act/19.
978
Seychelles is listed by neither Hudson nor Intelecon. See: Hudson, H (2010) 'Defining
Universal Service Funds', Intermedia, March 2010 Volume 38 Issue 1, available online at
http://www.iicom.org/intermedia/IM March 2010 USF.pdf and Intelecon (2010) ‘Universal
Access And Service Funds 2009 : Update From Intelecon’, Intelecon Research & Consultancy
Limited,
Vancouver,
p
10,
available
online
at
http://www.inteleconresearch.com/pages/documents/UASFFunds2009update‐Oct2009.pdf.
979
Seychelles (2000) ‘Broadcasting and Telecommunication Act’, Act 2 of 2000, Republic of the
Seychelles, Victoria, Sections 32, 13 and 18 respectively, available online at
http://www.seylii.org/sc/legislation/consolidated-act/19.
980
Seychelles (nd) ‘Seychelles National Frequency Band Plan (NFBP): 20 MHz to 3 GHz’,
Department of ICT, Republic of the Seychelles, Victoria, available online at
http://www.ict.gov.sc/Documents/National%20Frequency%20Band%20Plan%20-%2020%20%203100%20MHz.pdf
Prepared by: LINK Centre, University of the Witwatersrand 254
Assessment of SADC Communications Policies, Laws & Regulations some areas where improvements to compliance can be made ‐ that would directly conflict with it becoming a signatory to the Regulatory Reference Paper. ‐ ‐ ‐ o ‐ ‐ ‐ Prepared by: LINK Centre, University of the Witwatersrand 255