Recommendations for the Development of Legal and Regulatory Frameworks to facilitate Broadband and ICT Convergence in the Caribbean

Transcription

1 Recommendations for the Development of Legal and Regulatory Frameworks to facilitate Broadband and ICT Convergence in the Caribbean Mark Reynolds Attorney-at-Law Consultant Researcher, BIIPAC Project Component 2

2 Objectives Clearly distinguish between the terms Broadband and Convergence. Establish the Importance of Legal and Regulatory Processes in the Management of Broadband and Convergence. Examination of different Regulatory Processes from an International Perspective. An analysis between our Caribbean Legislation and Procedures and International Practices. Provision of Recommendations. Concluding Remarks and the Way Forward.

3 Countries being examined in BIIPAC Component 2 Tranche A: Barbados Dominican Republic Jamaica Trinidad and Tobago Tranche B: Belize Guyana Haiti Suriname

4 The Problems and their Solutions

5 Broadband vs. Convergence? Broadband is the technology that allows for access to electronic communications services, particularly the internet, at much faster speeds than were available with traditional dial-up narrowband connections which primarily existed before the regional telecommunications liberalization process. Convergence can be defined as the union of audio, video and data communication into a single source, received on a single device and delivered by a single connection.

6 Increase of National Broadband Plans throughout the World

7 An Examination of Current Regulatory Frameworks A Comparison of International Frameworks against the Caribbean processes

8 An Ideal Scenario for Regulation

9 Law Enforcement and General Principles underpinning Legal and Regulatory Frameworks Regulation of Access and Licensing; Management of Spectrum which is the currency of the industry; The enforcement of cyber laws; The vetting of extra jurisdictional applications; Digital Rights Management (DRM), which encompasses traditional Intellectual Property Rights (IPR) and copyright concerns; Security; Privacy; E-commerce trading arrangements; and Protecting consumers from being faced with unwanted and unpalatable content, including unwanted spam junk .

10 The Regulatory Implementation of Broadband: An International Perspective Public/ Private Partnerships have been integral in facilitating this process in the United Kingdom, Singapore, Malaysia, Australia, New Zealand. The United Kingdom has created specific legislation such as the gradual evolution of BEREC and European Union has facilitated this process via State- Aid Guidelines.

11 Legal and Regulatory Framework in the Caribbean Primarily an ex post approach. Multi Sector Approach to regulation. Gradual move to prepare legislation geared towards protecting the consumers data such as: i. Jamaica s Cybercrime Act, E-commerce Act Amendments to the Telecommunications Act of Jamaica. Jamaica is currently preparing its Data Protection Act. ii. The Dominican Republic -The Rural Broadband Connectivity Project set out to bridge the gap using funding from INDOTEL s Biennial Telecommunication Development Fund The project served to provide the subsidies necessary for Dominican companies to extend broadband services to these communities using WiMax or other wireless technologies.

12 Legal and Regulatory Framework in the Caribbean ( Cont d) Haiti- Practices Converged regulation in the form of Conseil National d.es Télécommunications (CONATEL). Barbados Main pieces of legislation includes the Telecommunications Act which has undergone various amendments and have supporting regulations that speak to specific issues such as licensing, call centres, definition of dominance and other issues. In August 2013, the ITU and the Government of Barbados signed an Agreement to establish a National Computer Incident Response Team (CIRT).

13 Regulation of Content from an International Perspective

14 Global Comparative of the Cost Models being practiced

15 Cross Analysis with the Caribbean and Other Developing Economies ( Cont d) Walden has postulated that to secure tangible benefits from the substantial government investments in fibre-optic backbone investments in fibre backbone infrastructure. The rationale for increasing broadband adoption, is based on both short- and long-term impacts. Several studies have identified short-term employment effects stemming from (1) direct labor employed to build broadband infrastructure and (2) indirect and induced jobs that are created by suppliers and services supporting the construction activity.

16 Proposed Control Methods for the Management of Broadband

17 Regulatory Goals regarding Broadband and Convergence in the Caribbean In 2014 The ITU published the The State of Broadband 2014 : Broadband for All- A Report of the Broadcasting Commission of the International Telecommunications Union. This Report highlighted the following points for broadband development: i. Coverage ( subscriptions vs. availability i.e. Universal service, geographical coverage, packages provided to corporate and domestic consumers ), Level of customer satisfaction, affordability; ii. Quality of service ( download speed, disaster and emergency response protocol and procedures; and iii. Economic Impacts ( including employment, development of skill sets and personnel having the ability to guide regulatory processes and responsive of international trends.

18 Correlation between Broadband Performance and Pricing of Broadband

19 Regulation of Broadband generating Investment: A Case Study of Chile

20 A Comparative between GDP and Broadband Development in Chile

21 Lessons from Chile In 2007, the government developed a Strategic Plan for Digital Development for the period. The vision articulated in the Digital Plan identifies ICT as a key lever to accelerate economic growth, and underlines the need to promote digital literacy, foster the adoption of ICT by the business sector, and the development of software as a means of increasing productivity and the competitiveness of the economy. In the ICT supply side, the objective is to develop products locally and therefore render Chile in an attractive target for the investment in the technology sector. At that time the key areas of focus were intellectual property laws, the protection of personal information stored in digital format, the defense of the Internet consumer rights, and the codification of digital criminal law. The Chilean Digital Agenda is also quite clear with regard to those industries where ICT adoption needs to be focused on: mining, fisheries, forestry and tourism.

22 Recommendations from Chile Create an "Educational Digital Network", aimed at connecting 70% of the schools, with support of direct subsidies to 4,000 schools. Redefine the position of public broadband access centers on the basis of better supporting the community. Promote the offer of telecommunications services in isolated areas in order to increase broadband coverage. The target is to reach 2,300,000 connected households. Improve quality and reduce cost of broadband access with the objective of providing low cost connectivity to 200 communities. Double the number of enterprise centers with the objective of providing public access to small enterprises and offering digital training services.

23 Resolutions for Regulatory Efficiency in the Development of Broadband in the Caribbean

24 Resolutions to the Broadband Challenge Open access means that all suppliers, whether in horizontal or vertical markets, are able to obtain access to the new network facilities on fair and equivalent terms. The precise definition of open access may vary depending on the regulatory model adopted, and the terms and conditions of access most certainly will vary. Nevertheless, open access is paramount if the new digital economy is not to rest on network infrastructure provision that has folded back into a purely monopolistic framework.

25 Effecting Change in Regulation Effective regulation is more of an art form in politics and an exercise in leadership than a science (Jordana and Levi-Faur 2004; Jamieson 2005).Donors can help support change, but the possibilities of success are limited to circumstantial opportunities in which the leadership and suitable political conditions for change exist. Two issues presently deserving priority attention by regulators are the liberalization of VoIP and its interconnection to the PSTN, and the lifting of restrictions on spectrum to facilitate an expansion in the use of wireless broadband technologies (see also Purbo 2003). These include the need to collect taxes and to contribute to Universal Service Funds (Crandall et al. 2004). In practice, the revenues that could be collected at present from VoIP are minimal, and universal service funds are generally used in far less effective ways of achieving market penetration than competition between rivalrous networks, and it is not uncommon for universal service funds to be designed with considerable input from incumbents and to add barriers to entrants.(melody, Sutherland, and Tadayoni 2005).

26 Recommendation for Legal and Regulatory Infrastructure in the Caribbean Donors, policy makers must look to developments in 4 key areas in the development of effective regulation : i. Subsidies to stimulate investment to serve unprofitable ( mostly rural) areas; ii. Regulatory support to address critical issues of concern : the liberalization of Wireless and VOIP; iii. Licensing and Entry Considerations; and iv. Development of Stakeholder capacity for effective lobbying and increasing the visibility of the consultative process that Development of a policy on cellular use for development purposes. This would include implementing policy for mobile usage for agriculture and education. The mobile money model in Kenya M- Pesa could be adopted as a model to assist economies heavily dependent on agriculture such as Suriname, Belize and Jamaica. A pro-active policy to educate community members and promote the use of ICT s and broadband communications in rural communities.

27 Recommendations for Legal and Regulatory Infrastructure in the Caribbean ( Cont d.) Privacy and Data Management Considerations A key principle of data management and privacy is the right to own or know and control what information is being gathered and stored about you and by whom and for what purpose. This right carries the implication of the right to demand corrections or possibly even to delete the information, which is also known as the right to be forgotten. More recently many countries have introduced personal data privacy legislation which extends to the private sector. These laws go beyond existing laws on consumer protection that provide the right of customers to fair contract conditions rather than unreasonable tie-in contracts, return of impaired goods, protection against price gouging and the right to itemized billing.

28 International Models of Data Protection The United Kingdom UK Data Protection Act The European Union The EU Data Protection Directive ( 95/46 EC). Canada - The Personal Information Protection and Electronic Documents Act (PIPEDA) ( last amended on April 1, 2011). The United States Omnibus Model- Various Pieces of Legislation such as VIPPA, HIPAA and the Patriot Act.

29 Recommendations for Legal and Regulatory Infrastructure in the Caribbean ( Cont d.) Cross-border data and cloud computing The rise of cloud computing has made it imperative that countries introduce updated personal data protection legislation that conforms to minimum safeguards, for example, to those enshrined in the EU Directive. For cloud computing to become a truly global means of data storage, retrieval, file sharing and data transfers under secure conditions there needs to be universally acceptable standards that at minimum allow for interoperability, otherwise the clouds will remain constrained by economic and political boundaries. There are two approaches to holding companies responsible for safeguarding confidentiality in cross-border data traffic. The EU approach is geographical, so data is allowed into countries that are deemed to meet the minimum standards set by the EU Directive. In reality, this has not stopped data crossing borders into some major economies such as China and Japan, despite the EU not having determined the adequacy of safeguards in either country.

30 Adequate Regulations? As of 2013, 101 countries had data privacy laws or bills in place. Only 40 developing economies have such laws or bills.( Source: Unctad Report, 2013 entitled During an average minute in 2012, Google received 2,000,000 search requests, Facebook users shared around 700,000 content items and Twitter sent out 200,000 tweets, notes the report. However, an estimated 60% of such cloud traffic came from Europe and North America, followed by the Asia-Pacific region (33%). Latin America, the Middle East and Africa together accounted for only 5%. ( Source UNCTAD Report, 2013 entitled "Broadband prices remain high in many underdeveloped countries. While in 2011 the average monthly price for fixed broadband was estimated at less than 2% of per capita income in developed countries, in developing countries that figure was 40%. The cost of mobile broadband in poor countries is between 20% and 30% of per capita income. Cloud services today are dominated by a few very large service providers, almost all with headquarters in the US.

31 Recommendations regarding the Regulation of VOIP

32 Regulation of Voice Over Internet Protocol (VOIP) Regulation of VOIP VOIP can be regarded as pure transmission technology and be categorized according to its distinct traits, which some could argue, separate it from existing fixed and mobile services. Its is the presenter s submission that the regulatory approach in this instance would be to establish a separate and distinct, or potentially novel legal and regulatory regime for VoIP.

33 International VOIP Regulatory Frameworks

34 Who has the Right to VOIP?

35 Recommendations regarding the Classification of VOIP The CRTC has defined four possible regulatory categories:- Category 1 VoIP services: include peer to peer services and other social networking sites. This category is unregulated. Category 2 VoIP services: VoIP services that operate over a broadband Internet connection obtained by the customer from a supplier of choice and that enable the customer to make and receive calls to or from the PSTN and, typically, as well as to and from other broadband connected users; Category 3 VoIP services : IP services that provide the ability to make and receive voice calls to and from the PSTN, as well as to and from other connected users and that are supplied with an underlying connection, other than a retail Internet connection, to the service provider s network; and Category 4 VoIP services: IP business services offered over network access facilities (LAN, WAN), either provided by the service provider or by another party, connected to the service provider s IP network and which do not utilize retail internet services for connection to the service provider s network. The Companies submitted that Category4 VoIP services offer, at a minimum, functionality analogous to that of existing business telephony services provided over circuit-switched networks and may offer additional functionality not available over circuit-switched networks. This category will also be unregulated.

36 Theoretical Considerations regarding VOIP and OTT ( Over the Top ) Services Citizens need privacy protection for their personal information. Businesses need effective e-commerce legislation. Governments need to create a framework to use the Cloud, including interoperability. Fostering broadband deployment and adoption can also be facilitated by a solid structure for solving intellectual property disputes in digital contexts and finding the adequate balance with other fundamental rights of consumers, such as privacy and freedom of expression.

37 Concluding Points: Regulation from a Caribbean Perspective Convergence of Regulators Facilitating market entry Policy support for greater access Promoting relevant ICT content Local government roles and responsibilities

38 Questions?