Process for Issuing General Authorizations
Comparative processes for issuing general authorizations
The licensing process for general authorizations is usually simple and straightforward. Most countries have adopted procedures that are designed to issue general authorizations efficiently with a minimum of “red tape”.
Countries have developed a variety of different procedures for issuing general authorizations. In Malaysia, the process of issuing a class licence has two main stages. First, pursuant to Regulation 17 of the Communications and Multimedia (Licensing) Regulations (the “MCM Licensing Regulations”), the Minister, acting on the advice of the regulator, must decide that a particular service or activity is subject to a class licence. Regulation 17 of the MCM Licensing Regulations also sets out the criteria that must be taken into account in making the decision to render a service or activity subject to a class licence. The Minister’s authority to issue a class licence is set out in section 44 of the Malaysian Communications and Multimedia Act 1998.
At present, the Minister has made three activities subject to a class licence: the provision of applications services, the provision of certain types of network facilities, and the provision of certain types of network services
Second, once a service or an activity is subject to a class licence, any person (subject to certain restrictions) may operate under the licence after complying with the registration requirements. Sections 45 and 46 of the MCMA provide that persons who intend to operate under a class licence must register with the regulator (the Malaysian Communications and Multimedia Commission or “MCMC”) by submitting a registration notice in the prescribed form and by paying the appropriate fees. Registration notices must comply with Regulation 19 of the MCM Licensing Regulations. The registration notice must be accompanied by a checklist that lists the documents that must be submitted with the registration notice. This checklist must be signed and dated by the registrant.
Once the MCMC receives a registration notice, it is required to endorse a duplicate copy of the registration notice as soon as possible and to return the endorsed copy to the applicant. This endorsed copy of the registration notice serves as proof of registration for the applicant. [See Regulation 19(3) and (4) of the MCM Licensing Regulations.]
The MCMC is required to maintain a register of class licences that is available to the public, pursuant to section 49 of the MCMA. Section 50 of the MCMA further requires the MCMC to maintain a publicly-available register of all registrations that have been received and approved.
The procedures for issuing class licences in Singapore differ from those in Malaysia. In Singapore, the regulator (the IDA) has the authority to issue class licences pursuant to section 5 of the Telecommunications Act. Licences are not issued by the Minister.
The services and operations for which a class licence may be issued are specified in the First, Second, Third, Fourth, Fifth, Sixth and Seventh Schedules of the Telecommunications (Class Licences) Regulations. The Guidelines for Submission of Application for Services-Based Operator Licence (the “Guidelines”) set out a summary list of services and operations, the provision of which requires a services-based operator (SBO) class licence.
Pursuant to section 3 of the Telecommunications (Class Licences) Regulations, an operator is deemed to have been issued the appropriate class licence once that operator has complied with sections 4 and 5 of the Regulations. Section 4 requires the operator to register with the regulator using the prescribed form and to provide such information as required by the regulator. Section 5 requires the operator to pay the required fees for licence.
The IDA has posted the registration form for SBO class licences on its website. Operators may register by completing the form and sending it to the IDA. Alternatively, operators may also register on-line.
A few countries now permit applications and registrations to be filed on-line. For example, in addition to Singapore, Finland also allows operators to register for general authorizations over the Internet.
The registration process for general authorizations in EU Member States is very short. In Ireland, for example, operators seeking a general authorization need only to complete and to submit the Notification Form for General Authorisations. Operators who have submitted a completed Notification Form are deemed to have been authorised and may begin offering services immediately without any further formalities under telecommunications legislation.
In Canada, class licences are only granted for the provision of basic international telecommunications services. Applicants for an international services licence must file an application for licence in the form of an affidavit with the Canadian regulator, the CRTC. Paragraph 359 of Telecom Decision CRTC 98-17, “Regulatory Regime for the Provision of International Telecommunications Services”, specifies the information that must be provided in the application for licence.
The CRTC amended the requirements relating to the information that must be filed in an application for licence in a series of Telecom Circulars (Telecom Circular CRTC 2003-1, Telecom Circular CRTC 2005-4, and Telecom Circular CRTC 2005-8). These amendments removed requirements to provide certain information in the licence application (e.g., a listing of all affiliates that provide ICT services anywhere in the world, a description of the applicant’s corporate ownership structure, and a listing of various types of agreements with non-Canadian service providers). These amendments have made the application process less onerous for applicants in terms of the detail of information that applicants are required to provide.
Once received, the application for an international services licence is placed on the public record for 21 days in order to give interested parties in the public an opportunity to comment on the licence application. Applications are placed in the public examination room in the head office of the CRTC. Applications are not posted on the web site of the CRTC at present.
If an application is not deficient on its face and if no comments about the application have been received from the public, then a licence will be issued shortly after the 21 day period has passed. If comments about the application are received, however, the CRTC must consider and address such comments before issuing the licence. If the application is deficient on its face, the CRTC provides notice to the applicant and gives the applicant the opportunity to correct the deficiencies in the licence application.
Facilitating the registration process
A number of regulators have taken steps to assist operators in understanding the process for obtaining a general authorization. The measures taken by regulators in this regard increase the transparency of the issuing process, as well as facilitate the registration process as a whole.
The measures that regulators have taken to facilitate the registration process are diverse. One common approach is to provide guidelines for the registration process. The regulators in Singapore and Finland have both published guidelines for operators regarding the process of registration.
The Eastern Caribbean Telecommunications Authority (“ECTEL”) has developed Guidance Notes for the process of applying for telecommunications licences, including class licences. ECTEL is part of the Organisation of Eastern Caribbean States (“OECS”). The Guidance Notes have been published in a number of OECS states, including St. Lucia and Grenada. St. Lucia has also published a Procedures Manual on licensing that provides a variety of useful information about the regulatory framework governing licensing in that country.
The Irish regulator has published two detailed sets of guidelines for operators: a Guideline relating to General Authorisations and a Guidance Note on Completion of Notification Form relating to General Authorisations. The Guideline relating to General Authorisations provides information on the new general authorisation licensing regime. The Guideline addresses the process for notification under this regime, and provides important information about the transition period from the old licensing regime to the new general authorisation regime.
The Guidance Note on Completion of Notification Form relating to General Authorisations is a detailed guide to completing the notification form required to obtain a general authorization in Ireland. This Guidance Note includes sample notifications, as well as some background information about the new general authorisation regime.
Some of the guidelines published by regulators deal with specific matters rather than the process of registering for a general authorization as a whole. The Malaysian regulator, for example, has published guidelines relating to network services provider class licences. These guidelines address two specific matters: the criteria for registration under a network services provider class licence and the meaning of “niche customer access services”. The guidelines are designed to provide clarity on these issues and thus to avoid confusion in the registration process.
The Canadian regulator, the CRTC, has published a number of different documents to help explain the class licensing regime governing the provision of basic international telecommunications services in Canada. For example, the CRTC has published a “Fact Sheet” about basic international telecommunications services (“BITS”) licensing that explains the background to the international services licensing regime. This Fact Sheet has links to a number of important documents, including the actual licence application, the terms and conditions of a BITS licence, and the list of licensees. The CRTC has also published instructions for the submission of an application for a BITS licence.
In some cases, the licence application or notification form itself will contain information to assist the operator in completing and submitting the form. The registration form for a services-based operator class licence in Singapore and the Irish notification form for general authorisations both begin with instructions to operators regarding the completion and submission of the forms.
Another measure taken by regulators to facilitate the registration process is to include information on their websites about general authorizations and the process of registering for such authorizations. OFCOM, the regulator in the UK, has developed a very useful web page to explain the general authorization regime and to provide guidance about obtaining an authorization.
In Finland, where telecommunications notifications must be filed on-line, the Finnish regulator has developed a number of web pages with helpful information about the general authorization regime. One web page contains background information about the general authorization regime and the process of submitting a telecommunications notification under this regime. Another web page, which is linked to the on-line telecommunications notification form, contains instructions for the completion of this on-line notification form. We have already noted above that the Finnish regulator has also published guidelines for the submission of telecommunications notifications. These guidelines are available for downloading on the regulator’s website.