Above: Image by Vectorguy/DepositPhotos.
By Kwesi Prescod
“Turning and turning in the widening gyre
The falcon cannot hear the falconer
Things fall apart; the centre cannot hold,
Mere anarchy is loosed upon the world,”
The poet Yeats first laid out these words in his poem “The Second Coming”, as an allegorical reference to the atmosphere of post-war Europe in 1920. However I could not find a more appropriate representation of the state of the administration of the telecommunications sector in Trinidad and Tobago. The Telecommunications Authority of Trinidad and Tobago (TATT) has gone to some extent to boast that this is their 15th year of operation, however given the state of uncertainty prevalent in the sector they oversee, such celebration may be deemed ironic, if not misplaced.
TATT’s declaration on CableTV channels
While examples abound of the impact of TATT’s approach to administration, the recent announcement of their requirement that certain stations be removed from cable line ups is the most recent of a string of quizzical if not unlawful actions taken by the regulator.
In this most recent instance, TATT issued a public advisory on its website about its “forbearance ending” with respect to the transmission of the state channels. This public advisory is noteworthy as it identifies no law which was impacted by said forbearance. When one forbears, they do so in the context of a specific law which the forbearing party is deferring enforcement. It is noteworthy that it its October 11th Public Notice, there is silence on the exact law which TATT depends to effect this apparent directive. I say apparent, because I could find no Gazette publication or Notice which would be the effective legal directive upon which TATT would depend to enforce…whatever they sought to enforce. An interesting conundrum indeed, that a little bit of history and context would illuminate.
As far back as 2007, with the liberalisation of the telecommunications and broadcasting sectors under the oversight of TATT, there has been an ongoing initiative to eliminate the piracy of content on domestic CableTV networks. This ongoing initative has led to the removal of the Starz suite of channels from our CableTV lineups. This initiative was based on two obligations within the Concession: Conditions A2 and D13 presented below.
A2. The concessionaire shall comply with the Act, all regulations or other instruments made under the Act, the conditions of this Concession, and all laws in force from time to time in the Republic of Trinidad and Tobago.
D13. The concessionaire shall not broadcast any programmes, information or other material without first obtaining all required permissions from the relevant owners of any intellectual property in such programmes, information and other material, and shall not otherwise infringe the intellectual property rights of any person.
The Condition D13 is of course predicated on the application of intellectual property rights established in Trinidad and Tobago’s Copyright Act, which concessionaires are obligated to adhere to pursuant to Condition A2.
Recognising the impact of these provisions, and understanding that there were lacuna within the existing Copyright Act’s coverage of the issue in question, as far back in 2009 the then Cabinet directed TATT to undertake the necessary work to advise the Cabinet on the best way forward, including legislative amendments necessary, to treat with this matter so as to balance the demands of consumer expectations and our treaty obligations with respect to Intellectual Property Rights and copyright. Apparently, TATT engaged consultants and experts on the matter.
This was the narrative as outlined by TATT when they engaged operators and stakeholders in a 2015 meeting on this matter. There TATT initially sought to act by ending its forbearance on what they term as “foreign free to air” channels. This narrative collapsed however when one question was asked by the audience: Had TATT reverted to Cabinet as was its explicit terms of reference?
Apparently at that time they had not. Further, at that time, the Director of the Intellectual Property Office, present at the meeting, expressed interest and disquiet that he was not aware of these issues and proposed amendments to the Copyright Act did not address these concerns.
Notably, since then as far as I am aware, the Copyright Act has not been amended to treat with these issues. Also, at that meeting it was outlined by the major operators that they have agreements with third parties called “Content Aggregators,” firms based in the US and Canada which do the re-transmission and distribution of “foreign free to air” channels in those jurisdictions.
The local CableTV operators argued that without a domestic legal framework saying otherwise, it was presumed “not unlawful” for these operators to access these channels from parties with the legal rights to redistribute them. TATT could not respond directly, because, as outlined above, they had not reverted to Cabinet with their findings, and the Copyright Act has not been amended.
So if the Copyright Act does not treat with this particular issue, either by blanket dismissal of “foreign free to air channels” as illegal or through the implementation of some Compulsory Licensing Regime, what is the legal basis of TATT’s forbearance?
Is there a law upon which their forbearance was based at all? Maybe this is why no law is cited in the Public Notice? Maybe this is why this directive does not seem to be Gazetted? If there is no law, then can this directive be enforced? Is the directive itself legal?
Questions leading to further questions, ever expanding this gyre of confusion.
These questions lead to increasing uncertainty in a market which is already being decimated by OTT services which more likely contravene provisions of the Copyright Act as it stands today – a position which TATT seems to have taken no action to regularise.
Yet, this is not the only instance of TATT making public announcements that do not have the validation of adherence to legal processes to support their dictates.
Universal Service Projects – progress or anarchy?
On Friday 14th June, the then Minister of Public Administration in a response to a question made a statement with respect to the Universal Service Fund. Among the things stated was that there were plans to use the Universal Service Fund in the deployment of the TTWiFi project.
While this is true, it was further stated that the project would include provision of WiFi at “museums” throughout Trinidad and Tobago, Maxi stands, taxi stands etc. This is inaccurate and creates an expectation of operators undertaking obligations outside what is required by statute. Indeed, the amendment to the Universal Service Regulations (which would have been developed by TATT) speaks to
public spaces at libraries – not museums;
public spaces at public transport hubs which have been represented as PTSC locations – Maxi taxi and taxi stands do not fall under this category.
This statement, presumably provided to the Minister by TATT, is demonstrative of a trend where inaccurate or false information is provided to public officials which then seeks to bind operators, to extra-statutory obligations without any evidence of any cost-benefit analyses and without adhering to TATT’s own procedures which demand public consultation via written submissions which are responded to in writing.
However, this was not even the worst of it. The Minister’s statement further went on to say that TATT is planning “projects” to deploy broadband infrastructure to communities that are not connected. TATT then proposes to tender out to a provider to execute this project.
This statement demonstrates further that TATT is not adhering to its statutory obligations. According to R.18 of the Universal Service Regulation there is a process of public engagement to establish a Biannual Universal Service Project (USP) Schedule for contracted USP’s.
This process must be completed before the Minister is given the opportunity to review the proposal. That TATT claims to be planning a project without the regulatory requirement of consultation suggests that TATT is flouting its own processes – disregarding checks and balances that were built into the system.
This is more troublesome given that the same regulations, found on TATT’s website, require that these projects be implemented in the “access gap” – areas where telecommunications service delivery is “not economical feasible” as evidenced by that area falling behind the national average for service provision.
To identify these areas, TATT would complete something called a Digital Divide Survey (DDS) which would outline telecommunications and broadcasting service delivery nationwide. Without a DDS the access gap cannot be identified. Without the access gap there may be no case made for projects to be Funded by the USF.
TATT has not completed a Digital Divide Survey since 2014.
According to TATT’s own data sets, between fourth quarter 2014 and first quarter 2019 fixed broadband penetration to households has grown from 58.3% to 81.5%. This is a better penetration rate than the USA and UK! Given that the DDS information is dated, adherence to the procedural checks and balances enshrined in R.18 is more than merely legally proper, but all the more essential to ensure that the Fund is utilized efficiently.
Did TATT mislead the then Minister of the state of play with respect to its Universal Service Programme? Is TATT still pursuing these projects either outside of the scope defined in the Regulations or in breach of the statutory procedures demanded of them? Can the falcon hear the falconer?
Again, questions leading to more questions, ever widening the gyre.
And problems like this are apparent elsewhere, from the delayed implementation of Fixed Number Portability to the non application of enforcement of certain market entrants contrary to Section 21 of the Act.
I raise these issues not because I have a preference for the way forward in either instance. I leave it to the lawyers to determine the appropriate implementation of a solution to the IPR impasse around the CableTV channels issue.
However, these questions are live and bring increased uncertainty into a sector that has performed admirably, but is now in dire need of clear policy direction to support further investment decision making. Not only should these questions be answered, but further the situation that exists to allow for the emergence of these questions should be ameliorated. Anarchy seems to be on the sector’s doorstep.
And given Yeats’ verse, one must ask: when things fall apart, can the centre hold?
Kwesi Prescod is an ICT consultant with over 18 years experience in the sector, with stints in the commercial arena in the Caribbean, North America and Europe, as well as being involved in ICT Governance and Telecoms Regulation for over 13 years, including two years spent with TATT.