Above: Illustration by Faustin Carmona Guerrero/123RF.com

An opinion essay submitted by Kwesi Prescod of Prescod Associates.

The Telecommunications Authority of Trinidad and Tobago (TATT) began 2024 with its version of a blitz with respect to the proposed transition to Digital Terrestrial Television (DTT). DTT will allow for the reception by antenna of high quality digital television signals. No need for CableTV or the Internet! This has long been outstanding, with a process of consultation and deliberation that began in 2010.

As early as 2012, TATT proposed three pillars of its plan:

• A particular business model of a “Signal Distributor” that would aggregate broadcast streams onto its broadcast platform,
• The need to refarm existing radio frequencies (spectrum) from that allocated to traditional analogue broadcasting,
• The use of spread-spectrum technology for deployment of this system, initially laying its bucket down with the European standard DVB-T.

All three of these pillars persist in the 2024 proposal, save the abandonment of the European standard, instead favoring the alternative ATSC-3 which is deployed in Asia (South Korea) and North America.

To be clear, I agree with all aspects of this approach. Indeed, I was deeply involved in the conversations which resulted in the eventual abandonment of DVB-T as the preferred standard and replacing with the ATSC standards – first the second generation (ATSC-2) if the migration were to happen by 2017 and the third generation (ATSC-3) if the migration were to happen thereafter.

I further agree with the phased approach adopted, as this will allow for the managed refarming of spectrum, phased capital outlay for network deployment to achieve national coverage, and structured engagement of retailers in getting appropriate TV sets with inbuilt tuners into the market. I am all for TATT’s ambition to finally execute the Digital Switchover by 2026.

However, as it always seems with TATT, the approach to achieving these objectives seems characterised by procedural short cuts which undermine the optimal achievement of the policy objectives, and threaten to create chaos where there should be none.

The first indication of this concern seems apparent when one realises that TATT issued the Request for Proposals (RFP) to invite prospective parties to be Signal Distributors before it published its “completed” framework. This seems to be the first of many situations where the cart led the horse. Many will argue that the issuance of the RFP preceded the Framework publication by little more than a week, and that as such there is no harm. I would agree, if not for the details wherein the Devil usually resides.

The RFP for the Signal Distributor seeks to offer the successful party or parties one, a Type 1 Concession to operate a Wireless Telecommunications Network and two, a licence for frequencies by which they can then broadcast a radio signal. The problem is that a Digital Terrestrial Broadcasting Network (DTBN) cannot be legally defined as a telecommunications network according to the Telecommunication Act, Chap 47:31.

According to that law, “telecommunications” allows for the communication of electronic signals between end users in real time. A telecommunications network must at least have the capacity to provide telecommunications. A DTBN does NOT allow for the communication of signals between end users – it provides for the communication of signals between the Operator and end users.

Accordingly, a DTBN does not seem to meet the minimum requirements necessary to be deemed a telecommunications network. So while a telecommunications network can provide a broadcasting service, a broadcasting network is NOT a telecommunications network, in law. So, if the DTBN is not a telecommunications network, why is TATT issuing it a Type 1 Concession when this will be a contravention of the Telecommunications Act and TATT’s published procedures as outlined in its “Authorization Framework for Public Telecommunications Networks and Services and Broadcasting Services in Trinidad and Tobago”?

Indeed, in the referenced Authorization Framework TATT’s procedures are clear: free-to-air (FTA) broadcasters are issued a Type 5 Concession to provide a Broadcasting Service, and a Licence to broadcast on particular radio frequencies. If one notes carefully, FTA broadcasters do not receive a Concession to operate any network because the law did not establish the concept of a Broadcasting Network: the law only established the concept of the Broadcasting Service. DTBN’s will not provide a broadcasting service, as they are not to control the content or schedule of content being broadcast – they only provide a network, which does not legally exist!

So issuing a Type 1 Telecommunications Network Concession to a DTBN is a breach of the Act and TATT’s established published procedures.
This regulatory lacuna had been identified with the Telecommunications Act since 2013. There have been draft amendments to the Telecommunications Act prepared since 2014, which were adjusted in 2016 and again in 2021, all seeking to close this statutory lacuna. None of these amendments have been made into law however, so TATT’s issuance of the RFP is premature at best. The issuance of the Concession could thus also be illegal. The cart is set firmly before the horse again.

The confusion does not end there.
Through the establishment of a limited number of Signal Distributors, TATT is creating an economic bottleneck of suppliers in the marketplace. The exact limit of Signal Distributors that TATT is seeking to facilitate in the market is not clear in its Framework. Will the RFP have one successful bidder or multiple? That is unclear. Anyway, by creating this economic bottleneck, it is incumbent upon the economic regulator to ensure that it has the appropriate frameworks in place to treat with anti-competitive conduct of that bottleneck supplier.

This will allow the regulator to intervene to stop price gouging, tied selling, collusion between suppliers or discriminatory practices against particular customers. The Telecommunications Act does not give TATT the necessary powers to be the competition regulator of the broadcasting sector, and the Fair Trading Act specifically excludes the Telecommunications and Broadcasting sectors from its jurisdiction. So there is no competition regulation oversight of broadcasting services anywhere in the regulatory framework of Trinidad and Tobago.

Again, this regulatory lacuna had been identified with the Telecommunications Act since 2006. There have been draft amendments to the Telecommunications Act prepared since 2008, and adjusted in 2010, 2014, 2016 and again in 2021, all seeking to close this statutory lacuna. None of these amendments have been made into law however. So the establishment of this Signal Distributor without the amendment of the Act will create either a single party or multiple parties over whom TATT would have no statutory oversight – especially as the Network Concession they propose to issue would be illegal! The cart is now racing before the horse.

The confusion continues.
While TATT does have price regulatory powers for public telecommunications services, under Section 29 of the Telecommunications Act, that same section excludes broadcasting services from the remit of even the limited price regulatory regime therein established. Again, this regulatory lacuna had been identified with the Telecommunications Act since 2006. There have been draft amendments to the Telecommunications Act prepared since 2008, amended in 2010, 2014, 2016 and again in 2021, all seeking to close this statutory lacuna. None of these amendments have been made into law however.

So TATT’s Framework and RFP seeks to establish a regime where a Signal Distributor will:

• Unlawfully be given a Type 1 Public Telecommunications Network Concession although the network cannot support telecommunications,
• Be a bottleneck provider but not be under any competition regulation or oversight,
• Operate ouside the price regulatory controls of TATT

By now, the reader will be asking, why do these questions persist? After all, as I said before, this has been subject to consultations going back to 2010! Well, while the framework does treat with technology types, spectrum and broadcast signal resolution, it is eerily silent on these matters. Notably, when the “completed” framework was published in January of 2024, it did not include the compilation of responses to stakeholder comments (called Decisions on Recommendations or DoRs) associated with the last consultation round of November of 2023 – the only time this matter was consulted on since 2012!

If the DoRs were published, it would be determined if any stakeholder raised these issues, and TATT’s response would thus then answer how these issues are to be treated with. However, TATT did not issue the DoRs, so there is no clarity available. Interestingly, TATT’s published procedures on Consultations, pursuant to Section 18 (4) of the Telecommunications Act, clearly states that a Framework document is only finalised when the DoRs associated with the last round of consultation is published.

Therefore, one could argue that as the DoRs associated with the November 2023 consultation round was not published, the January publication does not represent a completed consultation. Thus, it may be posited that the Framework is in breach of TATT’s own procedures and is thus not lawful! If the Framework is unlawful it is not completed, and the RFP is issued outside of any comprehensive administrative framework established by TATT.

So the cart is not only before the horse, it is speeding away, on its own, while the horse is grazing. However, this horseless carriage does not have any engine, steering or brakes as it hurtles towards 2026. This horseless carriage is thus not a proverbial Ford, instead it is merely a high-speed projectile, running out of control, threatening calamity.

Kwesi Prescod. Photo by Maurice Burke.