Communications Act, 2009
Act 8 of 2009
- Published in Government Gazette no. 4378 on 16 November 2009
- Assented to on 28 October 2009
- There are multiple commencements:
- [Up to date as at 6 November 2020]
|Section 1–55, section 59–69, section 78–102, section 114–136||commenced on 18 May 2011 by Government Notice 64 of 2011|
|Section 56–58||commenced on 1 December 2016 by Government Notice 285 of 2016|
|Section 70–77, section 103–113||not yet commenced|
- [Amended by Communications Amendment Act, 2020 (Act 6 of 2020) on 15 July 2020]
1. Definitions and interpretation
2. Objects of this ActThe objects of this Act are -(a)to establish the general framework governing the opening of the telecommunication sector in Namibia to competition;(b)to provide for the regulation and control of communications activities by an independent regulatory authority;(c)to promote the availability of a wide range of high quality, reliable and efficient telecommunications services to all users in the country;(d)to promote technological innovation and the deployment of advanced facilities and services in order to respond to the diverse needs of commerce and industry and support the social and economic growth of Namibia;(e)to encourage local participation in the communications sector in Namibia;(f)to increase access to telecommunications and advanced information services to all regions of Namibia at just, reasonable and affordable prices;(g)to ensure that the costs to customers for telecommunications services are just, reasonable and affordable;(h)to stimulate the commercial development and use of the radio frequency spectrum in the best interests of Namibia;(i)to encourage private investment in the telecommunications sector;(j)to enhance regional and global integration and cooperation in the field of communications;(k)to ensure fair competition and consumer protection in the telecommunications sector;(l)to advance and protect the interests of the public in the providing of communications services and the allocation of radio frequencies to the public.
3. Establishment of Communications and Information Policy Unit
COMMUNICATIONS REGULATORY AUTHORITY OF NAMIBIA
4. Establishment of Authority
5. Objects of AuthorityThe objects of the Authority are to regulate the communications industry in Namibia in accordance with the provisions of this Act.
6. Powers of AuthorityIn order to achieve its objects the Authority has, in addition to the powers granted to it elsewhere in this Act, the power to -(a)own movable and immovable property and to deal with such property in the manner that it thinks fit: Provided that the Authority may only acquire, alienate or mortgage immovable property with the approval of the Minister;(b)conclude any contract;(c)institute and defend legal proceedings in its own name.
7. Minister may issue policy guidelines to Authority
8. Board of AuthorityThe Authority is managed by a Board that consists of five members unless a different number is determined in accordance with section 14(1)(a) of the State-owned Enterprises Governance Act, 2006 (Act No. 2 of 2006).[The State-owned Enterprises Governance Act 2 of 2006 was re-named the Public Enterprises Governance Act 2 of 2006 by Act 8 of 2015 (GG 5835).]
9. Appointment of members
10. Disqualification for appointment as memberA person is not eligible for appointment as a member of the Board, if he or she -(a)is not a Namibian citizen and not lawfully admitted to Namibia for permanent residence;(b)is not resident in Namibia;(c)is a member of Parliament, a regional council or a local authority;(d)manages, is employed by or has any financial interest in any provider of telecommunications services or any business having a financial interest in any product or industry that is or may be regulated by the Authority;(e)has been convicted of an offence, other than a political offence committed before the date of Independence of Namibia, in any country and sentenced to a term of imprisonment without the option of a fine;(f)has any other financial or other interest likely to prejudicially affect the performance of his or her duties as member of the Board;(g)has been declared as mentally ill under any law relating to mental health; or(h)is an unrehabilitated insolvent.
11. Term of office of member
12. Vacation of office
13. Chairperson of Board
14. Remuneration of members
15. Meetings of the Board
16. Committees of the Board
17. Disclosure of interests
18. Delegation of powers, and assignment of duties and functions
19. Indemnity of members and employees of AuthorityNo member, committee member or staff member of the Authority will be personally liable for any damage or loss arising out of any act done by himself or herself in good faith and in the course of his or her duties to the Authority unless such loss or damage is due to his or her wilful misconduct, dishonesty or gross negligence.
20. Chief executive officer
21. Staff of the Authority and transfer of service
22. Funds of Authority
23. Regulatory levy
24. Transfer of assets and liabilities to Authority
25. Financial yearThe financial year of the Authority is from 1 April to 31 March in the following year.
26. Annual Report
27. Public availability of information
28. Confidential information
29. Confidential communications with Authority
30. Procedural regulations
31. ReconsiderationThe Authority may, on its own motion or on a petition filed by an aggrieved party to any proceedings, reconsider any order or decision that it has made, within 90 days from the date of making that decision or issuing that order.
32. Review of actions of Authority
PROMOTION OF COMPETITION
33. Anti-competitive practices
34. Jurisdiction of Authority
35. Transfer of control of licensees and assignment of licences
36. Definition for purposes of this ChapterFor the purposes of this Chapter “licence” means a telecommunications licence, unless the context indicates otherwise and “licensee” is construed accordingly.
Part 1 – TELECOMMUNICATIONS LICENCES
37. Prohibition of provision of telecommunications services and operation of network without licence
38. Telecommunications licences
39. Selection criteria for telecommunications service licences
40. Licensing procedures
41. Tenders and competitive bidding
42. Refusal, renewal, modification and termination of licences
43. Private networks
44. Provision of telecommunications equipment
45. Automatic licence to be granted to Telecom
46. Ownership restrictions
Part 2 – DUTIES OF PROVIDERS OF TELECOMMUNICATIONS SERVICES
47. Application of this Part
48. Duties of carriers relating to promotion of competition
50. Sharing of infrastructure
51. Prohibition against restraint of resale
52. A carrier may not provide telecommunications services on terms that discriminate against, or give undue preference to any user, reseller or provider of telecommunications services on the grounds that -(a)that user, reseller or provider renders any service or class of service or does not provide any service or class of service to the public;(b)that user, reseller or provider uses or does not use any service or class of service rendered by that carrier or an affiliate of that carrier that is not reasonably related to the service in question; or(c)that user, reseller or provider makes use of any service rendered by a third person.
Part 3 – TARIFFS AND ACCOUNTING
53. Rates and tariffs
54. Cost Accounting Procedures
55. Reporting requirements
Part 4 – UNIVERSAL SERVICE
56. Universal Service Fund
57. Provision of universal service
58. Universal service report
Part 5 – SPECIAL RIGHTS OF CARRIERS
59. Applicability of this Part
60. Entry upon and construction of lines across any landA carrier may, for the purposes of provision of telecommunications services, enter upon any land, including any street, road, footpath or land reserved for public purposes, and any railway, and construct and maintain a telecommunications facility upon, under, over, along or across any land, street, road, footpath or waterway or any railway, and alter or remove the same, and may for that purpose attach wires, stays or any other kind of support to any building or other structure.
61. Underground pipes for telecommunication service purposes
62. Pipes under streetsA carrier may, after reasonable notice in writing to the local authority or person owning or having the care and maintenance of any street, road or footpath, construct and maintain in the manner specified in that notice any pipes, tunnels or tubes required for telecommunication facilities under any such street, road or footpath, and may alter or remove the same, and may for such purposes break or open up any street, road or footpath and alter the position thereunder of any pipe (not being a sewer drain or main) for the supply of water, gas or electricity: Provided that the local authority or person to whom any such pipe belongs or by whom it is used is entitled at all times while any work in connection with the alteration in the position of that pipe is in progress, to supervise that work, and the carrier must pay all reasonable expenses incurred by any such local authority or person in connection with any alteration or removal under this section or any supervision of work relating to such alteration.
63. Removal of pipes and facilities
65. Trees obstructing telecommunication facilities
66. Height or depth of cables and facilities
67. Railways and electrical works
68. Carriers to perform functions in prescribed manner
69. Authority to adjudicate in disputes between owners of property and carriers
Part 6 – INTERCEPTION OF TELECOMMUNICATIONS
70. Interception centres
71. Duties relating to interception
72. Assistance by telecommunications service providers and compensation therefor
73. Duty to obtain information relating to customers
74. Functions of Authority relating to interception
75. Disclosure of informationAny person who -(a)performs any service relating to interception contemplated in this Part or information stored in terms of this Part and who reveals any information or performs any other action that will or is calculated to, have the effect that the interception or collection of information will not provide the information sought;(b)performs any service relating to interception contemplated in this Part or information stored in terms of this Part and who discloses or in any other manner makes use of information obtained by means of the activities in question for another purpose than the purpose for which the interception or collection is intended;(c)while performing any service relating to the provision of telecommunications services, provides information or permits information to be provided to an interception centre unless he or she has taken all reasonable steps to ensure that the information concerned is part of lawful interception or monitoring as contemplated in section 70(8);(d)performs or has performed any service relating to the provision of telecommunications services (whether as an employee of the provider concerned or otherwise) and reveals any information obtained while performing such service or obtained by virtue of his or her employment with a provider of telecommunications services, otherwise than -(i)as required by this Act or any other law;(iA)subject to any procedural requirements that may be prescribed and any other law, information that is necessary to investigate an offence;[subparagraph (iA) inserted by section 6 of Act 6 of 2020](iB)the information is required because it is necessary to locate a person and it is necessary to locate the person concerned in the public interest, the national interest of Namibia or for the purposes of a criminal investigation or in the interest of the missing person;[subparagraph (iB) inserted by section 6 of Act 6 of 2020](iC)where the person concerned has consented or where it is reasonable under the circumstances to assume that the person would have consented and it is due to the urgency of the request or for another reason not possible to obtain the consent ofthe person concerned: Provided that a general consent in a contract is not valid consent for the purposes of this subparagraph;[subparagraph (iC) inserted by section 6 of Act 6 of 2020](ii)for technical or administrative purposes under circumstances that will not compromise the confidentiality of the information, as may be required to ensure the efficient rendering of thc services concerned; or[The word “the” is misspelt in the Government Gazette, as reproduced above.](iii)in order to comply with an order of any court,commits an offence and is liable on conviction to a fine of N$100 000 or imprisonment for a period of ten years or both such fine and such imprisonment.
76. Equipment relating to interception
77. Regulations relating to interception
Part 7 – MISCELLANEOUS MATTERS
78. Determination of dominant position
79. Consumer protection
80. Equipment approvals and standards
81. Numbering administration
82. Definition for the purposes of this ChapterFor the purposes of this Chapter, the term “licence” refers to a broadcasting licence and “licensee” is construed accordingly.
83. Prohibition of the provision of broadcasting services without licence
84. Categories of broadcasting licences
85. Issue of broadcasting licences
86. Conditions on broadcasting licences
87. Duration of, renewal and lapsing of broadcasting licence
88. Payment of broadcasting licence feesIf any prescribed fees are not paid by a licensee on the date on which such fees are payable and remain unpaid after the expiry of a period of seven days after the written notice by the Authority to the licensee to remedy the default, the Authority may declare the licence to be forfeited.
89. Broadcasting code
90. Supervision by Authority
91. Furnishing of financial statements
92. Broadcasting licences issued under Act 4 of 1992
93. Application of this chapter to Namibian Broadcasting Corporation
POSTAL SERVICE LICENCES
94. Definition for purposes of this ChapterIn this Chapter unless the context indicates otherwise, “licence” means a postal licence and “licensee” is construed accordingly.
95. Prohibition of the provision of postal services without a licence
96. Postal service licences
97. Transfer of postal service licences
98. Regulations relating to postal service licencesThe Authority, with the approval of the Minister, may make regulations -(a)prescribing the form and procedure to be followed when a person applies for a postal service licence;(b)prescribing any fees to be paid for an application for a postal service licence, any deposit payable in respect of an application for a postal service licence and any fees payable by a licensee in respect of a licence;(c)prescribing any services that may only be provided by a prescribed holder of a postal service licence in order to compensate that holder for the provision of other compulsory or unprofitable services;(d)prescribing any service involving the transport of packages or documents to be postal services for the purposes of this Chapter;(e)prescribing anything that in terms of this Chapter may or must be prescribed.
REGULATION OF RADIO SPECTRUM
99. Control of radio spectrum
100. Frequency band plans
101. Spectrum licences, certificates and authorities
102. Control of possession of radio apparatus
ESTABLISHMENT AND INCORPORATION OF .NA DOMAIN NAME ASSOCIATION
103. Establishment of AssociationA juristic person to be known as the .na Domain Name Association is hereby established -(a)with the object of obtaining all rights necessary for the purposes of administering the .na name space;(b)for the purpose of assuming responsibility for the .na domain name space as from a date determined by the Minister by notice in the Gazette.
104. Incorporation of Association
105. Association’s memorandum and articles of association
106. Board of directors of Association
107. Staff of Association
108. Licensing of registrars and registries
109. Functions of Association
110. Finances of Association
111. ReportsAs soon as practicable after the end of every financial year, the Board must submit a report on its activities during that year to the Minister who must table that report in Parliament.
112. Regulations regarding AssociationThe Authority may, with the approval of the Minister, make regulations regarding -(a)the requirements which registries and registrars must meet in order to be licensed, including objective standards relating to operational accuracy, stability, robustness and efficiency;(b)the circumstances and manner in which registrations may be assigned, registered, renewed, refused, or revoked by the registries with due regard to the express recognition of the right of groups and members of groups within Namibia to identify with, use or communicate cultural, linguistic, geographical, indigenous or any other expressions of heritage including any visual or audible elements or attributes thereof;(c)pricing policy;(d)provisions for the restoration of a domain name registration and penalties for late payments;(e)the terms of the domain name registration agreement which registries and registrars must adopt and use in registering domain names, including issues in respect of privacy, consumer protection and alternative dispute resolution;(f)processes and procedures to avoid unfair and anti-competitive practices, including bias to, or preferential treatment of actual or prospective registrants, registries or registrars, protocols or products;(g)requirements to ensure that each domain name contains an administrative and technical contact;(h)the creation of new sub-domains;(i)procedures for ensuring monitoring of compliance with the provisions of this Act and the regulations provided for in this Chapter, including regular .na domain name space technical audits;(j)such other matters relating to the .na domain name space as it may be necessary to prescribe to achieve the objectives of this Chapter; and(k)policy to be applied by the Association.
113. Alternative dispute resolution
114. Regulatory offences
115. Manner of prosecuting regulatory offences
116. Enforcement order
117. General offences
118. Forfeiture of equipment or apparatus
119. Production of books and records
120. Summoning of witnessesWhen in the opinion of the Authority, it is likely that any person can give evidence concerning any matter that is relevant to any matter considered at any hearing held by the Authority in terms of this Act, the Authority may issue a summons in the prescribed form instructing that person to attend a hearing of the Authority on a date, time and place indicated in that summons.
121. Power to monitor compliance with the provisions of this Act
122. Investigations by AuthorityThe Authority may, on the application of any interested person or on its own motion, conduct investigations with respect to any activity prohibited by this Act, or for the purposes of doing anything required or permitted to be done under this Act.
124. Special investigators
125. General powers of inspectors
126. Power to enter and search
127. Investigation of offences
130. National security
131. Complaints by users
132. Mediation proceedings
133. Act to bind StateThis Act binds the State.
134. Repeal and amendment of laws
|"53.||Communications Regulatory Authority of Namibia||Communications Act, 2009 (Act No. 8 of 2009)”|