Activities 2022

AMAN: Need to urgently establish an independent telecommunications regulatory body

AMAN: Need to urgently establish an independent telecommunications regulatory body

In a session involving all ICT stakeholders to discuss the new Telecommunications Law,

AMAN: Need to urgently establish an independent telecommunications regulatory body

Ramallah – The Coalition for Accountability and Integrity (AMAN) held a discussion session with relevant stakeholders on the new Telecommunications Law, published recently in the Palestinian Official Gazette. The session was designed to take notes and come up with recommendations and proposals, which would serve the public good.

In his opening statement, Mr. Issam Haj Hussein, AMAN Executive Director, welcomed the audience and made clear the purpose of the session. Advocate Bilal al-Barghouthi, Legal Advisor to AMAN, made a presentation on key provisions of the law. Al-Barghouthi stressed that the law should have been responsive to the long-term recommendations produced by AMAN, particularly in relation to governance of the telecommunication (telecom) industry. Of these, expedited action should be taken to establish an independent body in order to regulate and control the telecom sector. Under the law, the provision on potential licence revocation or suspension on national security grounds should be repealed. This could allow room for political considerations and security interference with the telecom sector.

According to Al-Barghouthi, some remarks have not been taken into account, including powers, establishment, and terms of reference of the Telecommunications Regulatory Commission (TRC). Other issues concern the protection of both consumers and investors.

Abu Daqqa: Need to represent consumers on the TRC. The TRC chair should be from outside the government

Dr. Mashhour Abu Daqqa, former Minister of Telecommunications and Information Technology, indicated that the new Telecom Law was good, but warned against failure of the law enforcement: “I have some doubts that it would not be enforced as it was the case earlier.” Abu Daqqa made some comments on the law, including Article 9 which regulates the information and communications technology (ICT) sector. In addition to identifying the dominant body, the tasks of both the TRC and the Ministry of Telecommunication and Information Technology (MoTIT) will be delineated. Competition rules will be set based on a market analysis.

According to Abu Daqqa, the TRC board structure does not include consumer representatives to ensure high quality ICT service delivery as well as appropriate and fair terms and competitive prices. In line with international practice, representation on the TRC board should include, the Ministry of Interior, not the MoTIT. To ensure independence, Abu Daqqa stressed that the TRC chair should be from outside the government apparatus. The TRC board, rather than the President, should have the power to appoint and dismiss the TRC chief executive director (CEO).

Also, Abu Daqqa raised a point about Article 16(6) on the terms of reference of the TRC staff. While these are subject to the Civil Service Law, the TRC should have its own administrative regulation. This is in common with the Palestinian Anti-Corruption Commission (PACC), Capital Market Authority, and Electricity Regulatory Council, and other independent bodies.

Al-Bardawil: The TRC must enjoy full financial and administrative independence

Bashir al-Bardawil, MoTIT Director General of Control, asserted that the telecom sector was rapidly evolving. To keep abreast with this evolution and govern the telecom industry, regulatory bodies have been established in most countries around the world. These enjoy financial and administrative independence.

“If financial and administrative independence of the TRC is not attained, the MoTIT will continue to be the dominant body,” Al-Bardawil stated.

As he put it, administrative independence is so inadequately provided for under the law. This is reflected in representation on the TRC board, which is supposed to include nine members. Al-Bardawil asserted he was afraid that, once again, the government would dominate the TRC board through the four government representatives. Besides the TRC chair who is appointed by the President, a majority of five out of nine members would eventually constitute a majority on the TRC board.

Al-Bardawil also said the Telecom Law was unclear on financial independence. Citing a negative precedent under the old law,  Al-Bardawil explained that the TRC used to prepare its own budget, but revenues were not transferred to the Public Treasury.

Al-Bardawil deplored the confusion regarding ICT within the law. Like international practice, both communications and information technology are merged into one whole (ICT). Still, the law does not make a mention of information technology at all.

Paltel Group attorney: Many open questions under the law are left without answers

Advocate Haytham al-Zughbi, Attorney of the Palestine Telecommunications Company (Paltel Group), highlighted some vague legal matters. Investors are entitled to feel that the law protects them and their investments. Rather than setting the record straight, certain legal loopholes may preoccupy courts. In this context, Article 77 of the Telecom Law provides that all that runs counter to the new law will be repealed. According to Al-Zughbi, legislative drafting does not accommodate implicit repealing. Rather, old laws should be explicitly repealed. Accordingly, the efforts made to make the current Telecom Law would not be in vain.

Al-Zughbi inquired about the deletion and replacement of Article 43 of the Palestinian Basic Law. Ruling out the legislative point of reference, this action refers regulation to the Bylaw of the Palestine Liberation Organisation.

Al-Zughbi denounced the fact that the Consumer Protection Society (CPS) was dragged into the regulated telecom sector. Consumer protection should not be applicable to the telecom sector. Rather that ensuring legal protection to the TRC, it would result in regulatory congestion. The TRC is entrusted with the protection of bilateral relations between beneficiaries and service providers. Al-Zughbi elaborated that the CPS played a role in unregulated sectors.

In relation to Article 3(9) on control, Al-Zughabi explained that regulatory bodies must be independent of political and commercial influences. These agencies should only be governed by law. Al-Zughbi stressed that Article 3(11) should be redrafted, ensuring clear control in favour of the TRC.

The law must be clear on legally prescribed violations and penalties

Al-Zughabi asserted that violations must be incremental and classified. Penalties and controls will be clearly stated. Open-ended provisions on violations and penalties are troublesome to courts, There is no punishment except as provided by law.

PACC: Enforcing the Regulation on Conflict of Interests is broader and more inclusive than that provided for by the new Telecom Law

Advocate Usamah al-Sa’di, PACC Director of Complains and Reports Department, inquired about the difference between a licence, authorisation, permit, and special approval. Multiple terms are both tumultuous and confusing. Al-Sa’di proposed that all designations be replaced by the term licence, provided that the TRC specifies the purpose of licences.

It is unclear which body nominates members on the TRC board. Al-Sa’di suggested that a representatives of the Palestine Standards Institution and CPS be on the TRC board.

On the conflict of interests under Article 8(3) and (4) of the Telecom Law, Al-Sa’di proposed that these provisions give way to enforcement of the broader and more inclusive Regulation on Conflict of Interests, issued by the PACC in 2020.  

Hani al-Alami: PA forces us to pay 7 percent of our income. The law repels rather than encourages investors!

Engineer Hani al-Alami, CEO of Coolnet, reported that the Telecom Law was somewhat obscure, particularly given a disarray of some 600 operators of wireless networks. Al-Alami expressed utter disapproval of the fact that operators and investors were not represented on the TRC board. “We receive all changes as a fait accompli,” Al-Alami commented. He indicated that the telecom sector was totally occupied and subject to the whim of Beit Il officers! The Palestinian Authority (PA) forces operators to pay 7 percent of their income. According to an amendment to the regulation on licences, in April 2021, the PA stipulated that the whole amount be paid by the end of the year, that is, 31 December 2021. Otherwise, files will be referred to the Attorney General. This way, the MoTIT exerts pressure on investors and service providers. Combined, these indicators reflect a policy that “repels operators and investors,” effectively discouraging investment. In particular, Article 20 offers the possibility of establishing private networks, enabling any bank or municipality to access to a fibre-optic internet directly and separately from service providers.

PITA: We have questions about the prohibition of the ban on competition and monopoly

Engineer Tamer Baransi, Board Chair of the Palestinian Information Technology Association of Companies (PITA), asserted that the new Telecom Law was good. However, a time frame should be set to create an independent TRC. Pressure will be maintained to accelerate the establishment of the commission. As many obstacles are placed by the Israeli occupying authorities, Baransi inquired if economic agreements with Israel were taken into consideration during the law making process. He also asked if the TRC would be controlled by the State Audit and Administrative Control Bureau.

Dr. Ayman al-Zaru inquired about the term prohibition of the ban on competition (Article 40 of the Telecom Law). Instead, the law should have explicitly provided for banning monopoly.

“Tafah AlKeil- Enough is enough” movement: Prices should not be uniform and fair conditions set to the benefit of citizens

Jihad Abdu, member of the “Enough is Enough” movement, said that the most significant recommendation to be highlighted was to take expeditious action to establish an independent TRC. Importantly, the Commission should be created along transparent lines. It will be tasked to exercise control in a clear and detailed manner. Citizens are impacted by uniform prices and lack of protection to small enterprises. “The public interest is absented in favour of mega corporations,” Abdu concluded.

Shuaibi: Centres of power within the President’s Office, rather than the government, are making laws 

Dr. Azmi Shuaibi, Consultant to AMAN’s Board of Directors for Anti-Corruption Affairs, stated that, unfortunately, basic norms of governance were no longer binding on, or provide general guidance to, decision makers. The Palestinian Basic Law establishes controls, demonstrating how the government initiates the law making process. A serious problem is affecting the government, which has turned into a political regime that abandons the Basic Law. Replacing the government, centres of power are making laws in complete secrecy. As befits these centres, laws keep the current situation under their control.

Shuaibi expressed concern about the Telecom Law, which did not make reference to Article 43 of the Basic Law. Not a piece of paper informs us of the government public policy or terms of reference before the law was approved and published. The government should have met with all stakeholders to come up with a formula for ensuring balance and protection of their rights before action was taken to approve and publish the law, which has now entered into effect!

“Regrettably, we have a miserable experience with some regulatory bodies and their powers. Still, the government has not paid attention to the problems we encountered earlier with these bodies. It continues to make the same mistakes.” Shuaibi also indicated that AMAN had already prepared a report on the concept of financial and administrative independence. The report would be agreed on, approved, and published in the Official Gazette. The government should be informed by this report before it proceeds to develop any laws on independent bodies.

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