Cook Islands Sessional Legislation

Domain administration

58. Domain name registration

(1) Subject to subsection (2), the Authority or one or more persons nominated by it (“nominated person”) must assume responsibility and thereafter be responsible for the allocation and registration of .ck domains.
(2) Any assumption of responsibility for the allocation and registration of domains by the Authority or any nominated person is subject to any necessary approvals and consents being given by the Internet Assigned Numbers Authority.
(3) The Authority or any nominated person must comply with any prescribed procedures, conditions of consent, and terms agreed with the Internet Assigned Numbers Authority.
(4) The Authority must monitor compliance by any nominated person with the requirements of this section.

59. Transfer of responsibility for domains

(1) Telecom Cook Islands Limited must, on written request by the Authority, cooperate with the Authority to transfer to the Authority or to any nominated person, within 12 months–

• (a) the register of .ck domains; and
• (b) the systems and processes for allocation and registration of .ck domains.

(2) Telecom Cook Islands Limited will continue to be responsible for the allocation and registration of .ck domains until the transfer of the register and systems and processes for allocation and registration of .ck domains to the Authority or a nominated person has been completed.
(3) For the purposes of subsection (1), Telecom Cook Islands Limited must take all reasonable steps to procure any necessary approval or consent of any relevant parties, including without limitation the Internet Assigned Numbers Authority.

60. Domain registration rules, etc.

(1) The Authority may make written determinations or issue directions relating to the registration and allocation of domains by Telecom Cook Islands Limited or any nominated person.
(2) The Authority or any nominated person—

• (a) may make rules, guidelines and procedures for the registration and allocation of domains under its responsibility, including without limitation in relation to applications, transfers, complaints and dispute resolution; and
• (b) must ensure that its rules, guidelines and procedures are transparent and non-discriminatory; and
• (c) may charge reasonable fees to cover its costs for the provision of its services; and
• (d) must take all reasonable steps to avoid and manage any actual or perceived conflict of interest.

Part 8

Radio spectrum
Subpart 1 – Spectrum Management

61. Advisory role

The Authority must provide advice to the Minister, on request by the Minister, on matters relating to the use and management of the radio frequency spectrum.

62. Management of radiofrequency spectrum

(1) The Authority has the exclusive power to allocate and assign all frequencies in the radio frequency spectrum in the Cook Islands.
(2) No person may use any radio frequencies, including for transmitting or receiving radio communications, in a manner that is inconsistent with or that contravenes any plan, rule, licence or direction made by the Authority.
(3) The Authority must allocate and assign radio frequency spectrum and must determine matters relating to the transmission and reception of radio communications (whether by satellite, terrestrial, or other means) in accordance with plans issued under this Part.
(4) The Authority may, on request by the Minister or on its own initiative, investigate or audit any allocation or assignment of radio frequency spectrum in the Cook Islands and the use of that spectrum.
(5) The Authority must establish and maintain on its public website a register recording allocations and assignments of radio frequency spectrum in the Cook Islands.

63. Management principles

In performing its functions and duties and exercising its powers under this Part, the Authority must endeavour to ensure that radio frequency spectrum is managed and used in a manner that–

(a) is open, non-discriminatory, competitively neutral, and transparent; and
(b) relies, to the extent it is reasonable to do so, on voluntary industry standards and self-regulation instead of regulations; and
(c) is consistent with the Cook Islands’ international obligations, including without limitation applicable rules or standards of the International Telecommunications Union; and
(d) is economically efficient and permits transition to new technologies and services, taking into account investment in existing equipment configured for specific radio frequencies and the cost of migration to other radio frequencies; and
(e) meets the reasonable needs of government departments and agencies, businesses and individuals in the Cook Islands.

64. Spectrum planning, allocation, and assignment

(1) The Authority must prepare, issue, and maintain a national radio frequency Spectrum Plan.
(2) A Spectrum Plan must—

• (a) divide into such number of frequency bands as the Authority thinks appropriate so much of the spectrum as the Authority thinks necessary for the purpose of regulating radiocommunications under this Act; and
• (b) comply with a direction made by the Minister under subsection (3); and
• (c) state the general purpose or purposes for which each band may be used (which may be or include a future use).

(3) The Minister may, by notice in writing, after consulting with the Authority, designate part of the radio frequency spectrum to be used primarily for the general purposes of defence, law enforcement and emergency services.
(4) Before issuing a Spectrum Plan, the Authority must publish a draft version of the proposed plan and consult on it by—

• (a) giving notice of the proposed plan in a manner the Authority considers appropriate to bring it to the attention of those it considers likely to be affected by it; and
• (b) allowing affected parties a reasonable opportunity to make submissions on the proposed plan; and
• (c) considering all relevant submissions received.

65. Frequency band plans

(1) The Authority may, if it considers it to be necessary, prepare, issue, and maintain Frequency Band Plans.
(2) A Frequency Band Plan—

• (a) must make provision in relation to the purpose or purposes for which the band or bands to which it relates may be used;
• (b) may be of general application or may be limited as provided in the plan; and
• (c) must not be inconsistent with the Spectrum Plan.

(3) Before issuing a Frequency Band Plan, the Authority must publish a draft version of the proposed plan and consult on it by—

• (a) giving notice of the proposed plan in a manner the Authority considers appropriate to bring it to the attention of those it considers likely to be affected by it; and
• (b) allowing affected parties a reasonable opportunity to make submissions on the proposed plan; and
• (c) considering all relevant submissions received.

66. Compliance with International Radio Regulations

(1) Every person who transmits radio waves in the Cook Islands must comply with the International Radio Regulations.
(2) In this section, “International Radio Regulations” means the Radio Regulations annexed to the International Telecommunications Convention, made at Geneva in 1992; and any revisions of, or any regulations made in amendment to, or substitution for, those regulations.

67. Vacation of spectrum with compensation

(1) The Authority may, by written notice, require a person to vacate any radio frequency spectrum or may assign that spectrum to a different person, if the Authority considers that—

• (a) vacation or reassignment is necessary or expedient—
  • (i) to further the long term benefit of end users; or
    • (ii) to comply with the laws of the Cook Islands or any international treaties, commitments or standards legally binding on the Cook Islands; and
• (b) any hardship that is likely to result to a licensee is reasonably justified.

(2) At least 90 days before requiring a person to vacate spectrum under subsection (1), the Auty must give thee the person notice in writing of the Authority intention to require the person to vacate that spectrum.
(3) A person who has received noticer subsection (2) may apply to the Court for determination oion of—

• (a) the legality of the notice to vacate; and
• (b) the reasonableness of the compensation proposed; and
• (c) the reasonableness of the time period within which compensation must be paid.

(4) The Authority must within a reasonable period after requiring a person to vacate spectrum—

• (a) to the extent it is practicable to do so, assign to the person any other available spectrum that is appropriate to enable that person to continue its business without unreasonable cost or disruption; and
• (b) pay, or procure that persons to whom the relevant spectrum is re-assigned pay, reasonable compensation to the person required to vacate the spectrum.

(5) The Authority must allow any person required under this section to vacate any spectrum a period of time to do so that is reasonable having regard to that person’s existing usage and technical requirements.

68. Vacation of spectrum without compensation

(1) The Authority may, by written notice, require a person to vacate radio frequency spectrum without compensation or may assign that spectrum to a different person without compensation, if the person first mentioned–

• (a) agrees to vacate it without compensation; or
• (b) has failed to comply with this Act, conditions of its spectrum licence, or a determination of the Authority in a material respect and has failed to remedy that failure within a reasonable time following service of written notice specifying the failure and requiring it to be remedied; or
• (c) in connection with the assignment of the spectrum to it, made a false statement of material fact or omitted to state a material fact; or
• (d) has entered into liquidation or taken any action for its voluntary winding-up or dissolution, or is the subject of any order for its compulsory winding-up or dissolution; or
• (e) has entered into receivership (except if the Authority is satisfied that the person is likely to remain in full compliance with the terms and conditions of the assignment despite entering into receivership).

(2) The Authority may, by written notice, require a person to vacate radio frequency spectrum without compensation or may assign that spectrum to a different person without compensation, if the Authority has determined, following public consultation for not less than 90 days, that—

• (a) the spectrum is not being used to an appreciable extent, either nationally or in a particular geographic area; and
• (b) the person to whom the notice applies has not committed to use the spectrum to an appreciable extent; and
• (c) other persons propose to make appreciable use of the spectrum.

(3) The Authority must allow any person required under this section to vacate any spectrum a period of time to do so that is reasonable having regard to the person’s existing usage and technical requirements.
(4) A person who has received notice under subsection (1) or (2) may apply to the Court for determination of—

• (a) the legality of the notice to vacate; and
• (b) the reasonableness of the compensation proposed; and
• (c) the reasonableness of the time period within which compensation must be paid.
  

Subpart 2 – Radiocommunications Licensing

69. Requirement for a radiocommunications licence

(1) A person must not operate a radiocommunications device, other than exempt apparatus, in the Cook Islands except in accordance with—

• (a) a spectrum licence; or
• (b) an apparatus licence; or
• (c) a class licence; or
• (d) an applicable radiocommunications exemption.

(2) A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

(3) A person must not have a radiocommunications device, other than exempt apparatus, in his or her possession for the purpose of operating the device otherwise than in accordance with—

• (a) a spectrum licence; or
• (b) an apparatus licence; or
• (c) a class licence; or
• (d) an applicable radiocommunications exemption.

(4) A person is presumed, in the absence of evidence to the contrary, to have a radiocommunications device in his or her possession for the purpose of operating the device if—

• (a) the device is not in the person’s possession for the purpose of supply to another person; and
• (b) the device can be operated merely by doing one or more of the following:
  • (i) connecting the device to an electric power supply:
  • (ii) connecting the device to an antenna:
  • (iii) switching on the device:
  • (iv) switching on any other device relevant to the device’s operation:
  • (v) adjusting any of the device’s external controls.

(5) A person who, without reasonable excuse, contravenes subsection (3) commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

70. Radiocommunication within territorial limits

(1) No person may operate any radio transmitter on any merchant ship or aircraft of any nationality or registration, or on any foreign ship of war or foreign military aircraft, within the territorial limits of the Cook Islands except in accordance with—

• (a) an apparatus licence or a spectrum licence; or
• (b) a licence or authority for that transmitter issued by or on behalf of a member state of the International Telecommunications Union; or
• (c) an applicable radiocommunications exemption.

(2) A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

71. Authority may issue radiocommunications licences

(1) The Authority may issue any of the following—

• (a) a spectrum licence authorising the licensee to use specified parts of the radio frequency spectrum in specified geographic areas:
• (b) an apparatus licence authorising the licensee to use a specified a radiocommunications device within specified parts of the radio frequency spectrum in specified geographic areas:
• (c) a class licence.
  

(2) The Authority must, in deciding whether to issue any apparatus licence or spectrum licence have regard to the requirements of the Spectrum Plan, any applicable Frequency Band Plan, and any Radiocommunications Licensing Rules.
(3) An apparatus licence or a spectrum licence may be issued on such terms and conditions as the Authority thinks fit.

72. Application for spectrum licence or application licence

(1) A person may apply in writing to the Authority for a spectrum licence or an apparatus licence—

• (a) in a form approved by the Authority; and
• (b) providing information of the kinds specified by the Authority in relation to applications for licences of the relevant type; and
• (c) on payment of the prescribed fee, if any.

(2) The Authority may request that an applicant for a licence under subsection (1) provide any additional information the Authority may reasonably require to determine the application.

73. Right to operate under class licence

(1) The Authority may issue a class licence authorising any person or class of persons to engage in specified conduct in relation to radio frequency spectrum, including:

• (a) to operate a radiocommunications device of a specified kind:
• (b) to operate a radiocommunications device for a specified purpose:
• (c) to operate a radiocommunications device of a specified kind for a specified purpose.

(2) The Authority must, in deciding whether to issue any class licence, have regard to the requirements of the Spectrum Plan, any applicable Frequency Band Plan, and any Radiocommunications Licensing Rules.
(3) A class licence may be issued on such terms and conditions as the Authority thinks fit.
(4) Operation of a radiocommunications device is authorised by a class licence only if it is done in accordance with the terms and conditions of the licence.

74. Radiocommunications Licensing Rules

(1) The Minister may, acting on the advice of the Authority, make rules specifying—

• (a) the types of spectrum licences that may be issued and eligibility criteria; and
• (b) the types of apparatus licences that may be issued and eligibility criteria; and
• (c) the types of class licences that may be issued and eligibility criteria; and
• (d) technical requirements applying to the use of particular parts of the radiofrequency spectrum, particular devices, particular apparatus licences, particular spectrum licences, or particular class licences; and
• (e) the process for applying for a spectrum licence or apparatus licence; and
• (f) a method for selecting applicants (which may include competitive tender or auction) in circumstances where applications for spectrum licences or apparatus licences exceed the licences available; and
• (g) a notification process, if a person proposes to operate a radiocommunications device under a class licence; and
• (h) conditions of spectrum licences, apparatus licences, and class licences; and
• (i) limits on the aggregate of the parts of the spectrum that, as a result of the allocation or transfer of spectrum licences, may, in total, be used by members of a specified group of persons; and
• (j) the circumstances in which, and limits within which, any exemption from the rules (“radiocommunications exemption”) may apply.

(2) Before making rules under subsection (1), the Minister must cause to be published a draft version of the proposed rules and consult on them by—

• (a) giving notice of the proposed rules in a manner the Minister considers appropriate to bring them to the attention of persons that he or she considers likely to be affected by them; and
• (b) allowing affected parties a reasonable opportunity to make submissions on the proposed rules; and
• (c) considering all relevant submissions received.

75. Radiocommunications licence fees

(1) The Authority may charge a fee for—

• (a) making an application for a spectrum licence or apparatus licence; and
• (b) the right to use spectrum under a spectrum licence; and
• (c) the right to use apparatus under an apparatus licence.

(2) The amount of the fees chargeable under this section, or method of determining the amount of fees, must be prescribed in regulations made under section 109.
(3) The amount of any fee that may be prescribed in a regulation under section 109 is not limited by reference to the amount of administrative or other costs incurred or likely to be incurred in relation to the application or right to which the fee relates.
(4) A regulation under section 109 may provide for any of the following:

• (a) the amount of any fee:
• (b) fees to be charged by reference to a scale set out in the regulation:
• (c) a method of determining fees:
• (d) the payment of different fees by different persons or different classes or descriptions of person:
• (e) fees that must be paid annually or at different intervals:
• (f) the reduction, waiver or refund, in whole or in part, of any fee, either upon the happening of a certain event or in the discretion of the Authority.

(5) The amount of any unpaid fee is recoverable in the Court as a debt due to the Crown.

76. Register of radiocommunications licences

(1) The Authority must establish and maintain a register recording details about licences issued under this Part that the Authority considers necessary or convenient for the purposes of this Act.
(2) The register must be accessible to the public during office hours and may be maintained in electronic format.
(3) The register must, subject to subsection (4), include—

• (a) In relation to a spectrum licence—
  • (i) the licensee’s name and address; and
  • (ii) the dates the licence comes into effect and expires, and
• (b) In relation to an apparatus licence—
  • (i) the licensee’s name and address; and
  • (ii) the dates the licence comes into effect and expires; and
  • (iii) particulars of the apparatus the licensee is permitted to operate, and
• (c) In relation to a class licence, details that the Authority considers necessary or convenient for the purposes of this Act.

(4) The Authority may exclude from the register any details of any licence issued under this Part, or any licensee, if the Authority is satisfied it would not be in the national interest (for example, for defence or security reasons) to make those details public.

77. Radiocommunications licence conditions

(1) Spectrum licences, apparatus licences, and class licences may be issued subject to any conditions that the Authority thinks fit.
(2) It is a condition of any licence issued under this Part that the holder must—

• (a) comply with this Act; and
• (b) pay any applicable licence fees; and
• (c) comply with any applicable determination of the Authority.

78. Transfer of spectrum licence or apparatus licence

(1) The licensee of a spectrum licence or an apparatus licence may transfer the licence to another person, if the Authority consents to the transfer.
(2) An application to the Authority for consent to a transfer of licence must—

• (a) be submitted in writing, in the prescribed form, if any; and
• (b) set out any information that the Authority may require; and
• (c) be signed by authorised representatives of the licensee and transferee.

(3) In deciding whether to consent to the transfer of a licence, the Authority must have regard to all matters that it considers relevant.
(4) The Authority must, if it consents to the transfer of a licence—

• (a) revoke the existing licence; and
• (b) issue a new licence in the name of the transferee; and
• (c) record the particulars of the new licence in the register.

(5) A decision by the Authority to give or deny consent under this section is reviewable, by a Review Panel constituted under the Competition and Regulatory Authority Act 2019—

• (a) on application by the licensee, if the decision is to deny consent; or
• (b) on application by any other person who is materially affected by the decision, if the decision is to give consent.

79. Authorisation of third parties

(1) A spectrum licensee may, after complying with subsection (3), authorise another person, in writing, to use spectrum under the licence.
(2) An apparatus licensee may, after complying with subsection (3), authorise another person, in writing, to use spectrum or operate a radiocommunications device under the licence.
(3) A spectrum licensee or apparatus licensee must not authorise another person to use spectrum or operate a radiocommunications device if—

• (a) doing so would be inconsistent with—
  • (i) this Act; or
  • (ii) any term or condition of the relevant licence; or
  • (iii) any determination by the Authority; or
• (b) the latter person holds a licence of the same type; or
• (c) the latter person has previously been issued a spectrum licence or an apparatus licence which has in the last 2 years been suspended or cancelled.

(4) A spectrum licensee or apparatus licensee who authorises another person to use spectrum or operate a radiocommunications device must—

• (a) retain a copy of the authorisation; and
• (b) provide a copy of the authorisation to the Authority not less than 10 working days before it is proposed to commence.

(5) The Authority may, by written notice to a licensee, direct the licensee to revoke the authorisation of another person to use spectrum or operate a radiocommunications device if the Authority is satisfied that the person is ineligible to be authorised or has contravened—

• (a) this Act; or
• (b) any term or condition of the relevant licence; or
• (c) any determination by the Authority.

(6) A licensee must revoke an authorisation as soon as practicable and, in any event, within 7 days after service of a notice under subsection (5).

80. Variation of spectrum licence, apparatus licence

(1) The Authority may, after complying with subsection (3), by written notice given to the licensee, vary a spectrum licence or an apparatus licence, by—

• (a) including one or more further conditions; or
• (b) revoking or varying any conditions of the licence,

(2) A notice under subsection (1) must give the reasons for varying the licence.
(3) The Authority must not exercise its powers under subsection (1) unless—

• (a) the Authority has given the licensee 90 days’ notice of the proposed variation, has provided the licensee with the Authority’s reasons in writing for making the proposed variation, and has given due consideration to any representations made by or on behalf of the licensee; or
• (b) the Authority is satisfied that the licensee has contravened a condition of the licence or has in any other way contravened this Act and has not remedied that contravention within a reasonable period after being notified of it by the Authority; or
• (c) the licensee has agreed in writing to the variation.

(4) A decision by the Authority to give a notice under subsection (1) is reviewable by a Review Panel constituted under the Competition and Regulatory Authority Act 2019, on application by the licensee.

81. Suspension, cancellation and surrender of spectrum licence, apparatus licence

(1) The Authority may, after complying with subsection (2), by written notice given to the licensee—

• (a) suspend a spectrum licence or an apparatus licence for a specified period; or
• (b) cancel a spectrum licence or an apparatus licence.

(2) A notice under subsection (1) must give the Authority’s reasons for suspending or cancelling the licence.
(3) The Authority must not exercise its powers under subsection (1), unless it is satisfied that the licensee has, without reasonable excuse—

• (i) materially contravened a term or condition of the licence or in any other way contravened this Act; or
• (ii) materially contravened or failed to comply with a lawful direction, determination, or order by the Authority; or
• (iii) operated a radiocommunications device in material contravention of any other law of the Cook Islands; or
• (iv) operated a radiocommunications device in the course of materially contravening any other law of the Cook Islands.

(4) The Authority may, at any time, revoke a suspension of licence by written notice given to the licensee.
(5) A licensee may, at any time, surrender a spectrum licence or an apparatus licence by written notice given to the Authority.
(6) A decision by the Authority to give a notice under subsection (1) is reviewable by a Review Panel constituted under the Competition and Regulatory Authority Act 2019, on application by the licensee.

82. Variation and cancellation of class licence

(1) The Authority may, after complying with subsection (2), by notice published in the Gazette—

• (a) vary a class licence, by—
  • (i) including one or more further terms or conditions; or
  • (ii) revoking or varying any terms or conditions of the licence; or
• (b) cancel a class licence.

(2) The Authority must not exercise its powers under subsection (1), unless the Authority has—

• (a) given notice of the proposed variation or cancellation in a manner it considers appropriate to bring the proposed variation or cancellation to the attention of those it considers likely to be affected by it; and
• (b) allowed an opportunity for persons it considers likely to be affected by the proposed variation or cancellation to make submissions on the proposed variation or cancellation; and
• (c) considered all relevant submissions received.

83. Expiry of spectrum licence

(1) A spectrum licence comes into effect on the date it is issued or on any date specified in the licence.
(2) A spectrum licence has effect until—

• (a) the expiry of the term specified in the licence, which may not exceed 15 years; or
• (b) it is earlier revoked by the Authority.

(3) The Authority must, not less than 3 months before the expiry of a spectrum licence, give notice, by means of the Internet and in any other manner it considers appropriate—

• (a) stating the expiry date of the spectrum licence; and
• (b) describing the parts of the spectrum to which the licence relates; and
• (c) inviting expressions of interest from persons who wish to apply for a spectrum licence in respect of the relevant parts of the spectrum.

(4) The Authority must have regard to any applicable Radiocommunications Licensing Rules when deciding whether to issue one or more spectrum licences in place of a spectrum licence that has expired.
(5) A person who held a spectrum licence that has expired or been revoked may apply for a new spectrum licence.
(6) The Authority may issue a new spectrum licence to a person who held a spectrum licence that has expired or been revoked but is not obliged to do so.

84. Expiry of apparatus licence

(1) An apparatus licence comes into effect on the date it is issued or on any later date specified in the licence.
(2) An apparatus licence has effect until—

• (a) the expiry of the term specified in the licence, which may not exceed 5 years; or
• (b) it is earlier revoked by the Authority.

(3) During the period beginning 6 months before expiry of an apparatus licence and ending 60 days after it expires, the licensee of an apparatus licence may apply to the Authority for a new apparatus licence.
(4) A person who held an apparatus licence that has expired or been revoked may apply for a new spectrum licence.
(5) The Authority may issue a new apparatus licence to a person who held an apparatus licence that has expired or been revoked but is not obliged to do so.

Subpart 3 – Interference

85. Interference generally

(1) In this subpart, “interference” means interference to, or with, radiocommunications (including the functions or uses of a radio transmitter or radio receiver) that is attributable (whether wholly or in part, and whether directly or indirectly) to an emission of electromagnetic energy by electrical or electronic apparatus or equipment of any kind.
(2) A person must not, without reasonable excuse, knowingly or recklessly do any act or thing that is likely to result in substantial interference to radiocommunications or likely to substantially disrupt or disturb radiocommunications.
(3) A person who contravenes subsection (2) commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

86. Harmful interference

(1) In this section, “harmful interference” means interference that—

• (a) seriously degrades, obstructs, or repeatedly interrupts radiocommunications; or
• (b) endangers the functioning of a radionavigation service, or of other safety services; or
• (c) is likely to endanger the safety of another person or cause another person to suffer or incur substantial loss or damage.

(2) A person must not, without reasonable excuse, do any act or thing that the person knows or ought reasonably to know is likely to cause harmful interference.
(3) A person who, without reasonable excuse, contravenes subsection (2) commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

87. Notice to modify or cease operation

(1) In this section “interfering equipment” means any electrical conductor, or electrical or electronic apparatus or equipment of any kind, that causes interference to radiocommunications.
(2) The Authority may issue a notice requiring a person to modify or cease operating any interfering equipment.
(3) Any person who fails, without reasonable excuse, to comply with a notice given under subsection (2) within 24 hours of receipt of that notice commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

(4) The Court may, upon application by or on behalf of the Authority, order the forfeiture to the Crown of any interfering equipment that has been involved in any contravention or attempted contravention of this Act, whether or not proceedings have been taken against any person in respect of the contravention or attempted contravention.

88. Interference disputes

(1) For the purpose of resolving a dispute regarding interference, the Authority may—

• (a) convene a meeting with the parties to attempt to resolve the dispute; and
• (b) if the parties fail to resolve the dispute by agreement between them within a reasonable time, request the parties to appoint an arbitrator to settle the dispute in accordance with the provisions of the Arbitration Act 2014; and
• (c) if the parties fail to comply with a request under paragraph (b) within a reasonable time, appoint an arbitrator to settle the dispute in accordance with the provisions of that Act.

(2) If a dispute has not been settled under subsection (1) within a period determined by the Regulator or otherwise within a reasonable time–

• (a) the Authority may, after allowing the parties a reasonable opportunity to make submissions on the dispute between them, and considering any relevant submissions made, issue a written determination to resolve the dispute; and
• (b) the parties must comply with any determination issued under paragraph (a).

(3) A determination under subsection (2) is reviewable by a Review Panel constituted under the Competition and Regulatory Authority Act 2019, on application by a party to the dispute.

Subpart 4 — Certificates of Competency

89. Certificates of competency

(1) The Authority may issue a certificate of competency in the operation of radiocommunications to any person who in the opinion of the Authority is eligible to hold the certificate and who—

• (a) has successfully completed the examinations prescribed by the Authority in relation to the certificate; or
• (b) holds a certificate issued by an overseas counterpart of the Authority that is equivalent to the certificate.

(2) The Authority may issue any of the following certificates of competency:

• (a) general radiotelephone operator certificate:
• (b) restricted radiotelephone operator certificate:
• (c) radiotelegraph operator special certificate:
• (d) general amateur operator certificate:
• (e) limited amateur operator certificate:
• (f) novice amateur operator certificate:
• (g) radiocommunications operator general certificate for the maritime mobile service:
• (h) any other certificate provided for in regulations made by the Queen’s Representative, by Order in Executive Council, on the advice of the Minister.

(3) A certificate issued under this section may be in any form and subject to any terms and conditions that the Authority may from time to time determine.

90. Examinations and rules for certificates

The Authority may from time to time prescribe in relation to any certificate of competency—

(a) qualifying examinations; and
(b) criteria for eligibility; and
(c) rules to be observed by the holder of a certificate.

91. Suspension and revocation of certificate

The Minister may, by notice in writing to a certificate holder, suspend or revoke a certificate of competency if—

(a) the certificate holder has breached a term or condition of the certificate and failed to remedy the breach within a reasonable time of being notified of it; or
(b) the certificate holder has contravened, or been knowingly concerned in a contravention of, this Act or a determination by the Authority; or
(c) the certificate holder has failed to pay prescribed fees; or
(d) the Authority has advised the Minister that the holder has ceased to be eligible to apply for, or qualified to hold, the certificate; or
(e) the Minister considers that it is desirable in the public interest to do so.

Part 9

Technical standards

92. Determination of technical standards

(1) The Authority may, by written determination, prescribe technical standards for—

• (a) customer equipment and cabling; and
• (b) network equipment; and
• (c) features of customer equipment that are designed to cater for the special needs of persons with disabilities; and
• (d) telecommunications networks and facilities, including to protect against unauthorised interference or unauthorised access; and
• (e) interconnection of service providers’ networks; and
• (f) number portability; and
• (g) radiocommunications devices.

(2) The Authority may, by written determination, prescribe an approval process, including conditions, for approval of telecommunications equipment for importation to the Cook Islands.
(3) Before prescribing any technical standard or approval process, the Authority must consult the public on the proposed standard or process and must have regard to the need to ensure against or minimise–

• (a) damage to networks; and
• (b) quality degradation to telecommunications services; and
• (c) public nuisance; and
• (d) risk to public health and safety.

(4) The Authority may adopt or incorporate, with or without modifications, any technical standards or approval processes of other countries.

93. Customer equipment

(1) No person may supply, install, or use any customer equipment or cabling that does not comply with an applicable technical standard or approval process.
(2) If any customer’s customer equipment or cabling does not comply with an applicable technical standard or approval process a service provider may do any or all of the following:

• (a) refuse to connect that customer equipment or cabling to its network:
• (b) disconnect that customer equipment or cabling from its network:
• (c) refuse or cease to supply a telecommunications service to that customer.

94. Network equipment

(1) A service provider must ensure that its network equipment and facilities comply with any applicable technical standard.
(2) A service provider must ensure that its facilities, services and procedures for interconnection comply with any applicable technical standard.

95. Prohibited devices

(1) The Authority may, by written determination, identify a specified device or devices of a specified kind or class, to be prohibited devices.
(2) The Authority must cause a determination under subsection (1) to be published on its public website and in newspapers, within 14 days after it has been made.
(3) A person must not, without reasonable excuse—

• (a) operate or supply a device that the person knows, or ought reasonably to have known, is a prohibited device; or
• (b) have possession of a device that the person knows, or ought reasonably to have known, is a prohibited device for the purpose of operating or supplying it.

(4) A person who contravenes subsection (3) commits an offence and is liable on conviction to—

• (a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
• (b) in any other case, a fine not exceeding $150,000.

Part 10

Universal access

96. Universal Access Plan

(1) The Authority must, within 12 months following appointment of its chair, prepare a plan for the promotion of universal access to universal access services of reasonable quality in the Cook Islands (“Universal Access Plan”) and consult on it by—

• (a) giving notice of the proposed plan in a manner the Authority considers appropriate to bring it to the attention of those it considers likely to be affected by the proposed plan; and
• (b) allowing affected parties a reasonable opportunity to make submissions on the proposed plan; and
• (c) considering all relevant submissions received.

(2) The Authority must review annually its Universal Access Plan and consult publicly on any significant changes to it.
(3) The Authority must, in developing and reviewing the Universal Access Plan, have regard to—

• (a) the kinds of services to which universal access is or would be to the long term benefit of end users (“universal access services”), which may include all or any of:
  • (i) fixed or mobile telephone service:
  • (ii) emergency services:
  • (iii) Internet access service:
  • (iv) disaster warning or relief services:
  • (v) operator assistance service:
  • (vi) any other services that the Authority may reasonably determine; and
• (b) technologies that may be available to support universal access; and
• (c) impediments to meeting universal access objectives; and
• (d) the availability or unavailability of particular services to particular groups of persons or to persons in particular areas and the extent to which competition between service providers could enhance the availability of services; and
• (e) any adverse impact that mandating universal access might have on the development of competition; and
• (f) the funds available to support universal access; and
• (g) relevant submissions received in the course of public consultation.

97. Universal access levies

(1) The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister, for the purpose of supporting access to services in accordance with a Universal Access Plan, make regulations imposing levies on—

• (a) any specified service provider or class of service providers; and
• (b) any specified class of end users; and
• (c) any specified telecommunications service or kind of telecommunications services.

(2) The Minister must, before giving advice to the Queen’s Representative under subsection (1)—

• (a) obtain and have regard to the written recommendations of the Authority regarding the imposition of levies to support access to services in accordance with a Universal Access Plan; and
• (b) have regard to the long term benefit of end users.

(3) A regulation made under this section may do any or all of the following:

• (a) specify the amounts of levies payable under this section:
• (b) provide for the method by which those levies will be calculated:
• (c) specify the criteria and other requirements by and against which those levies will be set or reset:
• (d) specify the financial year or other period to which those levies apply:
• (e) provide for the payment and collection of those levies:
• (f) exempt any person or class of persons from paying levies under the regulation:
• (g) provide for waivers or refunds of the whole or any part of any levy payable by any person or class of persons under the regulation.

(4) If any person liable to pay a levy fails to pay the whole amount of that levy by the date payment is due, that person must pay interest on the unpaid amount at the rate of 1.5 percent per month calculated from the date payment is due.
(5) Interest will be calculated in monthly instalments for each month, or part of each month, that the payment is due.
(6) The amount of any unpaid levy or interest is recoverable in the Court as a debt due to the Crown.

98. Universal Access Fund

(1) The Authority may establish and manage a Universal Access Fund, with a separate account.
(2) The Universal Access Fund may comprise any of the following–

• (a) levies imposed by regulations:
• (b) grants or donations made to or for the benefit of the fund:
• (c) any moneys appropriated by Parliament for the purposes of the fund:
• (d) any moneys received by way of interest or repayment of any loan granted from the fund.

99. Eligible areas, providers, and users

(1) The Authority may, by written determination, identify as eligible to receive financial support for the purpose of promoting access to services in accordance with a Universal Access Plan any of—

• (a) 1 or more geographic areas:
• (b) 1 or more groups of end users:
• (c) 1 or more landowners or associations of residents:
• (d) 1 or more service providers.

(2) The Authority must, before making a determination under subsection (1) consider—

• (a) whether access to universal access services is significantly poorer for particular areas or particular groups than for other areas or groups in the Cook Islands; and
• (b) whether the costs of providing access to universal access services are significantly higher for particular areas or particular groups than for other areas or groups in the Cook Islands; and
• (c) whether particular landowners, or associations of residents, or service providers, or other groups, have the capability to provide access to universal access services in accordance with the Universal Access Plan.

100. Disbursements from Universal Access Fund

(1) The Authority may, by written determination, establish and amend rules for the administration of the Universal Access Fund.
(2) The Authority may, in accordance with the Universal Access Plan and any Universal Access Fund Rules, disburse funds from the Universal Access Fund for all or any of the following purposes:

• (a) to support the construction, maintenance or operation of telecommunications network in particular areas:
• (b) to support the provision of telecommunications services in particular areas or to particular groups of end users:
• (c) to support the acquisition of basic telecommunications services by persons in particular areas or by particular groups of end users:
• (d) to support community access points to basic telecommunications services, such as at community centres:
• (e) to support services of benefit to community welfare (for example, tele-health and tele-education services) being made available by means of telecommunications networks.

(3) The Authority may disburse funds from the Universal Access Fund to meet the reasonable expenses of administering the Universal Access Plan, including without limitation the reasonable fees of consultants and legal advisers.
(4) The Authority must, before disbursing funds under subsection (2)—

• (a) invite submissions from the public and have regard to all relevant submissions that it receives; and
• (b) consider the costs associated with the proposed support; and
• (c) consider the level of funding that it would be reasonable to provide; and
• (d) consider the capability of the proposed recipient of support to achieve the objectives of the particular form of support that is proposed; and
• (e) consider what conditions, including as to reporting and monitoring, should be attached to the proposed support.

101. Universal access tender

(1) The Authority may call for tenders, where it considers that there is a reasonable prospect of more than one service provider or other person seeking funding from the Universal Access Fund.
(2) A call for tenders must set out the rules, timing, and conditions of the tender process, and, as required:

• (a) the facilities to be constructed, maintained or operated:
• (b) the areas or groups of end users to be served:
• (c) the services to be provided:
• (d) any terms and conditions of service provision, including price.

102. Universal access direction

(1) The Authority may, by written direction, require one or more service providers to—

• (a) construct, maintain or operate telecommunications facilities in particular areas; and
• (b) provide telecommunications services in particular areas or to particular groups of end users, on specified terms and conditions, including as to price.

(2) The Authority must not make a direction under subsection (1) unless it has first—

• (a) consulted with any service provider that would be affected by the proposed direction; and
• (b) given the affected service provider a reasonable opportunity to respond to the proposal; and
• (c) had due regard to any response made by or on behalf of the service provider.

103. Reporting on universal access

The Authority must include in its Annual Report information regarding—

(a) funds received to and disbursed from the Universal Access Fund; and
(b) activities undertaken to promote the objects of the Universal Access Plan; and
(c) the extent to which the objects of the Universal Access Plan have been accomplished.

Part 11

Status of Telecommunications Licensees as Infrastructure Managers under the Infrastructure Act 2019

104. Network operator licensees

(1) A network operator licensee––

• (a) is an infrastructure manager for the purposes of the Infrastructure Act 2019; and
• (b) has all the powers and duties of an infrastructure manager.

(2) The provisions of the Infrastructure Act 2019 apply, accordingly, to a network operator licensee.

105. Service providers who own or use network equipment

(1) A service provider who owns or uses network equipment is––

• (a) an infrastructure manager for the purposes of the Infrastructure Act 2019; and
• (b) has all the powers and duties of an infrastructure manager.

(2) The provisions of the Infrastructure Act 2019 apply, accordingly, to a service provider who owns or uses network equipment.

Part 12

General and miscellaneous provisions

Disasters and emergencies

106. Disaster Plans

(1) The Authority may, by written direction, require a service provider to prepare a plan setting out the actions the service provider will take to—

• (a) cope with disasters and civil emergencies; and
• (b) improve the resilience of its network and services to the adverse impacts of climate change.

(2) In preparing a “Disaster Plan” (or any variation) a service provider must—

• (a) consult with police and emergency services authorities;
• (b) consult with the Authority; and
• (c) consult the public on the proposed plan by—
  • (i) publishing it on the service provider’s website; and
  • (ii) allowing interested parties a reasonable opportunity to provide comments; and
  • (iii) having due regard to any comments received in the course of consultations.

(3) The service provider must publish its Disaster Plan, and any variations to it, on its website and must implement that plan.
(4) A service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with its Disaster Plan.

107. Powers of Government during disaster or emergency

(1) If, in the event of a public emergency, the Minister considers it necessary in the interests of public security or national defence, the Minister may, give directions in writing to any person.
(2) A direction under subsection (1) must be published in the Gazette as soon as reasonably practicable after it is made.
(3) A direction under subsection (1) may require a person—

• (a) to enable, provide or facilitate:

(i) the temporary control or use for official purposes of telecommunications networks and radio stations:

(ii) the stoppage, delay, or interception of telecommunications or radiocommunications; or

(b) to do or omit to do any specified action that the Minister considers reasonably necessary in the interests of public security or national defence.
(4) The Government must—

• (a) pay compensation for any loss or damage caused to a licensee or an owner of a radio station, as the case may be, by reason of compliance with any direction under subsection (1); or
• (b) make grants to service providers, or owners of radio stations, as the case may be, for defraying or contributing towards any losses which they may sustain by reason of their compliance with any direction under subsection (1).

Offences

108. General penalty for offences

A person who commits an offence against this Act, or regulations made under this Act, for which no penalty is otherwise provided by this Act or by the regulations is liable on conviction to—

(a) in the case of an individual, a fine not exceeding $20,000, or imprisonment for a term not exceeding 24 months, or both; or
(b) in any other case, a fine not exceeding $150,000.

Regulations

109. Regulations

The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister given in accordance with a recommendation of the Authority, make regulations for all or any of the following purposes:

(a) prescribing forms to be used for the purposes of this Act:
(b) prescribing matters for which fees are payable under this Act and the amounts of those fees:
(c) prescribing grounds for an exemption from fees, in whole or in part:
(d) governing or prohibiting the use of radio apparatus on merchant ships, or on aircraft, of whatever nationality or registration, or on foreign ships of war or foreign military aircraft, while within the territorial limits of the Cook Islands:
(e) prescribing licence fees or the means by which fees must be calculated:
(f) providing for any other matters contemplated by this Act, necessary for its full administration, or necessary for giving it full effect.

Amendments, savings and transitional provisions

110. Transitional period and related terms

(1) For the purposes of this Part, and subject to subsection (2), “transitional period” means the period beginning on the commencement of this Act and ending on the fourth anniversary of that date.

(2) The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister, determine that the transitional period ends, in respect of any or all of the community services, on a specified date that is earlier than, or later than, the third anniversary of commencement of this Act.
(3) For the purposes of this Part, “community services” means any or all of the services referred to in subsection (4).
(4) For the purposes of this Part—

• (a) “Pa Enua Services” means the telecommunications services provided by Telecom Cook Islands Limited to the islands of the Cook Islands other than Rarotonga, including but not limited to:
  • (i) fixed line telephony services;
  • (ii) fixed internet services; and
  • (iii) mobile telephony and internet services;

with coverage not less than that provided at 1 October 2019; and

(b) “Broadcasting Support Services” means the television and radio broadcasting services provided by Telecom Cook Islands Limited to broadcasters in the Cook Islands, with coverage not less than that provided at 1 October 2019; and
(c) “Marine Radio Services” means the marine radio services provided by Telecom Cook Islands Limited, including but not limited to:

• (i) the full time High Frequency and Very High Frequency marine radio coverage and monitoring services provided to fishing boats and merchant ships maritime for the safety of life and property at sea; and
• (ii) radio operator certification services,

with coverage not less than that provided at 1 October 2019; and

(d) “Postal Services” means the postal services provided by Telecom Cook Islands Limited under Part VIA of the Telecommunications Act 1989 to and from Rarotonga and the Pa Enua, including but not limited to the:

• (i) sale of postage stamps;
• (ii) provision of postal box services; and
• (iii) collection and delivery of postal articles;

with coverage not less than that provided at 1 October 2019.

111. Amendments to other enactments

The Acts listed in Schedule 1 are amended as set out in that schedule.

112. Saving of postal service provisions

(1) Subject to subsection (2), Part VIA of the Telecommunications Act 1989 continues to have full force and effect according to its terms, notwithstanding anything in this Act.
(2) The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister, determine that Part VIA of the Telecommunications Act 1989 ceases to have effect on and from a specified date.

113. Saving of radiocommunications licences and certificates

(1) A licence authorising radiocommunications, or a certificate of competency, issued prior to the commencement of this Act is a “continuing instrument” for the purposes of subsection (2) if it—

• (a) is referred to, or is an instrument of a kind referred to, in column 2 of the table set out in Schedule 5; and
• (b) was in force immediately before the commencement of this Act.

(2) A continuing instrument—

• (a) continues in force after commencement of this Act as if, at the time it had been made, it had been made by the Authority in the same terms as an instrument of the kind referred to in the corresponding item in column 3 of the table set out in Schedule 5; and
• (b) is taken, for all purposes, to have been issued by the Authority as such an instrument.

114. Saving of Radio Regulations 1993

(1) Parts V, VI and VIII of the Radio Regulations 1993, and the Third Schedule and Part B of the Fourth Schedule of the Radio Regulations 1993 continue to have full force and effect according to their terms, notwithstanding anything in this Act.
(2) The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister, determine that the Radio Regulations 1993 cease to have effect on and from a specified date.

115. Saving of Radio (Shipping) Regulations 1993

(1) The Radio (Shipping) Regulations 1993 continue to have full force and effect according to their terms, notwithstanding anything in this Act.
(2) The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister, determine that the Radio (Shipping) Regulations 1993 cease to have effect on and from a specified date.

116. Revocation of regulations

The following regulations are revoked—

(a) the Postal Amending Regulations 1987; and
(b) the Postal Amending Regulations 1989; and
(c) the Telegraph Regulations 1963; and
(d) the Telegraph Regulations 1975; and
(e) the Telegraph Regulations 1982; and
(f) the Telephone Regulations 1968; and
(g) the Telex Regulations 1963.

117. TCI network operator licence

A network operator licence in the form set out in Schedule 2 is deemed to have been issued to Telecom Cook Islands Limited on commencement of this Act.

118. Transitional mobile operator licensing

(1) During the transitional period the Authority must not, unless subsection (2) or (3) applies, issue—

• (a) a network operator licence authorising the establishment or operation of a mobile telecommunications network; or
• (b) a service provider licence authorising the provision of mobile telecommunications services.

(2) Despite subsection (1), the Authority may during the transitional period issue a licence of a kind referred to in subsection (1) to 1 person, other than Telecom Cook Islands Limited, who meets eligibility criteria determined by the Minister by notice published in the Gazette.
(3) Despite subsection (1), the Authority may during the transitional period issue 1 or more licences of a kind referred to in subsection (1) if the Minister has notified Telecom Cook Islands Limited in writing that the Minister considers Telecom Cook Islands Limited—

• (a) has failed to provide a community service or has failed to meet an applicable service standard; and
• (b) has subsequently failed to remedy that failure within 3 months of receiving notice under paragraph (a).

(4) The Minister must not give notice under subsection (2) except in accordance with the advice of the Authority.

119. Transitional licence fee

(1) Telecom Cook Islands Limited is, subject to subsection (2), not required during the period beginning on the commencement of this Act and ending on the third anniversary of that date to pay a licence fee in respect of its Network Operator Licence.
(2) Telecom Cook Islands Limited must pay a licence fee determined in accordance with applicable regulations if the Minister notifies Telecom Cook Islands Limited in writing that he or she considers Telecom Cook Islands Limited—

• (a) has failed to provide a community service or has failed to meet an applicable service standard; and
• (b) has subsequently failed to remedy that failure within 3 months of receiving notice under paragraph (a).

(3) The Minister must not give either notice under subsection (2) except in accordance with the advice of the Authority.

120. Pa Enua services

(1) Telecom Cook Islands Limited must, subject to subsection (2), continue to provide the Pa Enua Services—

• (a) for the duration of the transitional period; and
• (b) at charges to customers that are not higher than those that were payable as at 1 October 2019; and
• (c) at a quality of service that is not lower than that provided to the same customer group as at 1 October 2019.

(2) Telecom Cook Islands Limited is not required to comply with subsection (1) from the date that the Minister gives notice in writing that a Universal Access Plan under Part 10 is in operation.
(3) The Minister must not give notice under subsection (2) except in accordance with the advice of the Authority.

121. Broadcasting Support Services

(1) Telecom Cook Islands Limited must, subject to subsection (2), continue to provide the Broadcasting Support Services—

• (a) for the duration of the transitional period; and
• (b) at charges to customers that are not higher than those that were payable as at 1 October 2019; and
• (c) at a quality of service that is not lower than that provided to the same customer group as at 1 October 2019.

(2) Telecom Cook Islands Limited is not required to comply with subsection (1) from the date that the Minister gives notice in writing that he or she considers that satisfactory commercial arrangements have been put in place in relation to the Broadcasting Support Services.
(3) The Minister must not give notice under subsection (2) except in accordance with the advice of the Authority.

122. Marine Radio Services

(1) Telecom Cook Islands Limited must, subject to subsection (2), continue to provide the Marine Radio Services—

• (a) for the duration of the transitional period; and
• (b) at charges to customers that are not higher than those that were payable as at 1 October 2019; and
• (c) at a quality of service that is not lower than that provided to the same customer group as at 1 October 2019.

(2) Telecom Cook Islands Limited is not required to comply with subsection (1) from the date that the Minister gives notice in writing that he or she considers that satisfactory commercial arrangements have been put in place in relation to the Marine Radio Services.
(3) The Minister must not give notice under subsection (2) except in accordance with the advice of the Authority.

123. Postal Services

(1) Telecom Cook Islands Limited must, subject to subsection (2), continue to provide the Postal Services—

• (a) for the duration of the transitional period; and
• (b) at charges to customers that are not higher than those that were payable as at 1 October 2019; and
• (c) at a quality of service that is not lower than that provided to the same customer group as at 1 October 2019.

(2) Telecom Cook Islands Limited is not required to comply with subsection (1) from the date that the Minister gives notice in writing that he or she considers that satisfactory commercial arrangements have been put in place in relation to the Postal Services.
(3) The Minister must not give notice under subsection (2) except in accordance with the advice of the Authority.

124. Certificate of competency examinations during transitional period

(1) Telecom Cook Islands Limited must, subject to subsection (2), continue to conduct certificate of competency examinations—

• (a) for the duration of the transitional period; and
• (b) at fees that are not higher than those that were payable as at 1 October 2019; and
• (c) in accordance with Part V and the Third Schedule of the Radio Regulations 1993.

(2) Telecom Cook Islands Limited is not required to comply with subsection (1) from the date that the Minister gives notice in writing that the Authority (or a person or body nominated by the Authority) will conduct certificate of competency examinations.
(3) The Minister must not give notice under subsection (2) except in accordance with the advice of the Authority.

125. Transitional maritime radio station licensing

(1) Telecom Cook Islands Limited may grant licences for the installation, operation, or use of radio apparatus on—

• (a) any Cook Islands ship within the meaning of the Crimes Act 1969; and
• (b) any vessel for the time being registered in the Cook Islands as a ship under the Ship Registration Act 2007.

(2) Every licence under subsection (1) shall be in such form and for such period, and shall contain such terms, conditions and restrictions as the Minister may direct Telecom Cook Islands Limited, by notice in writing.
(3) The Queen’s Representative may, by Order in Executive Council, on the advice of the Minister, determine that subsection (1) shall cease to have effect on and from a specified date.

Schedule 1

Amendments to Acts

1. Broadcasting Act

Section 33 of the Broadcasting Act 1989 is amended by deleting “Director-General of Posts and Telecommunications” and substituting “Competition and Regulatory Authority”.

Schedule 2

Telecom Cook Islands Limited Network Operator Licence

(Section 115)

1. Licensee

1.1 This licence is issued to Telecom Cook Islands Limited (“Licensee”).

2. Licence fee

2.1 The Licensee must pay licence fees calculated in accordance with applicable regulations under the Telecommunications Act 2019.
2.2 Paragraph 2.1 is subject to section 117 of the Telecommunications Act 2019.

3. Licence term

3.1 This licence has a fixed term of 15 years, commencing on the day on which the Telecommunications Act 2019 commences.

3.2 This licence may be renewed, or another licence issued in its place, in accordance with the provisions of the Telecommunications Act 2019.

4. Scope of licence

4.1 The Licensee is authorised to construct and operate on a non-exclusive basis—

(a) Fixed line network between—

• (i) distinct places within the Cook Islands; and
• (ii) places within the Cook Islands and places outside the Cook Islands; and

(b) Fixed terrestrial wireless network between distinct places within the Cook Islands; and
(c) Public mobile network within the Cook Islands; and
(d) Satellite network between—

• (i) distinct places within the Cook Islands; and
• (ii) places within the Cook Islands and places outside the Cook Islands.

5. Technical matters

5.1 The Licensee must comply with any technical standards determined by the Authority.

5.2 If the Authority has not prescribed an applicable technical standard, the Licensee must take full account of relevant international standards or recommendations adopted by:

(a) the International Telecommunications Union:
(b) the European Conference of Postal and Telecommunications Administrations:
(c) the International Organisation for Standardisation:
(d) the International Electrotechnical Committee.

5.3 The Licensee must use its reasonable efforts to work co-operatively with other licensees to establish an industry-based process to develop common or complimentary technical and operational standards and processes, including to facilitate interconnection.

5.4 The Licensee must keep adequate records (including overall network plans and cable route maps) of the telecommunications network infrastructure (including radiocommunications infrastructure) provided under this licence and any other details concerning the network, including information from operational support systems, traffic flow information, and database information relating to the manner in which the network treats any communication (“network information”).

5.5 If requested by the Authority, the licensee must make network information available to the Authority (or to a person authorized in writing by the Authority) for inspection for the Authority’s purposes or for the purposes of national security or management of national emergencies.

5.6 The Licensee must give to the Authority and to all affected service providers reasonable advance notice in writing if it intends to implement any change in the specification or performance of its network or telecommunications services which—

(a) would require changes to any equipment or systems that are connected to the Licensee’s network or services; or
(b) would render inoperable any equipment or systems that are connected to the Licensee’s network or services.

5.7 The period of notice given shall be appropriate to the likely impact on the parties affected and on connected equipment or systems and shall be decided in consultation with the Authority.

6. Customer equipment

6.1 TCI must allow connection to each of its networks of any customer equipment that complies with—

(a) applicable technical standards determined by the Authority; or
(b) if the Authority has not prescribed applicable technical standards, a relevant technical standard of a recognised standards body or regulator.

7. Numbers

7.1 The Licensee must use numbers allocated to it in an effective and efficient manner.

7.2 The Licensee must not unduly discriminate against any service provider in relation to the service provider’s access to or use of numbers.

7.3 The Licensee must take all reasonable steps to ensure that its retail and wholesale customers comply with applicable provisions of the Numbering Plan in their use of numbers.

7.4 The Licensee must, not later than 6 months after the Telecommunications Act 2019 commences, publish on its public website its policy for management of numbers assigned to its customers, including—

(a) how numbers will be assigned to customers; and
(b) the circumstances in which numbers may be reserved by customers; and
(c) the circumstances in which numbers may be withdrawn from customers; and
(d) the circumstances in which customers may retain numbers when moving between premises connected to the Licensee’s networks; and
(e) access to and use of special numbers; and
(f) charges (if any) for numbers.

8. Fair Use Policy

8.1 The Licensee must, not later than 6 months after the Telecommunications Act 2019 commences, publish on its public website its policies regarding the use of its networks by its customers, including—

(a) policies regarding network management in respect of traffic congestion; and
(b) policies regarding posting, hosting, and accessing unacceptable content.

9. Domain Administration Policy

9.1 The Licensee must, while it remains responsible for .ck domain administration—

(a) publish on its public website, not later than 6 months after the Telecommunications Act 2019 commences, its policies regarding the administration of the .ck domain; and
(b) comply with its published policies regarding the .ck domain; and
(c) not discriminate in favour of itself, or its affiliates, in its administration of the .ck domain.

9.2 The Licensee must, not later than 6 months after the Telecommunications Act 2019 commences, publish on its public website its policies regarding the management of IP addresses issued by the Licensee to its customers, including—

(a) how IP addresses will be issued to customers; and
(b) rules on the use of IP addresses by customers;
(c) the circumstances in which IP addresses may be withdrawn from customers; and
(d) the circumstances in which customer information associated with IP addresses may be disclosed to law enforcement agencies; and
(e) charges (if any) for IP addresses.

10. Privacy

10.1 The Licensee must, not later than 3 months after the Telecommunications Act 2019 commences, publish on its public website its policy regarding the collection, storage, disclosure, correction and deletion of customer information.

10.2 The Licensee’s policy under paragraph 10.1 must—

(a) meet the requirements of sub-part 4 of Part 3 of the Telecommunications Act 2019; and
(b) provide for the right of each customer to have access, free of charge, to information about them that is held by the Licensee (other than information which would, if access were provided, infringe the privacy of another person, or prejudice law enforcement, or prejudice national security); and
(c) provide for the right of each customer to have information about them corrected, if the customer can show the information is inaccurate or incomplete.

10.3 The Licensee must, in relation to policies and procedures under paragraph 10.1—

(a) monitor and evaluate their impact and effectiveness; and
(b) report to the Authority on their impact and effectiveness at such times or intervals as the Authority may reasonably require.

11. Credit management

11.1 The Licensee must, not later than 3 months after the Telecommunications Act 2019 commences, publish on its public website its policies regarding customer credit management.

11.2 The Licensee must ensure that any steps it takes to secure payment by a customer of an amount that is overdue—

(a) are proportionate and not discriminatory; and
(b) if those steps involve service interruption or disconnection, they are preceded by reasonable advance warning to the customer.

11.3 The Licensee must ensure that any service interruption or disconnection—

(a) is confined to the particular service or services in respect of which payment is overdue, except in cases of fraud, persistent late payment, or persistent non-payment; and
(b) does not occur in respect of an overdue payment which is disputed by the customer until the customer has had a reasonable opportunity to have the dispute determined in accordance with the Licensee’s complaints and dispute process published under section 20 of the Telecommunications Act 2019.

12. Notification regarding VoIP limitations

12.1 If the Licensee provides a standard telephone service that is a voice over internet protocol (VoIP) services, the Licensee must inform customers, in plain language and in an accessible manner, that they may be unable to use emergency calling services using the VoIP service if there is a power cut or failure of the Internet connection on which the service relies.

12.2 The Licensee must provide the notice under paragraph 12.1—

(a) during the sales process; and
(b) in the terms and conditions of use; and
(c) in any user guide provided to the customer.

13. Provision of CLI to emergency services

13.1 The Licensee must, to the extent technically feasible, ensure that its networks have the capability to make accurate and reliable Caller Location Information (CLI) available for all calls to emergency service numbers, at the time the call is made, at no charge to the emergency service organisations handling those calls.

13.2 The Licensee must, where it provides a telecommunications service at a fixed location, ensure the CLI accurately reflects the fixed location of the end user’s terminal equipment, including the physical address or location.

13.3 The Licensee must, where it provides a mobile telecommunications service, ensure the CLI includes the Cell Identification of the cell from which the call is made and, where available, the radius of coverage of that cell.

13.4 The Licensee must, where it provides a standard telephone service based on VoIP—

(a) recommend to its customers that they record with the Licensee the address of the place where that VoIP service is to be used and to update that address information if it changes; and
(b) provide the address given by a VoIP customer (or any update) under sub-paragraph (a) to the emergency service organisations; and
(c) identify, in a manner agreed with the emergency services (or, failing agreement, determined by the Authority), calls made to emergency services as being made by means of a VoIP service.

14. Calling Number Display

14.1 The Licensee must, if it offers, permits, or supports Calling Number Display (CND) on devices connected to its network—

(a) inform customers, in plain language and in an easily accessible manner, whether CND is available on an opt-in or opt-out basis; and
(b) provide customers with the ability, at no charge, to block the display of their number on a per-call basis; and
(c) provide customers with the ability to block the display of their numbers for all calls, at no charge, if CND is available on an opt-out basis; and
(d) publish on its public website its policies regarding CND.

15. Directories

15.1 The Licensee must provide each of its customers, on request, with a printed directory unless the Authority determines that a satisfactory alternative to a printed directory is reasonably accessible to end users throughout the Cook Islands.

15.2 The Licensee must make available a publicly accessible online directory.

15.3 The Licensee must allow customers, free of charge, to request that their numbers not be listed in a publicly available printed or electronic directory and not be disclosed to members of the public calling a directory assistance service or accessing an online directory.

15.4 The Licensee must publish on its public website its policies and procedures regarding unlisted numbers.

15.5 The Licensee’s printed and electronic directories must—

(a) include directory information on all customers who have been assigned telephone numbers by any telecommunications licensee in the Cook Islands; but
(b) exclude directory information on all customers who have exercised their right to have an unlisted number.

15.6 The Licensee must not discriminate between its customers and customers of other licensees in the preparation, design, options, or charges for listings within directories.

15.7 The Licensee must meet all reasonable requests to make directory information available on terms which are fair, objective, cost-oriented and non-discriminatory, and in a format which is agreed between the Licensee and the person requesting the information (or, failing agreement, in a format determined by the Authority).

16. Competition safeguards

16.1 The Licensee must not include in any telecommunications service agreement with a customer a provision requiring a fixed commitment period of more than 24 months duration, except—

(a) to the extent expressly permitted by the Authority and subject to any conditions required by the Authority; or
(b) in the circumstances set out in paragraph 16.2.

16.2 Paragraph 16.1 does not apply where—

(a) the end user is not a personal, non-business, or small business customer; and
(b) the Licensee is obliged to invest in network equipment (other than customer equipment) dedicated to that customer in order to provide the service to that customer; and
(c) the fixed commitment period is no longer than is reasonably required to enable the Licensee to recover the investment referred to in subparagraph (b).

16.3 The Licensee must give customers the option of acquiring—

(a) mobile services unbundled from fixed network services; and
(b) fixed network services unbundled from mobile services; and
(c) mobile services unbundled from mobile handsets; and
(d) Internet service provider services unbundled from fixed or mobile broadband services; and
(e) Internet service provider services unbundled from content services offered by the Licensee; and
(f) satellite services unbundled from customer premises earth stations,
(g) on terms and conditions which are fair and reasonable when compared with those on which those services are offered in a bundle.

16.4 The Licensee must not impose on personal, non-business, or small business customers conditions or procedures for contract termination that prevent or deter such customers from changing service provider.

16.5 The Licensee must not renew the contract of a personal, non-business, or small business customer for a further fixed commitment period unless the customer concerned has expressly consented to renewal, at or near the end of any fixed commitment period.

17. Changes to standard service terms

17.1 The Licensee’s standard service terms must, if they can be varied during the term of a contract with a customer, provide for—

(a) notice to the customer not less than 1 month in advance of any change to the contract that is likely to involve a material detriment to the customer; and
(b) the customer’s right to terminate the contract without penalty at any time during the month following receipt of a notice under subparagraph (a); and
(c) notice to the customer, at the same time as notice under subparagraph (a), of the customer’s right under subparagraph (b).

17.2 Clauses 17.1(b) and (c) do not apply to any increase in charges payable by a customer that does not exceed the amount of any increase in a Government tax or fee on the telecommunications service supplied to the customer.

18. Accuracy in billing

18.1 The Licensee must charge a customer only for the true extent of service actually provided to the customer.

18.2 The Licensee must retain such records as may be necessary to establish compliance with paragraph 18.1, for not less than 12 months from the date the records are created.

18.3 The Licensee must provide a customer, on request and free of charge, access to billing information that is adequate to enable the customer to—

(a) verify the accuracy of the charges incurred by the customer; and
(b) understand, monitor, and control the customer’s usage of services and expenditure with the Licensee.

19. Vulnerable end-users

19.1 In this paragraph 19, “vulnerable end-users” means end-users of the Licensee’s services whom the Licensee knows, or ought reasonably to know, are vulnerable by reason of their age, physical or learning disability, physical or mental illness, low literacy, communications difficulties, or changes in circumstances (such as bereavement).

19.2 The Licensee must establish, publish on its public website, and comply with policies and procedures for the fair and appropriate treatment of vulnerable end-users.

19.3 Policies and procedures under paragraph 19.2 must provide protection that is no less than that provided under the Consumer Protection Code made under the Telecommunications Act 2019.

19.4 The Licensee must, in relation to policies and procedures under paragraph 19.1—

(a) monitor and evaluate their impact and effectiveness; and
(b) report to the Authority on their impact and effectiveness at such times or intervals as the Authority may reasonably require.

20. Verification of customer identity

20.1 The Licensee must not activate a pre-paid service for a customer unless that customer’s identity has been verified in accordance with a Customer Identification Checklist that is approved by the Authority.

20.2 The Licensee must submit for approval by the Authority a Customer Identification Checklist which—

(a) must specify the means by which the Licensee will verify the identity of persons seeking to acquire pre-paid services from the Licensee; and
(b) may specify exceptional circumstances in which a pre-paid service will be provided to a person who is unable to meet fully the requirements for verification of identity, such as in an emergency.

20.3 The Licensee must make specified changes to its Customer Identification Checklist if directed by the Authority to do so, and resubmit it for approval by the Authority.

20.3 The Licensee must publish on its public website its Customer Identification Checklist.

20.4 The Licensee must, in relation to its processes for administering the Customer Identification Checklist —

(a) monitor and evaluate their impact and effectiveness; and
(b) report to the Authority on their impact and effectiveness at such times or intervals as the Authority may reasonably require.

21. Interconnection

21.1 The Licensee must, if requested to do so by any other telecommunications licensee, negotiate in good faith with that person with a view to concluding, within a reasonable period, an agreement on terms and conditions for interconnection of the Licensee’s network and the other telecommunications licensee’s equipment or systems, or amendment of an existing agreement for interconnection, and for supply of any requested Mandated Access Services or Declared Access Services.

21.2 The Licensee must use any information acquired in confidence from another telecommunications licensee before, during, or after an interconnection negotiation solely for the purpose for which it was supplied and must respect at all times the confidentiality of that information.

21.3 The Licensee must not (except with the other licensee’s consent) pass any information acquired in confidence from another telecommunications licensee before, during, or after an interconnection negotiation to—

(a) any department or personnel of the Licensee not involved in the interconnection negotiation; or
(b) any subsidiary, affiliate or partner company; or
(c) any other person.

21.4 The Licensee must not impose any unreasonable technical or other conditions or arrangements for interconnection of another telecommunications licensee’s equipment or systems to the Licensee’s network.

21.5 The Licensee must not exercise or enforce any intellectual property right which it owns or is licensed to use in a manner which prevents or inhibits unreasonably the interconnection of the Licensee’s network and another telecommunications licensee’s equipment or systems.

21.6 The Licensee must, on request by a person seeking interconnection with the Licensee’s network, promptly provide that person with the terms and conditions (including technical and operational requirements) on which the Licensee will interconnect with, and supply services to, other telecommunications licensees.

21.7 The Licensee must not, as a condition of interconnection negotiations, require that the other party must not disclose to the Authority any information, or any documents, provided in the course of negotiations.

22. Consumer Protection Code

22.1 In the event of an inconsistency between a Consumer Protection Code made under the Telecommunications Act 2019 and this Network Operator Licence, or a policy published in accordance with this Network Operator Licence, the Consumer Protection Code shall prevail to the extent of the inconsistency.

23. General obligations

23.1 The Licensee must comply with—

(a) the terms and conditions of this Network Operator Licence; and
(b) the Telecommunications Act 2019; and
(c) any direction, determination or order lawfully made by the Authority; and
(d) applicable laws of the Cook Islands.

23.2 The Licensee must not exercise any of right or power or perform any duty or obligation under this Licence in a manner which is inconsistent with any of the Cook Islands’ international obligations.

24. Interpretation
24. Terms in this Network Operator Licence have the meanings given in the Telecommunications Act 2019, unless the context otherwise requires.
    

Schedule 3

Exemptions

1. Exempt network defined

“Exempt network” means any telecommunications network that is—

(a) used solely or principally for the purpose of providing a broadcasting service to the public; or
(b) used solely by, or on behalf of, a defence organization to carry communications necessary or desirable for defence purposes; or
(c) used solely by a law enforcement or emergency services organisation to carry communications necessary or desirable for law enforcement or emergency services purposes; or
(d) used solely by persons all of whom are physically present at a particular premise; or
(e) used solely by persons all of whom are physically present within a particular area if the same person or persons is or are the principal user of all the premises that together constitute that area; or
(f) declared in writing by the Authority to be exempt from this Act or specified provisions of this Act.

2. Exempt service defined

“Exempt service” means any telecommunications service or radiocommunications service that is—

(a) a service that is used solely or principally by, or on behalf of, a defence organization to carry communications necessary or desirable for defence purposes; or
(b) used solely by a law enforcement or emergency services organisation to carry communications necessary or desirable for law enforcement or emergency services purposes; or
(c) declared by the Authority in writing to be exempt from this Act or specified provisions of this Act.

3. Exempt apparatus defined

“Exempt apparatus” means—

(a) apparatus that functions only as radio broadcast receiver or television broadcast receiver; or
(b) a closed-circuit television system operated solely for information or security purposes within premises occupied by the person operating the system; or
(c) for use by the Police, the armed forces, or any other State agency or service in the performance of their official duties; or
(d) declared by the Authority in writing to be exempt from this Act or specified provisions of this Act.

Schedule 4

Mandated Access Services

1. Domestic Internet Interconnection Service means an access service, that is made available by a service provider (Access Provider) to another service provider (Access Seeker) either by a direct interface or through a hub or exchange, for the exchange and transport of Internet protocol (IP) packets from a port dedicated to the Access Seeker to a port dedicated to the Access Provider, provided that the IP packets must originate from a Cook Islands IP address within the Access Seeker’s network and terminate at a Cook Islands IP address within the Access Provider’s network.
2. Domestic MMS Termination Service means an access service that is made available by network operator licensee which operates a digital mobile network (Access Provider) to another network operator licensee which operates a digital mobile network (Access Seeker), for the carriage of a multimedia message (MMS) from a point of interconnection in the Cook Islands to an end user who has been assigned a mobile number from the Numbering Plan and who is directly connected to the digital mobile network of the Access Provider.
3. Domestic Mobile Call Terminating Access means an access service that is made available by a network operator licensee which operates a digital mobile network (Access Provider) to another network operator licensee (Access Seeker), for the carriage of voice calls from a point of interconnection in the Cook Islands to an end user who has been assigned a mobile number from the Numbering Plan and who is directly connected to the digital mobile network of the Access Provider.
4. Domestic Mobile Video Call Termination Service means an access service that is made available by a network operator licensee which operates a digital mobile network (Access Provider) to another network operator licensee which operates a digital mobile network (Access Seeker), for the carriage of real-time video calls from a point of interconnection in the Cook Islands to an end user who has been assigned a mobile number from the Numbering Plan and who is directly connected to the digital mobile network of the Access Provider.
5. Domestic PSTN Terminating Access Service means an access service that is made available by a network operator licensee which operates a fixed network (Access Provider) to another network operator licensee (Access Seeker), for the carriage of voice calls (i.e. voice and data over the voice band) from a point of interconnection in the Cook Islands to an end user who has been assigned a fixed number from the geographic number ranges of the Numbering Plan and who is directly connected to the network of the Access Provider.
   
6. Domestic Roaming Service means an access service that is made available by a network operator licensee which operates a digital mobile network (Access Provider) to another network operator licensee which operates a digital mobile network (Access Seeker), for the carriage of mobile traffic (whether voice or data or both) by means of the network of the Access Provider, between (but not including) the mobile device of the Access Seeker’s customer whilst roaming on the Access Provider’s digital mobile network and the point of interconnection (or equivalent facility) in the Cook Islands, and that enables a customer who subscribes to the Access Seeker’s digital mobile service (or who subscribes to the mobile services of an operator in another country, to whom the Access Seeker provides international roaming in the Cook Islands) to use services within the area where the Access Provider has a digital mobile network but which is outside the coverage area of the Access Seeker’s digital mobile network.
7. Domestic SMS Termination Service means an access service that is made available by a network operator licensee which operates a digital mobile network (Access Provider) to another network operator licensee which operates a digital mobile network (Access Seeker), for the carriage of short message services (SMS) from a point of interconnection in the Cook Islands to an end user who has been assigned a mobile number from the Numbering Plan and who is directly connected to the digital mobile network of the Access Provider.
8. Interconnection Colocation Service means an access service that is made available by a service provider (Access Provider) to another service provider (Access Seeker) who is acquiring a Regulated Access Service from that Access Provider, to provide floor space and ancillary facilities and services such as physical access, security, electricity, cable trays and interconnection cables in exchange buildings owned, leased or operated by an Access Provider to enable an Access Seeker to install, maintain and operate its own equipment for interconnection with the Access Provider’s network or service, and includes the rights for the Access Seeker to—
   • (a) inspect an Access Provider’s building or facility to determine its suitability for use by the Access Seeker; and
   • (b) undertake work within the Access Provider’s building or facility to make it suitable for use by the Access Seeker, including to install its own security cage and racks.
9. Underground Facilities Sharing Service means an access service that is made available by a network operator licensee (Access Provider) to another network operator licensee (Access Seeker), to provide space and ancillary facilities and services such as physical access, security, electricity and sub-ducting in underground fixed line facilities owned or operated by the Access Provider to enable the Access Seeker to install, maintain and operate its own cabling and equipment forming part of its communications network, and the access service includes the rights for the Access Seeker to—
   • (a) inspect an Access Provider’s underground facility to determine its suitability for use by the Access Seeker; and
   • (b) undertake work to make the Access Provider’s underground facility suitable for use by the Access Seeker, including to install sub-ducting.
10. Radiocommunications Facility Sharing Service means an access service that is made available by a service provider (Access Provider) to another service provider (Access Seeker), to enable the Access Seeker to install, maintain and operate its own radiocommunications equipment and associated facilities, which—
    • (a) provides an Access Seeker with:
      • (i) ground space at a site used or proposed to be used by the Access Provider for radiocommunications services; and
      • (ii) space on a radiocommunications tower, mast, pole or similar structure installed or proposed to be installed at that site by the Access Provider, and ancillary facilities and services such as physical access, security, electricity, cable trays, cable gantries and cable feeders; and
    • (b) includes a right for the Access Seeker to:
      • (i) inspect an Access Provider’s radiocommunications site and facility to determine its suitability for use by the Access Seeker; and
      • (ii) undertake work to make the site or facilities on the site suitable for use by the Access Seeker, including to build its own equipment hut or to modify, strengthen or replace an existing tower, mast or pole.
        

Schedule 5
Continuing Instruments

This Act is administered by the Ministry of Finance and Economic Management.

Printed under the authority of the Cook Islands Parliament—2020.