Acknowledgement
I would like to acknowledge the contributions of the following individuals to the
development of my Thesis Report on the contemporary issues like Telecommunication Laws
& Policies.
Mr. Goutam Kumar Ghosh, Lecturer, Department of Law, Sylhet International
University.
Mr. Goutam Kumar Ghosh supervised and helped me to refine my thesis and pointed out
weaknesses in the Telecommunications Laws and Policies. He directed me to resources that
he had used so that I could find more information to elaborate on a point that I had
insufficiently developed. Additionally, Mr. Goutom Kumar Ghush asked me questions about
my research that helped me to realize some findings that the result of a focus for
recommendation.
Mr. Goutam has reviewed my revised version and pointed out places that needed clarification
or rephrasing. He also assist me most to complete the report and to meet the deadline.
Mr. Abdul Kader, Managing Director, BTS Communications (BD) Ltd. (A nationwide
Internet, Data Connectivity and IP Telephone Service Provider).
Mr. Abdul Kader directed me to a wide range of resources on the web and in the library
stacks. He answered all of my questions as well as asked me questions about
Telecommunications laws and Policies of Bangladesh that helped me to narrow my search.
Further, he helped me figure out correct documentation for sources that did not fit the
Research Guide examples. He gave me this help during working hour. I also worked with
BTS Communications (BD) Ltd. which helped me to identify primary regulatory policies of
telecommunication.
Mrs. Rehena Parvine, Asst. Professor & Coordinator, Department of Law, Sylhet
International University.
Mrs. Rehena Pervin encouraged me most to work on such a innovative Topic like National
Telecommunication Laws and policies. I am grateful to her for her auspices in this effort.
Professor Syed Akmal Mahmud, Vice Chencellor of Sylhet International University
Lastly I express my heartfelt gratitude to Mr. Syed Akmal Mahmud, whose encouragement
and support assist to study Masters of Law in this university with full of confidence.
1The purpose of this Research
This paper tries to focus on prediction of Bangladesh Telecommunications Laws and Policies.
And in the meantime it intends to study the concept of National Telecommunications Laws
and Policies to gather analytical knowledge about it.
The objective of this research is to gain insights in the relationship between investments in
telecommunications and the respective regulatory environment in Bangladesh. The period
under investigation is from 1988 to 2010. This study follows the format of commentaries and
Dialogue on Telecommunications Regulatory Reforms by the Investors on
Telecommunications sectors. Discussion Paper on “The Telecommunications (Amendment)
Act 2010” is also the subject of this research.
The main purpose of this research is to study the problem and prospects of National
Telecommunications Laws and Policies of Bangladesh.
2Expected Outcome of this Research:
Telecommunications for development is a neo-liberal development strategy based on
deregulation and the potential of competition to expand access to communications facilities.
Telecommunications expansion is not a goal in and of itself but rather is meant to support
economic, political, and social goals. But there are some rules and process to be followed by
the investor, the study of which is required for the promotion and development of this
telecom sector in Bangladesh. The expected outcome of this research can be as follows, i.e.
• A concrete scenario of the telecom sector in Bangladesh.
• The analytical knowledge on the ICT policies of Bangladesh.
• The analytical knowledge on the laws of Telecommunications in Bangladesh.
• The conceptual analysis of Telecom Sector in Bangladesh in respect to the investment.
• The weaknesses of the Telecommunications Laws and policies of Bangladesh.
• The ideas and comments of investor regarding the National Telecommunications
Laws which is enacted.
• The relation between the investor of telecom sector with the Regulatory body (BTRC)
concerning the rules and policies.
3Research Material and Method of this Research:
The sources of information for the purpose of this research are basically the secondary source.
This research is conducted on the basis of various articles, related research paper and
necessary information collected through internet browsing. Finding the fact and
circumstances in this relation and also analyzing the essential existing telecommunication
laws and policies of the country.
Research Methods
• The research is conducted by comparative assessment of the collected information.
• Finding the fact and circumstances in this relation and also analyzing the essential
characteristics of the basic three concepts i.e. Telecommunication.
• Review of extensive Policies and Guidelines of Bangladesh Telecommunications
Regulatory Commissions on Telecommunications (BTRC) ;
• BTRC Policy Guideline Literature review;
• Review of documents on work with ICT;
• Interview of several persons, as Telecommunications Business Promoter, University
Teacher, Advocates, have been taken in this regard to this issue.
4Introduction
Internationally, the International Telecommunication Union is in place to regulate
telecommunications. Domestically, in Bangladesh, there is a myriad legislation – including
telecommunications-specific legislation, the Telecommunications Act, 2001 – and a specialist
regulator has been established to regulate telecommunications: the Bangladesh
Telecommunications Regulatory Commissions (BTRC). Why is this so? What is it about
telecommunications that requires such a high degree of regulation?
This chapter begins by addressing these questions, by looking at the question ‘what is
telecommunications?’ and then by identifying reasons why the industry is so highly
regulated. The chapter, then looks generally at the way in which telecommunications is
regulated and finally specifically at how it is regulated in Bangladesh.
The chapter is intended to provide a big-picture overview of how telecommunications is
regulated in Bangladesh. More detail will follow in the succeeding chapters, which will deal
with specific issues, such as licensing, interconnection, pricing and universal service.
Primarily, the following are discussed in this chapter: the constitutional framework; national
policy; international law; and national legislation, including the Telecommunications Act
2001, the Policies of Bangladesh Telecommunications Regulatory Commissions.
5What is Telecommunications?
‘Telecommunications’ is defined in Newton’s Telecom Dictionary as: The art and science of
‘communicating’ over a distance by telephone, telegraph and radio. The transmission,
reception and the switching of signals, such as electrical or optical, by wire, fibre, or
electromagnetic (ie through-the-air) means. The definition holds two concepts.
• The first is the act of communicating, in other words, imparting and receiving
information.
• The second is the means of communicating, in other words, communications
infrastructure.
The Constitution of the Republic of Bangladesh, Article 39 describes the right to communicate.
Section 39 states: (1) Freedom of thoughts and conscience id guaranteed.
(2) Subject to any reasonable restriction imposed by law in the interest of the security of
the States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an office –
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press ;
are guaranteed.
1
The right to freedom of expression has been interpreted to mean not only the right to speak
and the right to hear speech but also the right to have access to the means by which to
communicate.
The Telecommunications Act, which provides for the primary regulation of the
telecommunications industry in Bangladesh, defines telecommunications more narrowly as
the means by which to communicate, as follows:
the emission, transmission or reception of a signal from one point to another by means of
electricity, magnetism, radio or other electromagnetic waves, or any other agency of a like
nature, whether with or without the aid of tangible conductors.
According to the section 2 of the Telecommunications Act 2001, “telecommunication” means
“transmission and reception of any speech, sound, sign, signal, writing, visual image or any
other intellectual expression by way of using electricity or electro-magnetic or electrochemical
1
Article 39, Constitution of Bangladesh.
6or electro-mechanical energy through cable, pipe, radio, optical fiber or other electro-magnetic
or electro-chemical or electromechanical or satellite communication system.”
2
2. Why Telecommunication is specially Regulated:
There is nothing obvious in definitions or the concept of telecommunications that tells us why
it is so specially and highly regulated. So why is this case?
Traditionally, the answer to why telecommunications has been so regulated has been
threefold.
First, telecommunications was seen in the same light as other public utilities, such as water
and electricity. Governments generally believed that it was their duty to ensure universal
access to such services by providing the services themselves. In the Telecommunications Act
2001, the Bangladesh Government articulated the importance of communications in the
development of Bangladesh. Although history has proven that creating and protecting
government-owned monopolies may not be the best way to ensure universal service, the
development and implementation of effective policies to spur universal service will continue
to prove to be key in regulating telecommunications for the future.
Secondly, governments historically thought about telecommunications as a ‘natural
monopoly’. Therefore, most governments protected a monopoly supplier of services by not
allowing competitors to be licensed. This economic model, however, is increasingly becoming
inadequate for a number of reasons, not least of which is the advancement of technology.
Today, regulatory policy and law regarding telecommunications are more focused on
controlling monopolistic behavior than on protecting monopolies. The regulation of
interconnection and pricing (in addition to regulating for universal service) will be critical in
the transition from a monopoly to a competitive market.
Thirdly, it is important to regulate telecommunications specially to the extent that a valuable
national resource is involved, namely the radio frequency spectrum. Without the exercise of
control over how the spectrum is used and who gets to use it, anarchy might prevail or,
perhaps even worse – the dominant participants might prevail at great cost to all other
2
Section 2, The Telecommunications (Amendment) Act 2001.
7participants and consumers. Historically, governments have seen the radio frequency
spectrum as a valuable national resource over which the government must exercise some
control. That is still true today to a large extent, although the emergence of new digital
technologies will make it less so in the future.
8Currently, the main reasons advanced for specialized regulation of telecommunications are –
• to maintain control over the use of a valuable national resource, namely the radio
frequency spectrum;
• to control anti-competitive behavior by dominant players in the market, which in turn
will lead to the realization of universal service and to increased quality and choice;
and
• to ensure the development and implementation of effective universal
telecommunication service policies.
93. HOW TELECOMMUNICATIONS IS REGULATED
The nature of telecommunications is that it is borderless. In other words, it does not stop at
national borders. It therefore makes sense that at least some of the regulation of
telecommunications should be (and is) through international law. To some extent, this is true;
however, there is still quite a lot of domestic regulation of telecommunications.
In a constitutional state such as Bangladesh, such domestic regulation is founded in the
Constitution. There are also usually one or more pieces of legislation applicable to the
industry, usually a telecommunications-specific statute supplemented by other general
legislation also applicable to the industry, such as competition legislation. It is argued by
some that, as the industry becomes more competitive, there will be less need for
telecommunications-specific legislation and increasing reliance on general competition
legislation for effective regulation of the industry.
There is also usually some entity responsible for regulating the industry, inter-alia, by issuing
licenses, resolving disputes and making more detailed rules for the industry. Often, the
regulator is independent of both the government and the various players in the industry.
Sometimes the various regulatory functions are shared by different government entities. Also,
in most jurisdictions, the courts play a role in either resolving disputes or reviewing decisions
of the regulator, or both.
Regulatory framework of Bangladesh follows this general model to a large extent. The
diagram below is a bird’s-eye view of the regulatory framework. The Bangladesh-specific
diagram at the end of this chapter follows from the discussion set out in the remainder of this
chapter.
Figure: Telecommunications Regulatory framework of Bangladesh.
104. THE REGULATION OF TELECOMMUNICATIONS IN BANGLADESH
4.1 Constitutional Framework
4.1.1 Supremacy of the Constitution
Since the 1971, Bangladesh has been a constitutional state. The Constitution is the supreme
law of the land. All legislation must be consistent with it and all acts of the government must
be consistent with it. In terms of the Constitution, Bangladesh has two levels or spheres of
government, namely, national, and local. The regulation of telecommunications generally falls
to the national sphere.
In terms of the Constitution, there are also three branches of national government, namely, the
legislative authority, the executive authority, and the judicial authority.
3
4.1.2 National legislative authority
The national legislative authority is exercised by the national Parliament, the House of the
Nation (Jatiyo Sangsad), which consists of the National Assembly. National legislation is
passed by Parliament. Just as legislation must be consistent with the Constitution, subordinate
legislation, such as regulations, must be consistent with both the legislation in terms of which
it is made, and the Constitution. For example, sections 99 of the Telecommunications Act
empower the regulator, Bangladesh Telecommunications Regulatory Commission (BTRC) , to
make regulations
4
, which must be approved and published by the Ministry of Post and
Telecommunications. Such regulations must be consistent with the Telecommunications Act
and with the Constitution5
.
The Telecommunications Act also empowers BTRC, among other things, to issue licenses
6
and
make orders in relation to disputes.
7
Similar to regulations, licenses issued and decisions and
orders made by BTRC in relation to disputes must be consistent with both the
Telecommunications Act and the Constitution.
8
In other words, BTRC must act in terms of
legislation and the Constitution.
3
Part IV, V,VI of the Constitution of Bangladesh.
4
Section 99, the Telecommunication (Amended) Act 2001.
5
Ibid.
6
Section 36, The Telecommunication (Amended) Act 2001.
7
Section 63, The Telecommunication (Amended) Act 2001.
8
Section 99, The Telecommunications (Amended) Act 2001.
11The Ministry of Post and Telecommunications is empowered in terms of section 98 of the
Telecommunications Act to issue rules policy directions to BTRC9
. BTRC must carry out its
functions in terms of such policy directions. Like regulations, policy directions made in terms
of the Telecommunications must be consistent with both the Telecommunications Act and the
Constitution.
The Telecommunications Act also empowers the Ministry of Communications, among other
things, to invite applications for certain kinds of telecommunication services licenses,
10
to
make decisions on the granting of certain licenses, and in certain instances to determine the
manner in which applications for telecommunication services licenses may be made and the
licensing process. Like BTRC, when the Minister carries out her functions in terms of the
Telecommunications Act, she must do so consistently with the Act and the Constitution.
4.1.3 National executive authority
In terms of section 48 of the Constitution, the President exercises executive authority together
with the other members of the Cabinet by, inter alia, ‘developing and implementing national
policy’. National policy is sometimes articulated in government official Gazette, such as the
Official Gazette on Telecommunications Act. Official Gazette often leads to the promulgation
of legislation, which is primarily the responsibility of Parliament.
11
For example, the guideline
on Telecommunications Policy led to the passage of the Telecommunications Act in 2001.
4.1.4 Judicial authority
In terms of Article 102 of the Constitution of Bangladesh, the High Court Division of
Bangladesh is empowered to issue certain orders and directions, on the application of any
person.
9
Section 98, The Telecommunications (Amendment) Act 2001.
10
Ibid.
11
Article 89, Constitution of Bangladesh.
124.2 National Policy
National policy is the responsibility of the national executive. The Minister of
Communications (formerly the Minister for Posts, Telecommunications and Broadcasting),
supported by the Department of Communications, is primarily responsible for
telecommunications policy. However, other ministries – including the ministers of Trade and
Industry, Justice and Constitutional Development, and Public Enterprises – are also involved
in regulating the industry. The Cabinet cluster that the Ministry of Communications belongs
to is the economic cluster, which includes not only the ministries of Communications, Trade
and Industry, and Public Enterprises but also the Ministry of Finance. In addition to the
ministerial and departmental involvement in policy-making in the telecommunications
industry, the President has established the Presidential National Commission on Information
Society and Development and the Presidential International Advisory Council on Information
Society and Development to advise the government on information and communications
policy with an eye to development.
135. ICT Policies in Bangladesh
In October 2002, the first ICT (Information and Communication Technology) Policy was
introduced by Bangladesh Computer Council which is commissioned by Ministry of Science,
Information & Communication Technology. The objective of the policy was to “promote and
facilitate use of ICT in all sectors of the economy for transparency, good governance and
efficiency improvement”.
The key objectives of the ICT policy are quoted here:
1. In order to give a thrust to the ICT sector and expeditious development of
Software industry and its export required infrastructural facilities and legal
framework will be created..
2. Provide effective incentives for development of ICT sector to both local and
foreign entrepreneurs;
3. Develop an efficient ICT infrastructure that provides open access to
international and national network;
4. Promote and facilitate use of ICT in all sectors of the economy for
transparency, good governance and efficiency improvement;
5. Establish legislative and regulatory framework for ICT issues like IPR, data
security and protection, digital signature, e-Commerce, ICT education etc. as
well as to ensure quality ICT education provided by different private
organizations
6. Set up national databases that are reliable and easily accessible to all the people
of the country;
7. Promote use of ICT by providing special allocations for ICT project
implementation in the public sector. Train the decision makers in ICT use and
promote a ICT culture;.
8. Develop a large pool of world class ICT professionals to meet the needs of local
and global markets
9. Set up a very high quality ICT institution to continuously promote and foster
ICT Industry;
10. Enact Laws and Regulations for uninterrupted growth of ICT, in conformity
with World Trade Organization (WTO) stipulations.
14The objectives outlined above are of course realistic and needs implemented. But the
question is how much has changed since the policy was introduced. Computers and all
computer accessories are now tax free therefore making it more affordable to the general
public.
6. Telecommunications policy
In 1971, Bangladesh Telegraph and Telephone Department was set up under the Ministry of
Posts and Telecommunications to run telecommunication services in Bangladesh. This was
converted into a corporate body named Bangladesh Telegraph and Telephone Board [BTTB]
in 1975. However, by Ordinance No XII of 1979, BTTB was re-converted into a Government
Board to function under the Ministry of Posts and Telecommunications [MoPT]. BTTB’s
management board consists of a Chairman, four full time members and three part time
members, all of whom are appointed by the Government. The MoPT reviews BTTB’s annual
development plans while the Ministry of Finance [MoF] approves the financing plan and
allocates funds. BTTB has a de facto monopoly on domestic fixed-line public telephony and a
de jure monopoly over international telephony.
The sector was first opened up in 1989 with nationwide operating licenses being issued to
Hutchison Bangladesh Telecom Limited [HBTL] for mobile and fixed wireless applications for
all-Bangladesh for 20 years. This was followed by another licence to Bangladesh Rural
Telecom Authority [BRTA] in the same year for rural telephony for 25 years. Pacific
Bangladesh Telecom [PBTL] acquired HBTL in 1991. Since then four licensed private sector
mobile operators and a number of value added service providers, including Internet Service
Providers [ISP] have entered the Bangladesh market.
The sector was regulated [licensing and spectrum management] by BTTB until the
responsibility was transferred to MoPT in 1995. Later, under the National Telecommunication
Policy of 1998 and the subsequent Bangladesh Telecommunications Act of 2001, the
Bangladesh Telecommunications Regulatory Commission [BTRC] was established to be
effective as at 31 January 2002. Figure 2 below depicts the framework of the
telecommunications sector along with the current market sizes [September 2004 for BTTB,
GrameenPhone, PBTL and Aktel, end 2003 for other.]
1516Figure 2: Framework of the Bangladesh Telecommunications Sector
Policy Maker Ministry of Posts and Telecommunications [MoPT]
Regulatory
Agency
Bangladesh Telecommunications Regulatory Commission [BTRC]
Service
Providers
Basic Fixed
Local [limited competition]
Domestic long distance [monopoly]
International [monopoly]
Mobile
Competition
Value-
added
Compt.
Public Sector Private sector Private sector Private
sector
Company No.
Lines
Company No.
Lines
Company No. Lines ISPs
VSAT
Others
Bangladesh
Telegraph
and
Telephone
Board [BTTB]
900,000 Bangladesh
Rural
Telecom
Authority
[BRTA]
24,000 Grameen
Phone
20,000,000
Banglalink 2,000 Pacific
Bangladesh
Telecom
[PBTL]
50,0000
Telekom
Malaysia
International
Bangladesh
[AkTel]
800,000
Banglalink 1,50,00,000
Source: The World Bank, Project Appraisal Proposal No. 25561 and Operators.
177. Telecom Laws in Bangladesh:
The latter half of this decade was witness to significant changes in the regulatory environment
in Bangladesh. Various forms of competition have been allowed into the telecommunications
landscape, most notably involving wireless technology. Bangladesh has taken a unique road
in deregulation of telecommunications since 1885 to till todate.
12
Bangladesh in 1990 had a single state-owned telecommunications provider. This single
provider still exists as government-run Bangladesh Telegraph and Telephone (BTT). The BTT
Board (BTTB) was created out of the Telecommunications Department in 1979 to oversee the
BTT. There is considerable government concern over the privatization of the BTT reflecting
fears of immediate and unavoidable employee layoffs. The BTT controls three long-distance
monopolies: domestic, international (terrestrial), and fixed satellite. (The majority of the
overseas bandwidth is provided by fixed satellite; this monopoly is of unusual interest in the
Internet context). Thus for the regulatory regim, there was so many laws and policy guideline
have been enacted for the regulatory purpose on Telecommunications in Bangladesh, i-.e.
1. The Telegraph Act 1885
2. The Wireless Telegraph Act 1933.
3. BTTB Ordinance 1979.
4. Telecom Policy 1998.
5. Bangladesh Telecommunications (Amendment) Act 2001.
6. BTRC Interconnection regulation 2004
7. ICT Act 2006.
8. Bangladesh Telecommunications (Amendment) Act 2010.
The Telegraph Act No. XIII was passed in 1885 & Wireless Telegraphy Act was passed in
1993. The Bangladesh Telecommunication Act No. 18 was passed on April 16 of 2001, setting
the scene for a radical change to the regulatory environment. The Telegraph branch under the
Posts and Telegraph Deptt. was created in 1853 in the then British India, and was regulated
after wards under the Telegraph Act of 1885. This was reconstructed in 1962 in Pakistan
regime. After independence of Bangladesh in 1971 Bangladesh Telegraph and Telephone
12
Telecommunications Re-Regulation in Bangladesh: A Broadband Future Through a Development
Initiative? http://www.isoc.org/inet2000/cdproceedings/8c/8c_2.htm.
18Department was set up under the Ministry of Posts and telecommunications (MOPT) to run
the Telecommunications Services in Bangladesh. This was converted in to a Corporate body
namely “Telegraph and Telephone Board by promulgation of Telegraph and Telephone Board
ordinance, 1975. Under the provisions of ordinance No. XII of 1979 of 24 of the February, 1979
Telegraph and Telephone Board was converted into “Bangladesh Telegraph and Telephone
Board (Called BTTB) as a government Board. The Bangladesh Telecommunication Regulatory
Commission (BTRC) was established on January 31, 2002 under the Government of the
People’s Republic of Bangladesh By Act no. 18 of 2001, as an Independent Regulatory
Commission. The BTRC consists of five appointed Commissioners including Chairman and a
Vice-Chairman.
198. The Telecommunications (Amendment ) Act 2001:
There are also proposals for a new Competition Act in Bangladesh which include the creation
of a an independent commission for maintaining and promoting fair competition, to prevent,
control or eliminate restrictive agreements among enterprises and combinations or abuse of
dominant positions of market power.
13
In addition, the National Telecommunications Policy 1998 (“NTP”) and the Bangladesh
Telecommunication Act 2001 (“the Act”) strive to ensure the orderly and rapid growth of the
telecommunications services in Bangladesh via inter alia promotion of competition in the
telecommunications sector.
14
In essence, the NTP and the Act strive to regulate competition in the Bangladeshi
telecommunications sector from two major aspects:
• Promotion of a level playing field with a view to abolishing preferential treatment
including granting of any special rights or privileges to any operator I.e. this concerns
the treatment of the operators by the Minister of Post and Telecommunications
(“MOPT”) and the BTRC;
• Promotion of equitable and non-discriminatory access to telecommunication system or
telecommunication service I.e. This concerns the treatment of customers and/or
another operator by an operator who provides telecommunication system or
telecommunication service.
If we examine the NTP, we find the following relevant policies:
• Section 3.5 of the NTP on Competitive Framework provides for the creation of an
environment of competition in the field of telecommunications enhancing rapid
development in volume, efficiency and accessibility; and
• Section 4.4.1 of the NTP on Liberalization provides for the encouragement of a sound
and orderly competition between the private and public sector as well as among the
various private sector operators, and for the Government to provide equal and
rational opportunities to all competitors.
13
Financial Express, Bangladesh Competition Commission in the offing, 26 May 2009, page 1
14
Report to the Bangladesh Telecommunications Regulatory Commissions (BTRC) on sigiicant market Power,
http://www.btrc.gov.bd/newsandevents/smp_mission_report_and_draft_regulations_&_instructions.pdf.
20And if we examine the Act, we find a number of provisions relevant to competition issues and
the BTRC’s role in regulating competition in the Bangladeshi telecommunications sector,
namely:
• Section 29(c) requires the BTRC to ensure the efficiency of the national
telecommunications system and its capability to compete in both the national and
international spheres;
• Section 29(d) requires the BTRC to prevent and abolish discrimination in providing
telecommunications services, to progressively effect reliance on competitive and
market oriented systems;
• Section 30(I)(e) requires the BTRC to maintain and promote competition among the
service providers in order to ensure high quality telecommunications services;
• Section 30(2)(l) requires the BTRC to ensure compliance of the provisions of the Act in
keeping in view of public interest in general, and to protect the interest of the
consumers from the unfair practices of the operators and other persons engaged in
providing telecommunication services in particular; and
• Section 30(2)(m) requires the BTRC to improve the competition scenario including the
discharge of the responsibilities to protect an operator of a telecommunication system
or a service provider from such activities of another operator or providing as are
damaging to competition, and to facilitate the access of a person intending to
participate as an operator in the market of telecommunication system or service.
Based on the above policy and legislative provisions, the BTRC has a key role in establishing
effective competition in Bangladesh under the Act. In particular, the BTRC is required to inter
alia:
• Ensure the efficiency and competitiveness of the industry;
• Prevent any discrimination in providing telecommunication services and promote
competitive and market-oriented system;
• Maintain and promote competition among the service providers to ensure high quality
telecommunication services;
• Improve the competition scenario including the discharge of the responsibilities to
protect an operator of a telecommunication system or a service provider from such
activities of another operator or providing as are damaging to competition;
21• Facilitate the access of a person intending to participate as an operator in the market of
telecommunication system or service in Bangladesh.
Collectively, the NTP and the Act therefore lay the foundation for an integrated and
transparent competition framework to be developed as part of process to promote
competition in Bangladesh. This is supported by the current inclusion of anti-competitive
conduct, unfair competition and discrimination provisions in licensing guidelines such as the
Nationwide Telecommunication Transmission Network (‘NTTN’) Licensing Guidelines.
229. The Telecommunications (Amendment ) Act 2010.
The Bangladesh parliament has passed the new Telecommunication (Amendment) Act 2010,
with provisions of fines up to Tk 300 crore and 10 years of imprisonment for rogue operators
on July 19, 2010.
15
Telecommunication minister Raziuddin Ahmed Razu placed the
Telecommunication Amendment bill 2010 in front of the parliament and later it was passed
by voice vote. Under this new law from now on Government will issue the “Call Termination
Operation Service License” to the company which was issued by Bangladesh
Telecommunication Regulatory Commission (BTRC) previously.
16
The new bill also allow government to fine Tk 300 crore and 10 years in jail for illegal telecom
service, anti-state activities using telecom equipment or shifting telecom equipment
ownership without government clearance. It also allows fining Tk 1 crore per day for any
operator violating the law even after reminder to obey the rules. Under the new law, anybody
caught sending any obscene and threatening messages could be fined up to Tk 5 crore.
Earlier of this year the parliamentary body scrutinized a bill seeking amendments to the
Bangladesh Telecommunications Act 2010, which proposes several amendments to the act
including punishment to telecom operators for wrongdoings and giving them no scope for
challenging the actions of the government or Bangladesh Telecommunication Regulatory
Commission (BTRC).
17
Different Telecommunication Company including Grammen, Robi opposed the Bill and
threatened to withdraw their investment from this sector. Also the World Bank Dhaka office
has requested the government not to proceed with the amendment proposals in the telecom
law for transferring certain authority of Bangladesh Telecommunications Regulatory
Commission to the ministry concerned.
18
15
“Bangladesh Parliament Passed New Strict Telecommunication Act”, http://www.tazakhobor.com/bangladeshi-
news-views/1-bangladeshi-news-views/469-bangladesh-telecommunication-act-2010.
16
Ibid.
17
ibid.
18
ibid.
2310. Criticism on the Bangladesh Telecommunications (Amendment) Act 2010
On June 13, 2010, the Bangladesh Telecommunication (amendment) Bill 2010 was placed
before parliament for review by the parliamentary standing committee on posts and
telecommunication ministry. The Mobile Operators Association (AMTOB) highlighted a few
key provisions in the new regulatory framework that are detrimental to the future growth of
the industry and against the spirit of free markets.
19
The new law proposes raising the maximum fine for offenses from Tk 10 lakh to an
astounding Tk 300 crore, higher than any comparable fines in the region;
20
Pakistan currently
has the highest with a maximum fine of PKR 35 crore (approximately BDT 28 crore). Given
the industry’s high rate of taxation, mandatory revenue sharing and strict regulatory
framework, this incentive adds an incremental contingent cost on industry players,
discouraging further domestic and foreign investment. While our government is trying hard
to market overseas investment, this will obviously send a wrong message to the rank and file.
Especially when nobody less than our prime minister is continuously focusing on policy
continuity, despite political changeover.
Against the spirit of due process, the new law provides no scope for appeal against expanded
powers given to regulators. Telecom-related offenses are now made cognizable under the law,
allowing the arrest of industry professionals without warrants, against all tenets of the
Criminal Procedure Code.
21
I thought we live in a respectable democratic country, known for
its hospitality to the foreign guests. The other day, a minister was speaking high about the
country’s potential as a ‘business process outsourcing’ (BPO) hub, with growing and
reasonably priced IT savvy and English literate young men and women.
22
The new law also gives the regulator unilateral power to amend licence conditions at any
time. The current cost of renewing a licence represents a significant investment in a capital
intensive and highly competitive industry. The potential for abrupt and/or unfavorable
changes in licence conditions in light of the high cost of renewal is a significant barrier
19
Bangladesh telecom industry vs Telecommunication (amendment) Bill 2010, www. gurumia.com, Intellectual
for Economy Growth of Bangladesh. .com.
20
ibid
21
ibid
22
ibid
24towards future growth and casts a pall over the business and investment climates in
Bangladesh.
The telecom industry is among the largest contributors to growth, accounting for
approximately 6 percent of GDP. Under Bangladesh Telecommunication Regulatory
Commission regulations, the industry shares 5.5 percent of revenue collected in the form of
rent and call charges as well as pays for the lease of Bangladesh Railways’ fiber optic network.
Not to talk about the large money the government realizes in the form of SIM tax. During the
caretaker government’s time, owners were forced to pay additional fees for transfer of
ownership too. Altogether it is around 10 percent of the government’s revenue collection.
Mobile phone operators have been very serious in implementing measures and technologies
in the spirit of Digital Bangladesh. Among other things, the industry has brought mobile
connectivity to over 90 percent of Bangladesh, introduced data and Internet services to mobile
users, provided valuable services such as the facilitation of inward remittance from
Bangladeshis living abroad, and generally introduced among the lowest cost mobile phone
services in the world.
23
The industry has promoted significant foreign investment in Bangladesh, sparked growth in
Bangladesh capital markets and brought the gift of communication to far-flung corners of
rural Bangladesh. The industry is the epitome of a healthy, competitive market and fostering
growth for the sector and will continue to provide benefits for the people of Bangladesh.
The people of this country voted this regime, because we wanted change, change for better,
biased towards a forward-looking Bangladesh, more technology-driven solutions. No going
back, look forward with confidence. If one looks at the telecom bill put up in the parliament,
s/he will obviously doubt the sincerity of purpose of the change. I know many ministers,
many parliament members who truly believe Bangladesh has a future, based on better
education, access to information and shared vision. And that can only happen with better
connectivity, using technology for poverty alleviation, investing more in agricultural and
tropical health research.
Professor Jeffrey Sachs (the author of ‘End of Poverty’) mentioned in 1999 ‘the future of
Bangladesh depends on – how fast it can reach technology to rural masses, how better they
can use technology for poverty alleviation’. Let’s not kill the golden goose, let’s not send a
23
ibid
25wrong message to the rest of the world. I am convinced senses will prevail among our
people’s representatives, they are the listening people, they represent the toiling masses, and
they in togetherness can give us a better Bangladesh. They are the change ambassadors? can
they kill change!
2610.1. AmCham warns on Bangladesh telecom bill
The American Chamber of Commerce (AmCham) in Bangladesh and local operators has gone
on the war path against the government’s planned telecom reforms.
24
AmCham executive Mainuddin Monem said the proposed new telecom law sends a wrong
signal to foreign investors about the country’s investment climate.
25
He told an AmCham
meeting that if the bill, if passed, would undermine foreign direct investment in the telco
industry, the country’s largest FDI sector.
26
The Telecommunication (Amendment) Bill 2010 was placed before parliament on June 13 and
has been referred to a Parliamentary Standing Committee on Post and Telecommunication,
contains the following detrimental provisions, i.e.
• The bill advocates abolishing an operators’ right to appeal regulatory decisions.
• It also calls for the regulator the Bangladesh Telecommunication Regulatory
Commission (BTRC) to share regulatory power with the telecoms ministry, owner of
cell company Teletalk.
• It also proposes increasing imposable fines on operators to BDT3 billion ($42m) and 10
years in jail for illegal telecom service, anti-state activities using telecom equipment or
shifting telecom equipment ownership without government clearance.
• It also proposes fining Tk 1 crore per day for any operator violating the law even after
reminder to obey the rules.
• Under the proposed Law anybody caught sending any obscene and threatening
messages could be fined up to Tk 5 crore.
Mahmud Hossain, director of legal affairs of GrameenPhone, said that under the proposed act
the BTRC would be able to change operators’ license terms without consultation.
27
“Such a
provision will become a risk factor for the sector for future investment,”28
24
AmCham warns on Bangladesh telecom bill Nicole McCormick | June 30, 2010 www.telecomasia.net.
25
Tough Telecom Law to frustrate Investor, The daily Star Business Report, Date: 30/06/2010,
www.dailystar.net.
26
ibid
27
ibid
28
The new Telecom Law, a Conspiracy against digital Bangladesh , The daily Star Business Report, Date:
30/06/2010, www.dailystar.net.
27Hasanul Haq Inu, chairman of the parliamentary standing committee of the telecoms
ministry, told the conference that “such an unfriendly bill must be changed.”29
29
AmCham warns on Bangladesh telecom bill Nicole McCormick | June 30, 2010 www.telecomasia.net.
2810.2. New telecom law a conspiracy against digital Bangladesh
The move to enact a tough law for telecom and ICT industry is nothing but a ‘conspiracy’
against the present government’s vision for a ‘digital Bangladesh’, speakers said at a
discussion on 29th
June 2010.
30
The prime minister must intervene in the passage of the bill,
they said. Some people inside the administration have started conspiring against the vision
for a digital Bangladesh soon after the prime minister announced it. The proposed telecom bill
is planned to misguide the government, they added.
31
Barrister Tanjib-ul Alam of “Tanjib-ul Alam and Associates”, said if the bill gets through, the
regulator will be able to impose fine for any kind of activities by treating it those as
wrongdoings. “Even for sending a wrong SMS, anyone can be penalized by the regulator.”
32
He said the proposed bill contains 21 sections to fine telecom and ICT operators for different
offences. The ceiling of a minimum fine is about Tk 1 crore, whereas the maximum is Tk 300
crore. Earlier the highest ceiling was Tk 10 lakh. He said such a tough law will only encourage
corruption among the regulatory body.
The regulator or telecom ministry can impose fine for any wrongdoing and the decision of
fine imposition is not challengeable. “It is nothing but a new way of extortion from the
telecom sector,” said the lawyer.
33
In line with the proposed bill, the telecom ministry is going
to take some major regulatory power from Bangladesh Telecommunication Regulatory
Commission (BTRC). However, the move has created much debate in the market as the
ministry itself has three operators — BTCL, BSCCL and TeleTalk.
Ananya Raihan said the present government formulated the BTRC, the independent
regulatory body for telecom industry. But now it is going to share its power with the telecom
ministry, which could question the efforts for ensuring a level playing field, he added.
34
He
said the “repressive” stances of the law must be removed to make the business environment
more conducive for second-generation growth. Citing an example he said even a murderer
30
The new Telecom Law, a Conspiracy against digital Bangladesh , The daily Star Business Report, Date:
30/06/2010, www.dailystar.net.
31
ibid
32
ibid
33
ibid.
34
ibid
29can have a chance to appeal against the charge. But as per the proposed law, the telecom or
ICT operators have no scope for appeal against any decision of the regulator, which violates
human rights.
35
Mahmud Hossain, director of legal affairs of Grameenphone, said the proposed act also
added a clause under which the regulator can change the operators’ license conditions
without any consultation with the licensees. “Such a provision will become a risk factor for the
sector for future investment.”
36
He said the proposed bill has some good things as well.
Inclusion of ‘spectrum trading’ is positive for the industry. But he urged the government not
to go for a hefty bidding for awarding 3G spectrums.
37
35
ibid
36
Roundtable on “Enabling environment for the growth of the telecom sector: Challenges and prospects” at the
National Press Club in Dhaka, organized by A nongovernmental organisation, D.Net (Development Research
Network), Reports The daily Star Business Report, Date: 30/06/2010, www.dailystar.net.
37
ibid
3011. Recommendations
The Telecommunication (Amendment) Bill 2010, passed in the parliament on 20th
June 2010,
The government should concentrate on the following facts and amend it, in respect to the
investors of the telecom sector i.e.
1. The provisions of the Act prescribes the bill advocates abolishing an operators’ right to
appeal against the regulatory decisions. Though the government declared under this
Act to constitute a tribunal to hear appeal of the aggrieved person, against the decision
of the BTRC, but there should be another provision in respect to appeal to the
Appellate division of the High Court, against the decision of the tribunal.
2. It also calls for the regulator the Bangladesh Telecommunication Regulatory
Commission (BTRC) to share regulatory power with the telecoms ministry, owner of
cell company Teletalk. But the government should realize that, it may encourage the
corruption in administrative sector of the Government and proper step need to be
taken to manage the accountability and transparency, in this connection.
3. It also proposes increasing imposable fines on operators to BDT 3 billion ($42m) and
10 years in imprisonment for illegal telecom service, anti-state activities using telecom
equipment or shifting telecom equipment ownership without government
clearance. The government should consider with proper justification while imposing
fine for any illegal activities, as prescribed under this Act. Cause, some time it may be
observed that the fine which would be imposed, may be more then the total
authorized capital of the company.
4. It also proposes fining Tk 1 crore per day for any operator violating the law even after
reminder to obey the rules. The government should initiate the fining with justification
of merit of the illegal activities under this Act.
5. Under the proposed Law anybody caught sending any obscene and threatening
messages could be fined up to Tk 5 crore. This is really an illogical provision. It should
be substituted by pragmatic and reasonable fine.
316. There is a clause of the new Telecommunication Act, under which the regulator can
change the operators’ License Conditions without any consultation with the licensees.
Such a provision will become a risk factor for the sector for future investment and this
provision of the Act will violet the basic norm of the Rule of Law. It will discourage
the investor to invest in the telecom sector in our country. It may results to be
discriminatory provisions for the operators. The government should ratify the law in
parliament with an objective to make it more industry- friendly in line with the
idea of a digital Bangladesh.
7. The draft law allows law enforcers to arrest any official of the telecom industry without
a warrant. This absolutely violation of human rights.
3212. Concluding Remarks
Investors and telecom service operators in Bangladesh are worried at the government’s move
to enact a stringent law against wrongdoing, envisaging arrest without warrant, no scope for
appeal and a fine of Taka three billion ($43.2 million).
Defending the proposed changes, Post and Telecommunications Minister Raziuddin Ahmed
Razu said the amendments were required to ‘legalize’ VoIP (phone calls via internet) business
and issue call termination operator licenses to generate employment.
38
Six mobile operators plan to seek judicial intervention as the last resort to preventing the
upcoming telecom law, which they say will create a setback for the industry. The European
Union, International Telecommunication Union (ITU) and investors in telecom sector in
Bangladesh had sought a law that will help increase telecom penetration in the country. But
they wanted provisions of harsh punishment dropped. Thus the Government should not
enact the law without making it suitable for the industry.
38
“Investors worry as Dhaka plans tough telecom law”, http://sify.com/news/.
33
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