SAMOA
BROADCASTING ACT 2010
Arrangement of Provisions
PART I
PRELIMINARY
1. Short title and
commencement
2. Interpretation
3. Objectives of this Act
4. Application of this Act
PART II
THE REGULATOR
5. Appointment of Regulator
6. Disqualification
7. Responsibilities, functions
and powers of the Regulator
8. Office of the Broadcasting
Regulator
9. Licences and licence fees
10. Appeal of orders of the
Regulator to the
Broadcasting Tribunal
PART III
BROADCASTING TRIBUNAL
11. The establishment of a
Broadcasting Tribunal
12. Presiding member
13. Other Tribunal members
14. Convening Tribunal hearings
15. Tribunal proceedings
16. Government may be
represented in any
proceeding
17. Tribunal decisions
18. Government Ministries and
Agencies to assist Tribunal
19. Appeal shall bar litigation
20. Enforcement of orders
PART IV
BROADCASTING LICENCES
21. Requirement to hold licence
22. General provisions related to
licences
23. Exemption orders
24. Types of licences
25. Licensing procedures
26. Licence conditions
27. Amendment and revocation
of licences
28. Term and renewal
PART V
BROADCASTING POLICIES
29. Broadcasting policies
30. Broadcasting policy funds
PART VI
COMPETITION POLICY
31. Functions and duties of the
Regulator regarding
competition
32. Designation of dominant
service providers
33. Abuse of dominance
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34. Other anti-competitive
practices
35. Determination of abuse of
dominance and anti-
competitive practices
36. Remedies for abuse of
dominance and anti-
competitive practices
37. Transfers of control of
service providers
PART VII
SURCHARGE
38. Imposition of surcharge
39. Procedure for imposition of
surcharge
40. Appeal against surcharge
41. Surcharge payable to
Treasury Fund
PART VIII
RELATIONS BETWEEN
SERVICE PROVIDERS AND
CUSTOMERS
42. Application
43. Fair dealing practices
44. Confidentiality of customer
information
45. Protection of personal
information
46. Access by Government
Authorities
47. Audience and customer
complaints
48. No unjustified discrimination
49. Terms of service
50. Information on terms of
service
51. Program directories
52. Quality of service
53. Access to customer premises
54. Liability, refunds and
damages
PART IX
BROADCASTING
FACILITIES
55. Broadcasting facilities
PART X
ACCESS TO PROPERTY
56. Access to Government land
and facilities
57. Access to private land and
facilities
58. Access to customary land
and facilities
59. Co-location
PART XI
NATIONAL SECURITY AND
PUBLIC EMERGENCIES
60. National security
61. Public disaster and state of
emergency
PART XII
DISPUTES, OFFENCES AND
ENFORCEMENT
62. Service provider disputes
63. Audience and customer
disputes
64. Alternative dispute resolution
65. Broadcasting and computer
offences
66. Other offences and penalties
67. Divulging personal
information obtained in the
course of duties
68. Judicial enforcement
69. Monitoring and enforcement
70. Civil liability
71. Jurisdiction of the Supreme
Court and District Courts
PART XIII
MISCELLANEOUS
72. Civil protection for the
Regulator
73. Regulations
74. Evidence by certificate
75. Service of Notices etc.
76. Repeal
77. Savings and transitional
provisions
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78. Transitional provisions for
prior licences
BROADCASTING ACT 2010
2010 No. 5
AN ACT to establish a new legislative framework for the
broadcasting sector, and to repeal the Broadcasting
Ordinance 1959.
[Assent date: 7 April 2010]
[Commencement date: 10 August 2010]
BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:
PART I
PRELIMINARY
1. Short title and commencement-(1) This Act may be
cited as the Broadcasting Act 2010.
(2) This Act commences, in whole or in part on a date or
dates nominated by the Minister.
2. Interpretation-In this Act, unless the context requires
otherwise:
“Act” means the Broadcasting Act 2010;
“advertiser” means a person that purchases or procures an
advertisement;
“advertisement” means the advertising of any product or
service or the making of a public service announcement
through a broadcasting service;
“affiliate” means, in relation to any 1 person, any other
person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified person;
“anti-hoarding policy” means the anti-hoarding policy
approved under section 29(1)(c);
“anti-siphoning policy” means the anti-siphoning policy
approved under section 29(1)(d);
“broadcasting facility” means any facility, structure,
apparatus, device or other thing, including but not
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limited to, any wire, radio, optical or other
electromagnetic system, mast sites, towers and poles that
is used or is capable of being used for the delivery of
broadcasting services or for any operations directly
connected with broadcasting;
“broadcasting policies” means the broadcasting polices
listed in section 29;
“broadcasting policy funds” means any fund that is
established and maintained under section 30 of this Act;
“broadcasting service” means the electronic delivery of
programs or advertisements in any format, including but
not limited to radio, video and internet protocols by
means of a broadcasting facility;
“class licence” means a licence issued under sections 22 and
24 without the need for persons to whom the licence
applies having to apply for that licence;
“code of practice” means any code of practice published or
approved by the Regulator under section 7(1)(n);
“commencement date” means the date or dates on which
this Act commences, in whole or in part as specified in
section 1(2);
“contract employees” has the same meaning as in the
PublicService Act 2004;
“control” means the power to determine the actions of
another person in any manner, whether directly through
the ownership of shares or other securities or indirectly
through an agreement or arrangement of any type;
“essential resource” means any cable conduit, transmission
tower, programs or other broadcasting facility that the
Regulator determines to be an essential resource
pursuant to an order or rule;
“exemption order” means an order issued by the Regulator
under section23;
“free-to-air service provider” means a service provider that
provides a public broadcasting service without charge to
the audience receiving that service;
“individual licence” means a licence issued pursuant to
sections 22 and 24 to an individual person upon the
application of that person;
“licence” means an individual licence or a class licence
issued pursuant to this Act as the context may require or
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permit, but does not include a licence issued prior to the
coming into force of this Act;
“licensee” means a person who holds a licence under this
Act;
“media diversity policy” means the media diversity policy
approved under section 29(1)(a);
“advertisement” means the advertising of any product or
service or the making of a public service announcement
through a broadcasting service;
“Minister” means the Minister responsible for
Communications and Information Technology;
“Ministry” means the Ministry responsible for
Communications and Information Technology;
“Office of the Broadcasting Regulator” means the entity
established under section 8;
“order” means a written order made by the Regulator under
this Act;
“prior licence” means an authorisation for the operation of a
broadcasting facility or provision of a broadcasting
service issued prior to the coming into force of this Act;
“program” means in relation to a broadcasting service,
visual or audible matter, the primary purpose of which is
to entertain, inform or educate an audience but does not
include advertisements;
“public service programs” means programs that contribute
to a sense of national identity, reflect the cultural
traditions and values of Samoans, educate, inform or
otherwise benefit the public but does not include
advertisements;
“public service program policy” means the public service
program policy approved under section 29(1)(e);
“regulations” means regulations made by the Head of State
under section 73 of this Act;
“Regulator” means the person appointed pursuant to section
5 to head the Office of the Broadcasting Regulator;
“rule” means a rule made by the Regulator pursuant to this
Act;
“service provider” means a person that provides a
broadcasting service or that owns or operates a
broadcasting facility that is used to provide a
broadcasting service;
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“subscription service” means a broadcasting service for
which a person must pay money to receive the service;
“subscription service provider” means a provider of a
subscription service;
“telecommunications service” has the meaning ascribed to it
in the Telecommunications Act 2005;
“terms of service” means the general terms and conditions
upon which a service provider shall provide
broadcasting services and which are set out in a
document prepared in accordance with section 50 of this
Act. Once approved by the Regulator, the Terms of
Service shall, together with this Act, the regulations,
rules, orders and approved tariffs, be binding upon a
subscription service provider and its users;
“this Act” includes regulations, rules and codes of practice
made or approved under this Act; and
“universal access policy” means the universal broadcasting
access policy approved under section 29(1)(b).
3. Objectives of this Act -The objectives of this Act are
to:
(a) facilitate the development of the broadcasting sector
in order to promote social and economic
development; and
(b) promote universal access to broadcasting services at
affordable prices; and
(c) promote the efficient and reliable provision of
broadcasting services, relying as much as
possible on market forces, such as competition
and private sector investment, to achieve this
objective; and
(d) promote the introduction of advanced and innovative
broadcasting technologies to meet the needs of
the people of Samoa; and
(e) encourage and promote the local production and
broadcast of public service programs; and
(f) encourage sustainable investment in the broadcasting
sector; and
(g) establish a framework for the control of anti-
competitive conduct in the broadcasting sector;
and
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(h) promote efficient access arrangements between
service providers; and
(i) protect the interests of audiences and commercial
users of broadcasting services; and
(j) protect the public from any physical harm that might
be caused by a broadcasting facility; and
(k) define and clarify the institutional framework for
policy development and regulation of the
broadcasting sector, as well as the separation of
government policy and regulatory functions from
those of providing broadcasting services; and
(l) promote efficient management and use of radio
spectrum and other scarce resources; and
(m) establish a fair, objective and transparent licensing
regime for service providers; and
(n) establish an efficient approvals regime for
broadcasting facilities; and
(o) establish measures to enforce the implementation of
this Act and to prohibit certain types of conduct
contrary to the orderly development and
regulation of the broadcasting sector.
4. Application of this Act-(1) This Act binds the
Government.
(2) This Act applies to any act or omission or event which
occurs in Samoa or any other place.
PART II
THE REGULATOR
5. Appointment of Regulator-(1) Subject to sections 6
and 7 and this section there shall be appointed by the Head of
State, acting on the advice of Cabinet, a Regulator who shall
have and exercise the responsibilities, functions and powers
conferred by this Act and any applicable law.
(2) The Regulator is appointed for a term up to 3 years
which term may be renewed by the Head of State, acting on the
advice of Cabinet.
(3) Despite the provisions of this section and section 6,
Cabinet may approve the appointment of a suitable regulatory
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body within or outside Samoa to act as Regulator for the
purposes of this Act.
(4) An appointment made under subsection (3) is on such
terms and for such period as Cabinet approves, and may be
revoked by Cabinet at any time if the arrangement is no longer
required or considered to be unsatisfactory in meeting the
objectives of this Act.
(5) The appointment of a Regulator under this section shall
be in accordance with the terms approved by Cabinet, and
otherwise implemented and administered in accordance with a
contract approved for that purpose by the Attorney General.
(6) A person may not be removed as Regulator prior to the
completion of a term of up to 3 years unless the person:
(a) at the time of appointment and while holding the
position of Regulator, has a conviction or is
convicted of an offence, in Samoa or elsewhere -
(i) involving dishonesty or corruption; or
(ii) where the penalty for such offence includes
imprisonment for 1 year or longer
(irrespective of whether such penalty has
been or is imposed concerning such
conviction); or
(b) is an undischarged bankrupt; or
(c) is determined by a medical practitioner to be unable
to perform the Regulator’s responsibilities,
functions, duties and powers due to any physical
or mental incapacity; or
(d) breaches the Code of Conduct detailed in section 19
of the Public Service Act 2004.
(7) The Head of State, acting on the advice of Cabinet, may
appoint the Minister or another person to exercise the
responsibilities, functions and powers conferred by this Act and
any applicable law on the Regulator, on an interim basis,
during:
(a) the period until the first Regulator is appointed; and
(b) any period of time after a Regulator ceases to hold
office and before a replacement is appointed; and
(c) a period of temporary absence or incapacity of the
Regulator.
(8) A person appointed under subsection (4) may exercise
all of the responsibilities, functions and powers conferred on the
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Regulator by this Act and any applicable law despite any other
provision of this Act.
(9) An appointment under subsection (4) may not continue
for a period longer than 6months.
(10) For the purpose of removingdoubt, a person appointed
under subsection (1) is concurrently the person who holds the
position of Regulator under the Telecommunications Act 2005.
6. Disqualification-(1) Subject to this section, a person is
not eligible to be appointed or to continue as the Regulator or as
a member of the professional staff of the Regulator if the
person, directly or indirectly, as owner, shareholder, director,
officer, and partner or otherwise, has a pecuniary or proprietary
interest in:
(a) a service provider; or
(b) a manufacturer or supplier of broadcasting facilities,
except where the supply is incidental to the
general merchandising of goods by wholesale or
retail.
(2) Where any interest prohibited by subsection (1) vests in
the Regulator or a member of the professional staff by will or
succession for the benefit of the Regulator or a member of the
professional staff, as the case may be, such interest is absolutely
disposed of within 3 months of vesting, and any failure to act in
accordance with this subsection shall make the Regulator or
member of the professional staff, as the case may require, liable
under subsection (1).
(3) For the purpose of this section:
(a) a pecuniary or proprietary interest include, but is not
limited to, a pecuniary or proprietary interest
held by a spouse or parent or child or brother or
sister of the Regulator or member of the
professional staff, as the case may require; and
(b) the professional staff of the Regulator is any member
of staff of the Regulator nominated as such by
the Regulator, as a class of such persons or
individually, or both.
7. Responsibilities, functions and powers of the
Regulator-(1) The Regulator shall:
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(a) advise the Minister on policy for the broadcasting
sector; and
(b) implement this Act, the regulations and other
elements of the legal and regulatory framework
for the broadcasting sector; and
(c) issue individual and class licences, design and run
the process for issuance of such licences; and
(d) monitor and enforce compliance by licensees with
the conditions of their licences; and
(e) amend or revoke licences in accordance with this Act
and the regulations; and
(f) regulate access to broadcasting facilities and
programs amongst service providers; and
(g) in consultation with appropriate authorities publish
or approve standards, classifications and
scheduling for programs and advertisements and
monitor and enforce compliance by licensees;
and
(h) resolve disputes between service providers, and
between customers and service providers; and
(i) institute and maintain appropriate measures for the
purpose of preventing dominant broadcasting
service providers from engaging in or continuing
anti-competitive practices; and
(j) represent Samoa in international broadcasting
organisations, in cases where the Minister
decides the Regulator is the appropriate
representative; and
(k) carry out any responsibilities, functions and powers
assigned to the Regulator in any policy or
arrangements established pursuant to Parts V and
VI; and
(l) maintain records of licences and licence applications,
equipment approvals and applications and access
agreements and, except where the Regulator
considers it justified for reasons of commercial
confidentiality, make the documents in such
records available to the public; and
(m) publish procedures, guidelines and interpretations to
facilitate the implementation of this Act; and
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(n) publish or approve codes of practice to facilitate
implementation of this Act and monitor and
enforce compliance of the codes of practice by
licensees; and
(o) make rules for such matters as are contemplated by
or necessary for giving full effect to the
provisions of this Act and for the due
administration thereof by the Regulator; and
(p) make orders in respect of any matter or thing within
the jurisdiction of the Regulator under this Act, a
regulation or rule, including orders to compel a
person to comply with or implement the
purposes of this Act, a regulation, rule, code of
practice or licence and, upon publication by the
Regulator such orders shall have the same legal
force as a rule; and
(q) on the initiative of the Regulator or upon request by
another person:
(i)investigate complaints against licensees or
other service providers; and
(ii) conduct such other investigations as the
Regulator deems necessary to ensure
compliance with this Act, a regulation,
rule, code of practice, licence or order;
and
(iii) issue an order in respect of anything
prohibited, required or permitted to be
done under this Act, a regulation, rule,
code of practice, licence or order; and
(r) comply with the Code of Conduct detailed in section
19 of the Public Service Act 2004; and
(s) in exercising the Regulator’s powers and performing
duties under this Act, a regulation, rule or code
of practice, determine any question of law or
fact, and despite any other law, the Regulator’s
determination on a question of fact is binding
and conclusive for all purposes, including but not
limited to any proceedings in any Court, tribunal
or other adjudicative body; and
(t) take such other actions as are reasonably required to
carry out this Act, the regulations, rules or codes
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of practice, and to perform such other
responsibilities, functions, and powers conferred
on the Regulator under any other law.
(2) The Regulator shall carry out the responsibilities,
functions and powers of the Regulator with a view to
implementing the objectives set out in section 3.
(3) The Regulator shall act independently in performing the
responsibilities, functions and powers of the Regulator set out in
this Act and other laws, and in this regard:
(a) the Regulator shall act in a manner that is separate
from, and not accountable to, a service provider,
including a service provider owned by the
Government;
(b) the orders and rules made and the procedures used
by the Regulator are impartial with respect to all
service providers and other market participants,
provided however that nothing in this section is
interpreted to prevent the Regulator from -
(i) consulting with a person or organisation on
any matter related to the Regulator’s
responsibilities, functions and powers; or
(ii) making a decision that is in accordance with
this Act but that has a differential or
prejudicial impact on a service provider
or other market participant.
8. Office of the Broadcasting Regulator-(1) The Office
of the Broadcasting Regulator is established, and shall function
in accordance with this section.
(2) The Regulator is responsible for the management of the
Office of the Broadcasting Regulator.
(3) The Office of the Broadcasting Regulator consists of the
Regulator, the staff of the Office of the Broadcasting Regulator
and employees and such other persons as may be seconded or
appointed in accordance with this section.
(4) The Regulator and the Office of theBroadcasting
Regulator shall comply with all laws governing thepublic
service and the finances of the Government of Samoa subject to
this Act.
(5) The staff of the Officeof the Broadcasting Regulator are
appointed and employed under this Act as follows:
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(a) contract employees are appointed under the Public
Service Act 2004; and
(b) the Regulator shall appoint other staff of the Office
of the Broadcasting Regulator who are not
contract employees.
(6) The Regulator shall establish an annual budget for the
operations of the Office of the Broadcasting Regulator in line
with the fiscal year of the Government of Samoa and taking into
account any fees collected pursuant to regulations made under
section 9.
(7) The Minister, acting on the advice of the Chief
Executive Officer of the Ministry and of the Regulator, may by
notice in writing:
(a) designate1or more persons employed by the Ministry
or other Ministries or Government organisations
to work with the Office of the Broadcasting
Regulator on a secondment basis. Such
secondments may bepart-time or full time, and
shall last for such period of time as indicated in
the notice; and
(b) determine that the Office of the Broadcasting
Regulator may share or otherwise utilise support
staff, office premises and other resources of the
Ministry, or another Government organisation
that will include, but not be limited to, the Office
of the Regulator established pursuant to the
Telecommunications Act 2005.
(8) A person who has been appointed or seconded to the
Office of the Broadcasting Regulator and to whom the
Regulator delegates a responsibility or function or power in
writing, shall perform such of the responsibilities, functions and
powers of the Regulator, as are specified in the delegation, and
a delegation under this subsection may:
(a) authorise a person to make orders or issue licences;
and
(b) restrict the delegation to specific types of matters, or
to a specific period of time; and
(c) be subject to terms, conditions or restrictions; and
(d) be revoked by notice in writing.
(9) In addition to the persons appointed or seconded to the
Office of the Broadcasting Regulator under this section, the
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Regulator may appoint such consultants as may be necessary for
the efficient performance of the functions of the Regulator.
(10) All persons appointed or seconded under this section
work under the direction of the Regulator in the discharge of
their functions, powers and duties.
(11) The Regulator shall conduct the affairs of the Office of
the Broadcasting Regulator in an open and transparent manner
and publish or cause to be published, notices, rules and
procedures governing the operation of the Office of the
Broadcasting Regulator and the Office’s dealings with the
public.
(12) The Regulator shall cause the Office of the
Broadcasting Regulator to establish an official website to
increase the transparency of the Office’s affairs to persons
inside and outside of Samoa.
(13) All rules, orders, codes of practice, notices and other
important documents issued by the Office of the Broadcasting
Regulator regarding the regulations of the broadcasting sector
shall be posted on the Regulator’s official web site, and
published in any other media that the Regulator considers
necessary or appropriate to provide adequate notice to interested
persons.
(14) Within 6months after June 30 th
of each year the
Regulator shall cause the Office of the Broadcasting Regulator
to prepare and provide to the Minister an annual report on the
work of the Office of the Regulator, such report to include:
(a) a summary of the activities of the Office of the
Broadcasting Regulator; and
(b) financial statements and accounts and audit report on
such statements and accounts (including any
funds established and maintained under section
30) in a form approved and audited by or under
the direction and control of the Controller and
Chief Auditor; and
(c) a list of licencesin force and issued; and
(d) a list of codes of practice in force; and
(e) a list of access agreements filed with the Regulator;
(f) a summary of material litigation involving the
Regulator; and
(g) a report on any funds established and maintained
under section 30; and
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(h) a summary of rules and major orders made in the
period since publication of the last annual report;
and
(i) a description of major procurement and outsourcing
activities undertaken by the Regulator; and
(j) a list of staff, employees and consultants appointed or
seconded to the Office of the Broadcasting
Regulator; and
(k) such other information as the Minister may
determine by notice in writing,
and the Minister shall table the annual report in Parliament at
the first available opportunity.
(15) The Officeof the Regulator established under the
Telecommunications Act 2005 is the same office as the Office
of the Broadcasting Regulator established under this Act.
9. Licences and licence fees-(1) The Head of State, acting
on the advice of the Cabinet may make regulations prescribing
licence fees, including licence application fees and annual
licence fees.
(2) In prescribing the level of fees for the purposes of
subsection (1) the following principles must be taken into
consideration:
(a) licence fees must be levied on different licensees in
an impartial and competitively neutral manner;
and
(b) licence fees may be based on a percentage of the
revenue obtained by the licensee in providing the
licenced broadcasting service; and
(c) the licence fees may be used in whole or part to
cover the costs of the Office of the Broadcasting
Regulator.
(3) Fees required to be paid under this section constitute a
debt due to the Government and may be recovered in a court of
competent jurisdiction.
10. Appeal of orders of the Regulator to the
Broadcasting Tribunal-(1) An appeal from an order, directive,
decision or exercise of discretion of the Regulator may only be
made to the Broadcasting Tribunal established under section 11
by way of a Notice of Appeal and in accordance with this Act.
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(2) A Notice of Appeal must be served on the Minister and
accompanied by a signed written undertaking by the appellant
to pay damages and all costs arising in any way from the
convening of the Tribunal, the conduct of its proceedings and
any subsequent order that is made by the Tribunal or the
Regulator as a result of the appeal.
(3) The appellant must also serve, on the same date, copies
of the Notice of Appeal and accompanying documents on the
Regulator and the Attorney General and where relevant, to the
other person who may be a respondent or party to the appeal.
(4) The Notice of Appeal must be served within 30 days
after the date of the order, directive, decision, or exercise of
discretion of the Regulator which is the subject of the appeal.
(5) The Notice of Appeal must set out:
(a) the relevant section of the Act under which the
decision appealed against was made; and
(b) the grounds of appeal which must set out in
sufficient detail so as to state -
(i) the grounds upon which the appellant
contends that the decision appealed
against was based on an error of fact or
was wrong in law, or both;
(ii) the grounds upon which the appellant is
appealing against the exercise of
discretion by the Regulator.
PART III
BROADCASTING TRIBUNAL
11. The establishment of the Broadcasting Tribunal-(1)
The Broadcasting Tribunal is established.
(2) When conducting a proceeding in accordance with this
Act, the Tribunal is comprised of a presiding member and
2other members appointed in accordance with this Part.
12. Presiding member- The Tribunal is presided over by a
Judge or a lawyer who is qualified to be a Judge, who is
appointed by the Chief Justice when the Tribunal is required to
hear and determine an appeal under section 10.
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13. Other Tribunal members-(1) Two members of the
Tribunal are appointed by the presiding member from the panel
of Tribunal members for each Tribunal proceeding convened
under this Act.
(2) A person may be appointed to the panel of Tribunal
members by the Head of State, acting on the advice of Cabinet,
if that person:
(a) has qualifications or experience or both in economics
or management finance; or
(b) has qualifications or experience or both in
broadcasting or engineering or broadcasting
business management; or
(c) has legal qualifications with broadcasting
background.
(3) Prior to the commencement of a Tribunal proceeding,
each member is required to state that he or she has:
(a) no personal interest or involvement in the matter
under dispute; and
(b) no association of any nature with any of the
disputing parties which may be perceived as
affecting the impartiality of the member.
(4) A Tribunal member is entitled to receive a sitting fee,
allowance and other expenses approved by the Minister.
(5) The Head of State, acting on the advice of Cabinet, may
at any time revoke the appointment of any member of the
Tribunal if such member:
(a) becomes of unsound mind or otherwise becomes
permanently unable to perform his or her
functions by way of health; or
(b) is convicted of an offence punishable by a term of
imprisonment exceeding 5 years; or
(c) fails without reasonable excuse to carry out any of
the functions conferred or imposed on him or her
under this Act; or
(d) engages in such activities as are reasonably
considered prejudicial to the interest of the
Tribunal; or
(e) has an interest in the proceedings which the member
has failed to disclose.
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14. Convening tribunal hearings-(1) The Tribunal is
convened by the Presiding Member as soon as is necessary for
the Tribunal to hear and determine any dispute referred to the
Tribunal in accordance with this Act.
(2) The Tribunal shall convene at such time and place, and
shall conduct its proceedings as determined by the Presiding
Member.
15. Tribunal proceedings-(1) Subject to this Act, the
Tribunal shall have the powers and protections applying to a
Commission of Inquiry under the Commissions of Inquiry Act
1964, including:
(a) protections in accordance with sections 5 and 9 of
that Act; and
(b) powers as provided by section 6 of that Act; and
(c) a power to hear persons having an interest in a matter
which is the subject of a Tribunal proceeding as
provided by section 7 of that Act.
(2) A person who, after being summoned or ordered to
attend before a Tribunal or to produce any books, papers,
writings, or documents to a Tribunal:
(a) fails to appear according to the requirements of such
a summons; or
(b) refuses to be sworn or to give evidence or to make
answer to such questions as may be put to the
person by any member of a Tribunal relating to
the subject of the inquiry; or
(c) fails to produce any such books, papers, writings, or
documents,
commits an offence and is liable to a fine not exceeding 50
penalty units, or to imprisonment for a term not exceeding
6months, or both.
(3) Each Tribunal proceeding is conducted so as to accord
the principles of natural justice to any party as far as is
practicable having regard to the need in any given case to
proceed expeditiously to determine the appeal.
(4) Nothing in subsection (3) affects the right of the
Tribunal to direct that:
(a) a sworn statement be submitted to persons intending
to provide evidence or make submission to a
Tribunal; and
Broadcasting Act 2010 19
(b) the right to cross examine a witness is restricted only
to matters which the Tribunal considers to be of
such a highly probative nature that they need to
be tested under cross examination; and
(c) each party, and any interested person is permitted to
submit written submissions, and that these be
provided to other parties and their
representatives on terms determined by the
Tribunal; and
(d) any other action is done or order be complied with to
permit the timely determination of a dispute.
(5) The Tribunal may make final and binding
determinations in relation to a matter of procedure, and make
orders to that effect.
16. Government may be represented in any proceeding-
(1) In all Tribunal proceedings, the Attorney General may elect
to represent the Government, and in any such case, the
Government is regarded as a party to the dispute.
(2) No order for the payment of costs associated with any
Tribunal proceedings may be made against the Government.
17. Tribunal decisions-(1) All decisions of the Tribunal are
validly made if a majority of members resolve to make the
decision.
(2) The Tribunal may:
(a) confirm, modify or reverse the decision or order of
the Regulator;
(b) refer the decision or order back to the Regulator for
re-consideration, either generally or in relation to
a matter specified by the Tribunal;
(c) order that the decision of the Regulator to which an
appeal relates shall not have effect until the
appeal is determined;
(d) dismiss the appeal;
(e) order a party to refund to any specified service
provider any amount that has been paid to that
party in excess of a revised order imposed by the
Tribunal;
(f) subject to section 19(2), order costs to be paid.
Broadcasting Act 201020
(3) A decision of the Tribunal is final and binding on all
parties, and all persons named in any order made by the
Tribunal.
18. Government Ministries and Agencies to assist
Tribunal-(1) All government ministries and agencies shall
cooperate with the Tribunal and make available, at no cost, any
document or record in its custody which the Tribunal requires
may assist in the consideration and determination of a dispute.
(2) Subject to subsection (3), this section applies despite any
provision of any law to the contrary.
(3) The Attorney General may stop the disclosure or release
of any document or record required by the Tribunal if the
disclosure or release of such record affects, or is likely to affect,
national security or is contrary to the national interest.
19. Appeal shall bar litigation-(1) No proceedings relating
to a broadcasting dispute may be commenced in any Court after
an appeal has been filed under this Part.
(2) This section does not prevent any action taken by way of
judicial review in relation to a proceeding of the Tribunal.
20. Enforcement of orders –A person who is directed by
the Tribunal or under a legal obligation to implement an order
made by the Tribunal under this Act, and who refuses or fails to
implement the order, commits an offence and is liable upon
conviction:
(a) in the case of a natural person to a fine not exceeding
100 penalty units or to a term of imprisonment
not exceeding 12 months, or both; or
(b) in the case of a company or other incorporated body,
to a fine not exceeding 5,000 penalty units for a
subsequent offence.
PART IV
BROADCASTING LICENCES
21. Requirement to hold licence-(1) A person shall not:
(a) provide a broadcasting service to the public for direct
or indirect compensation; or
Broadcasting Act 2010 21
(b) own or operate a broadcasting facility used to
provide a broadcasting service to the public for
direct or indirect compensation,
except in accordance with a licence or an exemption order.
(2) A person shall not use programs received from a
subscription service provider for commercial use or personal
gain.
(3) For the purpose of this section:
(a) the public includes persons in Samoa or elsewhere;
and
(b) the provision of broadcasting services to the public
includes the provision or offering of such a
service to any segment of the public, including
the resale or rebroadcast of broadcasting services
obtained from another person, even if only one
(1) person is provided or offered such a service.
22. General provisions related to licences-(1) Licences are
issued by the Regulator, and signed by the Regulator or a
delegate of the Regulator to whom authority has been delegated
under section 8.
(2) A licence is a unilateral grant of permission from the
Regulator to provide a broadcasting service or to operate a
broadcasting facility, and for all purposes it shall not be
regarded as a contract or bilateral agreement.
(3) Licences shall be in writing, and the Regulator shall
make copies of them available for inspection by the public.
(4) In all circumstances where a licence is required, the
following shall be made publicly available by the Regulator:
(a) the applicable licensing procedures and licensing
criteria; and
(b) the period of time normally required to reach a
decision concerning an application for a licence.
(5) The reasons for denial of a licence shall be provided in
writing by the Regulator to an applicant upon request.
(6) Licences for service providers that provide the same
broadcasting services or own or operate the same broadcasting
facilities shall not unfairly discriminate between such licensees.
(7) The Regulator may issue licences under subsection (1)
despite:
Broadcasting Act 201022
(a) any law, including but not limited to this Act and the
Broadcasting Ordinance 1959; or
(b) an agreement, contract, arrangement, licence or other
provision in existence at the commencement
date.
23. Exemption orders-(1) The Regulator may make an
order exempting specified activities or classes of persons from
the requirement to hold a licence.
(2) An exemption order may be made subject to such
conditions as the Regulator deems necessary and that are
consistent with this Act, the regulations and rules.
24. Types of licences-(1) The Regulator may issue 2types
of licences:
(a) individual licences; and
(b) class licences.
(2) The rules shall specify which types of broadcasting
services require individual licences and class licences. Until
such a rule comes into force, the Regulator may issue an order
prescribing which types of broadcasting services require
individual licences and class licences.
25. Licensing Procedures-(1) The Regulator may
determine the procedures and criteria for issuing a licence.
(2) The procedures and criteria determined under subsection
(1) must be fair and objective.
(3) The procedures and criteria for issuing licences are:
(a) published in Samoan and English in the Savali; or
(b) posted on the Regulator’s official web site.
26. Licence conditions-(1) The Regulator shall establish the
conditions of all licences.
(2) Licence conditions are kept to a minimum and used only
where rules of general application cannot adequately provide
regulatory controls that the Regulator considers necessary to
implement this Act.
27. Amendment and revocation of licences-(1) The
Regulator may amend or revoke a licence if:
(a) the amendment or revocation has been requested or
agreed to by the licensee; or
Broadcasting Act 2010 23
(b) the licensee has been in breach of a material licence
condition or this Act or a regulation, rule, code
of practice or order made under this Act; or
(c) changes to international treaties, commitments,
recommendations, standards or the laws of
Samoa require an amendment or a revocation; or
(d) the Regulator decides that the amendment or
revocation is required to implement this Act in a
manner consistent with the objectives listed in
section 3.
(2) Prior to amendment or revocation of a licence pursuant
to this section, the Regulator shall notify the licensee in writing
that the Regulator is considering the relevant action, and shall
consider any comments made by the licensee in a timely
manner.
(3) Notice under subsection (2):
(a) gives the licensee at least 14 days from service of the
notice to prepare comments on the relevant
actions; and
(b) sets out any procedures the Regulator will use in
considering the relevant action; and
(c) may invite comments from other interested parties or
the public.
(4) If the Regulator amends or revokes a licence pursuant to
this section, the Regulator shall provide the licensee with
reasonable time to comply with the amendment or revocation.
(5) Where a licence is revoked the Regulator shall take into
account continuity of service to audiences and customers and
include in the revocation order such terms and conditions as the
Regulator deems appropriate.
(6) Despite this section a licence is deemed to be revoked if
the licensee is convicted of an offence under the laws of Samoa
which involves:
(a) an element of dishonesty;
(b) the making of some financial gain from the public or
any section of the public by the failure to observe
any legal obligation;
(c) the failure to obtain a licence or permit that is
required by law in the course of any aspect of the
licensee’s business.
Broadcasting Act 201024
(7) Further procedures related to the amendment or
revocation of a licence may be set out in rules or orders.
28. Term and renewal-(1) The term of a licence shall be
stated in the licence.
(2) Subject to subsection (3), upon application of the
licensee, a licence is renewed by the Regulator on the same
conditions.
(3) The Regulator may renew a licence on new conditions or
deny the renewal of a licence if:
(a) the licensee has been in breach of 1or more material
licence conditions, or this Act, or a regulation,
rule, code of practice or order made under this
Act; or
(b) changes to -
(i) any international treaty to which Samoa is a
party; or
(ii) any commitment or recommendation or
standards applicable to the Government
of Samoa; or
(iii) any applicable law, require a renewal on
new conditions or denial of a renewal, as
the case may require; or
(c) the Regulator decides that a renewal on new
conditions or the denial of a renewal is required
to implement this Act in a manner consistent
with the objectives listed in section3.
PART V
BROADCASTING POLICIES
29. Broadcasting policies-(1) The Ministry shall propose,
and the Minister may approve, policies setting out specific
objectives, related principles and obligations to:
(a) facilitate and maintain media diversity in the Samoan
broadcasting sector; and
(b) facilitate and maintain universal access to all free-to-
air broadcasting services in Samoa; and
(c) facilitate and maintain public access to certain
programs acquiredby free-to-air service
providers in Samoa that are not broadcasted by
Broadcasting Act 2010 25
the free-to-air broadcaster within a reasonable
period after acquiring the rights to broadcast
such program, otherwise known as the anti-
hoarding policy; and
(d) facilitate and maintain public access to certain
programs reserved for delivery by free-to-air
service providers to ensure that programs of
particular significance to Samoans continue to be
available without the necessity for payment,
otherwise known as the anti-siphoning policy;
and
(e) promote and facilitate the production and broadcast
in Samoa of public service programs; and
(f) facilitate, maintain or promote such other matters as
the Regulator considers appropriate and in the
interests of the public.
(2) The Regulator may implement broadcasting policies
approved by the Minister through rules, orders or 1or more
codes of practice.
(3) In preparing the media diversity policy, the Ministry
shall consider:
(a) the objectives for establishing and maintaining media
diversity in the Samoan broadcasting sector; and
(b) any ownership and control restrictions that should be
imposed upon service providers; and
(c) residency requirements for licensees and directors of
licensee companies; and
(d) the procedures and measures through which media
diversity is established and maintained.
(4) In preparing the universal access policy, the Ministry
shall consider:
(a) the objectives for the development of universal
access; and
(b) the broadcasting services to be included in universal
access obligations; and
(c) the geographical areas in which specified levels of
universal access should be achieved; and
(d) the costs of the universal access service obligations;
and
(e) the procedures and other measures through which
universal access should be achieved.
Broadcasting Act 201026
(5) In preparing the anti-hoarding policy, the Ministry shall
consider:
(a) the objectives for prohibiting free-to-air service
providers from acquiring certain programs and
not broadcasting a reasonable proportion thereof
on its broadcasting service; and
(b) the criteria for imposing an anti-hoarding prohibition
on free-to-air service providers; and
(c) the acquired programs that should be affected by the
anti-hoarding prohibition; and
(d) the conduct of free-to-air service providers that
should be prohibited; and
(e) the procedures and other measures through which
public access program policy should be
achieved.
(6) In preparing the anti-siphoning policy, the Ministry shall
consider:
(a) the objectives for reserving certain programs for
delivery by free-to-air service providers in
Samoa; and
(b) the criteria for imposing restrictions and obligations
on relevant service providers; and
(c) the programs that should be reserved; and
(d) the conduct of service providers that should be
restricted; and
(e) the service providers that should be obliged to
comply with restrictions imposed on certain
programs and certain conduct; and
(f) the procedures and other measures through which
public access program policy should be
achieved.
(7) In preparing the public service program policy, the
Ministry shall consider:
(a) the objectives for the local production and broadcast
of public service programs; and
(b) in consultation with relevant authorities the genre
and content of public service programs that will
be acceptable under the public service program
policy; and
(c) the broadcasting services through which public
service programs may be delivered; and
Broadcasting Act 2010 27
(d) the obligations to be imposed on promoters,
producers and broadcasters of public service
programs; and
(e) the procedures and other measures through which
production and broadcast of public service
programs should be achieved.
(8) In preparing any broadcasting policy, the Ministry shall
ensure that any rights and obligations of service providers:
(a) are administered in a transparent, non-discriminatory
and competitively neutral manner; and
(b) are not more burdensome than necessary for the
relevant broadcasting policy objectives to be
achieved.
(9) The Ministry shall consult with interested parties when
preparing any broadcasting policy.
(10) Part III of the Public Bodies (Performance and
Accountability) Act 2001 relating to Community Service
Obligations shall not apply to Part V of this Act.
30. Broadcasting policy funds-(1) Following approval of:
(a) a universal access policy; or
(b) a public service program policy; or
(c) any other policy that is determined to require
funding,
the Minister, by notice in writing, may establish a
corresponding fund to achieve the objectives of the relevant
policy in accordance with any rules or procedures specified in
that policy.
(2) A fund established under subsection (1) is:
(a) administered by the Regulator and in accordance
with any financial and administrative directions
issued in writing by the Chief Executive Officer
of the Ministry of Finance; and
(b) operated out of a separate account from the Ministry
or the operational accounts of the Regulator.
(3) Subject to subsection (4), where the Minister has
established a fund under subsection (l), the Minister by notice in
writing may:
(a) require individual licensees to contribute to that fund
and determine the amount of contributions to be
made by those individual licensees; and
Broadcasting Act 201028
(b) determine the disbursement procedures of that fund.
(4) The disbursement procedures of the fund established
under subsection (1) shall be competitively neutral and market
oriented.
PART VI
COMPETITION POLICY
31. Functions and duties of the Regulator regarding
competition-(1) The Regulator shall perform the following
functions and duties in relation to competition among service
providers in broadcasting markets in Samoa:
(a) promote efficient and sustainable competition for the
benefit of the public; and
(b) establish an open and transparent regulatory
framework that minimises regulatory and other
barriers to entry into broadcasting markets; and
(c) make orders defining markets and relevant markets
for the purpose of this Act; and
(d) make orders designating dominant service providers
in relevant markets in Samoa, based on their
market share and other factors as determined in
accordance with section 32; and
(e) monitor and prevent abuses of a service provider’s
dominant position, pursuant to section 33; and
(f) monitor and prevent practices that would restrict
competition, in accordance with section 34; and
(g) review and decide upon proposed transfers of control
of service providers, in accordance with section
37; and
(h) undertake market reviews from time to time to
evaluate market conditions and the state of
competition in those markets; and
(i) dispose of complaints and resolve disputes related to
anti-competitive practices in a timely and
impartial manner.
(2) Wherever a conflict arises between this Act and any
other legislation regulating competition in broadcasting markets
in Samoa, including but not limited to the Fair Trading Act
1998, the provisions of this Part shall prevail.
Broadcasting Act 2010 29
(3) The Regulator may issue an order that authorises a
person to provide a broadcasting service and to construct and
operate broadcasting facilities, despite that another service
provider has been granted exclusive rights by licence,
agreement or otherwise, to engage in such service provision,
construction or operation, provided that:
(a) the Regulator has given the service provider with
exclusive rights notice of -
(i) the Regulator’s intention to issue an order
under this subsection; and
(ii) at least 21 days to comment before such an
order is made; and
(b) after taking into account comments received under
paragraph (a), the Regulator has made an order
that the service provider with exclusive rights
has unreasonably failed or refused to provide
such services, or to construct and operate such
facilities.
32. Designation of dominant service providers-(1) Every
service provider whose gross revenues in a specific
broadcasting market constitutes 40% or more of the total gross
revenues of all service providers in that market, is deemed to be
designated a dominant service provider in that market, unless
and until the Regulator specifies otherwise in an order.
(2) The Regulator may designate a service provider with
less than 40% of the total gross revenues in a specific
broadcasting market as a dominant service provider if, either
individually or acting together with others, the service provider
enjoys a position of economic strength affording it the power to
behave to an appreciable extent independently of competitors or
customers.
(3) The Regulator shall post and maintain on its official web
site a current list of all dominant services providers specifying
the markets in which such providers have been designated to be
dominant.
(4) Orders designating dominant service providers shall
specify and define the relevant markets for which a service
provider is designated to be dominant and the circumstances
relied on by the Regulator to support any findings regarding
dominance.
Broadcasting Act 201030
33. Abuse of dominance -A dominant service provider is
prohibited from undertaking activities or actions that abuse the
service provider’s dominant position, and for the purposes of
this section the following types of actions and activities are
considered an abuse of dominant position:
(a) failing to supply essential resources to a competitor
within a reasonable time after a request and on
reasonable conditions, except under
circumstances that are objectively justified based
on a shortage of available facilities or resources;
or
(b) bundling of broadcasting services, whereby the
service provider requires, as a condition of
supplying a service to a competitor, that the
competitor does not require; or
(c) offering a competitor more favourable terms or
conditions that are not justified by cost
differences if the competitor acquired another
service that the competitor does not require; or
(d) pre-emptively acquiring or securing essential
resources required by another service provider
for the operation of such service provider’s
business, with the effect of denying the use of
the facilities or resources to such service
provider; or
(e) supplying broadcasting services at prices below the
dominant service provider’s costs or other cost
standard as may be established by the Regulator;
or
(f) using revenues or the allocation of costs from
1broadcasting service to cross-subsidise a
competitive broadcasting service with the
objective of lessening competition, except where
such cross subsidy is specifically approved by
order of the Regulator; or
(g) performing any of the following actions, where such
actions have the effect of impeding or preventing
a competitor’s entry into, or expansion in, a
market -
(i) requiring or inducing a supplier to refrain
from selling to a competitor; and
Broadcasting Act 2010 31
(ii) adopting technical specifications for
broadcasting facilities to deliberately
interfere with broadcasting facilities of a
competitor; and
(iii) failing to make available to other service
providers on a timely basis technical
specifications, information about
essential resources or other commercially
relevant formation which is required by
other service providers to provide
broadcasting services and which is not
available from other sources; or
(h) any other action or activity engaged in by a dominant
service provider that the Regulator determines in
accordance with section 35 to have the effect, or
likely to have the effect, of materially restricting
or distorting competition in a broadcasting
market.
34. Other anti-competitive practices -No person shall
engage in a practice restricting or distorting competition in
broadcasting markets, including the following:
(a) arrangements between 2or more service providers
that directly or indirectly fix prices or other
terms or conditions of broadcasting services,
including but not limited to programs or
advertisements, in broadcasting markets; and
(b) arrangements between 2or more service providers
that directly or indirectly determine which
person will win a contract or business
opportunity in a broadcasting market; and
(c) arrangements between 2or more service providers to
apportion, share or allocate broadcasting or
advertisement markets among themselves or
other service providers.
35. Determination of abuse of dominance and anti-
competitive practices -The Regulator may, on application by a
person, or on the Regulator’s own initiative, determine:
(a) whether or not the actions or activities of a dominant
service provider constitute an abuse of the
Broadcasting Act 201032
dominant service provider’s dominant position
within the meaning of section 33; and
(b) whether or not the actions or activities of any service
provider amount to an anti-competitive practice
within the meaning of section 34; and
(c) that an action or activity of a service provider under
sections 33 or 34 are authorised and shall not be
considered to contravene this Act, on the
grounds that such actions or activities are in the
public interest and are otherwise consistent with
the objectives set out in section 3.
36. Remedies for abuse of dominance and anti-
competitive practices- If the Regulator determines that the
actions or activities of a service provider constitute an abuse of
the service provider’s dominant position or an anti-competitive
practice within the meaning of this Act or a regulation or rule,
the Regulator may issue an order to:
(a) require1or more persons named in the order to take
1or more of the following actions -
(i) cease the actions or activities specified in the
order immediately, or at such time
specified in the order, and subject to such
conditions specified in the order; or
(ii) make specific changes in actions or activities
specified in the order, as a means of
eliminating or reducing the abusive or
anti-competitive impact; or
(b) impose a financial surcharge subject to sections 38 to
41; or
(c) require the service provider involved in the abusive
action or activity or anti-competitive practice and
a person affected by such action, activity or
practice to meet and attempt to determine
remedies to prevent or eliminate continuation of
such action, activity or practice, and to resolve
any remaining dispute; or
(d) require the service provider responsible for the abuse
or anti-competitive action or activity specified in
the order to publish an acknowledgement and
apology for such action, activity or practice in
Broadcasting Act 2010 33
Samoan and English in the Savali and one other
newspaper circulating in Samoa, in such a form
and at such a time as the Regulator specifies in
the order; or
(e) require the service provider to provide periodic
reports to the Regulator to assist in determining
whether the action or activity is continuing and
to determine their impact on broadcasting
markets, competitors and customers.
37. Transfers of control of service providers-(1) Subject
to this section, no approvals are required for the transfer of
control of a service provider.
(2) No transfer of control of an individual licensee is
effected without the prior approval of the Regulator if:
(a) a dominant individual licensee or an affiliate of a
dominant individual licensee is -
(i) the person ultimately acquiring control of the
individual licensee; or
(ii) the person whose control is being transferred;
or
(b) as a result of the transfer, a person, alone or with
affiliates, would control service providers whose
gross revenues in a specific broadcasting market
constitutes 40%or more of the total gross
revenues of all service providers in that market.
(3) No transfer of control that requires approval under
subsection (2) is completed or has any legal force or effect
unless the person applying for approval of the transfer has
received written approval for the transfer from the Regulator.
(4) Applications for transfers of control that require
approval under subsection (2) shall include such information on
the proposed transfer transaction as the Regulator may require.
Such information shall, at a minimum, include:
(a) the identification of all persons involved in the
transfer transaction, including buyers and sellers,
their shareholders and affiliated companies, and
any other persons that have a greater than 5%
ownership interest in all such persons; and
(b) a description of the nature of the transaction and a
summary of its commercial terms; and
Broadcasting Act 201034
(c) financial information on the persons involved in the
transaction, including their annual revenues from
broadcasting markets, identified by specific
markets, value of assets devoted to broadcasting
business and copies of any recent annual or
quarterly financial reports; and
(d) a description of the relevant broadcasting markets in
which the persons involved in the transaction
operates.
(5) The Regulator may request additional information
regarding an application for transfer of control that requires
approval under subsection (2) at any time.
(6) Subject to subsection (7), within ninety days of receipt
of a duly completed application for a transfer of control that
requires approval under subsection (2), the Regulator shall:
(a) approve the transfer of control without conditions;
(b) approve the transfer of control with such conditions
as are reasonably related to promoting the
development of open and competitive
broadcasting markets in Samoa and maximising
the benefits of the transaction for the public;
(c) deny the transfer of control; or
(d) issue a notice initiating an investigation of the
proposed transfer of control, and following such
investigation the Regulator shall take 1of the
actions set out in paragraphs (a), (b) or (c).
(7) The Regulator shall only deny a transfer of control or
attach conditions to a transfer of control under this section if the
Regulator determines, acting reasonably, that the transfer would
have serious anti-competitive effects which would outweigh any
positive effects for the public.
PART VII
SURCHARGE
38. Imposition of surcharge-(1) A service provider is
liable to surcharge under subsection (2) where it is established
that the service provider’s actions constitute:
(a) an abuse of the service provider’s dominant position;
or
(b) an anti-competitive practice.
Broadcasting Act 2010 35
(2) Subject to section 39, the Regulator may impose a
surcharge on a service provider not exceeding $100,000.
39. Procedure for imposition of surcharge-(1) Before
imposing a surcharge under section 36(b) the Regulator shall:
(a) forward to the person against whom it is proposed to
make the surcharge notice providing the reasons
for the proposed surcharge; and
(b) consider any submissions made by that person within
14 days of his or her receipt of the notice or such
longer period specified in the notice.
(2) In light of those submissions, the Regulator may decide:
(a) to impose a surcharge for an amount no greater than
is specified in the notice; or
(b) not to impose a surcharge.
(3) Where the Regulator imposes a surcharge, the Regulator
shall forward to the service provider, against whom a surcharge
has been imposed, a notice specifying the Regulator’s decision
and the reasons for the decision together with a statement of the
service provider’s right of appeal.
(4) Where the Regulator forwards a notice under subsection
(1) to a service provider and later decides not to impose a
surcharge, the Regulator shall notify the service provider
accordingly.
40. Appeal against surcharge-(1) A service provider
against whom a surcharge has been imposed may appeal to the
appellant authority within 21 days after the service provider has
been notified of the surcharge.
(2) The appellant authority is the Broadcasting Tribunal
established under section 11.
(3) The appellant authority may make such order as it thinks
proper, confirming the surcharge or annulling it in whole or in
part after investigations as it thinks proper.
41. Surcharge payable to Treasury Fund-(1) A financial
surcharge imposed under section 38 is payable to the Treasury
Fund.
(2) For the purpose of removing doubt, the Regulator may
revoke a licence where a licensee fails to pay a financial
surcharge imposed.
Broadcasting Act 201036
PART VIII
RELATIONS BETWEEN SERVICE
PROVIDERS AND CUSTOMERS
42. Application-The following sections apply only to
subscription service providers:
(a) section43 - Fair Dealing Practices; and
(b) section49- Terms of Service; and
(c) section50- Information on Terms of Service; and
(d) section53- Access to Customer Premises.
43. Fair dealing practices-(1) A service provider shall only
charge a customer for the specific broadcasting service or
broadcasting facility that the customer has ordered. The
customer shall have no liability to pay for a broadcasting
service or broadcasting facility that the customer has not
ordered.
(2) Service providers shall provide customers with invoices:
(a) in writing (although invoices may be provided
electronically if the customer consents); and
(b) on a regular basis; and
(c) in a plain and simple format; and
(d) that provide accurate information on the services
provided and the amounts due for each service;
and
(e) that clearly indicate the method of calculation of
charges for any service for which invoices are
based; and
(f) that comply with this Act and any regulations, rules
and orders dealing with customer invoices.
(3) Service providers shall retain accurate records of all
customer invoices for a period of at least 6 months from the
billing date and make such records available to the Regulator
upon request.
(4) Where the Regulator has a concern about billing systems
or practices, the Regulator may require service providers to
publish information on billing systems or practices or to take
such other steps relating to a service provider’s billing systems
or practices as the Regulator may consider appropriate.
(5) No service provider shall make, or cause to be made, any
false or misleading claim or suggestion regarding:
Broadcasting Act 2010 37
(a) the availability, price or quality of the service
provider’s broadcasting services or broadcasting
facilities; or
(b) the broadcasting services or broadcasting facilities of
another service provider.
(6) For the purposes of subsection (5), a claim or suggestion
is misleading if, at the time the claim or suggestion was made,
the service provider knew or reasonably ought to have known
that such claim or suggestion was false or misleading in any
material respect or that such claim or suggestion was reasonably
likely to confuse or mislead the person to whom the claim or
suggestion was made.
44. Confidentiality of customer information-(1) Subject
to this Act, a service provider shall not disclose information
concerning a customer without the customer’s written consent
or unless disclosure is required or permitted by the Regulator or
by law.
(2) Upon request, a customer is permitted to inspect a
service provider’s records regarding the customer’s service. A
customer shall have the right to require that a customer
information about such customer contained in a service
provider’s records that the customer can demonstrate is
incorrect, be corrected or removed by the service provider.
(3) Subject to subsection (4), all customer-specific
information, and in particular billing-related information, is
retained by a service provider only for billing purposes or other
lawful purpose, and retained only for so long as is permitted by
rule made by the Regulator, or as otherwise permitted by law.
(4) A service provider may, with the written approval of the
Regulator, use customer-specific information for purposes other
than those set out in subsection (3), including, but not limited
to, marketing and sales of additional services.
45. Protection of personal information-(1) A service
provider is responsible for customer information in the custody
or control of the service provider or the service provider’s
agents.
(2) A service provider shall operate the service provider’s
broadcasting facilities with due regard for the privacy of the
service provider’s customers.
Broadcasting Act 201038
(3) Except as permitted or required by law, or with the
consent of the person to whom the personal information relates,
a service provider shall not collect, use, maintain or disclose
customer information or customer communication for
undisclosed purposes.
(4) The purposes for which customer information is
collected by a service provider is identified at or before
collection, and a service provider shall not, subject to this
section, collect, use, maintain or disclose customer information
for undisclosed purposes.
(5) Service providers shall ensure the customer’s
information is accurate, complete and up to date for the
purposes for which the information is to be used.
(6) Service providers shall ensure that customer information
is protected by security safeguards that are appropriate to the
sensitivity of such information.
46. Access by Government Authorities -Nothing in this
Act is interpreted to prohibit or infringe upon the rights of the
Government, Government Agencies and Authorities to exercise
their rights to access otherwise confidential information relating
to a customer. Such access shall be made in accordance with the
laws of Samoa.
47. Audience and customer complaints-(1) Service
providers shall identify a specific person or group of persons to
receive audience and customer complaints.
(2) Service providers shall establish procedures to deal with
audience and customer complaints. The procedures and any
amendments thereto, are subject to approval by the Regulator,
and shall be published in a suitable manner that is approved by
the Regulator.
(3) Disputes between a service provider and a viewer,
listener, customer or between service providers, which the
parties cannot resolve among themselves, are subject to sections
62, 63 and 64.
(4) Subscription service providers shall not disconnect or
otherwise change any of the broadcasting services then being
provided to a customer and which are the subject of a complaint
or dispute, other than in accordance with the Terms of Service
Broadcasting Act 2010 39
approved by the Regulator pursuant to section 49 or as
permitted by order made by the Regulator.
48. No unjustified discrimination-(1) Unless otherwise
specifically permitted by the Regulator, service providers shall
offer all viewers or listeners the same terms and quality of
service, including tariffs charged, unless different terms are
objectively justified, based on differences in supply conditions,
including different costs or a shortage of available facilities or
resources.
(2) A service provider is obliged to justify any different
terms and quality of service under subsection (1) to the
satisfaction of the Regulator, or to cease the practice upon
receipt of an order from the Regulator requiring the subscription
service provider to do so.
49. Terms of Service-(1) The Regulator may issue an order
requiring a service provider to submit draft Terms of Service to
the Regulator for approval. The order shall specify the schedule
for preparation, approval and implementation of the Terms of
Service.
(2)The draft Terms of Service must be consistent with this
Act, the rules, codes of practice, licence conditions and orders
made by the Regulator, and shall describe the basic terms of the
business relationship between the service provider and the
service provider’s customers in the provision and use of
broadcasting services.
(3) The Regulator shall approve all draft Terms of Service,
with or without changes made by the Regulator, after
consultation with the service provider and other interested
parties, as determined by the Regulator. Once approved, these
Terms of Service will replace the customer Terms of Service
then in use by a service provider and shall become binding on
the service provider and the service provider’s customers.
(4) The Regulator may issue an order discontinuing a
requirement for service providers to submit draft Terms of
Service to the Regulator for approval where the Regulator
determines that such approval is no longer required to protect
the interests of customers.
Broadcasting Act 201040
50. Information on terms of service-(1) A dominant
service provider shall at all times maintain on the service
provider’s website, in both Samoan and English, the following
information:
(a) the current version of the service provider’s Terms of
Service; and
(b) all of the service provider’s approved tariffs and
proposed tariff changes which have been filed
with the Regulator; and
(c) the official website address and other contact
information for the Regulator, together with a
clear statement that the service provider is
regulated by the Regulator under this Act and
that customers and other service providers may
contact the Regulator if they are unable to
resolve disputes with the service provider; and
(d) an easy to follow navigation system that allows a
customer to locate the above information.
(2) A service provider shall maintain current paper copies of
the service provider’s Terms of Service, all of its approved and
pending tariffs and other information described in subsection
(1)(c) at all of the service provider’s business offices, and such
document is made available for public inspection, without
charge, during normal business hours.
(3) A service provider shall provide, upon request and at a
reasonable charge, paper copies of the service provider’s
schedule of approved tariffs to any customer who requests
them.
51. Program directories -If required by an order of the
Regulator, a service provider shall provide its audience with a
program directory in accordance with terms and conditions as
the Regulator may nominate in the order.
52. Quality of service-(1) A dominant service provider
shall provide broadcasting services that meet specific quality of
service standards. These standards shall be developed by the
Regulator in consultation with the service provider and may be
included in the service provider’s licence or established by
order of the Regulator.
Broadcasting Act 2010 41
(2) The Regulator may amend, add or delete quality of
service standards established pursuant to subsection (1),
following consultation with the affected service provider.
(3) When quality of service standards have been established
pursuant to subsection (1), a service provider shall deliver
written reports to the Regulator each quarter, in accordance with
the following:
(a) quality of service reports shall -
(i) be in a form determined by the Regulator; and
(ii) set out the service provider’s actual results
for each quality of service standard; and
(b) where a quality of service report indicates that a
standard has not been achieved, the service
provider shall provide an explanation to the
Regulator as to why the standard was not
achieved and what specific steps the service
provider has taken or intends to take to achieve
the standard.
(4) The Regulator shall advise a service provider, within
thirty days of receipt of any quality of service report, whether
the Regulator accepts the explanation provided for any standard
that was not achieved. If the Regulator does not reply within the
30 day period, the explanation provided is deemed accepted.
(5) If the Regulator does not accept the explanation under
subsection (4), the Regulator shall issue an order setting out the
additional steps that the service provider shall take and the time
within which those steps are taken for the service provider to
achieve such standards, including but not limited to:
(a) any additional reporting requirements the service
provider shall adhere to until the standard is
achieved; and
(b) what, if any, specific refunds or other remedies,
including but not limited to customer remedies,
are to be implemented by the service provider as
a result of the service provider’s failure to meet
such standard.
(6) When a service provider provides the Regulator with a
quality of service report under this section, the service provider
shall also publish the report on the service provider’s web site.
Upon receipt of a quality of service report or any additional
Broadcasting Act 201042
related material from a service provider, the Regulator shall also
post the report on the Regulator’s reporting requirements.
(7) Where the Regulator concludes that it is in the public
interest, the Regulator may require a service provider to publish
in Samoan and English in the Savali and one other newspaper
circulating in Samoa all or parts of the service provider’s
quality of service reports and the Regulator’s reporting
requirement.
53. Access to customer premises-(1) The service
obligations of a dominant service provider shall extend to the
installation, operation, maintenance and repair in good working
order of all broadcasting facilities that are owned or provided by
the service provider and located on a customer’s property.
(2) A service provider shall have the right to enter a
customer’s premises or property if the service provider’s
broadcasting facilities are located within the customer’s
premises on the following conditions:
(a) the service provider has given the customer notice
that is reasonable in the circumstances; and
(b) the service provider dispatches only properly
identified and qualified personnel; and
(c) the service provider has received the consent of the
customer for such access; and
(d) the service provider’s personnel interfere as little as
possible with the customer’s activities, premises
and property.
54. Liability, refunds and damages -The Regulator may
issue an order or rule establishing provisions concerning the
liability of, refunds by and damages to be paid by service
providers to viewers, listeners and customers.
PART IX
BROADCASTING FACILITIES
55. Broadcasting facilities-(1) To the extent that
broadcasting facilities are not regulated or otherwise provided
for under the Telecommunications Act 2005, the Regulator may
issue an order to do 1 or more of the following:
Broadcasting Act 2010 43
(a) decide that certain types of broadcasting facilities
proposed or used to provide broadcasting
services to the public require approval for such
purpose; and
(b) publish criteria for certification and establish
standards for approval of broadcasting facilities
for use in connection with broadcasting services;
and
(c) identify domestic or foreign organisations or testing
facilities for approval of broadcasting facilities
for use in connection with broadcasting services;
and
(d) maintain a register of certified or approved types of
broadcasting facilities, criteria for certification
and standards for approval.
(2) Providing there is no conflict with the
Telecommunications Act 2005, the Regulator may enter into
mutual recognition agreements with authorities in other
countries to provide for mutual recognition of, certification and
approval of broadcasting facilities in other countries and Samoa.
PART X
ACCESS TO PROPERTY
56. Access to Government land and facilities-(1)Where a
service provider cannot, on commercially reasonable terms:
(a) obtain the consent of the Government or a
Government Agency or Authority having
jurisdiction over government land or a
government facility to construct, maintain or
operate broadcasting facilities on such land or
facility; or
(b) gain access to a pole, duct, tower or other supporting
structure of a broadcasting, electrical power or
other utility transmission system constructed on
Government land or a Government facility, or
which is owned or controlled by the Government
or a Government Agency or Authority, the
service provider may apply to the Regulator for
assistance.
Broadcasting Act 201044
(2) Upon receipt of an application for assistance in
accordance with subsection (1), the Regulator shall consult with
the Government, a Government Agency or Authority and
attempt to find a solution acceptable to service provider and the
Government, Government Agency or Authority, as the case
may require.
(3) If the Regulator’s actions under subsection (2) fail to
produce an agreement between the parties involved:
(a) the Regulator may exercise such other powers under
this Act or other Acts, as the Regulator considers
appropriate to resolve the matter; or
(b) the matter may be submitted by the Regulator or a
party to the Ombudsman for a recommendation
by the Ombudsman to grant or refuse the
required consent or access, as the case may be,
on such terms and conditions as the Ombudsman
may determine.
(4) In determining a matter under subsection (3), the
Ombudsman shall have regards to:
(a) the objectives of the Act set out in section 3;and
(b) a submission provided by the Regulator or the
parties; and
(c) the likely effect and consequences of a decision to
grant or refuse the required consent or access on
the parties, the public and customers of the
service provider; and
(d) any other relevant matter.
(5) The Ombudsman’s recommendation in subsection (3) is
subject to approval by Cabinet.
(6) The parties to a recommendation made by the
Ombudsman under subsection (3) and approved by Cabinet in
subsection (5) shall comply with such recommendation as if the
recommendation had been made by the Regulator.
(7) Where the Ombudsman makes a recommendation to
grant the use of or to grant access to Government land or
facilities under subsection (3) for Cabinet approval, the
Ombudsman shall include in the recommendation the amount
which the service provider is to be required to pay to the
Government as compensation for the service provider’s use of
or access to Government land or facilities.
Broadcasting Act 2010 45
57. Access to private land and facilities-(1) Where a
service provider:
(a) requires access to private land or private facilities
(other than customary land or facilities located
on customary land) to provide broadcasting
services; and
(b) cannot, on commercially reasonable terms, reach an
agreement for such access with the owner of the
private land or private facility, the service
provider may apply to the Regulator for
assistance either in reaching an agreement with
the owner of the private land or private facility or
for the exercise of other powers to obtain the
required access.
(2) Upon receipt of an application for assistance in
accordance with subsection (1), the Regulator shall take the
steps the Regulator deems necessary to mediate between the
concerned parties.
(3) If the Regulator’s mediation under subsection (2) fails to
produce an agreement between the parties involved:
(a) the Regulator may exercise such other powers under
this Act or other Acts, as the Regulator considers
appropriate to resolve the matter; or
(b) the matter may be submitted by the Regulator or a
party to the Supreme Court or District Court for
such court to make an order granting or refusing
the required access on such terms and conditions
as the court may determine, having regard to -
(i)the nature of the private land or private
facilities; and
(ii) the nature of the access required; and
(iii) the importance of such access in maintaining
or improving broadcasting services for
Samoa; and
(iv) whether any payment or other consideration
can compensate the owner if access is
ordered by the Court; and
(v) the impact on the owner and other residents
on the land or facilities if such access is
ordered; and
(vi) the objectives of the Act set out in section 3;
Broadcasting Act 201046
(vii) any submission provided by the Regulator
or the parties; and
(viii) such other matters as the Court considers
relevant.
(4) Where the Supreme Court or District Court makes an
order granting access under subsection (3), the Court shall
include in the order what compensation (if any) the service
provider shall pay to the owner of the private land or private
facility.
58. Access to customary land and facilities-(1) Where a
service provider:
(a) requires access to customary land or facilities located
on customary land to provide broadcasting
services; and
(b) cannot, on commercially reasonable terms, reach an
agreement with the person responsible for the
customary land or facilities, the service provider
may apply to the Regulator for assistance either
in reaching an agreement with the person
responsible for the customary land or facilities or
for the exercise of other powers to obtain the
desired access.
(2) Upon receipt of an application for assistance in
accordance with subsection (1), the Regulator shall take the
steps the Regulator deems necessary to mediate between the
concerned parties.
(3) If the Regulator’s mediation under subsection (2) fails to
produce an agreement between the parties involved:
(a) the matter may be submitted by the Regulator or a
party to the Ministry of Natural Resources and
Environment or the Land and Titles Court for
resolution under this Act or the Alienation of
Customary Land Act 1965 or the Taking of Land
Act 1964, or other Acts and procedures dealing
with customary land; and
(b) if the matter is dealt with under paragraph (a), the
Regulator may provide such reasonable
assistance the Regulator deems necessary as part
of the process of dealing with the customary
land, including the making of an order certifying
Broadcasting Act 2010 47
whether the purpose for which the land or
facilities is required is a public purpose under the
Taking of Land Act 1964; and
(c) the Regulator may exercise such other powers under
this Act or other Acts as the Regulator considers
appropriate to resolve the matter.
(4) Despite any other law, if the matter is before the Land
and Titles Court, the Court shall have the jurisdiction to make
an order granting or refusing the required access on such terms
and conditions as the Court may determine, having regard to:
(a) the nature of the customary land or facilities; and
(b) the nature of the access required; and
(c) the importance of such access in maintaining or
improving broadcasting services for Samoa; and
(d) whether any payment or other consideration can
compensate the owner if access is ordered by the
Court; and
(e) the impact on the owner and other residents on the
land or facilities if such access is ordered; and
(f) the objectives of the Act set out in section 3; and
(g) any submissions provided by the Regulator or the
parties; and
(h) such other matters as the Court considers relevant.
(5) Subject to subsection (6), where the Land and Titles
Court makes an order granting access under subsection (4), the
Court shall include in the order what compensation (if any) the
service provider shall pay to the person responsible for the
customary land or facilities.
(6) The Taking of Land Act 1964 shall apply to this section
with adaptations and modifications as necessary.
59. Co-location-(1) Service providers that own or control
existing transmission towers shall allow other service providers
to co-locate their antennas, transmitters and ancillary equipment
with those existing transmission towers where such co-location
is economically feasible and no major additional construction
work is required.
(2) The party requesting co-location shall compensate the
party required to provide co-location for such an amount as the
parties may agree or, where parties are unable to agree, as may
be determined by the Regulator.
Broadcasting Act 201048
(3) Where the parties are unable to agree on the conditions
of co-location, either or both parties may apply to the Regulator
to mediate and, if mediation fails, the Regulator may issue an
order to resolve any outstanding issues between the parties.
(4) Prior to issuing an order under subsection (3), the
Regulator shall take into account any comments submitted by
the parties, including any issues raised in those comments
relating to safety or interference with the parties’ networks,
services and personnel.
PART XI
NATIONAL SECURITY AND
PUBLIC EMERGENCIES
60. National security-(1) Despite any other law, a service
provider shall comply with any written request, direction or
other requirement of the Attorney General regarding access to
any part of the service provider’s broadcasting facilities or
broadcasting services or related information in connection with
national security requirements.
(2) A service provider shall provide any facilities or
capabilities, required for compliance with subsection (1) at the
service provider’s expense, but may apply to the Regulator for
an order dealing with the treatment of any substantial additional
expense.
(3) The Regulator may consider such application submitted
to the Regulator under subsection (2) in connection with any
tariff approval application or recovery of the costs of universal
access obligations, and make an order regarding the recovery of
such additional expense.
(4) For the purposes of subsection (1), the Attorney General
may determine that any event or matter concerns national
security.
61. Public disaster and state of emergency-(1) In case of a
disaster or an emergency under the Disaster and Emergency
Management Act 2007, service providers shall comply with
directions issued by the Commissioner of the Samoa Police
Service or the Chief Executive Officer of the Ministry
responsible for disaster co-ordination to respond to or alleviate
Broadcasting Act 2010 49
problems faced by the public or the Government related to such
disaster or emergency.
(2) For the purposes of subsection (1), the Commissioner of
the Samoa Police Service or the Chief Executive Officer of the
Ministry responsible for disaster co-ordination may determine
that anevent or matter is a public disaster.
PART XII
DISPUTES, OFFENCES AND ENFORCEMENT
62. Service provider disputes-(1) Where service providers
have been unable to agree on the resolution of a matter that is
related to the Regulator’s powers under this Act or other laws of
Samoa, then following reasonable efforts to reach an amicable
settlement, 1or more service providers may apply to the
Regulator for assistance in resolving the dispute.
(2) In response to any referral under subsection (1), the
Regulator may:
(a) assign a member of the Regulator’s staff or
consultant to attempt to mediate the dispute; or
(b) recommend that the dispute be brought before a
court; or
(c) issue an order to resolve the dispute.
63. Audience and customer disputes-(1) Where a viewer,
listener or a customer, other than a service provider is involved
in a dispute that the parties to the dispute have been unable to
resolve among themselves, either party may refer the dispute to
the Regulator for assistance.
(2) In response to a referral under subsection (1), the
Regulator may:
(a) assign a member of the Regulator’s staff or
consultant to attempt to mediate the dispute; or
(b) recommend that the dispute be brought before a
court; or
(c)issue an order to resolve the dispute.
64. Alternative dispute resolution-(1) Parties to a dispute
may agree to refer that dispute to private mediation or
arbitration.
Broadcasting Act 201050
(2) The Regulator’s costs in respect of a dispute referred to
private mediation or arbitration under subsection (1), including
but not limited to any travel or other expenses incurred by or on
behalf of the Regulator in connection with the Regulator’s
assistance or intervention, are paid to the Regulator by the
parties to the dispute.
65. Broadcasting and computer offences-(1) No person
shall:
(a) fraudulently, maliciously, or with dishonest or
otherwise unlawful intent, use or attempt to
obtain any subscription service without payment
of the lawful charge; or
(b) intentionally, without right and with dishonest or
otherwise unlawful intent access or attempt to
access the whole or any part of a broadcasting
facility or service provider’s computer system by
infringing security measures, with the intent of
obtaining broadcasting or computer data; or
(c) intentionally, without right and with dishonest or
otherwise unlawful intent, intercept or attempt to
intercept a transmission not intended for public
reception of broadcasting or computer data to,
from or within a computer system; or
(d) intentionally, without right and with dishonest or
otherwise unlawful intent, damage, delete,
deteriorate, alter or suppress broadcasting or
computer data or attempt to damage, delete,
deteriorate, alter or suppress broadcasting or
computer data; or
(e) intentionally, without right and with dishonest or
otherwise unlawful intent, hinder or disrupt or
attempt to hinder or disrupt the functioning of a
broadcasting facility or computer system by
inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing
broadcasting or computer data; or
(f) intentionally, without right and with dishonest or
otherwise unlawful intent, use, possess, produce,
sell, procure for use, import, distribute or
otherwise make available or attempt to use,
Broadcasting Act 2010 51
possess, produce, sell, procure for use, import,
distribute otherwise make available a device,
including but not limited to a computer program,
for the purpose of committing any of the
offences established in paragraphs (a), (b), (c),
(d) or (e); or
(g) intentionally, without right and with dishonest or
otherwise unlawful intent, use, possess, produce,
sell, procure for use, import, distribute or
otherwise make available or attempt to use,
possess, produce, sell, procure for use, import,
distribute or otherwise make available a
computer password, access code or similar data
by which the whole or any part of a broadcasting
facility or computer system is capable of being
accessed with intent that such network or system
be used for the purpose of committing any of the
offences established in paragraphs (a), (b), (c),
(d), or (e); or
(h) wilfully damage or attempt to damage any
broadcasting facility.
(2) A person who acts in contravention of subsection (1)
commits an offence and is liable upon conviction to the
penalties provided in section 66.
66. Other offences and penalties-(1) A person who
contravenes or attempts to contravene this Act or breaches a
licence condition or fails to comply with an order made by the
Regulator under this Act commits an offence and is liable:
(a) in the case of a natural person, to a fine not
exceeding 50 penalty units for a first offence and
100 penalty units for a subsequent offence; or
(b) in the case of a company or other incorporated body,
to a fine not exceeding 5,000 penalty units for a
first offence and 10,000 penalty units for a
subsequent offence; or
(c) in addition to paragraph (a) in the case of a natural
person who is a director, manager, officer of
company or incorporated body and who is
responsible for the contravention, breach or
Broadcasting Act 201052
failure by the company or incorporated body,
imprisonment for a term not exceeding 2 years.
(2) A person who:
(a)knowingly makes or attempts to make any false or
misleading or incomplete declaration,
application, information, return or statement for
the purpose of obtaining or assisting another
person to obtain a licence, consent, permission or
other act of authority under this Act; or
(b) knowingly provides, supplies or otherwise gives, or
attempts to provide, supply or otherwise give, to
the Regulator or a person acting under or on
behalf of the Regulator or a person acting under
or on behalf of the Regulator any false,
misleading or incomplete documents, statement
or information concerning this Act; or
(c) willfully obstructs or hinders or attempts to obstruct
or hinder the Regulator or a person acting under
or on behalf of the Regulator in the execution of
any responsibility, duty or power of the
Regulator under this Act, commits an offence
and is liable to the penalties provided under
subsection (1)
(3) Where an offence under subsection (1) or (2) is
committed or continued on more than 1day, the person who
committed the offence is liable for a separate offence for each
day on which the offence is committed or continued.
67. Divulging personal information obtained in the
course of duties-(1) Subject to subsection (2), an employee of a
service provider who without good and sufficient cause
discloses or uses any information or document that:
(a) relates to the affairs or personal particulars
(including any unlisted telephone number or
address) of another person; and
(b) was obtained in the course of that employee’s duties,
commits an offence and is liable to imprisonment for a term not
exceeding 6 months or a fine not exceeding 50 penalty units, or
both.
(2) Subsection (1) does not apply where the disclosure or
use is:
Broadcasting Act 2010 53
(a) reasonably necessary for the enforcement of the
criminal law; or
(b) reasonably necessary for the protection of the public
revenue; or
(c) otherwise required or authorised by law.
68. Judicial enforcement-An order made by the Regulator
is enforced in the same manner as in section 76 of the
Telecommunications Act 2005.
69. Monitoring and enforcement-(1) Despite any other
law, in addition to any other powers contained in this Act, the
regulations, rules, licenses or orders or under any other law, the
Regulator shall, for the purposes of exercising the Regulator’s
responsibilities, functions and powers under this Act, have the
power to make orders to:
(a) require the production of documents and information
by licensees, affiliates of licensees and any other
persons; and
(b) search premises and seize documents, equipment and
other items; and
(c) require attendance and examination of witnesses
under oath or affirmation or otherwise; and
(d) require persons to undertake specific actions or to
cease specific actions in the event of a breach of
this Act, the regulations, rules or orders or under
any other law.
(2) The Commissioner of the Samoa Police Service and all
sworn officers of the Samoa Police Service shall provide such
reasonable assistance to the Regulator as the Regulator requires
in undertaking the Regulator’s responsibilities, functions and
powers under this Act and any other law.
70. Civil liability-(1) Subject to any limitation of or
exemption from liability imposed in accordance with this Act or
any other Act, a person who has sustained loss or damage as a
result of any act or omission that is contrary to this Act, or a
regulation, rule or order made under this Act may, in the
Supreme Court or the District Court sue for and recover an
amount equal to the loss or damage from a person who engaged
Broadcasting Act 201054
in, directed, authorised, consented to or participated in the act or
omission.
(2) An action may not be brought in respect of any loss or
damage referred to in subsection (1) more than 2 years after the
day on which the act or omission occurred.
(3) Nothing in subsection (1) or (2) applies to any action for
breach of a contract to provide broadcasting services or any
action for damages in relation to a fee charged by a service
provider.
71. Jurisdiction of the Supreme Court and District
Courts-(1) Subject to this Act, the Supreme Court and the
District Court shall have jurisdiction to deal with all matters
referred to such Court under the Act, including but not limited
to civil actions brought under section 70 and disputes referred to
the Court under sections 62 and 63.
(2) The Supreme and District Courts shall have jurisdiction
to hear and determine any matter for which this Act provides
such courts with jurisdiction irrespective of whether any act or
omission or event occurs in Samoa or any other place.
PART XIII
MISCELLANEOUS
72. Civil protection for the Regulator-(1) Claims made by
or against the Regulator are made pursuant to the Government
Proceedings Act 1974.
(2) Despite any other law, save for the Constitution of the
Independent State of Samoa 1960, no action, suit or proceedings
for any act or omission in connection with the responsibilities,
powers or duties imposed on the Regulator by this Act are
brought or maintained against:
(a) a person who has been or is the Regulator where
such person has been or is acting in good faith;
or
(b) a person who has been or is acting under the
authority of the Regulator under the Act where
such person has been or is acting in good faith.
(3) The government and the Regulator shall not be liable for
any costs or damages in any legal proceedings challenging any
Broadcasting Act 2010 55
action taken under this Act, or for any failure or refusal to take
any action which is authorised by this Act.
73. Regulations-(1) The Head of State, acting on the advice
of Cabinet, may make regulations for such matters as are
contemplated by or necessary for giving full effect to the
provisions of this Act and for the due administration thereof.
(2) Without limiting the power conferred under subsection
(1) regulations may be made for the creation of offences
concerning this Act and to prescribe fines for such offences not
exceeding 100 penalty units.
74. Evidence by certificate -Despite any other law, in any
proceedings under or concerning this Act, including but not
limited to a prosecution for an offence, a certificate signed by or
on behalf of the Regulator and stating:
(a) that on any date a person was or was not the holder
of a licence issued pursuant to the Act; or
(b) that on any date the Regulator had made or otherwise
issued or amended or revoked or cancelled a
rule, order, code of practice, licence, direction,
guideline or other act of authority under this Act;
or
(c) the content of a rule, order, code of practice, licence,
direction, guideline or other act of authority
made or otherwise issued or amended or revoked
or cancelled by the Regulator under this Act,
is sufficient evidence of the facts stated in the certificate and
such certificate is presumed to be so signed unless the contrary
is proved.
75. Service of notice, order, letter, other document or act
of authority.-(1) Where under this Act a notice, order, letter,
other document or act of authority is required or permitted to be
served on a person, the notice, order, letter, other document or
act of authority may be served:
(a) in the case of service on any other person, by -
(i) delivering the notice, order, letter, other
document or act of authority to the Office
of the Regulator during normal business
hours; or
Broadcasting Act 201056
(ii) sending the notice, order, letter, other
document or act of authority by pre-paid
post or facsimile transmission to the
postal address or facsimile address, as the
case may require, of the Office of the
Regulator; and
(b) in the case of service on any other person, by -
(i) delivering the notice, order, letter, other
document or act of authority to the
person at the nominated address in
Samoa of the person in any application
made by the person to the Regulator or to
the nominated address in Samoa of the
person in any licence or other act of
authority affecting the person issued or
signed by or on behalf of the Regulator;
or
(ii) delivering the notice, order, letter, other
document or act of authority, during
normal business hours, to the address in
Samoa of any solicitor acting as legal
representative for the person; or
(iii) sending the notice, order, letter, other
document or act of authority by pre-paid
post or facsimile transmission to the
Samoan postal address or facsimile
address, as the case may require,
nominated by the person in any
application made by the person to the
Regulator or nominated in any licence or
other act or authority affecting the person
issued or signed by or on behalf of the
Regulator; or
(iv) sending the notice, order, letter, other
document or act of authority by pre-paid
post or facsimile transmission to the
Samoan postal or facsimile address, as
the case may require, of any solicitor
acting as legal representative for the
person.
Broadcasting Act 2010 57
(2) For all purposes in the case of service by pre-paid post,
service is deemed to have been effected 2days after the date of
postage.
(3) For all purposes in the case of service by facsimile
transmission:
(a) service is deemed to have been effected upon
completion of transmission without evidence of
garbling or incomplete transmission; or
(b) a printed or copied signature is sufficient for any
notice, order, letter, other document or act of
authority served by facsimile transmission.
76. Repeal -The Broadcasting Ordinance 1959 is repealed.
77. Savings and transitional provisions-(1) All references
in law or any document or act of authority to the Broadcasting
Department of Western Samoa or Director of Broadcasting or
successors is read as referring to the Ministry unless the context
otherwise requires.
(2) Insofar as they are not inconsistent with this Act, every
regulation, order, document and act of authority under or
concerning the Broadcasting Ordinance 1959, so far as they are
subsisting or in force at the time of the repeal of the
Broadcasting Act 1959, shall continue and have effect under the
corresponding provisions of this Act until such time as they are
altered, amended or cancelled, as the case may require, under
this Act and, where there is a question or concern as to what is a
corresponding provision of this Act, the Minister by notice in
writing may for all purposes declare a provision of this Act to
be a corresponding provision.
(3) All criminal proceedings undertaken by or on behalf of
the Ministry arising out of or under the Broadcasting Ordinance
1959 or any regulations made thereunder at the commencement
of this Act is deemed to have been instituted and continued
under the corresponding provisions of this Act.
(4) Despite this Act, all applications and other matters
arising out of or under the provisions of the Broadcasting
Ordinance 1959 which are not determined or otherwise dealt
with under such provisions at the date of the commencement of
this Act are determined or otherwise dealt with under the
corresponding provisions of this Act with such modifications,
Broadcasting Act 201058
adaptations and alterations as the Minister may determine in
writing.
(5) Despite this Act, where this Act does not provide or
provides insufficient or inadequate provision for the transition
from the Broadcasting Ordinance 1959 to this Act, the Minister,
by notice published in Samoan and English in the Savali, may
make such provisions as the Minister deems necessary in order
for all matters under or concerning the Broadcasting Ordinance
1959 and this Act to be properly and effectively determined or
otherwise dealt with under this Act.
78. Transitional provisions for prior licences-(1) Despite
this Act, the holder of an existing licence (a “prior licence”)
issued prior to the coming into force of this Act may apply to
the Regulator at any time after the commencement of this Act to
revoke the holder’s prior licence and apply to operate under a
new licence issued in accordance with this Act.
(2) If the holder of a prior licence does not apply for
conversion of a prior licence in circumstances where the holder
is permitted to do so under this section within 6 months after the
commencement of this Act, the Regulator may issue an order
revoking the prior licence and issue a new licence in accordance
with this Act.
(3) In all other respects, the operation of broadcasting
networks and the provision of broadcasting services under prior
licences is subject to the licensing and other requirements of
this Act, and all applicable regulations, rules, orders and
licensing procedures.
(4) The Regulator’s powers to grant a licence under this Act
applies despite any law, agreement, contract, arrangement or
prior licence (howsoever called) issued to a person and in
existence at the time of the commencement of the Broadcasting
Ordinance 1959.
(5) Where:
(a) the Minister has granted a licence under the
Broadcasting Ordinance 1959; or
(b) the Regulator has granted a licence under this Act;
and
(c) the Attorney General and the Chief Executive
Officer of the Ministry of Finance have advised
Cabinet in writing that the grant of such licence
Broadcasting Act 2010 59
has adversely affected the rights of a person
under an existing agreement, contract,
arrangement, licence or other provision
(howsoever called), Cabinet, in its absolute
discretion, may authorise the provision of
compensation to such person in the form of
money, concessions, and benefits or otherwise in
such amount or form as the Attorney General
and the Chief Executive Officer of the Ministry
of Finance in writing may recommend
(6) In the event of any inconsistency between this section
and section 77, this section prevails.
__________
REVISION NOTES 2011
This Act has been revised under section 5 of the Revision and Publication of
Laws Act 2008.
The following general revisions have been made:
(a) Amendments have been made to conform to modern drafting styles
and to use modern language as applied in the laws of Samoa.
(b) Amendments have been made to up-date references to offices,
officers and statutes.(e.g. Samoa Police Service, Commissioner of
the Samoa Police Service and sworn officers of the Samoa Police
Service; and correct name for Constitution of the Independent State
of Samoa 1960).
(c) Insertion of the commencement date
(d) Other minor editing has been done in accordance with the lawful
powers of the Attorney General.
(i) Every” and “any” changed to “a”
(ii) “shall be” changed to “is” and “shall be deemed” changed to
“is taken”
(iii) “shall have” changed to “has”
(iv) “shall be guilty” changed to “commits”
(v) “notwithstanding” changed to “despite”
(vi) “pursuant to” changed to “under”
(vii) “it shall be lawful” changed to “may”
(viii) “it shall be the duty” changed to “shall”
(ix) Numbers in words changed to figures
(x) “hereby” and “from time to time” (or “at any time”) removed
(xi) UK spelling used to spell check (e.g. “license” or “licensed”
or “licenses” substituted with “licence” or “licenced” or
“licences” respectively).
(xii) Changes made to formalise the name ofthe“Regulator” and
“Office of the Regulator”, respectively, throughout the Act
(i.e. instead of “regulator”, substituted “Regulator”).
Broadcasting Act 201060
(xiii) Adopting the drafting style of putting “and” or “or” at the
end of paragraphs where appropriate, and substituting
“and/or” with “or”.
(xiv) Correct grammatical, typographical and similar errors.
(xv) Deleted “the provisions of” in references such as “the
provisions of this Act” and deleted “of this Part” in
references such as “sections of this Part” where
appropriate.
(xvi) Correct cross references made within the Act (e.g. in
section 39(1), for reference to “section 36(1)(b)”
substituted “section 36(b)).
(xvii) Redraft of certain sections for clarity (e.g. section 39(3)).
There were no amendments made to this Act since the publication of the
Consolidated and Revised Statutes of Samoa 2007.
This law has been consolidated and revised in2011 by the Attorney General
under the authority of the Revision and Publication of Laws Act 2008 and is
an official version of this Act as at 31 December 2011. It is an offence to
publish this Act without approval or to make any unauthorised change to an
electronic version of this Act.
Aumua Ming Leung Wai
Attorney General of Samoa
Revised and consolidated in 2008 by the Legislative Drafting Division under
the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo
(Parliamentary Counsel)
Revised in 2009, 2010 and 2011 by the Legislative Drafting Division under
the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).
The Broadcasting Act 2010 is administered by the
Ministry of Communications and Information Technology.