Loi sur la radiodiffusion de 2010, Samoa

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.