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Recent Developments in Telecommunications Law

Published online by Cambridge University Press:  21 May 2009

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The advent of the information society necessitates a review of the existing rules and regulations governing telecommunications facilities. The old legal framework, which in most countries dates from the turn of the century, is in need of replacement. Modern information technology dictates reform.

Copyright © T.M.C. Asser Press 1987

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1. International Telecommunications Convention 1982, Annex 2, No. 2015, Tractatenblad, 1983, No. 164.

2. Cf., the OECD/ICCP's An Exploration of Legal Issues in Information and Communication Technologies, Vol. 8 (1983) p. 64Google Scholar.

3. See 34 Ars Aequi No. 9, pp. 475–6Google Scholar and Auteurs en Mediarecht (1985) p. 43.

4. Cf., the debate on the role of the PTT in the Netherlands: Swarttouw Report (March 1982) and Steenbergen Report (July 1985).

5. Statement by Fishman, W.L., United States Banking Committee Sub-Committee on International Finance and Monetary Policy, 9 11 1981, pp. 1011Google Scholar.

6. Robinson, P., Legal Questions and Transborder Data Flow, a paper for the Swedish and Norwegian Societies for Computers and Law (01 1982) p. 3Google Scholar.

7. Diagram taken from the Report of the Steenbergen Committee, Signalen voor straks — een nieuwe richting voor de PTT (07 1985) p. 10Google Scholar.

8. Post Office, Telegraph and Telephone authorities.

9. Digital signals are signals consisting of a series of zeros and ones. They are superseding traditional analogue signals, which consist of variable electrical pulses. The great advantage of digital transmission is that it makes no difference whether the original signal is a picture, text, speech or computer data.

10. An official definition of protocol is: ‘A set of rules defining the way information can flow in a system. In all forms of communication a protocol has to be observed to ensure that correct interaction takes place between transmitting and receiving stations…’ — taken from Graham's, J.Penguin Dictionary of Telecommunications (1983)Google Scholar.

11. The official definition is: ‘A specification of the rules by which interaction between two separate functional units can be made to operate to conform with overall system requirements…’; Graham, op. cit. n 10.

12. The structure of the ITU is set out in Art. 5 (Nos. 25–33) of the Convention. It consists of the following bodies:

— Plenipotentiary Conferences, supreme organ of the Union

— Administrative Conferences

— Administrative Committee

— As permanent organs the:

a) General Secretariat

b) International Frequency Registration Board

c) International Consultative Committee on Radiocommunication

d) International Consultative Committee on Telegraph and Telephone:

Tractatenblad, 1983, No. 164.

13. Graham, op. cit. n 10. See also the mandate of the CCITT as defined in Art. 11 (No. 84) of the International Telecommunications Convention, 1982.

14. Art. 44(1), International Telecommunications Convention, Nairobi, 1982.

15. In 1984 the CEPT numbered 30 members from 26 European countries.

16. The efforts to achieve standardization within the ITU and CEPT should not be confused with the activities of the International Standards Organization (ISO) and the International Electrotechnical Commission (IEC) and their European counterparts, the Comité Européenne de Normalisation (CEN) and CENELEC, who are essentially working to standardize computer equipment, not the infrastructure. Now that computers are also being connected to the network the separate activities are coming together.

17. Cf., the PTT's monopoly on telephone receivers.

18. Cf., the CIB report Telecommunicatie in Nederlanddejuridische aspecten, July 1982.

19. A rented line is a permanent connection to one or more subscribers, i.e., one that does not have to be dialled. Public Data Network Conditions for Connection, 1982, Art. 13.

20. For the situation in the Netherlands see Public Data Network Conditions for Connection, 1982, Art. 9 (3).

21. Telecommunications Act, para. 151, s. 1.

22. This was made possible by the Specialized Common Carriers decision, 29 TCC, 2nd, 870 (920), 1971. Subsequent decisions by the FCC permitted specialized telecommunications suppliers/carriers (i.e., companies that did not have connections throughout the country) to make connections to the existing AT & T network. In practice this put an end to AT & T's monopoly.

23. MCI Telecom Corp. v. FCC (Execunet I) 561, F 2nd 365 (DC Cir 1977), cert, denied, 434 US 1040 (1978); MCI v. FCC (Execunet II) 580 F 2nd 590 (DC Cir) cert, denied, 439 US 980 (1978).

24. By the ‘Carterfone’ judgment, 13 FCC 2nd, 420–1968. recon. 14 FCC 2nd 571–1968. For details see Brock, G. W., The Telecommunications Industry: The Dynamics of Market Structure (1981) p. 240 et seqGoogle Scholar.

25. British Telecom did, however, retain the right to subject such equipment to type approval: non-approved equipment must not be connected to the network.

26. A consortium set up by Cable and Wireless, British Petroleum and Barclays Bank.

27. General Licence under s. 15(1) for Telecommunication systems used in providing Value Added Network Services, London, 1982Google Scholar.

28. Case 41/83, Italy v. Commission, 20 March 1985.

29. Official Journal, L360/36, 21 December 1982.

30. Permitted under Article 173 of the Treaty. Italy contested the Commission's decision because it foresaw problems in this area with its own PTT.

31. Cf., the ban on sub-hiring rented lines under the Public Data Network Conditions for Connection, 1982, Art. 9 (3).

32. This power to delegate legislative powers derives from the PTT Assignment Act, 1954.

33. T & T Act, s. 2.

34. Report of Steenbergen Committee, July 1985.

35. 22 November 1985, Parliamentary Proceedings 13.752.

36. Under Dutch company law a company is either a public company (Naamloze Vennootschap (NV)), sometimes referred to as a limited liability company, or a private company (Besloten Vennootschap (BV)) and the main difference between the two is that BV's may only have shares registered in the names of the shareholders, while NV shares are negotiable.

37. Observation of the earth by means of satellites.

38. Principles for remote sensing by satellites, adopted by the UNCOPUOUS on June 13, 1986, ILM (1985) vol. 5 p. 1331Google Scholar.

39. This does not take account of the results of the GATT negotiations in Punta del Este, Uruguay.

40. The text of the declaration has been published in Transnational Data Report, Vol. III (1985) No. 3, pp. 115117Google Scholar

41. I.e., the international traffic in goods and services and the resulting monetary transactions.

42. From Memorandum of Understanding, Odette Project.

43. For example, the Dutch PTT included the following provision in its Public Data Network Conditions for Connection, 1982, Art. 12(6): ‘The PTT shall not be responsible for any loss or damage caused by the service, in the broadest sense, of the data network.’ Art. 21 of the 1982 International Telecommunications Convention (Tractatenblad, 1983, No. 164) reads: ‘Members accept no responsibility towards users of the international telecommunication services, particularly as regards claims for damages“.

44. UNCITRAL (mentioned above) has published a study on the subject, entitled Legal Implications of Automated Data Processing, which examines the activities of twelve organizations (governmental and non-governmental) in this area.

45. This distinction is applied and elaborated in the UNCTC's Transnational Corporations and Transborder Data Flows: a Technical Paper (1982).

46. UNCTC study on Brazil, 1982.

47. See Trade Barriers to Telecommunications, Data and Information Services’, in Transnational Data Report, Vol. V (06 1982) No. 4, pp. 179185Google Scholar.

48. Cf., Farnsworth, F., ‘Data Privacy or Data Protection and Transborder or Transnational Data Flows — an American View of European Legislation’, International Business Lawyer (04 1983)Google Scholar.

49. An incidental advantage to the companies is cost-saving: data input is fairly labourintensive and wages in such countries are lower than in the mother country.

50. See ‘Bahamas wants Business Data’, in Transnational Data and Communications Report (March 1986) p. 8.

51. Datenschutzgesetz, 18 October 1978, Bundesgesetzblatt No. 568/1978.