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Communications and Multimedia Act 1998

Communications and Multimedia

LAWS OF MALAYSIA

RepRint

Act 588

cOMMunIcAtIOnS And

MuLtIMedIA Act 1998

Incorporating all amendments up to 1 January 2006 published by

the CommissioneR of law Revision, malaysia

undeR the authoRity of the Revision of laws aCt 968 in CollaboRation with

peRCetakan nasional malaysia bhd

2006

cOMMunIcAtIOnS And MuLtIMedIA Act 1998

date of Royal assent ... ... ... ... ... 3 september 998 date of publication in the Gazette ... ... 5 october 998 Previous rePrint

First Reprint ... ... ... ... ... 2002

LAWS OF MALAYSIA

Act 588

cOMMunIcAtIOnS And MuLtIMedIA

Act 1998

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

section

. short title

. Commencement

3. objects

4. territorial and extra-territorial application

5. power of the minister to exclude certain persons, geographical areas, etc.

6. interpretation PART II

ministeRial poweRs and pRoCeduRes

Chapter

Ministerial Direction

7. direction by the minister

8. variation of a direction

9. Register of directions Chapter

Ministerial Determination

0. determination by the minister 4 Laws of Malaysia Act 588

. variation of a determination

. Register of determinations

Chapter 3

Ministerial Declaration

3. declaration by the minister

4. modification, variation or revocation of a declaration

5. Register of declarations Chapter 4

Ministerial Regulations

6. minister's power to make regulations PART iii

appeal tRibunal

7. establishment of the appeal tribunal

8. matters which the appeal tribunal may review

9. Qualifications of members

0. Resignation and termination of an appointment . vacation of office and acting appointments

. Quorum for the appeal tribunal

3. decision 23A. enforcement of decision of appeal tribunal

4. appeal tribunal procedures 24A. powers of appeal tribunal

5. suspension of member

6. disclosure of interest 26A. secretary of appeal tribunal and other officers 26b. obligation of secrecy

26C. public servants and public officers

26d. application of public authorities protection act 948 26E. act or omission done in good faith

section

5Communications and Multimedia

PART iv

liCenCes

Chapter

Individual Licence

section

7. application for an individual licence

8. further information

9. Recommendation by the Commission

30. Grant of an individual licence

3. Restriction on the grant of an individual licence

3. Compliance with the conditions of an individual licence

33. modification, variation or revocation of individual licence conditions

34. Renewal of an individual licence

35. surrender of an individual licence

36. transfer of an individual licence or change of ownership

37. Recommendation for the suspension or cancellation of an individual licence

38. suspension or cancellation of an individual licence by the minister

39. effective date of suspension or cancellation of an individual licence

40. publication on suspension or cancellation of an individual licence

4. effect of suspension, cancellation, surrender or expiry of an individual licence

4. Register of individual licences

43. Rights and obligations attached to an individual licence Chapter

Class Licence

44. minister may grant class licence

45. application for registration

46. Requirement for registration

47. Recommendation by the Commission

48. Cancellation of registration by the minister

49. Register of class licences

50. Register of registration notices 6 Laws of Malaysia Act 588

PART v

poweRs and pRoCeduRes of the malaysian

CommuniCations and multimedia Commission

Chapter

Directions

section

5. directions by the Commission

5. modification, variation or revocation of a direction by the Commission

53. offence for non-compliance with a direction of the Commission

54. Register of directions Chapter

Determination

55. determination by the Commission

56. modification, variation or revocation of a determination by the Commission

57. Register of determinations Chapter 3

Inquiry

58. inquiry by the Commission

59. Combining two or more inquiries

60. Conduct of an inquiry

6. inquiry shall be public

6. exceptions to a public inquiry

63. Confidential material not to be disclosed

64. directions about an inquiry

65. Report on an inquiry

66. protection from civil action

67. Register of reports 7Communications and Multimedia

Chapter 4

Investigation for Purposes of Administration, Inquiry, etc. section

68. investigation by the Commission

69. Complaints to the Commission

70. Conduct of investigation

7. Report on investigation

7. publication of reports Chapter 5

Information-gathering Powers

73. provision of information

74. offence for non-compliance

75. offence for giving false or misleading information, evidence or document, etc.

76. proof of compliance

77. Commission may retain documents

78. incorrect record

79. Record of information

80. publication of information Chapter 6

8. Register of all matters Chapter 7

Notification and Resolution of Disputes

8. disputes

83. notification of a dispute

84. Commission to act only upon notification

85. Commission may publish guidelines

86. Commission to decide notified dispute 8 Laws of Malaysia Act 588

87. decision to be in writing

88. Register of decisions

89. enforcement Chapter 8

Registration of Agreements

90. application for the registration of agreements

9. when the Commission shall register the agreement

9. effect of registration

93. Content of the register of agreements Chapter 9

Voluntary Industry Codes

94. industry forum

95. Code by the industry forum

96. Commission may determine a voluntary industry code

97. applicable voluntary industry code

98. Compliance with a registered voluntary industry code a legal defence

99. directions to comply with a registered voluntary industry code

00. Civil penalty for non-compliance

0. Revocation of a code

0. submission of new voluntary industry code by an industry forum

03. Register of current voluntary industry code Chapter 0

Mandatory Standards

04. determination of a mandatory standard

05. mandatory standard to be consistent

06. modification, variation or revocation of a mandatory standard

07. mandatory standard to take precedence

08. Compliance with a mandatory standard a legal defence

09. Civil penalty for non-compliance section

9Communications and Multimedia

Chapter

Undertakings

section

0. undertaking by a person . Registration of an undertaking

. Rules regarding undertakings

3. withdrawal of an undertaking

4. Replacement of an undertaking

5. Register of undertakings

6. enforcement of an undertaking Chapter

Regulatory Forbearance

7. Regulatory forbearance

8. determination by the minister Chapter 3

Review of Decisions

9. Review by the Commission

0. Review by the appeal tribunal . Judicial review

Chapter 4

Regulatory Review

. Review of subsidiary legislation by the Commission Chapter 5

Monitoring and Reporting

3. Report to the minister on industry performance

4. matters to monitor and report

5. Report to be published 0 Laws of Malaysia Act 588

PART vi

eConomiC ReGulation

Chapter

Licensing

section

6. licensing of network facilities, network services and applications services

7. Compliance with licence conditions

8. definition of network boundary

9. exemption for applications service provider not subject to a class licence

30. nominated facilities provider

3. providers under a class licence shall register

3. separate licence Chapter

General Competition Practices

33. prohibition on anticompetitive conduct

34. Commission may publish guidelines

35. prohibition on entering into collusive agreements

36. prohibition on tying or linking arrangements

37. determination of dominant licensee

38. Guidelines as to the meaning of "dominant position"

39. Commission may direct a licensee in a dominant position

40. authorization of a conduct

4. Register of authorizations

4. Remedies for non-compliance

43. penalty for offence

44. minister may make rules Chapter 3

Access to Services

45. facilities and services which may be included in the access list Communications and Multimedia

46. determination of facilities and services by the Commission

47. Recommendation by access forum

48. Register of access list

49. standard access obligations for facilities and services

50. Registration of access agreements

5. notification of access disputes

5. access forum

53. access code

54. Registration of the access code

55. industry access undertakings

56. Registration of an undertaking PART vii

teChniCal ReGulation

Chapter

Spectrum Assignment

57. prohibition on using spectrum without assignment

58. power of the minister to make regulations

59. issue of spectrum assignment

60. spectrum assignment to comply with spectrum plan

6. Reissue of spectrum assignment

6. third party transfers

63. transfer rules

64. issue of apparatus assignment

65. apparatus assignment to comply with spectrum plan

66. situation where apparatus assignment shall not be issued

67. third party authorization

68. maximum term for an apparatus assignment

69. Class assignment

70. Class assignment to comply with spectrum plan

7. situation where class assignment shall not be issued

7. spectrum plan section

Laws of Malaysia Act 588

73. Contents of spectrum plan

74. preferential rights

75. dispute about interference

76. minister may determine spectrum for spectrum assignment

77. spectrum plan to include procedures for spectrum assignment and apparatus assignment

78. Compulsory acquisition of assignments in determined spectrum Chapter

Numbering and Electronic Addressing

79. Control, planning and administration of numbering and electronic addressing

80. numbering and electronic addressing plan

8. management or maintenance of an integrated public number or electronic address database

Chapter 3

Technical Standards

8. hindering interoperability an offence

83. Compromising public safety an offence

84. technical standards forum

85. matters for technical code

86. Certifying agencies PART viii

ConsumeR pRoteCtion

Chapter

Quality of Service

87. exemption from offence provisions

88. provision of network service or applications service section

3Communications and Multimedia

89. Consumer forum

90. matters for consumer code

9. publication of consumer code Chapter

Required Applications Services

9. Required applications services

93. minister's direction to provide required applications services

94. direction may specify operational details Chapter 3

Resolution of Consumer Disputes

95. disputes between consumers and licensees

96. procedures for consumer complaints Chapter 4

Rate Regulation

97. Rate setting by providers

98. principles on rate setting

99. Rate setting by the minister

00. power of the minister to determine persons or areas for special rates

0. Rules regarding rates Chapter 5

Universal Service Provision

0. system of universal service provision

03. definition of "underserved areas" and "underserved groups within the community", etc.

04. universal service provision fund section

4 Laws of Malaysia Act 588

PART iX

soCial ReGulation

Chapter

Licensing

section

05. prohibition on the provision of content applications service

06. Compliance with licence conditions

07. Closed content applications service

08. exemptions for incidental content

09. limited content applications service

0. opinion on category of service Chapter

Content Requirements

. prohibition on provision of offensive content

. Content forum

3. Content code PART X

GeneRal

Chapter

Installation of Network Facilities, Access to Network Facilities, etc.

4. inspection of land

5. installation of network facilities

6. minimal damage

7. network facilities provider to restore land

8. management of activity

9. agreement with public utility

0. Conditions to which a network facilities installation permit is subject . notice to owner of land

. notice to owner of land for lopping of trees, etc.

3. notice to road authority, public utility, etc. 5Communications and Multimedia

4. Road, etc., to remain open for passage

5. network facilities installation permit

6. Criteria for issue of network facilities installation permit

7. network facilities installation permit has effect subject to this act and other laws

8. access to post, network facilities or right-of-way

9. Commission to regulate matters on access to post, etc.

30. minister may make regulations Chapter

Additional Offences and Penalties

3. offence if use apparatus or device without authority

3. fraudulent use of network facilities, network services, etc.

33. improper use of network facilities or network service, etc.

34. interception and disclosure of communications prohibited

35. damage to network facilities, etc.

36. fraud and related activity in connection with access devices, etc.

37. prohibition on call back service

38. emission from non-standard equipment or device

39. unlawful use, possession or supply of non-standard equipment or device

40. offence for distributing or advertising any communications equipment or device for interception of communication

4. offence for giving false and misleading statement

4. General offence and penalty

43. Compounding of offences

44. offences by body corporate Chapter 3

Powers of Entry, Investigation into Offences and Prosecution

45. authorized officer

46. power to investigate

47. search by warrant section

6 Laws of Malaysia Act 588

48. search and seizure without warrant

49. access to computerized data

50. list of things seized

5. Release of things seized

5. power to intercept communications

53. obstruction to search

54. additional powers

55. power to require attendance of person acquainted with case

56. examination of person acquainted with case

57. admissibility of statements in evidence

58. authorized officer to complete investigation and hand over to police

59. prosecution

60. forfeiture

6. Jurisdiction to try offences

6. Rewards Chapter 4

National Interest Matters

63. General duty of licensees

64. persons not liable for act done in good faith

65. network interception capability

66. special powers in emergency

67. disaster plan Chapter 5

Miscellaneous

68. minister may make rules on record-keeping

69. interworking with other authorities

70. instruments granted under this act

7. this act prevails over other acts

7. protection of officers and other persons section

7Communications and Multimedia

PART Xi

tRansitional pRovisions

Chapter

Repeal and Savings

section

73. Repeal

74. dissolution of the telecommunications fund

75. savings Chapter

Transitional Provisions for Licences

76. old licences to have effect

77. new class licences to supersede old licences

78. old licences shall be registered

79. a registered licence shall confer no new benefit

80. old licensees shall indicate intention

8. Registered licensee may apply for an individual licence under this act

8. determination of listed facilities and services SChEduLE

8 Laws of Malaysia Act 588

9Communications and Multimedia

LAWS OF MALAYSIA

Act 588

cOMMunIcAtIOnS And MuLtIMedIA Act 1998

an act to provide for and to regulate the converging communications and multimedia industries, and for incidental matters. [1 April 1999, P.U. (B) 128/1999--

except ss. 157, 159-162, 164-171, 176, 178, 197 & 198; 1 April 2000, P.U. (B) 106/2000--ss. 157, 159-162, 164-171, 176 & 178]

Be It enActed by the seri paduka baginda yang di-pertuan agong with the advice and consent of the dewan negara and dewan Rakyat in parliament assembled, and by the authority of the same as follows:

PART i

pReliminaRy

Short title

1. this act may be cited as the Communications and multimedia act 998.

commencement

2. this act comes into operation on a date to be appointed by the minister by notification in the Gazette, and the minister may appoint different dates for different provisions of this act. Objects

3. () the objects of this act are-- (a) to promote national policy objectives for the communications and multimedia industry;

0 Laws of Malaysia Act 588

(b) to establish a licensing and regulatory framework in support of national policy objectives for the communications and multimedia industry;

(d) to establish the powers and procedures for the administration of this act.

() the national policy objectives for the communications and multimedia industry are--

(a) to establish malaysia as a major global centre and hub for communications and multimedia information and content services;

(b) to promote a civil society where information-based services will provide the basis of continuing enhancements to quality of work and life;

(c) to grow and nurture local information resources and cultural representation that facilitate the national identity and global diversity;

(d) to regulate for the long-term benefit of the end user; (e) to promote a high level of consumer confidence in service delivery from the industry;

(f) to ensure an equitable provision of affordable services over ubiquitous national infrastructure;

(g) to create a robust applications environment for end users;

(h) to facilitate the efficient allocation of resources such as skilled labour, capital, knowledge and national assets; (i) to promote the development of capabilities and skills within malaysia's convergence industries; and

(j) to ensure information security and network reliability and integrity.

(3) nothing in this act shall be construed as permitting the censorship of the internet.

Communications and Multimedia

territorial and extra-territorial application

4. () this act and its subsidiary legislation apply both within and outside malaysia.

() notwithstanding subsection (), this act and its subsidiary legislation shall apply to any person beyond the geographical limits of malaysia and her territorial waters if such person-- (a) is a licensee under this act; or

(b) provides relevant facilities or services under this act in a place within malaysia.

(3) for the purposes of this section, "a place" means a point of any nature or description whether on land, in the atmosphere, in outer space, underground, underwater, at sea or anywhere else. (4) for the purposes of this section, a place that is-- (a) in or below the stratosphere; and

(b) above the geographical limits of malaysia and her territorial waters,

is taken to be a place within the geographical limits of malaysia and her territorial waters.

Power of the Minister to exclude certain persons, geographical areas, etc.

5. notwithstanding section 4, the minister may, by order published in the Gazette, exclude or exempt any person or place, premises or geographical area of any description from the provisions of this act.

Interpretation

6. in this act, unless the context otherwise requires-- "access" means access to a network facility or network service listed under Chapter 3 of part vi;

"access code" means a voluntary industry code prepared under section 53;

"access device" means any card, plate, code, account number, electronic serial number, mobile identification number, personal Laws of Malaysia Act 588

identification number, or other network service, applications service or content applications service, equipment, or facility identifier, or other means of access that can be used, alone or in conjunction with another access device, for the purposes of any communications;

"access forum" means a forum designated under section 5; "access list" means the list of facilities or services established under Chapter 3 of part vi;

"agreement" means an agreement, whether formal or informal, oral or written, express or implied;

"apparatus assignment" means an assignment issued under section 64;

"appeal tribunal" means the appeal tribunal established under part iii;

"applications service" means a service provided by means of, but not solely by means of, one or more network services; "applications service provider" means a person who provides an applications service;

"appointed date" means the date on which this act comes into operation;

"arrangement" means an arrangement, whether formal or informal, oral or written, express or implied;

"assignment" means the assignment by the Commission of rights to use the spectrum, numbers or electronic addresses and may include conditions to which the exercise of those rights shall be subject;

"authorized interception" means interception by the licensee of any network facilities, network service or applications service permitted under section 65;

"authorized officer" means any public officer or officer appointed by the Commission and authorized in writing by the minister for the purposes of this act;

3Communications and Multimedia

"certifying agency" means a certifying agency registered under section 86;

"class assignment" means an assignment issued under section 69; "class licence" means a licence for any or all persons to conduct a specified activity and may include conditions to which the conduct of that activity shall be subject;

"communications" means any communication, whether between persons and persons, things and things, or persons and things, in the form of sound, data, text, visual images, signals or any other form or any combination of those forms;

"communications market" means an economic market for a network service, or an applications service, or for goods or services used in conjunction with a network service or an applications service, or for access to facilities used in conjunction with either a network service or an applications service;

"Commission" means the malaysian Communications and multimedia Commission established under the malaysian Communications and multimedia Commission act 998 [Act 589]; "conduit" means--

(a) any conduit which, whether or not it is itself an electric line, is maintained by an electricity company for the purpose of enclosing, surrounding or supporting such line, including, where such conduit is connected to any box, chamber or other structure (including a building) maintained by an electricity supply company for purposes connected with the conveyance, transmission or distribution of electricity, that box, chamber or structure;

(b) a water main or any other conduit maintained by a water authority for the purpose of conveying water from one place to another;

(d) a culvert or water course; or

(e) any other underground facility for carrying, enclosing, surrounding or supporting any network facilities; 4 Laws of Malaysia Act 588

"consumer code" means a voluntary industry code prepared under Chapter of part viii;

"consumer forum" means a forum designated under section 89; "content" means any sound, text, still picture, moving picture or other audio-visual representation, tactile representation or any combination of the preceding which is capable of being created, manipulated, stored, retrieved or communicated electronically; "content applications service" means an applications service which provides content;

"content code" means a voluntary industry code prepared under Chapter of part iX;

"content forum" means a forum designated under section ; "court" means a court of law of competent jurisdiction; "customer equipment" means any equipment, whether hardware or software, or device, used on the customer side of the network boundary;

"data processing device" means any article or device from which information is capable of being reproduced, with or without the aid of any other article or device;

"declaration" means a declaration made by the minister under section 3;

"determination" means a determination made by the minister under section 0, or by the Commission under section 55; "direction" means a direction issued by the minister under section 7, or by the Commission under section 5;

"director" has the meaning given to it in the Companies act 965 [Act 125];

"disaster plan" means a disaster plan which may be developed in accordance with section 67;

5Communications and Multimedia

"frequency band" means a continuous frequency range of spectrum;

"incidental content" means a content which is incidental to the supply of an applications service because of--

(a) it being related solely to the interface between an applications service and an end user; or

(b) the reasons set out in a ministerial determination made under section 0;

"individual licence" means a licence for a specified person to conduct a specified activity and may include conditions to which the conduct of that activity shall be subject;

"industry forum" means a forum designated under section 94; "instrument" includes a direction, determination or declaration;

"intercept" means the aural or other acquisition of the contents of any communications through the use of any electronic, mechanical, or other equipment, device or apparatus;

"interception capability" means the capability of any network facilities or network service or applications service to intercept communications under section 65;

"licensee" means a person who either holds an individual licence, or undertakes activities which are subject to a class licence, granted under this act;

"limited content applications service" means a content applications service the appeal of which is limited because of-- (a) it being targeted to a special interest group; (b) it being available in a restricted geographical area; (c) it being available for a short time;

(d) it being based on content of limited appeal; or 6 Laws of Malaysia Act 588

(e) the reasons set out in a ministerial determination made under section 0;

"mail" includes the postal service;

"mandatory standard" means a mandatory standard established under Chapter 0 of part v;

"minister" means the minister for the time being charged with the responsibility for communications and multimedia; "multimedia information and content" means digitized content;

"network boundary" means the network boundary provided under section 8;

"network facilities" means any element or combination of elements of physical infrastructure used principally for, or in connection with, the provision of network services, but does not include customer equipment;

"network facilities provider" means a person who owns or provides any network facilities;

"network service provider" means a person who provides network services;

"nominated facilities provider" means a person, other than the owner of the network facilities, declared by the minister to be a nominated facilities provider;

"number" means a number, letter or symbol;

"numbering and electronic addressing plan" means the numbering and electronic addressing plan developed under section 80; "owner" means the legal or beneficial owner;

"post" means a post, pole, tower, standard, stay, strut or other above-ground facility for carrying, suspending or supporting any network facilities;

7Communications and Multimedia

"public utility" means a body that provides to the public-- (a) reticulated products or services, such as electricity, gas, water, sewerage or drainage;

(b) telecommunications services;

(d) a product or service of a kind that is similar to a product or service covered by paragraph (a), (b) or (c);

"register" means any one of the registers established or maintained by the Commission for the purposes of this act;

"register of opinions" means the register of opinions maintained under section 97 or 0, or any other relevant section; "required applications service" means an applications service which is in a list determined by the minister under section 9;

"spectrum" means the continuous range of electromagnetic wave frequencies up to and including a frequency of 40 terahertz; "spectrum assignment" means the assignment issued under section 59;

"spectrum plan" means the spectrum plan developed under section 7;

"technical code" means a voluntary industry code prepared under Chapter 3 of part vii;

"technical standards forum" means a forum designated under section 84;

"transmit" or "transmission" means to cause any emission of unguided electromagnetic energy in any part of the spectrum; "voluntary industry code" means a voluntary industry code prepared under Chapter 9 of part v.

8 Laws of Malaysia Act 588

PART ii

ministeRial poweRs and pRoCeduRes

Chapter

Ministerial Direction

direction by the Minister

7. () the minister may, from time to time, issue directions to the Commission on the exercise of the Commission's powers and the performance of the Commission's functions and duties under this act, whether of a general character or otherwise. () any ministerial direction shall be consistent with the objects and provisions of this act which are relevant to the particular matter or activity.

(3) the Commission shall exercise its powers conferred under this act in a manner which is consistent with a ministerial direction.

(4) every ministerial direction shall be registered by the Commission as soon as practicable.

(5) a direction shall come into operation on the date of registration or such later date as the minister may specify in the written instrument.

(6) a direction shall expire on such date as the minister may specify in the written instrument or, if no date is specified, the direction shall be in operation until the direction is revoked. Variation of a direction

8. () the minister may at any time modify, vary or revoke a direction.

() the procedure set out in section 7 shall apply mutatis mutandis in respect of any modification, variation or revocation of a direction.

9Communications and Multimedia

9. the Commission shall maintain a register of all directions issued by the minister in accordance with Chapter 6 of part v. Chapter

Ministerial Determination

determination by the Minister

10. () the minister may, from time to time, determine any matter specified in this act as being subject to ministerial determination, without consultation with any licensees or persons. () any determination shall be consistent with the objects and provisions of this act which are relevant to the particular matter or activity.

(3) the Commission shall exercise its powers conferred under this act in a manner which is consistent with the determination. (4) the minister shall provide a copy of the determination under this Chapter to the Commission as soon as practicable. (5) every determination shall be registered by the Commission as soon as practicable.

(6) a determination shall come into operation on the date of registration or such later date as the minister may specify in the written instrument.

(7) a determination shall expire on such date as the minister may specify in the written instrument or, if no date is specified, the determination shall be in operation until the determination is revoked.

Variation of a determination

11. () the minister may at any time modify, vary or revoke a determination.

30 Laws of Malaysia Act 588

() the procedure set out in section 0 shall apply mutatis mutandis in respect of any modification, variation or revocation of a determination.

12. the Commission shall maintain a register of all determinations made by the minister in accordance with Chapter 6 of part v. Chapter 3

Ministerial Declaration

declaration by the Minister

13. () the minister may, from time to time, make a written declaration that an individual licence, or a class of individual licences, or a class licence--

(a) is subject to such conditions; or

(b) enjoys such benefits, as the minister deems fit. () any declaration on the conditions of licence shall relate to the matters set out in the schedule.

(3) the minister may also make a written declaration to exempt a licensee from complying with any conditions of a licence. (4) before making a declaration under subsection (), the, minister shall give the affected licensees written notice of his intention to do so together with a draft copy of the declaration, and the licensees may make submissions to the minister by submitting them to the Commission within the time period specified by the minister but the time period shall not be less than thirty days. (5) after expiry of the notice specified in subsection (4), the minister shall, on the recommendation of the Commission, decide on the next course of action, taking into consideration any submission made by the affected licensees.

3Communications and Multimedia

(6) the minister shall give the affected licensees a written notice of the declaration made under subsection () as soon as practicable.

(7) any declaration shall be consistent with the objects and provisions of this act which are relevant to the particular matter or activity.

(8) the Commission shall exercise its powers conferred under this act in a manner which is consistent with the declaration. (9) the minister shall provide a copy of the declaration under this Chapter to the Commission as soon as practicable. (0) every declaration shall be registered by the Commission as soon as practicable.

() a declaration other than a declaration under subsection () shall come into operation on the date of registration or such later date as the minister may specify in the instrument. () a declaration shall expire on such date as the minister may specify in the written notice or, if no date is specified, the declaration shall be in operation until the declaration is revoked.

Modification, variation or revocation of a declaration

14. () the minister may at any time modify, vary or revoke a declaration regarding a licence.

() the procedure set out in section 3 shall apply mutatis mutandis in respect of any modification, variation or revocation of a declaration.

15. the Commission shall maintain a register of all declarations made by the minister in accordance with Chapter 6 of part v. 3 Laws of Malaysia Act 588

Chapter 4

Ministerial Regulations

Minister's power to make regulations

16. () the minister may, on the recommendation of the Commission or otherwise, make regulations, to be published in the Gazette, for all or any of the following purposes: (a) the procedures for the Commission and the appeal tribunal in the exercise of their powers and functions under this act;

(b) the form of, and requirements for, written authorizations, assignments and licences granted or issued under this act;

(c) the procedures for the assignment of rights to the spectrum or numbers under part vii, including mechanisms for rate-based assignment;

(d) any fees, charges or rates to be imposed;

(e) the procedures for the implementation of a system of universal service provision under part viii, including but not limited to the quality of service standards; (f) the procedures for the use of network facilities, network services, applications services and content applications services in emergency or distress situations;

(g) the compounding of offences;

(h) any redress, including compensation or penalties in respect of a breach of or offence against any subsidiary legislation;

(i) any matter for which this act makes express provision; and

(j) such other matters as are necessary for giving full effect to the provisions of this act and for their due administration.

() the regulations made under subsection (), or any other subsidiary legislation made under this act, may prescribe any act in contravention of the regulations, or other subsidiary legislation, to 33Communications and Multimedia

be an offence and may prescribe penalties of a fine not exceeding three hundred thousand ringgit or a term of imprisonment not exceeding three years or both for such offence and, in the case of a continuing offence, may prescribe, in addition to such penalties, a fine of one thousand ringgit for every day or part of a day during which the offence continues after conviction. PART iii

appeal tRibunal

establishment of the Appeal tribunal

17. () the minister may establish an appeal tribunal, which shall convene on an ad hoc basis, as the minister considers necessary or expedient for good cause and in the interest of justice, or to assist in the performance of the Commission's functions, or in the public interest.

() the minister shall appoint, by order to be published in the Gazette--

(a) a Chairman of the appeal tribunal; and

(b) at least two other members, or such greater number of members, of the appeal tribunal,

to review a particular matter under a licence, this act or its subsidiary legislation.

(3) the minister shall appoint a person who is currently a Judge of the high Court to be the Chairman of the appeal tribunal. (4) the appointment of any member of the appeal tribunal may be renewed upon the expiry of his term as a member. (5) no member of the appeal tribunal shall be appointed for a term exceeding three years.

(6) notwithstanding subsection (5), a member of the appeal tribunal may be reappointed for a further term.

34 Laws of Malaysia Act 588

Matters which the Appeal tribunal may review

18. () the appeal tribunal may review any matter on appeal, from a decision or direction of the Commission but not from a determination by the Commission.

() any decision by the appeal tribunal is final and binding on the parties to the appeal and is not subject to further appeal. Qualifications of members

19. a person is qualified to be a member of the appeal tribunal if he has knowledge of or experience in--

(a) the communications and multimedia industry;

(b) engineering;

(d) economics or commerce; or

(e) public administration.

Resignation and termination of an appointment

20. () the minister may at any time terminate the appointment of the Chairman or any other member of the appeal tribunal if-- (a) he resigns his office;

(b) he becomes of unsound mind or otherwise incapable of performing his duties or managing his affairs;

(d) he is prohibited from being a director of a company under any written law relating to companies;

(e) he has been convicted of an offence, under any law, by a court in malaysia;

(f) he is guilty of serious misconduct in relation to his duties;

(g) he fails to comply with his obligations under section 6; or

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(h) his performance has been unsatisfactory for a significant period of time.

() the Chairman or any member may, at any time, resign his office by giving a written notice to the minister. Vacation of office and acting appointments

21. () the office of the Chairman or any member of the appeal tribunal shall be vacated if--

(a) he dies;

(b) he resigns or otherwise vacates his office before the expiry of the term for which he is appointed; or

() the minister shall appoint a person in accordance with section 7 to replace the Chairman or any other member during the vacancy in the office of the Chairman or any other member. (3) the minister shall appoint a person in accordance with section 7 to act as the Chairman, or any other member-- (a) during any period when the Chairman or any other member is absent from any duty or from malaysia; or

(b) if the Chairman or any other member is, for any reason, unable to perform the duties of the office.

(4) the exercise of the powers, or the performance of the functions, of the appeal tribunal is not affected only because of there being a vacancy in the membership of the tribunal. Quorum for the Appeal tribunal

22. the quorum for the appeal tribunal shall be formed by-- (a) a Judge; and

(b) at least two other members, or any greater even number of members not exceeding four, none of whom are

Judges,

for the purposes of the functions of the appeal tribunal under this act.

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decision

23. the decision of the appeal tribunal, on any matter, shall be decided on a majority of votes of the members.

enforcement of decision of Appeal tribunal

23A. any decision given by the appeal tribunal may be enforced in the same manner as a judgment or an order of the high Court. Appeal tribunal procedures

24. the minister may make regulations regarding the operating procedures of the appeal tribunal, including but not limited to--

(a) the funding of the appeal tribunal;

(b) members' remuneration;

(d) the appointment of an acting member;

(e) the conduct of the hearings;

(f) any other matter incidental to the hearings; and (g) the employment of staff, if any.

Powers of Appeal tribunal

24A. the appeal tribunal shall have the power--

(a) to summon parties to the proceedings or any other person to attend before it to give evidence in respect of an appeal;

(b) to procure and receive evidence on oath or affirmation, whether written or oral, and examine all such persons as witnesses as the appeal tribunal thinks necessary to procure, receive or examine;

(c) where a person is so summoned, to require the production of any book, paper, document, record or other thing in 37Communications and Multimedia

his possession or under his control and which the appeal tribunal may consider necessary for the purposes of the appeal;

(d) to administer any oath, affirmation or statutory declaration, as the case may require;

(e) where a person is so summoned, to allow the payment for any reasonable expenses incurred in connection with his attendance;

(f) of a subordinate court with regard to the enforcement of attendance of witnesses, hearing evidence on oath or affirmation and punishment for contempt;

(g) to admit evidence or reject evidence adduced, whether oral or documentary, and whether admissible or inadmissible under the provisions of any written law for the time being in force relating to the admissibility of evidence; (h) to adjourn the hearing of an appeal from time to time, including the power to adjourn to consider its decision; and

(i) to generally direct and do all such things as may be necessary or expedient for the expeditious decision of the appeal.

Suspension of member

25. the minister may, at his discretion, suspend any member of the appeal tribunal on the ground of misbehaviour or incapacity. disclosure of interest

26. () a member of the appeal tribunal shall disclose, as soon as practicable, to the Chairman any interest, whether substantial or not, which may conflict with the member's duties as a member of the tribunal, in a particular matter.

() if the Chairman is of the opinion that the member's interest is in conflict with the member's duties, the Chairman shall inform all the parties, including the appellants and the respondents, to the matter of the conflict.

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(3) if none of the parties to the matter objects to the conflict, the member may continue to execute his duties as a member of the tribunal in relation to that matter.

(4) if a party to the matter objects to the conflict, the member shall not continue to execute his duties as a member of the tribunal in relation to that matter.

(5) the failure by a member to disclose his interest in the matter shall subject him to the relevant disciplinary measures under section 0 or 5.

Secretary of Appeal tribunal and other officers

26A. () the minister shall designate a public officer as a secretary of the appeal tribunal to assist the appeal tribunal in carrying out its function under this act.

() the minister may designate such number of other public officers as the minister thinks fit to assist the secretary in carrying out his function under subsection ().

(3) for the purpose of this act, the secretary and the officers designated under subsection () shall be deemed to be officers of the appeal tribunal.

Obligation of secrecy

26b. () except for this part or for the purposes of any civil or criminal proceedings under any written law, or where authorized by the minister--

(a) the Chairman, members of the appeal tribunal or any officer of the appeal tribunal shall not, during the time he serves as such Chairman, member or officer, disclose any information obtained by him in the course of his duties; and

(b) no other person who has, by any means, access to any information or document relating to the affairs of the appeal tribunal shall disclose such information or document.

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() a person who contravenes subsection () commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding three months or to both.

Public servants and public officers

26c. the Chairman and all members and officers of the appeal tribunal, while discharging their duties as the Chairman and such members and officers, shall be deemed to be public servants within the meaning of the penal Code [Act 574], and to be public officers for the purposes of the Criminal procedure Code [Act 593].

Application of Public Authorities Protection Act 1948 26d. the public authorities protection act 948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the appeal tribunal, Chairman or any member or officer of the appeal tribunal in respect of any act, neglect or default done or committed by him in such capacity.

Act or omission done in good faith

26e. no action or suit shall be instituted or maintained in any court against--

(a) the appeal tribunal;

(b) the Chairman or any member of the appeal tribunal; (c) the secretary or any other officer of the appeal tribunal; or

(d) a person authorized to act for and on behalf of the appeal tribunal,

for any act or omission done in good faith in the performance of its or his functions and the exercise of its or his powers under this act and any subsidiary legislation made under this act. 40 Laws of Malaysia Act 588

PART iv

liCenCes

Chapter 1

Individual Licence

Application for an individual licence

27. () subject to subsection (), a person may apply, in writing, to the Commission for an individual licence in respect of any matter requiring an individual licence under this act. () for the purposes of subsection (), the minister may set out in the regulations made under section 6 the persons or classes of persons who are not eligible to apply for an individual licence. (3) an application under this section may be withdrawn at any time before it is granted or refused.

Further information

28. () the Commission may at any time after the application for an individual licence is made, request the applicant to give the Commission, within the period specified in the request, further information on the application.

() if any additional information or document required under subsection () is not provided by the applicant within the time specified in the request or any extension of time granted by the Commission, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without affecting the right of the applicant to make a fresh application. Recommendation by the commission

29. the Commission shall, within sixty days of receiving an application for an individual licence under this part or such other period as may be specified by the minister, provide a written recommendation to the minister specifying--

(a) whether the individual licence should be granted to the applicant;

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(b) any special or additional conditions which the individual licence should be subject to, if the Commission recommends the granting of the individual licence; and

Grant of an individual licence

30. () the minister shall have due regard to the recommendation of the Commission given under section 9 before making a decision.

() the minister may, acting on the recommendation of the Commission, by written notice--

(a) grant an individual licence in accordance with the provisions of this part; and

(b) declare that an individual licence granted under this part be subject to special or additional conditions.

(3) if the minister grants an individual licence under subsection (), the Commission shall inform the applicant by written notice--

(a) that the individual licence has been granted; and (b) of any special or additional conditions, which are declared by the minister under section 3.

(4) notwithstanding subsection (), all individual licences shall be deemed to include the relevant standard licence conditions specified in the schedule.

(5) the individual licence granted under subsection () is subject to any other approvals of the relevant authorities, including the state authority, for the placing, laying or maintenance of any network facilities on, through, under, or across any land. (6) if the minister refuses to grant an individual licence to an applicant, the minister shall give the applicant a written notice informing him--

(a) that the application has been refused; and

(b) the reasons for the refusal.

4 Laws of Malaysia Act 588

(7) for the purposes of this section, the minister shall inform the applicant by written notice of his decision, as soon as practicable, after making the decision to approve or refuse the application. (8) if the minister neither grants, nor refuses to grant, an individual licence within thirty days from the receipt of the recommendation by the Commission, the minister is deemed, at the end of the period, to have refused to grant the individual licence unless the applicant receives a written notice approving the application for an individual licence after the period. (9) an approval fee, to be decided upon by the minister, shall be payable upon the approval of the application.

Restriction on the grant of an individual licence

31. the minister may not grant an individual licence to a person if that person is operating under an existing class licence in respect of the same service or activity.

compliance with the conditions of an individual licence

32. an individual licensee shall comply with-- (a) the relevant standard conditions of the individual licence as set out in the schedule; and

(b) any special or additional conditions of the individual licence as declared by the minister and included in the individual licence.

Modification, variation or revocation of individual licence conditions

33. () the minister may, at any time, by declaration in accordance with section 3--

(a) modify or vary the special or additional conditions of an existing individual licence;

(b) revoke the special or additional conditions of an existing individual licence; or

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() the procedures set out in section 3 shall apply mutatis mutandis to the modification, variation, or revocation of a licence condition under this section.

Renewal of an individual licence

34. () the licensee may apply for the renewal of an individual licence not later than sixty days before its expiry. () the renewal fee, to be decided upon by the minister, shall be payable upon approval of the application.

(3) the application for the renewal of an individual licence shall be granted by the minister unless the minister, on the recommendation of the Commission, determines that the licensee-- (a) has failed to comply with the terms and conditions of the individual licence;

(b) has failed to comply with the provisions of this act; or (c) has failed to comply with any instrument issued, made or given by the minister or the Commission.

(4) if the minister has no intention of renewing the individual licence, the Commission shall--

(a) inform the licensee by written notice, as soon as practicable, of his refusal to renew the individual licence; and (b) notify and publish, at least thirty days before the expiry of the individual licence, such intention in at least one national language and one english language national daily newspapers for at least three consecutive days. (5) the affected licensee shall be given a reasonable opportunity to make written submissions to the minister within a time period specified in the notice and such time period shall not be less than fourteen days.

(6) the affected licensee may, within the time period specified in the notice, submit a written submission and the minister shall consider the submission.

44 Laws of Malaysia Act 588

Surrender of an individual licence

35. () a licensee may, by written notice, surrender his individual licence to the minister--

(a) at any time; or

(b) in accordance with the requirements set out in the individual licence.

() the surrender shall take effect on the date the Commission receives the individual licence and the notice under subsection (), or where a later date is specified in the notice, on that date. (3) the surrender of an individual licence shall be irrevocable unless it is expressed to take effect on a later date and before that date the Commission, by notice in writing to the licensee, allows the surrender to be withdrawn.

transfer of an individual licence or change of ownership

36. () the grant of an individual licence shall be personal to the licensee and the individual licence shall not be assigned or transferred to any other party unless the prior written approval of the minister has been granted.

() the minister may seek the advice of the Commission before granting an approval under subsection ().

Recommendation for the suspension or cancellation of an individual licence

37. the minister may, on the recommendation of the Commission, by declaration in accordance with section 3, suspend or cancel an individual licence granted under this act in any of the following circumstances:

(a) the licensee has failed to pay any amount required by this act or the individual licence;

(b) the licensee has failed to comply with the provisions of this act or the terms and conditions of the individual licence;

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(c) the licensee has contravened the provisions of any other written law relevant to the communications and multimedia industry;

(d) the licensee has failed to comply with any instrument issued, made or given by the minister or the Commission; or

(e) the suspension or cancellation is in the public interest. Suspension or cancellation of an individual licence by the Minister

38. () the minister may, by declaration in accordance with section 3, suspend or cancel an individual licence granted under this part in any one of the circumstances set out in section 37. () the procedures set out in section 3 shall apply mutatis mutandis to the suspension or cancellation of an individual licence under this section.

effective date of suspension or cancellation of an individual licence

39. the suspension or cancellation of an individual licence shall take effect on the expiration of fourteen days from the date on which the notice of suspension or cancellation is served on the licensee.

Publication on suspension or cancellation of an individual licence

40. () where the suspension or cancellation of an individual licence has taken effect, the Commission shall, as soon as practicable, cause the suspension or cancellation to be published in at least one national language and one english language national daily newspapers for at least three consecutive days.

() any delay or failure to publish the notice of suspension or cancellation shall not in any manner affect the validity of the suspension or cancellation.

46 Laws of Malaysia Act 588

effect of suspension, cancellation, surrender or expiry of an individual licence

41. () where the suspension or cancellation of an individual licence under section 37, or the surrender of an individual licence under section 35, has taken effect, or where the individual licence has expired, the licensee shall immediately cease to provide any facility or service in respect of which the individual licence was granted.

() notwithstanding subsection (), the minister may, on the recommendation of the Commission, authorize the licensee in writing to carry on providing any facility or service for such duration as the minister may specify in the authorization for the purpose of winding up the licensee's affairs.

(3) notwithstanding subsection (), the licensee whose individual licence has expired shall be entitled to carry on providing a facility or service as if his individual licence had not expired upon proof being submitted to the Commission that the licensee has applied for the renewal of the individual licence in accordance with section 34 and that such application is pending determination by the minister.

(4) subject to subsections () and (3), a person who contravenes subsection () commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both. Register of individual licences

42. () the minister shall provide a copy to the Commission of--

(a) any individual licence granted under this part; (b) any special or additional conditions specified in the individual licence;

(c) any written notice varying, revoking or imposing any special or additional conditions specified in the individual licence;

(d) any written notice by the licensee surrendering his individual licence;

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(e) any written notice by the minister suspending or cancelling the individual licence; and

(f) any written notice approving the transfer of an individual licence or a change in beneficial ownership of the individual licence.

() the Commission shall maintain a register, which shall be made available to the public, of all individual licences which have been granted under this part.

(3) the Commission shall maintain a separate register, which shall be made available to the public, of all the matters listed in paragraphs ()(b) to (f).

(4) the Commission shall maintain the registers in accordance with Chapter 6 of part v.

Rights and obligations attached to an individual licence

43. () the grant of certain individual licences may be conditional on the registration of undertakings by a prospective licensee. () in granting individual licences, the minister may declare specified benefits only for licensees who have current registered undertakings under this section.

(3) the minister may make regulations on the types of matters which may be included in an undertaking by a prospective licensee and the commensurate benefits for which the licensee shall be eligible in respect of such matters.

(4) the regulations made by the minister under section 6 and this section may provide for any or all specified benefits to have effect when a licensee meets any one or more of the terms of his undertakings under subsection (), as the minister deems fit.

(5) a licence fee shall be payable by a licensee to the Commission under this section, subject to such terms as may be provided in the regulations made, and as required in the individual licence granted, under this part.

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Chapter

Class Licence

Minister may grant class licence

44. () the minister may grant a class licence in respect of any matter requiring a licence under this act.

() a class licence granted under subsection () may include the relevant standard conditions as set out in the schedule and/or such other standard conditions as may be declared by the minister from time to time.

(3) the minister shall give a copy of all class licences to the Commission as soon as practicable and the Commission shall register them.

Application for registration

45. () a person who intends to operate under a class licence shall register with the Commission by submitting a registration notice to the Commission.

() a registration fee, to be prescribed by the minister by notification in the Gazette, shall be payable by the person to the Commission upon the registration of that person.

Requirement for registration

46. subject to the exceptions provided in this act, no person shall operate under any class licence unless the person is duly registered by the Commission.

Recommendation by the commission

47. the Commission may make a written recommendation to the minister that the person subject to a class licence under this part be de-registered in any of the following circumstances: (a) the person has failed to pay any amount required by this act or the licence;

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(b) the person has failed to comply with the provisions of this act or the terms and conditions of the licence; (c) the person has contravened the provisions of any written law relevant to the communications and multimedia industry;

(d) the person has failed to comply with any instrument issued, made or given by the minister or the Commission; or (e) the de-registration is in the public interest. cancellation of registration by the Minister

48. () the minister may, by declaration in accordance with section 3, cancel the registration of a person under this part according to the recommendation of the Commission made under section 47.

() the person whose registration has been cancelled shall cease the activity to which the registration applied until such time as the Commission, with the prior express direction of the minister, has agreed to reregister the person.

49. the Commission shall maintain a separate register, which shall be made available to the public, of--

(a) all class licences;

(b) all declarations by the minister varying or revoking conditions, or imposing other standard conditions as specified in the licence; and

50. the Commission shall maintain a register of all registration notices approved and registered under this act, in accordance with Chapter 6 of part v.

50 Laws of Malaysia Act 588

PART v

poweRs and pRoCeduRes of the malaysian

CommuniCations and multimedia Commission

Chapter

Directions

directions by the commission

51. () the Commission may, from time to time, issue directions in writing to any person regarding the compliance or non-compliance of any licence conditions, and including but not limited to the remedy of a breach of a licence condition, and the provisions of this act or its subsidiary legislation.

() before issuing a direction under subsection (), the Commission shall issue a notice in writing to the person specifying the nature of required compliance.

(3) the person shall be granted an opportunity to be heard or may submit a written submission within a reasonable time period specified in the notice on the reasons for his conduct or activity.

(4) after the expiry of the notice specified in subsection (3), the Commission shall take into consideration any reasons provided by the person before making a decision in relation to the relevant conduct or activity of the person.

(5) after due consideration of any reasons provided by the person, the Commission may issue a direction under subsection () requiring the person to take specified action directed towards ensuring that the person does not contravene or continue to contravene any of the conditions of his licence and/or any of the provisions of this act or its subsidiary legislation. (6) the Commission shall give the person written notice of its direction as soon as practicable.

(7) the person shall comply with the direction issued by the Commission under subsection (6).

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(8) A direction issued by the Commission under this Chapter shall beregisteredassoonaspracticable.

(9) Thedirectionshallbeeffectivefromthedateofregistration orsuchlaterdateastheCommission mayspecify.

(10) ThedirectionshallexpireonsuchdateastheCommission mayspecifyinthewritteninstrumentor,ifnodateisspecified, the directionshallbeinoperationuntilitisrevoked.

Modification, variation or revocation of a direction by the Commission

52. (1) The Commission may modify, vary or revoke a direction.

(2) The procedure set out in section 51 shall apply mutatis mutandis inrespectofanymodification,variationorrevocation ofadirection.

Offence for non-compliance with a direction of the Commission

53. A person who fails to comply with a direction of the Commission commits an offence and shall, on conviction, be liabletoafinenotexceedingthreehundredthousandringgitorto imprisonmentforatermnotexceedingthreeyearsortoboth. Register of directions

54. The Commission shall maintain a register of all directions issued by the Commission, including any written instruments modifying, varying or revoking a direction, in accordance with Chapter6ofthisPart.

Chapter2

Determination

Determination by the Commission

55. (1) TheCommissionmay,fromtimetotime,determineany matterspecifiedinthisActasbeingsubjecttotheCommission's determination.

52 Laws of Malaysia Act 588

(2) TheCommissionmayconductaninquirytodecidewhether adeterminationshouldbemade,either--

(a) inresponsetoawrittenrequestfromaperson;or

(b) onitsowninitiative.

(3) Notwithstandingsubsection(1),theCommissionshallnot conduct an inquiry unless it is satisfied that the matter is of significantinteresttoeitherthepublicortocurrentorprospective licenseesunderthisAct.

(4) AninquiryshallbecarriedoutinaccordancewithChapter 3ofthisPart,andatastandardandinamannerconsistentwith the provisions of thisAct and its subsidiary legislation and any instrument issued,madeorgivenunderthisAct.

(5) Withinforty-fivedaysfromtheconclusionoftheinquiry, theCommissionshalldeterminethe matter.

(6) AnydeterminationbytheCommissionshallbeconsistent with the objects of, and any requirements provided in, thisAct whichare relevanttotheparticularmatteroractivity. (7) AdeterminationmadebytheCommissionunderthisChapter shallbe registeredassoonaspracticable.

(8) A determination shall come into force on the date of registrationorsuchlaterdateastheCommissionmay specify. (9) AdeterminationshallexpireonsuchdateastheCommission may specify or, if no date is specified, the determination shall bein forceuntilthedeterminationisrevoked.

Modification, variation or revocation of a determination by the Commission

56. (1) Subject to the provisions of this Act, the Commission may modify, vary or revoke a determination, in response to a writtenrequestoronitsowninitiative.

(2) The procedures set out in section 55 shall apply mutatis mutandis inrespectofanymodification,variationorrevocation ofthe determination.

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57. TheCommissionshallmaintainaregisterofalldeterminations made by the Commission, including any written instrument modifying, varying or revoking a determination, in accordance withChapter6ofthisPart.

Chapter3

Inquiry

Inquiry by the Commission

58. (1) The Commission shall, in response to a Ministerial direction,holdapublicinquiryonanymatterofageneralnature which relates to the administration of thisAct or its subsidiary legislationwhichwillservetheobjectsofthisAct.

(2) The Commission may hold a public inquiry under subsection(1)--

(a) inresponsetoawrittenrequestfromaperson;or

(b) onitsowninitiative,

only if it is satisfied that the matter is of significant interest to either the public or to current or prospective licensees under thisAct.

Combining two or more inquiries

59. TheCommissionmaycombinetwoormoreinquiriesintoa singleinquiry.

Conduct of an inquiry

60. (1) An inquiry under this Part is to be conducted as and whentheCommissionthinksfit.

(2)TheCommissionmay,forthepurposesofaninquiry,exercise any or all of its investigation and information-gathering powers underChapters4and5ofthisPart.

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Inquiry shall be public

61. (1) Subject to section 62, if the Commission decides to holdapublicinquiryorisdirectedtoholdapublicinquiry,the Commissionshallpublish,inthemannerthatitdeemsappropriate, noticeof--

(a) thefactthatitisholdingtheinquiry;

(b) theperiodduringwhichtheinquiryisto beheld;

(c) thenatureofthemattertowhichtheinquiryrelates; (d) theperiod,ofatleastforty-fivedays,withinwhich,and the form in which, members of the public are invited to make submissions to the Commission about that

matter;

(e) themattersthattheCommissionwouldlikethesubmissions todealwith;and

(f) theaddressoraddressestowhichthesubmissionsmay besent.

(2) The Commission does not need to publish at the same timeorinthesamemannerthenoticeofallmattersreferredto insubsection(1).

(3) The Commission shall consider any submissions received within thetimelimitasspecifiedinthenotice.

(4) Thesubmissionsmadebythemembersofthepublicshall beinthe formandofthenatureas specifiedinthenotice. Exceptions to a public inquiry

62. Notwithstandingsection61,aninquiryorapartofaninquiry may be conducted in private if the Commission is satisfied that--

(a) the documents or information that may be given, or a matter that may arise during the inquiry or a part of theinquiry,isofaconfidentialnature;or

(b) aninquiryorpartofaninquiryofamatter,orpartof

a matter, in public would not be conducive to the due administrationofthisAct.

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Confidential material not to be disclosed

63. (1) If an inquiry takes place in public and the Commission isoftheopinionthat--

(a) theevidenceorothermaterialpresentedtotheinquiry; or

(b) the material in written submissions lodged with the Commission,

isofaconfidentialnature,theCommission maydirectthat-- (aa) theevidenceormaterial shouldnotbepublished;or (bb) itsdisclosureberestricted.

(2) Apersonshallnotwithoutreasonableexcusefailtocomply withadirectionundersubsection(1).

Directions about an inquiry

64. (1) Ifaninquiryorpartofaninquirytakesplaceinprivate, theCommission--

(a) shall give a direction as to the persons who may be presentattheinquiryorpartoftheinquiry;and

(b) maygiveadirectionrestrictingthedisclosureofevidence orothermaterialpresentedattheinquiryorpartofthe

inquiry.

(2) Notwithstandingsection53,apersonwhowithoutreasonable excuse fails to comply with a direction given under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment fora termnotexceedingsixmonthsortoboth.

Report on an inquiry

65. (1) The Commission shall publish a report, setting out its findingsasaresultofanyinquiryitconducts.

(2) TheCommissionshallpublishthereportwithinthirtydays oftheconclusionoftheinquiry.

56 Laws of Malaysia Act 588

(3) The Commission shall not include in the report any material--

(a) thatisofaconfidentialnature;

(b) thedisclosureofwhichislikelytoprejudicethefairtrial ofaperson;

(c) which would involve the unreasonable disclosure of personal information about any individual (including a deceasedindividual);or

(d) that is the subject of a direction under section 63 or

64. Protection from civil action

66. Civilproceedingsshallnotlieagainstapersoninrespectof anyloss,damageorinjuryofanykindsufferedbyanotherperson becauseof anyofthefollowingactsdoneingoodfaith:

(a) themakingofarequestundersection58;or

(b) themakingofastatement,orgivingofadocumentor

information,totheCommissioninrelationtoaninquiry

underthisChapter.

67. TheCommissionshallmaintainaregisterofallreportsmade pursuanttoaninquiryunderthisChapter,inaccordancewiththe provisionsinChapter6ofthisPart.

Chapter4

Investigation for Purposes of Administration, Inquiry, etc. Investigation by the Commission

68. Notwithstanding the provisions of any other written law, the Commission shall investigate any matter pertaining to the administrationofthisActoritssubsidiary legislationif-- (a) the Minister directs the Commission to conduct an investigation into any civil or criminal offence under 57Communications and Multimedia

this Act or its subsidiary legislation which may have beenormaybecommitted;or

(b) the Commission has grounds to believe that a civil or criminaloffenceunderthisActoritssubsidiarylegislation was,isorwillbecommitted.

Complaints to the Commission

69. (1) TheCommissionmayconductaninvestigationonamatter referredtoinsection68uponawrittencomplaintbyaperson. (2) The complaint shall specify the person against whom the complaintismade("therespondent").

(3) IfitappearstotheCommissionthat--

(a) apersonwishestomakeacomplaint;and

(b) thepersonrequiresassistancetoformulatethecomplaint ortoreduceitintowriting,

it is the duty of the Commission to take reasonable steps to provideappropriateassistancetotheperson.

(4) IfacomplainthasbeenmadetotheCommissionunderthis section, the Commission may make inquiries of the respondent forthepurposeofdeciding--

(a) whether the Commission has power to investigate the mattertowhichthecomplaintrelates;or

(b) whethertheCommissionshould,initsdiscretion,investigate thematter.

(5) If the Commission decides not to investigate, or not to investigate further, a matter to which a complaint relates, it shall as soon as practicable and in such manner as it thinks fit, inform the complainant and the respondent of the decision and thereasonsforthedecision.

Conduct of investigation

70. (1) Before beginning an investigation of a matter to which thecomplaintrelates,theCommissionshallinformtherespondent thatthematteristobeinvestigated.

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(2) AninvestigationunderthisPartistobeconductedasthe Commissionthinksfit.

(3) TheCommissionmay,forthepurposesofaninvestigation, obtaininformationfromsuchpersons asitthinksfit.

(4) Subjecttosubsection(5),itisnotnecessaryforacomplainant orarespondenttobegivenanopportunitytoappearbeforethe Commissioninconnectionwithaninvestigation.

(5) TheCommissionshallnot,asaresultoftheinvestigation, makeafindingthatisadversetoacomplainantorarespondent unlessithasgiventhecomplainantorrespondentanopportunity to make submissions about a matter to which the investigation relateswithinatimeperiodofnotlessthanthirtydays.

(6) The Commission shall consider the submissions made by the complainant or the respondent under subsection (5) before makingits decision.

Report on investigation

71. (1) Afterconcludinganinvestigation,theCommissionmay prepare andgivetotheMinisterareport.

(2) The reportundersubsection(1)shallcover--

(a) theconductoftheinvestigationconcerned;

(b) anyfindingsthattheCommissionhasmadeasaresult

oftheinvestigation;

(d) such other matters relating to, or arising out of, the investigation as the Commission thinks fit or as the Ministerdirects.

Publication of reports

72. TheMinistermaydirecttheCommissiontopublishareport ofaninvestigationiftheMinisterissatisfiedthatthepublication wouldbe inthenationalinterest.

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Chapter5

Information-gathering Powers

Provision of information

73. (1) ThissectionappliestoanypersoniftheCommissionhas reasontobelievethattheperson--

(a) hasanyinformation(includingbutnotlimitedtoaccounts and records) or any document that is relevant to the performanceoftheCommission'spowersandfunctions

underthisActoritssubsidiarylegislation;or

(b) iscapableofgivinganyevidencewhichtheCommission hasreasontobelieveisrelevanttotheperformanceof

theCommission'spowersandfunctionsunderthisAct

oritssubsidiarylegislation.

(2) Notwithstanding the provisions of any other written law, theCommissionmay,byawrittennotice,directanyperson-- (a) to give the Commission, within the period and in the manner and form specified in the notice, any such information;

(b) toproducetotheCommission,withintheperiodandin themannerspecifiedinthenotice,anysuchdocuments,

whetherinaphysicalformorinanelectronicmedia;

those copies to the Commission within the period and inthemannerspecifiedinthenotice;

(d) if the person is an individual, to appear, at a private hearing, before the Commission at a time and place specifiedinthenoticetogiveanysuchevidence,either

orally or in writing, and produce any such documents, whetherinaphysicalformorinanelectronicmedia;

(e) ifthepersonisabodycorporateorapublicbody,tocause acompetentofficerofthebodytoappear,ataprivate

hearing, before the Commission at a time and place specifiedinthenoticetogiveanysuchevidence,either

orally or in writing, and produce any such documents, whether in a physical form or in an electronic media; or

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(f) ifthepersonisapartnership,tocauseanindividualwho is a partner in the partnership or an employee of the partnership to appear, at a private hearing, before the Commissionatatimeandplacespecifiedinthenotice

to give any such evidence, either orally or in writing, andproduceanysuchdocuments,whetherinaphysical

formorinanelectronicmedia.

(3) TheCommissionshallallowthepersonsodirectedunder subsection (2) a reasonable time to give and to produce any informationand/ordocumentsspecifiedinthenotice.

(4) Any person required to provide information under subsection (2) shall ensure that the information provided is true, accurate and complete and such person shall provide a representation to that effect, including a representation that he is not aware of any other information which would make the informationprovideduntrueormisleading.

Offence for non-compliance

74. Notwithstanding section 53, a person who fails to comply withadirectionoftheCommissionunderthisChaptercommits an offence and shall, on conviction, be liable to a fine not exceedingtwentythousandringgitortoimprisonmentforaterm notexceedingsixmonthsortoboth.

Offence for giving false or misleading information, evidence or document, etc.

75. Notwithstandingsection53,apersonwhofailstodiscloseor omitstogiveanyrelevantinformationorevidenceordocument, orprovidesinformationorevidenceordocumentthatheknows orhasreasontobelieveisfalseormisleading,inresponsetoa directionissuedbytheCommissioncommitsanoffenceandshall, onconviction,beliabletoafinenotexceedingtwentythousand ringgit.

Proof of compliance

76. (1) Apersonshall,ifatanytimecalleduponinwritingby the Commission to do so, produce to the Commission all such evidenceandprovideallsuchinformationasthepersonmayhave 61Communications and Multimedia

relatingtohiscompliancewithanyoftheprovisionsofthisAct or its subsidiary legislation, as the Commission may generally, orin relationtoanyparticularcase,require.

(2) Subsection (1) shall not affect any other power conferred on theCommissionunderthisAct.

Commission may retain documents

77. (1) The Commission may take, and retain for as long as is necessary, possession of a document produced under this Chapter.

(2) Thepersonotherwiseentitledtopossessionofthedocument is entitled to be supplied, as soon as practicable, with a copy certifiedbytheCommissiontobeatruecopy.

(3) Notwithstanding the provisions of any other written law, the certified copy shall be received by all courts and tribunals asevidenceasifitweretheoriginal.

(4) Until a certified copy is supplied, the Commission shall, at such times and places as the Commission thinks appropriate, permitthepersonotherwiseentitledtopossessionofthedocument, orapersonauthorizedbythatperson,toinspectandmakecopies of,ortakeextractsfrom,thedocument.

Incorrect record

78. Apersonshallnot,inpurportedcompliancewitharequirement imposed by the record-keeping rules made under section 268, makearecordofanymatterorthinginsuchmannerthatitdoes notcorrectlyrecordthematterorthing.

Record of information

79. (1) TheCommissionshallmaintainarecordofallinformation, evidenceordocumentsreceivedpursuanttothedirectionsgiven undersubsection73(2).

(2) Therecordshallbemadeavailabletothepublic.

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Publication of information

80. (1) TheCommissionmaypublishinformationreceivedinthe courseofexercisingitspowersandfunctionsunderthisChapter ifitissatisfiedthatthepublicationisconsistentwiththeobjects ofthisAct.

(2) TheCommissionshallconsiderthecommercialinterestof thepartiestowhomtheinformationrelatesbeforepublishingthe information.

(3) The Commission shall not publish any information or any part of any information disclosed to it if the publication would--

(a) discloseamatterofaconfidentialcharacter;

(b) belikelytoprejudicethefairtrialofaperson;or

but the Commission may publish an abstract relating to such informationprovidedthattheparticularsintheabstractshallnot be arranged in any way which would compromise or prejudice theperson providingsuchinformation.

Chapter6

81. (1) TheCommissionshallmaintainaregister,inbothphysical form and electronic media, of all matters which are required to beregisteredunderthisActanditssubsidiarylegislation. (2) A person may, on payment of the charge (if any) to be decidedbytheCommission--

(a) inspecttheregister;and

(b) makeacopyof,ortakeextractsfrom,theregister.

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(3) Ifapersonrequeststhatacopybeprovidedinanelectronic media,theCommissionmayprovidetherelevantinformation-- (a) onadataprocessingdevice;or

(b) bywayofelectronictransmission.

Chapter7

Notification and Resolution of Disputes

Disputes

82. (1) A dispute between two or more persons ("the parties") regarding any matter under thisAct or its subsidiary legislation shall first be attempted to be resolved by negotiation between theparties.

(2) If one of the parties to the dispute has provided an undertakingwhichisrelevanttothesubject-matterofthedispute and the undertaking has been registered by the Commission in accordance with Chapter 11 of this Part, the parties may adopt the conditions of the undertaking for the purposes of resolving the dispute.

(3) Ifthepartiestothedisputecannotorotherwisefailtoreach an agreement, and no relevant undertaking has been registered, orifoneofthepartiestothedisputedoesnotwishtoadoptthe conditions of the undertaking, the parties may seek resolution of the dispute by the Commission, if thisAct or its subsidiary legislationexpresslyprovidesforsuchresolution.

Notification of a dispute

83. Apartytoadisputemay,inwriting,notifytheCommission ofthedispute.

Commission to act only upon notification

84. Subject to section 83, the Commission may only resolve a dispute under this Chapter if it is notified in writing of the dispute.

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Commission may publish guidelines

85. The Commission may publish guidelines setting out the principles and procedures which it may take into account in resolvingdisputesoraclassofdisputes underthis Chapter. Commission to decide notified dispute

86. (1) Upon receipt of the notification of the dispute referred to in section 83, the Commission shall, as soon as practicable, convenetodecidethedispute.

(2) The Commission shall be bound under subsection (1) to convenetodecideadisputeifitis satisfiedthat--

(a) anagreementwillnotbereached,orwillnotbereached withinareasonabletime;

(b) thenotificationofthedisputeisnottrivial,frivolousor vexatious;and

(3) SubjecttotheobjectsofthisActandanyguidelinesissued by the Commission under this Chapter, the Commission may resolve the dispute upon such terms and conditions as it may deem fit.

Decision to be in writing

87. (1) Thetermsandconditionsofanyresolutionofadispute bytheCommissionunderthisChaptershallbeaccompaniedwith reasons andbeinwriting.

(2) The Commission shall provide the parties to the dispute withacopyofitsdecisionassoonaspracticable.

(3) The decision of the Commission shall be binding on the parties.

88. (1) The Commission shall register all decisions it makes underthis Chapter,inaccordancewithChapter6ofthis Part. 65Communications and Multimedia

(2) Theregistershallcontain--

(a) thenamesofthepartiestothedispute;

(b) a general description of the matter pertaining to the decision;and

butnotthetermsandconditionsofthedecision.

Enforcement

89. (1) TheCommissionmaydirectapartytoadisputetoabide by thedecisionoftheCommissioninthatdispute.

(2) AdecisionmadebytheCommissionunderthisChaptermay be enforced by the High Court as if the decision is a judgment of such Court provided that a certificate has been issued by the Commission to the complainant for leave to proceed to the Court for the enforcement of the decision except in the case of aninjunction.

(3) No certificate is required if an action is taken by the Commissionunderthissection.

Chapter8

Registration of Agreements

Application for the registration of agreements

90. The parties to a written agreement shall apply to the Commission for the registration of the agreement, if this Act requiressuchregistration.

When the Commission shall register the agreement

91. The Commission shall register the written agreement if the Commissionissatisfiedthattheagreementisconsistentwith-- (a) theobjectsofthisAct;

(b) anyrelevantinstrumentunderthisAct;and

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Effect of registration

92. (1) Anagreement,whichisrequiredtoberegisteredunderthis Act,shall onlybevalidandenforceableuponitsregistration. (2) The Commission may direct any party to a registered agreementtocomplywiththeregistered agreement.

(3) AdirectionmadebytheCommissioninrespectofaregistered agreementmaybeenforcedbytheHighCourtasifthedirection isajudgmentofsuchCourtprovidedthatacertificatehasbeen issuedbytheCommissiontothecomplainantforleavetoproceed to the Court for the enforcement of the direction except in the caseofan injunction.

(4) No certificate is required if an action is taken by the Commissionunderthissection.

Content of the register of agreements

93. (1) TheCommissionshallmaintainaregisterofallagreements required to be registered under this Act, in accordance with Chapter6 ofthisPart.

(2) The registershallcontain--

(a) thenamesofthepartiestotheagreement;

(b) a general description of the matter pertaining to the agreement;and

butnotthetermsandconditionsoftheagreement.

(3) Notwithstanding subsections (1) and (2), a copy of the agreementshallbedepositedwiththeCommission.

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Chapter9

Voluntary Industry Codes

Industry forum

94. (1) The Commission may designate an industry body to be anindustryforumforthepurposesofthisActbynotifyingthat bodyinwriting,iftheCommissionissatisfiedthat--

(a) the membership of the body is open to all relevant parties;

(b) thebodyiscapableofperformingasrequiredunderthe relevantprovisionsofthisAct;and

(2) The body shall agree in writing to be an industry forum beforethedesignationmayberegistered.

(3) TheCommissionmaydecidethatanexistingindustrybody that was previously designated under subsection (1) to be an industry forum is no longer an industry forum for the purposes ofthisAct,iftheCommissionissatisfiedthatthebodynolonger meetstherequirementssetoutinsubsection(1).

(4) A designation or withdrawal of designation under this section shall take effect from the date of registration, or a later date specified.

Code by the industry forum

95. (1) Anindustryforummayprepareavoluntaryindustrycode dealingwithanymatterprovidedforinthisAct--

(a) onitsowninitiative;or

(b) uponrequestbytheCommission.

(2) Thevoluntaryindustrycodeshallnotbeeffectiveuntilit isregisteredbytheCommission.

(3) The Commission may refuse registration of the voluntary industry code, under subsection (1), if the Commission is not satisfied that sufficient opportunity for public consultation has 68 Laws of Malaysia Act 588

occurred in the development of the voluntary industry code by theindustryforum.

(4) The Commission shall register a voluntary industry code ifitisconsistentwith--

(a) theobjectsofthisAct;

(b) anyrelevantinstrumentunderthisAct; and

(5) TheCommissionshalleitherregisterorrefuseregistration ofavoluntaryindustrycode.

(6) Ifregistrationofavoluntaryindustrycodeisrefused,then the Commission shall notify the relevant industry forum of its decisioninwritingandprovidethereasonsforit.

(7) IftheCommissionneitherregistersnorrefusestoregister avoluntaryindustrycodewithinaperiodofthirtydaysfromthe datethatthevoluntaryindustrycodewassubmittedforregistration, the Commission is deemed to have refused the registration of thevoluntaryindustrycodeunlesstheindustryforumreceivesa writtennoticeofregistrationofthevoluntaryindustrycodeafter thatperiod.

Commission may determine a voluntary industry code

96. (1) The Commission may determine a voluntary industry code,inaccordancewithsection55,if--

(a) a voluntary industry code is not developed under an applicablesectionofthisAct;and

(b) theCommissionissatisfiedthatavoluntaryindustrycode is unlikely to be developed by the relevant industry forumwithinareasonabletime.

(2) ThevoluntaryindustrycodeformulatedbytheCommission undersubsection(1)shallberegistered.

(3) The voluntary industry code shall only take effect upon registration.

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Applicable voluntary industry code

97. (1) The Commission shall ensure that there is only one voluntary industry code in operation that is applicable to a particularmatterforaparticularpersonorclassofpersonsata giventime.

(2) Ifthereisanyuncertaintyorambiguity,apersonmayapply to the Commission for its opinion on which voluntary industry code is the applicable code in relation to the circumstances of the applicant.

(3) The Commission shall provide its opinion within thirty daysfromthedateofreceiptoftheapplication.

(4) The Commission shall take into account any relevant Ministerialguidelinesandany relevantpreviousopinions. (5) The opinion shall be binding on the Commission and the applicantforaperiodofthreeyearsfromthedatethattheopinion isprovidedundersubsection(3).

(6) The Commission shall maintain a register of opinions providedunderthissection,inaccordancewithChapter6ofthis Part.

(7) Notwithstanding subsection (5), the Commission may withdraw an opinion under this section if the Commission is satisfiedthatthenatureoftheactivityengagedinbytheapplicant haschangedmaterially.

Compliance with a registered voluntary industry code a legal defence

98. (1) Subject to section 99, compliance with a registered voluntaryindustrycodeshallnot bemandatory.

(2) Compliancewitharegisteredvoluntaryindustrycodeshall beadefenceagainstanyprosecution,actionorproceedingofany nature, whether in a court or otherwise, taken against a person (whoissubjecttothevoluntaryindustrycode)regardingamatter dealtwithinthatcode.

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Directions to comply with a registered voluntary industry code

99. TheCommissionmaydirectapersonoraclassofpersons,in accordancewithsection51,tocomplywitharegisteredvoluntary industry code.

Civil penalty for non-compliance

100. (1) Notwithstandingsection53,apersonwhofailstocomply withadirectionoftheCommissionthatthepersoncomplieswith anyprovisionofavoluntaryindustrycodeshallbeliabletopay to the Commission a fine not exceeding two hundred thousand ringgit.

(2) Notwithstanding the provisions of any other written law, thefinepayableunderthissectionmay,withoutprejudicetoany other remedyorsanction,berecoverableasacivildebt. Revocation of a code

101. TheCommissionmaydeterminetherevocationofavoluntary industrycode,inaccordancewithsection55,ifitissatisfiedthat the voluntary industry code is no longer consistent with all the matterslistedinparagraphs95(4)(a), (b) and(c).

Submission of new voluntary industry code by an industry forum

102. (1) Anindustryforummaysubmitanewvoluntaryindustry code to replace an existing voluntary industry code for that industry.

(2) The submission of the new code shall be subject to the provisions ofthisChapter.

(3) If an industry forum submits a new voluntary industry codetotheCommissionwhichdealswiththesamematterasan existingregisteredcode,theexistingregisteredcodeistakento beinvalidtotheextentofanyconflictwiththenewcodeatthe timethatthenewcodeisregisteredundersection95.

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103. The Commission shall maintain a register of all current voluntary industry codes, in accordance with Chapter 6 of this Part.

Chapter10

Mandatory Standards

Determination of a mandatory standard

104. (1) TheCommissionmaydetermineamandatorystandard for any matter which may be the subject matter of a voluntary industry code if the Commission is satisfied that the voluntary industry code has failed, and will continue to fail, to promote industryconductwhichisconsistent with--

(a) theobjectsofthisAct;

(b) anyrelevantinstrumentunderthisAct;or

(2) The Commission shall determine a mandatory standard if it is subject to a direction from the Minister to determine a mandatorystandardinplaceofavoluntaryindustrycode. (3) AMinisterialdirection,todetermineamandatorystandard, mayincludereferenceto--

(a) matters which shall be dealt with in the mandatory standard;and

(b) themannerinwhichthosemattersaretobedealtwith. (4) The determination of the Commission under this section shallbeinaccordancewithsection55.

Mandatory standard to be consistent

105. (1) A mandatory standard determined by the Commission underthisChaptershallbeconsistentwith--

(a) theobjectsofthisAct;

72 Laws of Malaysia Act 588

(b) anyrelevantinstrumentunderthisAct;or

(2) AmandatorystandarddeterminedbytheCommissionunder subsection(1)shallspecifytheclassoflicenseeswhoaresubject tothe mandatorystandard.

(3) A person subject to a mandatory standard shall comply withthemandatorystandard.

Modification, variation or revocation of a mandatory standard

106. (1) The Commission may determine the modification, variation or revocation of a mandatory standard, in accordance with section 55, if it is satisfied that the mandatory standard is no longer consistent with all the matters listed in paragraphs 105(1)(a), (b) and(c).

(2) Any modification or variation of a mandatory standard under subsection (1) shall be deemed to be a new standard for thepurposesofthisChapterandshallbesubjecttotheprovisions of this Chapter.

(3) Ifanewmandatorystandarddealswiththesamestandard as an existing mandatory standard, then the existing standard is taken to be invalid to the extent of any conflict with the new mandatory standard.

Mandatory standard to take precedence

107. Avoluntaryindustrycode,oranundertakingreferredtoin Chapter 11 of this Part, is invalid to the extent of any conflict withamandatorystandard.

Compliance with a mandatory standard a legal defence

108. Compliance with a mandatory standard shall be a defence against any prosecution, action or proceeding of any nature, whether in a court or otherwise, taken against a person (who is subjecttothemandatorystandard)regardingamatterdealtwith inthatmandatorystandard.

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Civil penalty for non-compliance

109. (1) Notwithstandingsection53,apersonwhofailstocomply withadirectionoftheCommissionthatthepersoncomplieswith any provision of a mandatory standard shall be liable to pay to the Commission a fine not exceeding two hundred thousand ringgit.

(2) Notwithstanding the provisions of any other written law, thefinepayableunderthissectionmay,withoutprejudicetoany other remedyorsanction,berecoverableascivildebt.

Chapter11

Undertakings

Undertaking by a person

110. (1) ApersonmayprovideanundertakingtotheCommission regarding any matter which may be the subject of a voluntary industrycodeunderthisActorforwhichthisActmakesexpress provision.

(2) Anundertakingprovidedbyapersonundersubsection(1) may--

(a) setoutthetermsandconditionsfortheundertaking;or (b) adoptthemodeltermsandconditionsfromaregistered voluntaryindustrycode,

and the undertaking may include the effective date of the undertakingand/orthedateofits expiry.

Registration of an undertaking

111. (1) AnundertakingprovidedunderthisChaptershallonly be validandenforceableuponitsregistration.

(2) ApersonmaysubmitawrittenapplicationtotheCommission to haveanundertakingregisteredbytheCommission.

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(3) The Commission shall register an undertaking if it is satisfiedthattheundertaking--

(a) isconsistentwiththeobjectsof thisAct;

(b) isconsistentwithanyinstrumentmadeunderthisAct; (c) is consistent with any relevant provisions in this Act; and

(d) will expire within three years from the date of the applicationtoregistertheundertaking.

(4) Notwithstanding subsection (3), the Commission shall register anundertakingiftheundertaking--

(a) solelyadoptsmodeltermsandconditionsfromaregistered voluntaryindustrycode;and

(b) will expire within three years from the date of the applicationtoregistertheundertaking.

(5) TheCommissionshalleitherregisteror refusetoregister any other undertaking and shall notify the person providing the undertakingofitsdecisioninwritingwithinthirtydaysfromthe date ofreceiptoftheundertaking.

(6) The Commission shall provide reasons for refusing to register anundertaking.

(7) IftheCommissionneitherregistersnorrefusestoregister an undertaking within a period of thirty days from the date of receipt of the application, the Commission is deemed to have refused the registration of the undertaking unless the person providingtheundertakingisnotifiedoftheregistrationafterthat period.

(8) An undertaking provided under this Chapter shall only take effect on the date of registration or on such later date as theundertakingmayspecify.

Rules regarding undertakings

112. (1)The Minister may make rules, to be published in the Gazette, in respect of undertakings and the rules shall bind the party making the undertakings and all other persons relying on 75Communications and Multimedia

such undertakings as if they were respectively signed by each personandcontainedagreementsonthepartofeachpersonfor himself and for his successors to observe all the provisions of the rules.

(2) TheCommissionmaydirectapersonreferredtoinsubsection (1)tocomplywiththerulesmadeundersubsection(1)andany registeredundertakingsissuedunderthisChapter.

Withdrawal of an undertaking

113. A person providing an undertaking may withdraw the undertaking at any time by notifying the Commission in writing.

Replacement of an undertaking

114. IfapersonsubmitstotheCommissionanewundertaking which deals with the same matter as an existing registered undertaking provided by that person, the existing registered undertaking is taken to be invalid to the extent of any conflict with the new undertaking at the time that the new undertaking isregisteredundersection111.

115. The Commission shall maintain a register of all existing undertakings,inaccordancewithChapter6.

Enforcement of an undertaking

116. (1) Subjecttosubsection(2),theCommissionorapersonmay applytoacourtfortheenforcementofaregisteredundertaking against the person providing the undertaking if an undertaking hasnotbeencompliedwith.

(2) If a sum of money is payable by any person, or where anything, other than the payment of money, is required to be done or not to be done by any person because of any direction givenbytheCommissionundersection112,andthedirectionhas not been complied with by the person to whom it is addressed, thenthedirectionshall,forallpurposes,beenforceableasifthe 76 Laws of Malaysia Act 588

direction is a judgement of the High Court, in accordance with such rules of court as may be applicable or in such manner as theCourtmaydeemjustorexpedientprovidedthatacertificate hasbeenissuedbytheCommissiontothecomplainantforleave to proceed to the Court for the enforcement of a registered undertakingexceptinthecaseofaninjunction.

(3) No certificate is required if an action is taken by the Commissionunderthissection.

Chapter12

Regulatory Forbearance

Regulatory forbearance

117. (1) Notwithstanding anything contained in this Act, the Ministermay,ontherecommendationoftheCommission,direct the Commission to forbear from applying any provision of this Actoritssubsidiarylegislationtoalicenseeorclassoflicensees, or to a person or class of persons, if the Minister determines that--

(a) the enforcement of such provision is not necessary to ensuretheachievementoftheobjectsofthisAct;

(b) the enforcement of such provision is not necessary for theprotectionofconsumers;

(d) the forbearance from applying such provision will not impedetheadministrationofthisAct.

(2)ThedirectionbytheMinistershallbemadeinaccordance withsection7.

Determination by the Minister

118. (1) TheMinistershallconsiderthewrittenrecommendation oftheCommissionbeforemakingadetermination,inaccordance withsection10,toforbearfromapplyingtherelevantprovisions ofthisActoritssubsidiarylegislation.

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(2) The Minister shall provide a written notice as soon as practicable of his determination on whether to forbear from applyingsuchprovisionandthe reasonsforhisdetermination. (3) If the Minister determines to forbear from applying a provision of this Act or its subsidiary legislation, the Minister shallpublishthenoticeofforbearanceintheformofanexemption order intheGazette.

(4) Anexemptiondeterminedundersubsection(3)mayormay notbesubjecttoanyconditions.

Chapter 13

Review of Decisions

Review by the Commission

119. (1) Apersonwhoisaggrievedorwhoseinterestisadversely affected by any decision of the Commission made pursuant to theperformanceofitspowersandfunctionsunderthisActorits subsidiarylegislationmayrequestinwritingtotheCommission forastatementofthereasonsforthedecision.

(2) TheCommissionshall,uponsuchwrittenrequest,provide acopyofastatementofreasonsforthedecisionandanyrelevant information taken into account in making the decision within a period of not more than thirty days from the date of receipt of the requestbytheCommission.

(3) TheCommissionisnotrequiredtopublish,ortodisclose toapersontowhoseaffairsitrelates,astatementofreasonsor a part of a statement of reasons if the publication or disclosure would--

(a) discloseamatterofaconfidentialcharacter;

(b) belikelytoprejudicethe fairtrialofaperson;or

(4) InthisChapter,"decision"includesanyaction,order,report ordelegatedauthority.

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Review by the Appeal Tribunal

120. (1) Subjecttosubsection(2),apersonwhoisaggrievedor whose interest is adversely affected by a decision or direction (but not a determination) of the Commission made pursuant to the performance of its powers and functions under this Act or itssubsidiarylegislation,mayappealtotheAppealTribunalfor a review of the merits and the process of certain decisions or directionsoftheCommission,unlessthematterisnotsubjectto an appealtotheAppealTribunal.

(2) Subjecttosubsection17(1),theMinistermaydeterminethe decisionsordirectionsoftheCommissionwhicharenotsubject toappeal totheAppealTribunalundersubsection(1).

Judicial review

121. (1) A person affected by a decision or other action of the Minister or Commission may apply to the court for a judicial reviewofsuchdecisionorotheraction.

(2) Apersonshallnotapplytothecourtforajudicialreview unlessthatpersonhasfirstexhaustedallotherremediesprovided underthisAct.

Chapter14

Regulatory Review

Review of subsidiary legislation by the Commission

122. (1) TheCommissionshallreviewallrulesandregulationsmade underthisActthatareineffectatthetimeofthereview.

(2) A review of the rules and regulations shall be conducted bytheCommission--

(a) everythreeyears;or

(b) asandwhentheMinistersodirectsundersection7.

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(3) The Commission shall provide a written recommendation to the Minister to modify or vary, or to repeal, any rules or regulationsmadeunderthisAct--

(a) whicharenolongernecessary inthenationalinterest; (b) whicharenolongernecessarytoensuretheobjectsof thisAct;or

Chapter15

Monitoring and Reporting

Report to the Minister on industry performance

123. (1) The Commission shall monitor all significant matters relatingtotheperformanceofnetworkfacilitiesproviders,network service providers, applications service providers and content applications service providers and report to the Minister at the end ofeachfinancialyear.

(2) In performing its functions under subsection (1), the Commission shall have regard to such industry performance indicatorsastheCommissionconsidersappropriate.

Matters to monitor and report

124. Matters upon which the Commission shall monitor and reportinclude,butarenotlimitedto,thefollowing:

(a) the operation and administration of this Act and its subsidiarylegislation;

(b) the efficiency in which licensees provide facilities and services;

(d) theratespaidbyconsumersforservices;

(e) thedevelopmentofindustryself-regulation;

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(f) the level of compliance with voluntary industry codes, mandatorystandardsandundertakings;

(g) theadequacyofservicesandavailabilityofservicesin allpartsofMalaysia;

(h) anydeficienciesinthescopeoroperationofthisActand itssubsidiarylegislation;and

(i) other matters that the Commission is satisfied are relevant.

Report to be published

125. TheCommissionshallpublishthereport,inthemannerit deemsappropriate,assoonaspracticablefollowingthedateon whichthe CommissionconveysthereporttotheMinister. PartVI

ECONOMICREGULATION

Chapter1

Licensing

Licensing of network facilities, network services and applications services

126. (1) Subjecttosuchexemptionsasmaybedeterminedbythe MinisterbyorderpublishedintheGazette,nopersonshall-- (a) ownorprovideanynetworkfacilities;

(b) provideanynetworkservices;or

except under and in accordance with the terms and conditions of--

(aa) a validindividuallicencegrantedunderthisAct; or (bb) a classlicencegrantedunderthisAct,

expresslyauthorizingtheownershiporprovisionofthefacilities orservices.

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(2) A person who contravenes subsection (1) commits an offenceandshall,onconviction,beliabletoafinenotexceeding five hundred thousand ringgit or to imprisonment for a term notexceedingfiveyearsortobothandshallalsobeliabletoa further fine of one thousand ringgit for every day or part of a day duringwhichtheoffenceiscontinuedafterconviction. Compliance with licence conditions

127. (1) Therelevantstandardconditionsofalicenceunderthis PartshallbeinaccordancewiththeSchedule.

(2) Any special or additional conditions of a licence may be declaredbytheMinisterandincludedinthelicence.

(3) AlicenseeunderthisPartshallnotprovideanyfacilityor service except in accordance with the conditions of the licence granted to that licensee under this Part or the conditions of a classlicencetowhichthelicensee issubject.

Definition of network boundary

128. (1) TheMinistermaydeterminethenetworkboundaryfor thepurposesofthisAct.

(2) Intheabsenceofsuchdetermination,thenetworkboundary shall be--

(a) thefirstequipmentsocketinaprivateresidence;

(b) themaindistributionframeinabuilding;or

(3) Theownershipofanynetworkfacilitiesandtheprovision of any network services or applications services, solely on the customer side of the network boundary, are exempted from the provisionsofthisPart.

Exemption for applications service provider not subject to a class licence

129. An applications service provider who is not subject to a classlicenceundersection126shallbedeemedtobeexempted 82 Laws of Malaysia Act 588

fromtheprovisionsofthisChapter,butnotfromtheprovisions ofPartVIIregardingtechnicalregulation.

Nominated facilities provider

130. (1) The Minister may, on the recommendation of the Commission,determinethatalicensednetworkfacilitiesprovider, other than the owner of any network facilities, be a nominated facilities provider for the network facilities for the purposes of thisAct,iftheMinisterissatisfiedthatthenominationwillnot impede--

(a) theachievementoftheobjectsofthisAct;and

(b) theadministrationofthisAct.

(2) Uponthedeterminationofthenominatedfacilitiesprovider under subsection (1), the owner shall then be deemed to be exemptedfromtheprovisionsofthisChapter.

Providers under a class licence shall register

131. Apersonshallnotoperateunderaclasslicenceinrespect ofanynetworkfacilitiesornetworkserviceorapplicationsservice unlessthatpersonisregisteredbytheCommission.

Separate licence

132. AlicenceobtainedunderthisChapterdoesnotexemptany person from the obligation to obtain a licence under any other relevantsectionofthisAct.

Chapter2

General Competition Practices

Prohibition on anticompetitive conduct

133. A licensee shall not engage in any conduct which has the purposeofsubstantiallylesseningcompetitioninacommunications market.

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Commission may publish guidelines

134. (1) TheCommissionmaypublishguidelineswhichclarify the meaningof"substantiallesseningofcompetition". (2) Theguidelinesmayincludereferenceto--

(a) therelevanteconomicmarket;

(b) globaltrendsintherelevantmarket;

(d) the impact of the conduct on barriers to entry into the market;

(e) theimpactoftheconductontherangeofservicesinthe market;

(f) theimpactoftheconductonthecostandprofitstructures inthemarket;and

(g) anyothermatterswhichtheCommissionissatisfiedare relevant.

Prohibition on entering into collusive agreements

135. Alicenseeshallnotenterintoanyunderstanding,agreement orarrangement,whetherlegallyenforceableornot,whichprovides for--

(a) ratefixing;

(b) marketsharing;

(d) boycottofanothercompetitor.

Prohibition on tying or linking arrangements

136. A licensee shall not, at any time or in any circumstances, make it a condition for the provision or supply of a product or serviceinacommunicationsmarketthatthepersonacquiringsuch productorserviceinthecommunicationsmarketisalsorequired to acquire or not to acquire any other product or service either fromhimselforfromanotherperson.

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Determination of dominant licensee

137. The Commission may determine that a licensee is in a dominantpositioninacommunicationsmarket.

Guidelines as to the meaning of "dominant position"

138. (1) TheCommissionmaypublishguidelineswhichclarify how it willapplythetestof"dominantposition"toalicensee. (2) TheguidelinesmayspecifythematterswhichtheCommission may take intoaccount,including--

(a) therelevanteconomicmarket;

(b) globaltechnologyandcommercialtrendsaffectingmarket power;

(d) the licensee's power to make independent rate setting decisions;

(e) thedegreeofproductorservicedifferentiationandsales promotioninthemarket;and

(f) anyothermatterswhichtheCommissionissatisfiedare relevant.

Commission may direct a licensee in a dominant position

139. (1) The Commission may direct a licensee in a dominant position in a communications market to cease a conduct in that communications market which has, or may have, the effect of substantiallylesseningcompetitioninanycommunicationsmarket, and toimplementappropriateremedies.

(2) The Commission may only issue a direction under subsection (1) if the Commission is satisfied that the direction is consistentwith--

(a) theobjectsofthisAct;and

(b) anyrelevantinstrumentunder thisAct.

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Authorization of a conduct

140. (1) A licensee may apply to the Commission, prior to engaging into any conduct which may be construed to have the purposeortheeffectofsubstantiallylesseningcompetitionina communicationsmarket,forauthorizationoftheconduct. (2) Notwithstanding the provisions of this Chapter, the Commission shall authorize the conduct if the Commission is satisfiedthattheauthorizationisinthenationalinterest. (3) Beforeauthorizingtheconduct,theCommissionmayrequire the licensee to submit an undertaking regarding his conduct in anymatterrelevanttotheauthorization.

(4) Ifthelicenseesubsequentlywithdrawstheundertaking,the authorization shall be deemed never to have been given for the purposesofthisChapter.

(5) A licensee may withdraw an application made under subsection(1)atanytime.

141. The Commission shall maintain a register of current authorizationsofaconductunderthisChapterinaccordancewith Chapter6ofPartV.

Remedies for non-compliance

142. (1) The Commission or a person may seek an interim or interlocutory injunction against any conduct prohibited in this Chapter.

(2) ApersonshallobtainacertificatefromtheCommissionfor leave to proceed to the court for enforcement of the provisions ofthisChapterexceptinthecaseofaninjunction.

Penalty for offence

143. ApersonwhocontravenesanyprohibitionunderthisChapter commitsanoffenceandshall,onconviction,beliabletoafine notexceedingfivehundredthousandringgitortoimprisonment 86 Laws of Malaysia Act 588

foratermnotexceedingfiveyearsortobothandshallalsobe liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.

Minister may make rules

144. (1) Subjecttosubsection(2),theMinistermaymakerules, tobepublishedintheGazette,inrespectofagreementsbetween licensees,underthisAct,andforeignnetworkfacilitiesproviders and/ornetworkserviceproviders.

(2) TheMinistershallonlymaketherules,undersubsection(1), whichareintendedtopreventormitigate--

(a) anyconductbyforeignnetworkfacilitiesprovidersand/ or network service providers which will, or is likely to lead to, a substantial lessening of competition in a communicationsmarket;or

(b) the misuse of market power in a communications market.

Chapter3

Access to Services

Facilities and services which may be included in the access list

145. (1) Thelistoffacilitiesandserviceswhichmaybeincluded in the access list, as determined by the Commission under this Chapter, are--

(a) networkfacilities;

(b) networkservices;and

(c) otherfacilitiesand/orserviceswhichfacilitatetheprovision of network services or applications services, including contentapplicationsservices.

(2) Thefacilitiesorserviceslistedinparagraph(1)(c) donot have tobeownedorprovidedbythelicenseesunderthisAct. 87Communications and Multimedia

Determination of facilities and services by the Commission

146. Subjecttosubsection147(2),theCommissionmaydetermine that--

(a) anetworkfacility;

(b) anetworkservice;or

(c) any other facilities and/or services which facilitate the provision of network services or applications services, includingcontentapplicationsservices,

shallbeincludedinorremovedfromtheaccesslist.

Recommendation by access forum

147. (1) The access forum may recommend to the Commission that--

(a) anetworkfacility;

(b) anetworkservice;or

(c) any other facilities and/or services which facilitate the provision of network services or applications services, includingcontentapplicationsservices,

shallbeincludedinorremovedfromtheaccesslist.

(2) The Commission shall determine that the recommended networkfacilitiesorclassofnetworkfacilitiesornetworkservice or class of network services be included in the access list, if it is satisfied that the access forum has consulted with persons who have an interest in the recommendation, and that not less thannine-tenthsofthemembersoftheaccessforumsupportthe recommendation.

(3) Notwithstanding Chapter 3 of Part V, the Commission is notrequiredtoconductaninquirybeforemakingadetermination undersection55,ifthedeterminationrelatestoarecommendation madebytheaccessforumunderthissectionbutnothinginthis sectionshallpreventtheCommissionfromconductinganinquiry ifitdeemsitnecessary.

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148. TheCommissionshallmaintainaregisterof-- (a) networkfacilities;

(b) networkservices;and

(c) otherfacilitiesand/orserviceswhichfacilitatethesupply of network services or applications services, including contentapplicationsservices,

includedintheaccesslist.

Standard access obligations for facilities and services

149. (1) Subjecttosuchexemptionsasmaybedeterminedbythe Minister by order published in the Gazette, a network facilities provider and a network service provider shall provide access to their network facilities or network services listed in the access listto any other--

(a) networkfacilitiesprovider;

(b) networkserviceprovider;

(d) contentapplicationsserviceprovider,

whomakesawrittenrequestforaccesstosuchnetworkfacilities provider or network service provider on reasonable terms and conditions.

(2) Theaccessprovidedbyoneprovider("thefirstprovider") to another providerundersubsection (1),shallbe--

(a) ofatleastthesameormorefavourabletechnicalstandard andqualityasthetechnicalstandardandqualityprovided on the first provider's network facilities or network services;and

(b) onanequitableandanon-discriminatorybasis.

(3) A person who contravenes subsection (1) commits an offenceandshall,onconviction,beliabletoafinenotexceeding fivehundredthousandringgitortoimprisonmentforatermnot exceedingfiveyearsortoboth.

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Registration of access agreements

150. (1) A written access agreement for the provision of listed network facilities or network services shall be registered with theCommissioninaccordancewithsection91.

(2) No written access agreement for the provision of listed networkfacilitiesornetworkservicesshallbeenforceableunless ithasbeenregistered.

Notification of access disputes

151. (1) Apartytoadisputeoverthecompliancewiththestandard accessobligationundersection149maynotifytheCommissionof thedisputeunderChapter7ofPartV.

(2) Apartywhoisseekingtoexercisehisrightsunderthestandard accessobligations,orapartywhohasnotifiedtheCommissionof thedisputeundersubsection(1),may,atanytime,withdraw,in writing,thenotification.

Access forum

152. TheCommissionmaydesignateasingleindustrybodytobe theaccessforumforthepurposesofthisPart.

Access code

153. (1) TheCommissionshallmakeawrittenrequesttotheaccess forumtoprepareanaccesscode.

(2) Anaccesscodeshallprovidemodeltermsandconditionsfor compliancewiththestandardaccessobligations.

(3) Matterswhichtheaccesscodemayaddressincludebutare notlimitedto--

(a) thetimeframeandproceduresfornegotiationsandthe concludingofaccessagreements;

(b) ratemethodologies;

90 Laws of Malaysia Act 588

(d) protectionofcommercialinformation;

(e) provisioningoffacilities;and

(f) sharingoftechnicalinformation.

(4) Theaccesscodemayprovidefordifferenttermsandconditions forthedifferentnetworkfacilitiesandnetworkserviceslistedin theaccesslist.

Registration of the access code

154. TheCommissionshallnotregisteranaccesscodeunlessitis satisfiedthattheaccesscodeisconsistentwiththestandardaccess obligations.

Industry access undertakings

155. (1) Alicenseemayprovideanaccessundertaking,inaccordance withsection110.

(2) An access undertaking may specify more than one set of termsandconditionsforaccesstoaparticularnetworkfacilityor networkservicelistedintheaccesslist.

Registration of an undertaking

156. TheCommissionshallnotregisteranundertaking,inaccordance withitsgeneralpowersinsection111,unlessitissatisfiedthatthe undertakingisconsistentwiththestandardaccessobligations. PartVII

TECHNICALREGULATION

Chapter1

Spectrum Assignment

Prohibition on using spectrum without assignment

157. (1) Subject to such exemptions as may be determined by the Minister by order published in the Gazette, no person shall 91Communications and Multimedia

intentionally use any part of the spectrum to provide a network serviceunless--

(a) thepersonholdsaspectrumassignmentissuedunderthis Part;

(b) thepersonholdsanapparatusassignmentissuedunderthis Part;or

(2)ApersonwhocontravenesanyprohibitionunderthisChapter commitsanoffenceandshall,onconviction,beliabletoafinenot exceedingfivehundredthousandringgitortoimprisonmentfora termnotexceedingfiveyearsortoboth.

Power of the Minister to make regulations

158. TheMinistermaymakeregulationsinrelationtoanymatter underthisPart.

Issue of spectrum assignment

159. (1) TheCommissionmayissueaspectrumassignmentwhich confersrightsonapersontouseoneormorespecifiedfrequency bandsforanypurposeconsistentwiththeassignmentconditions. (2) Aspectrumassignmentmaybeissuedunderthissectiononly whentherelevantfrequencybandsforspectrumassignmenthave beendeterminedbytheMinister.

Spectrum assignment to comply with spectrum plan

160. Aspectrumassignmentshallnotbeissuedunlessitisconsistent withthespectrumplan.

Reissue of spectrum assignment

161. ExceptiftheCommissiondecidesthatitisinthenational interestthataspectrumassignmentbeissuedtotheexistingassignment holder,theprocedureforthereissueofaspectrumassignmentshall beinaccordancewithsections159and160.

92 Laws of Malaysia Act 588

Third party transfers

162. Aholderofaspectrumassignmentmaytransfertoorotherwise dealwithanyoralloftherightsassignedundersection159witha thirdpartyonlyifitisinaccordancewiththeprovisionsofsection

163. Transfer rules

163. (1) The Minister may make rules, to be published in the Gazette,forthetransferoftherightsoftheholderofthespectrum assignmentconferredbythespectrumassignment.

(2) TheCommissionmaydirectaholderofaspectrumassignment tocomplywithanyrulesmadeunderthissection.

Issue of apparatus assignment

164. (1) The Commission may issue an apparatus assignment whichconfersrightsonapersontousethespectrumtooperatea networkfacilityofaspecifiedkindataspecifiedfrequencyorin anyspecifiedfrequencybandorbands.

(2) Anapparatusassignmentissuedunderthissectionmaybe subjecttosuchconditionsastheCommissionmayimpose.

Apparatus assignment to comply with spectrum plan

165. An apparatus assignment shall not be issued unless it is consistentwiththespectrumplandevelopedunderthisPart. Situation where apparatus assignment shall not be issued

166. The Commission shall not issue an apparatus assignment fortheuseofaspectrumthathasbeendeterminedforspectrum assignments.

Third party authorization

167. (1) A holder of an apparatus assignment may authorize a thirdpartytooperateanetworkfacilitywhichisthesubjectofan apparatusassignment.

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(2) TheregulationsmadebytheMinisterundersection158may provideforthethirdpartyoperationofanetworkfacilitywhichis thesubjectofanapparatusassignmentbypersonsauthorizedby theholderoftheapparatusassignment.

Maximum term for an apparatus assignment

168. Anapparatusassignmentshallnotbevalidforaperiodof morethanfiveyearsfromitsdateofissue.

Class assignment

169. (1) The Commission may issue a class assignment which confersrightsonanypersontouseanyfrequencybandorbands foraspecifiedpurpose.

(2) Aclassassignmentissuedunderthissectionmaybesubject tosuchconditionsastheCommissionmayimpose.

Class assignment to comply with spectrum plan

170. Aclassassignmentshallnotbeissuedunlessitisconsistent withthespectrumplandevelopedunderthisPart.

Situation where class assignment shall not be issued

171. The Commission shall not issue a class assignment that authorizestheuseofthespectrumthatisdeterminedforspectrum assignments.

Spectrum plan

172. (1) TheCommissionmaydevelopaspectrumplaninrespect ofanypartorallofthespectrum.

(2) The spectrum plan shall be made available to the public (includinginanelectronicmedia)forafeetobedecidedbythe Commission.

Contents of spectrum plan

173. (1) Aspectrumplanshalldefinehowthespectrumshallbe usedanddefinethemethodologyforassignmentandreassignment ofthespectrum.

94 Laws of Malaysia Act 588

(2)The Commission, in exercising the functions under subsection(1),shalltakeintoaccount--

(a) theobjectsoftheAct;

(b) theimpactofthespectrumplanonexistingusers;and (c) anyapplicableinternationalstandards,conventionsand agreementsincluding,butnotlimitedto,theInternational Telecommunication Union and its radio regulations as agreedtoandadoptedbyMalaysia.

Preferential rights

174. TheMinistermaydeterminethatspecifiedspectrumassignment and/orapparatusassignmentmayonlybeissuedtoparticularpersons orclassesofpersonswhosatisfysuchconditionsasarespecified inthedeterminationpublishedintheGazette.

Dispute about interference

175. (1) The Commission may resolve disputes about interference.

(2) Theresolutionofdisputesundersubsection(1)shallcomply withChapter7ofPartV.

Minister may determine spectrum for spectrum assignment

176. (1) The Minister may, after taking into account the recommendation of the Commission, determine that a certain spectrumistobereallocatedforspectrumassignments.

(2) Thedeterminationmadeundersubsection(1)mayinclude limitsontheamountofspectrumavailable,eithergenerallyorto particularpersonsorclassesofpersons.

(3) Thedeterminationmadeundersubsection(1)shallbedeemed toincludethetermthatthespectrumassignmentshallnotexceed twentyyears.

95Communications and Multimedia

Spectrum plan to include procedures for spectrum assignment and apparatus assignment

177. The spectrum plan may include procedures for the assignment of spectrum assignments and apparatus assignments suchas,butisnotlimitedto,thefollowing:

(a) proceduresfortheassignmentofspectrumassignmentsand apparatusassignmentsbyauction;

(b) proceduresfortheassignmentofspectrumassignmentsand apparatusassignmentsbytender;

(d) proceduresfortheassignmentofapparatusassignmentsata fixedpricetobedeterminedbytheCommission;and/or

(e) aconversionplanfortheconversionofdesignatedapparatus assignmentsintospectrumassignments.

Compulsory acquisition of assignments in determined spectrum

178. (1) The Minister may direct the Commission to develop proceduresforthecompulsoryacquisitionbytheCommissionof assignmentsinadeterminedspectrum.

(2) The Commission may recommend to the Minister that assignmentsinadeterminedspectrumbecompulsorilyacquired bytheCommissioninaccordancewithareassignmentofspectrum consistentwiththespectrumplan.

(3) TheMinistermay,aftertakingintoaccounttherecommendation oftheCommissionundersubsection(2),directthatassignments in a determined spectrum be compulsorily acquired by the Commission.

(4) TheCommissionmaypayareasonableamountofcompensation totheholderofanassignmentwhoseassignmenthasbeenacquired priortoitsexpiry,byadirectionmadeunderthissection. (5) Nocompensationmaybepayableifanassignmentisnot renewed.

96 Laws of Malaysia Act 588

Chapter2

Numbering and Electronic Addressing

Control,planningandadministrationofnumberingandelectronic addressing

179. (1) TheCommissionshallbevestedwiththecontrol,planning, administration, management and assignment of the numbering and electronic addressing of network services and applications services.

(2) The Commission may delegate any or all of its functions underthisChapter.

Numbering and electronic addressing plan

180. (1) TheCommissionshalldevelopanumberingandelectronic addressing plan for the numbering and electronic addressing of networkservicesandapplicationsservices.

(2) Thenumberingandelectronicaddressingplanmaysetout ruleswhichinclude,butarenotlimitedto--

(a) theuseofdifferentnumbersandelectronicaddressesfor differentkindsofservices;

(b) theassignmentofnumbersandelectronicaddresses; (c) thetransferofassignednumbersandaddresses;

(d) theuseofassignednumbersandelectronicaddresses; (e) the portability of assigned numbers and electronic addresses;

(f) the requirements for network service providers and applications service providers to maintain a plan for assigning and reassigning numbers and electronic

addresses;and

(g) the rates for the assignment and transfer of numbers andelectronicaddresseswhichmaybeimposedbythe

Commission.

(3) TheCommissionshallmakethenumberingandelectronic addressingplanavailabletothepublicforafeetobedecidedby theCommission.

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Management or maintenance of an integrated public number or electronic address database

181. (1) TheCommissionmayappointaspecifiedpersontomanage ormaintainanintegratedpublicnumberdatabaseoranintegrated electronicaddressdatabase.

(2) Apersonspecifiedundersubsection(1)shallprovidenon- discriminatorycommercialaccesstothedatabaseonthesameterms andconditionswhichitofferstoitself.

(3) The Commission may direct a person specified under subsection(1)regardingthemannerinwhichhewilldischargehis obligationundersubsection(2).

Chapter3

Technical Standards

Hindering interoperability an offence

182. Apersonwhousesanytechnicalequipmentorsystemswhich hindernetworkinteroperabilitycommitsanoffenceandshall,on conviction,beliabletoafinenotexceedingfivehundredthousand ringgitortoimprisonmentforatermnotexceedingfiveyearsor toboth.

Compromising public safety an offence

183. A person who uses any technical equipment or systems whichcompromisepublicsafetycommitsanoffenceandshall,on conviction,beliabletoafinenotexceedingfivehundredthousand ringgitortoimprisonmentforatermnotexceedingfiveyearsor toboth.

Technical standards forum

184. TheCommissionmaydesignateanindustrybodytobea forumfortechnicalstandards("technicalstandardsforum")forthe purposesofthisPart.

98 Laws of Malaysia Act 588

Matters for technical code

185. (1) A technical code prepared by the technical standards forumortheCommissionunderthissectionshallinclude,butis notlimitedto,thefollowing:

(a) requirementsfornetworkinteroperability,including,butnot limitedto,theprovisionofcertainnetworkcapabilitiessuch ascallinglineidentificationcapabilityandpre-selection capability;and

(b) thepromotionofsafetyofnetworkfacilities.

(2) A technical code prepared by the technical standards forumortheCommissionunderthissectionmayinclude,butis notlimitedto,thefollowing:

(a) theprovisionofnetworkfacilities,includingrequirements forqualifiedprovidersandinstallers;

(b) theprovisionofnetworkservices,includingrequirements forqualifiedproviders;

(d) theprovisionsofcustomerequipmentandcabling,including requirementsforqualifiedinstallers;

(e) the approval of customer equipment and other access devices;

(f) the adoption of technical standards promulgated by internationalbodies;and

(g) the promotion of electromagnetic immunity and compatibility.

Certifying agencies

186. (1) The Commission may register certifying agencies or classesofcertifyingagencies,includingagenciesoutsideMalaysia, forthepurposesofcertifyingcompliancewithcodesorstandards underthis Part.

(2)An approval by a registered certifying agency shall be deemed to be an approval by the Commission for the purposes ofthisChapter.

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PartVIII

CONSUMERPROTECTION

ChaPter1

Quality of Service

Exemption from offence provisions

187. A network facilities provider, network service provider, applications service provider or content applications service provider who is not required to have an individual licence, and isnotsubjecttoclasslicence,underPartVIandIX,isdeemed to have been exempted from the offence provisions of section

188. Provision of network service or applications service

188. (1) Anynetworkfacilitiesprovider,networkserviceprovider, applications service provider or content applications service providershall--

(a) dealreasonablywithconsumers;and

(b) adequatelyaddressconsumercomplaints.

(2) A network facilities provider, network service provider, applications service provider or content applications service provider who contravenes subsection (1) commits an offence andshall,onconviction,beliabletoafinenotexceedingtwenty thousandringgitortoimprisonmentforatermnotexceedingsix monthsortoboth.

Consumer forum

189. The Commission may designate an industry body to be a consumerforumforthepurposesofthisChapter.

Matters for consumer code

190. (1) Aconsumercodepreparedbyaconsumerforumorthe Commissionshallincludemodelproceduresfor--

(a) reasonablymeetingconsumerrequirements;

100 Laws of Malaysia Act 588

(b) thehandlingofcustomercomplaintsanddisputesincluding an inexpensive arbitration process other than a court, and procedures for the compensation of customers in caseofabreachofaconsumercode;and/or

(2)The matters which the consumer code may address may include,butarenotlimitedto--

(a) the provision of information to customers regarding services,ratesandperformance;

(b) theprovisioningandfaultrepair ofservices;

(d) customercharging,billing,collectionandcreditpractices; and

(e) anyothermatterofconcerntoconsumers.

Publication of consumer code

191. After the preparation of a consumer code, the consumer codeshallbepublishedandnoticeofitshallbeadvertisedinat least one national language and one English language national dailynewspapersforatleastthreeconsecutivedays.

Chapter2

Required Applications Services

Required applications services

192. (1) ForthepurposesofthisPart,theMinistermaydetermine alistofrequiredapplicationsservices.

(2) The list referred to in subsection (1) may include, but is notlimitedto--

(a) emergency services (including access to controlled networkfacilitiesandnetworkservicesforthepurposes ofprovidingemergencyservices);

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(b) directoryassistanceservices(includingaccesstocontrolled network facilities, network services and relevant databases);

(d) servicesfordisabledconsumers.

Minister's direction to provide required application service

193. (1) TheMinistermaydetermine-- (a) the classes of applications service providers who shall undertakeanyoralloftheapplicationsservicesonthe

listofrequiredapplications services;or

(b) theclassesofnetworkserviceproviderswhoshallenable the provision of any or all of the applications services onthelistofrequired applicationsservices.

(2)TheCommissionshalldirect--

(a) theclassofapplicationsserviceprovidersdeterminedunder paragraph (1)(a) to provide the required applications services;and

(b) theclassofnetworkserviceprovidersdeterminedunder paragraph(1)(b) toenabletheprovisionoftherequired applicationsservices.

Direction may specify operational details

194. NotwithstandinganyprovisiontothecontraryinthisActor anyinstrumentmade,issuedorgivenunderthisAct,adirection by the Commission issued under section 193 may provide for or specify operational details relating to a required applications service.

Chapter3

Resolution of Consumer Disputes

Disputes between consumers and licensees

195. The Commission may use any of its powers under this Act in the resolution of complaints received from consumers in 102 Laws of Malaysia Act 588

relation to matters of customer service and consumer protection including, but not limited to, the failure by a licensee to comply with a consumer code prepared under this Part.

Procedures for consumer complaints

196. The Commission shall establish procedures or guidelines for the making, receipt and handling of complaints of consumers regarding the conduct or operation of licensees.

Chapter 4

Rate Regulation

Rate setting by providers

197. (1) Except as otherwise provided in this Chapter, any network facilities provider, network service provider, applications service provider or content applications service provider may set rates in accordance with the market rates.

(2) All of the providers mentioned in subsection (1) are required to publish the rates charged to customers for one or more services.

(3) For the purposes of this Chapter, "network facilities provider" includes a nominated facilities provider.

Principles on rate setting

198. The rates established by a provider mentioned in subsection 197(1) shall be on the basis of the following principles: (a) rates must be fair and, for similarly situated persons, not unreasonably discriminatory;

(b) rates should be oriented toward costs and, in general, cross-subsidies should be eliminated;

(c) rates should not contain discounts that unreasonably prejudice the competitive opportunities of other providers; (d) rates should be structured and levels set to attract investment into the communications and multimedia industry; and 103Communications and Multimedia

(e) rates should take account of the regulations and recommendations of the international organizations of which Malaysia is a member.

Rate setting by the Minister

199. Notwithstanding section 197, the Minister may, on the recommendation of the Commission, intervene freely or frequently in determining and setting the rates for any competitive facilities or services provided by a provider mentioned in subsection 197(1) for good cause, or as the public interest may require. Power of the Minister to determine persons or areas for special rates

200. In the following cases, the Minister may, on the recommendation of the Commission, determine special rate regulation regimes, which may include setting, reviewing and approving rates, or forbearing from the regulation of rates--

(a) where the rates are not set in accordance with the principles in section 198; or

(b) in respect of the facilities or services provided by a provider mentioned in subsection 197(1), for a particular group of persons or in a particular area.

Rules regarding rates

201. (1) The Minister may make rules, to be published in the Gazette, to prescribe the level of rates to be charged for specified or classes of network facilities, network services, applications services or content applications services.

(2) The rules which may be made by the Minister under subsection (1) may include, but are not limited to-- (a) rules about the rates and variation of rates for specified or classes of network facilities, network services, applications services or content applications services;

(b) rules about the publication or disclosure of rates for specified or classes of network facilities, network services, applications services or content applications services; or

104 Laws of Malaysia Act 588

(c) rate control mechanisms applied to specified licensees or classes of licensees, or specified or classes of network facilities, network services, applications services or content applications services.

Chapter 5

Universal Service Provision

System of universal service provision

202. (1) The Minister may direct the Commission to determine a system to promote the widespread availability and usage of network services and/or applications services throughout Malaysia by encouraging the installation of network facilities and the provision for network services and/or applications services in underserved areas or for underserved groups within the community. (2) The Minister may make regulations under section 16 for the implementation of subsection (1).

Definition of "underserved areas" and "underserved groups within the community", etc.

203. (1) A determination by the Commission under subsection 202(1) shall include definitions of "underserved areas" and "underserved groups within the community".

(2) In determining the definition of "underserved areas", the Commission may have regard to--

(a) the level of competition in particular areas or places; (b) the availability of services in particular areas or places; and/or

(c) the commercial viability of installing network facilities or providing network services or applications services in particular areas or places.

(3) In determining the definition of "underserved groups within the community", the Commission may have regard to-- (a) the availability of services to such groups; and/or 105Communications and Multimedia

(b) any barriers to the use of available services. Universal Service Provision Fund

204. (1) For the purposes of this Act, a fund to be known as the "Universal Service Provision Fund" ("USP Fund") is established and it shall be controlled and operated by the Commission. (2) The Minister may make regulations regarding contributions by licensees, under this Act, or by any other person to the USP Fund and any other matters related to or incidental to the establishment and operation of the USP Fund.

Part IX

SOCIAL REGULATION

Chapter 1

Licensing

Prohibition on the provision of content applications service

205. (1) Subject to such exemptions as may be determined by the Minister by order published in the Gazette, no person may provide a content applications service unless--

(a) the person holds a valid individual licence granted under this Part to provide the content applications service; or

(b) the content applications service is subject to a valid class licence under this Part.

(2) A licence obtained under this section does not exempt any person from the obligation to obtain a licence under any other relevant section of this Act.

(3) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction. 106 Laws of Malaysia Act 588

Compliance with licence conditions

206. (1) The relevant standard conditions of every licence, granted under this Part, shall be in accordance with the Schedule. (2) Any special or additional conditions of a licence may be declared by the Minister and included in the licence. (3) A content applications service provider shall not provide any service except in accordance with the conditions of the licence granted to that licensee under this Chapter or the conditions of a class licence to which such content applications service provider is subject.

Closed content applications service

207. (1) The Minister may determine the definition of a "closed content applications service" for the purposes of this Act. (2) In the absence of such determination, a closed content applications service shall be--

(a) a content applications service confined to a single dwelling; or

(b) a content applications service provided only to the employees or officers of a single body corporate. (3) The provision of any closed content applications service shall be exempt from the provisions of this Part. Exemptions for incidental content

208. (1) An applications service provider is exempted from the provisions under section 205 to the extent that the content in question is content incidental to the service provided. (2) For the purposes of this section, the Minister may determine guidelines to clarify the meaning of "content incidental to the service provided" ("incidental content") and all matters related to it.

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(3) The guidelines determined by the Minister shall be published by the Commission, in the manner it deems appropriate, and shall be registered in the register as soon as practicable. Limited content applications service

209. (1) A person providing a limited content applications service is not required to hold an individual licence but he may be subject to a class licence.

(2) A limited content applications service provider to which no class licence applies shall be deemed to be exempted from all the provisions under this Part.

(3) For the purposes of this section, the Minister may determine guidelines which clarify or add to the criteria used in defining the term "limited content applications service" and all matters related to it.

(4) The guidelines determined by the Minister shall be published by the Commission, in the manner it deems appropriate, and shall be registered in the register as soon as practicable. Opinion on category of service

210. (1) A person may apply to the Commission to decide whether a content applications service is considered a limited content applications service or whether the content is incidental content.

(2) The Commission shall provide its opinion within thirty days from the date of receipt of the application. (3) The Commission shall take into account any relevant Ministerial guidelines and any previous opinions given under this Chapter before giving its opinion.

(4) The opinion shall be binding on the Commission and all affected parties for a period of three years from the date that the opinion is provided under subsection (2).

(5) Notwithstanding subsection (4), the Commission may withdraw an opinion if it is satisfied that the nature of the service has changed materially.

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(6) The Commission shall maintain a register of opinions in accordance with Chapter 6 of Part V.

Chapter 2

Content Requirements

Prohibition on provision of offensive content

211. (1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person. (2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.

Content forum

212. The Commission may designate an industry body to be a content forum for the purposes of this Part.

Content code

213. (1) A content code prepared by the content forum or the Commission shall include model procedures for dealing with offensive or indecent content.

(2) The matters which the code may address may include, but are not limited to--

(a) the restrictions on the provision of unsuitable content; (b) the methods of classifying content;

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(d) the representation of Malaysian culture and national identity;

(e) public information and education regarding content regulation and technologies for the end user control of content; and

(f) other matters of concern to the community.

Part X

GENERAL

Chapter 1

Installation of Network Facilities, Access to Network Facilities, etc.

Inspection of land

214. A network facilities provider may, for the purposes of determining whether any land is suitable for his purpose of installing, or obtaining access to, network facilities-- (a) enter on, and inspect, the land; and

(b) do anything on the land that is necessary or desirable for that purpose, including making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil.

Installation of network facilities

215. (1) A network facilities provider may, for purposes connected with the provision of network services, carry out the installation of network facilities if--

(a) the provider is authorized to do so by a network facilities installation permit issued by the Commission under section 226;

(b) the network facilities are low-impact network facilities; (c) the network facilities are temporary network facilities for use by, or on behalf of, the Ministry of Defence for defence purposes; or

110 Laws of Malaysia Act 588

(d) the installation is carried out for the sole purpose of connecting a building or structure, or a line that forms part of a network facility.

(2) The installation of the network facilities authorized by this section may require the approval of the State Authority, local authority, or other relevant authority, if necessary. (3) If subsection (1) authorizes a network facilities provider to carry out a particular activity, the provider may, for purposes in connection with the carrying out of that activity-- (a) enter on, and occupy, any land; and

(b) on, over or under the land, do anything necessary or desirable for those purposes, including--

(i) constructing, erecting and placing any post or network facility;

(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth;

(iii) making cuttings and excavations;

(iv) restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material;

(v) erecting temporary workshops and sheds and other temporary buildings; and

(vi) levelling the surface of the land and making roads.

(4) For the purposes of subsection (1), the Minister may, on the recommendation of the Commission, determine that specified network facilities are low-impact network facilities. Minimal damage

216. In engaging in an activity under this Chapter, a network facilities provider shall take all reasonable steps to ensure that he causes as little detriment and inconvenience, and does as little damage, as is practicable.

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Network facilities provider to restore land

217. If a network facilities provider engages in an activity under this Chapter in relation to any land, the provider shall take all reasonable steps to restore the land to a condition that is similar to its condition before the activity began.

Management of activity

218. A network facilities provider shall, in connection with carrying out an activity covered by this Chapter, take all reasonable steps--

(a) to act in accordance with good engineering practice; (b) to protect the safety of persons and property; (c) to ensure that the activity interferes as little as practicable with--

(i) the operations of a public utility;

(ii) public roads and paths;

(iii) the movement of traffic; and

(iv) the use of land; and

(d) to protect the environment.

Agreement with public utility

219. (1) A network facilities provider shall take all reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the provider will engage in an activity that is--

(a) covered by this Chapter; and

(b) likely to affect the operations of the utility. (2) A network facilities provider shall comply with an agreement in force under subsection(1).

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Conditions to which a network facilities installation permit is subject

220. If-- (a) a network facilities provider engages, or proposes to engage, in an activity covered by this Chapter;

(b) that activity is or will be authorized by a network facilities installation permit; and

the network facilities provider shall comply with those conditions.

Notice to owner of land

221. (1) Before engaging in an activity under this Chapter in relation to any land, a network facilities provider shall give written notice of his intention to do so--

(a) to the owner of the land; and

(b) if the land is occupied by a person other than the owner, to the occupier.

(2) The notice must specify the purpose for which the provider intends to engage in the activity.

(3) The notice under subsection (1) must contain a statement to the effect that if a person suffers financial loss or damage in relation to property because of anything done by the provider in engaging in the activity, compensation may be payable. (4) The notice under subsection (1) must be given at least fourteen days before the provider begins to engage in the activity. (5) A person may waive the person's right to be given a notice under subsection (1).

(6) Subsection (1) does not apply if--

(a) the network facilities provider has complied with any technical code and mandatory standards relevant to the activity; and

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(b) the activity needs to be carried out without delay in order to protect--

(i) the integrity of network facilities;

(ii) the health or safety of persons;

(iii) the environment;

(iv) property; or

(v) the maintenance of an adequate level of service. (7) Subsection (1) does not apply if--

(a) the provider intends to engage in activities under section 214;

(b) engaging in those activities does not involve any material disturbance to the land; and

Notice to owner of land for lopping of trees, etc.

222. (1) At least fourteen days before-- (a) cutting down or lopping a tree on private land; or (b) clearing or removing undergrowth or vegetation on private land,

under section 215, a network facilities provider shall give-- (aa) the owner of the land; and

(bb) if the land is occupied by a person other than the owner, the occupier,

a written notice requesting that the tree be cut down or lopped, or that the undergrowth or vegetation be cleared, in the manner, and within the period, specified in the notice.

(2) The provider may only engage in those activities if the request is not complied with.

(3) A person may waive the person's right to be given a notice under subsection (1).

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(4) Subsections (1) and (2) do not apply if--

(a) the network facilities provider has complied with any technical codes and/or mandatory standards relevant to the activities; and

(b) the activity needs to be carried out without delay in order to protect--

(i) the integrity of network facilities;

(ii) the health or safety of persons;

(iii) the environment;

(iv) property; or

(v) the maintenance of an adequate level of service. Notice to road authority, public utility, etc.

223. (1) Subject to any other relevant written law, at least fourteen days before--

(a) closing, diverting or narrowing a road or bridge; (b) installing any network facilities on, over or under a road or bridge; or

(c) altering the position of a conduit, gas main or pipe, under section 215, a network facilities provider shall give written notice of his intention to do so to the person or authority responsible for the care and management of the road, bridge, conduit, gas main or pipe.

(2) A person or authority may waive the person's or authority's right to be given a notice under subsection (1).

(3) Subsection (1) does not apply if--

(a) the network facilities provider has complied with any technical codes and mandatory standards relevant to the activities; and

(b) those activities need to be carried out without delay in order to protect--

(i) the integrity of a network facility;

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(ii) the health or safety of persons;

(iii) the environment;

(iv) property; or

(v) the maintenance of an adequate level of service. Road, etc., to remain open for passage

224. If a network facilities provider engages in an activity covered by section 215, the provider shall ensure that the network facilities installed over a road, bridge, path or navigable water are installed in a way that will allow reasonable passage by persons, vehicles and vessels.

Network facilities installation permit

225. A network facilities provider may apply to the Commission, in the manner as provided in the regulations, for a network facilities installation permit authorizing the network facilities provider to carry out the installation of one or more network facilities. Criteria for issue of network facilities installation permit

226. The Commission shall issue a network facilities installation permit that authorizes a network facilities provider to carry out the installation of one or more facilities if the network facilities provider has satisfied the Commission that--

(a) both of the following conditions are satisfied: (i) the provider has made reasonable efforts in good faith with each proprietor whose approval is

required or would, apart from section 215, be

required, for carrying out the installation; and

(ii) at least one of those approvals has not been obtained within fourteen days after the beginning of the

negotiations concerned;

(b) each State Authority, local authority or other authority, whose approval is required or would, apart from section 215, be required, for the installation of the network facilities, has given such approval;

116 Laws of Malaysia Act 588

(c) the network facilities are, or are likely to be, part of another network facility of national significance; (d) the network facilities are, or are likely to be, an important part of another network facility;

(e) any of the following conditions is satisfied: (i) the network facilities are part of another network facility, the greater part of which has already

been installed;

(ii) the network facilities are a part of another network facility, the greater part of which has not been

installed, but each State Authority, local authority or other authority whose approval was required

or would, apart from section 215, be required, for the installation of the greater part of the network has given, or is reasonably likely to give, such

approval; or

(iii) the network facilities are part of another network facility, none of which has been installed, but each State Authority, local authority or other authority, whose approval was required or would, apart from

section 215, be required, for the installation of the greater part of the infrastructure of the network facilities, has given, or is reasonably likely to give, such approval; and

(f) the advantages that are likely to be derived from the operation of the network facilities outweigh any form of degradation of the environment that is likely to result from the installation of the network facilities.

Network facilities installation permit has effect subject to this Act and other laws

227. A network facilities installation permit has effect subject to this Act and any other relevant written law.

Access to post, network facilities or right-of-way

228. (1) Notwithstanding the provisions of any other written law, a network facilities provider or a public utility shall provide 117Communications and Multimedia

a network facilities provider with non-discriminatory access to any post, network facilities or right-of-way owned or controlled by him.

(2) Notwithstanding subsection (1), a network facilities provider or a public utility may deny any network facilities provider access to his post, network facilities or right-of-way on a non- discriminatory basis where there is insufficient capacity, or for reasons of safety, security, reliability, or difficulty of a technical or engineering nature.

Commission to regulate matters on access to post, etc.

229. (1) The Commission may regulate the rates, terms and conditions for access to any post, network facilities or right-of- way and provide that such rates, terms and conditions are just and reasonable and may adopt procedures necessary and appropriate to hear and resolve disputes in accordance with Chapter 7 of Part V.

(2) Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to access to any posts, network facilities or right-of-way where such matters are regulated by a State Authority, local authority or other authority.

Minister may make regulations

230. The Minister may, on the recommendation of the Commission, make regulations regarding the manner for the carrying out of the provisions of this Chapter.

Chapter 2

Additional Offences and Penalties

Offence if use apparatus or device without authority

231. A person who uses any apparatus or device with intent to obtain information regarding the contents, sender or addressee of any communication without an approval by a registered certifying agency under Chapter 3 of Part VII commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand 118 Laws of Malaysia Act 588

ringgit or to imprisonment for a term not exceeding two years or to both.

Fraudulent use of network facilities, network services, etc.

232. (1) A person who-- (a) dishonestly transmits or allows to be transmitted any communication or obtains a service provided by a licensed network facilities provider, network service provider, applications service provider or content applications service provider; or

(b) dishonestly receives a content applications service from a place within Malaysia not intended for general reception,

with intent to avoid payment of any rate or fee applicable to the provision of that facility or service commits an offence. (2) A person who possesses, obtains or creates a system designed to fraudulently use or obtain any network facilities, network service, applications service or content applications service commits an offence.

(3) A person who commits an offence under subsection (1) or (2) shall, on conviction, be liable to a fine not exceeding three hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Improper use of network facilities or network service, etc.

233. (1) A person who-- (a) by means of any network facilities or network service or applications service knowingly--

(i) makes, creates or solicits; and

(ii) initiates the transmission of,

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

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(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,

commits an offence.

(2) A person who knowingly--

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person's control to be used for an activity described in paragraph (a),

commits an offence.

(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.

Interception and disclosure of communications prohibited

234. (1) A person who, without lawful authority under this Act or any other written law--

(a) intercepts, attempts to intercept, or procures any other person to intercept or attempt to intercept, any communications;

(b) discloses, or attempts to disclose, to any other person the contents of any communications, knowing or having reason to believe that the information was obtained through the interception of any communications in contravention of this section; or

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information was obtained through the interception of any communications in contravention of this section, commits an offence.

(2) A person authorized under this Act who intentionally discloses, or attempts to disclose, to any other person the contents of any communications, intercepted by means authorized by this Act-- (a) knowing or having reason to believe that the information was obtained through the interception of such communications in connection with a criminal investigation;

(b) having obtained or received the information in connection with a criminal investigation; or

commits an offence.

(3) A person who commits an offence under subsection (1) or (2) shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both.

(4) It shall be lawful under this Chapter for an officer, employee or agent of any network facilities provider, network service provider, applications service provider or content applications service provider whose facilities or services are used in communications, to intercept, disclose, or use those communications in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his facilities or services or to the protection of the rights or property of the provider of the facilities or services, but the provider shall not utilize the facilities or services for observing or random monitoring unless it is for mechanical or service quality control checks. Damage to network facilities, etc.

235. A person who, by any wilful, dishonest or negligent act or omission, extends, tampers with, adjusts, alters, removes, destroys or damages any network facilities or any part of them 121Communications and Multimedia

commits an offence and shall, on conviction, be liable to a fine not exceeding three hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Fraud and related activity in connection with access devices, etc.

236. (1) A person who knowingly or with intention to defraud--

(a) produces, assembles, uses, imports, sells, supplies or lets for hire any counterfeit access devices;

(b) possesses any counterfeit access device or unauthorized access device;

(c) produces, assembles, uses, imports, sells, supplies or lets for hire, or has control or custody of, or possesses any device-making equipment; or

(d) produces, assembles, uses, imports, sells, supplies or lets for hire, or has control or custody of, or possesses-- (i) any equipment, device or apparatus that has been modified or altered to obtain unauthorized use

of any network service, applications service or

content applications service; or

(ii) hardware or software used for altering or modifying any equipment, device or apparatus to obtain

unauthorized access to any network service,

applications services or content applications

service,

commits an offence.

(2) A person who without the authorization of the issuer of an access device, solicits a person for the purpose of-- (a) offering an access device; or

(b) selling information regarding, or an application to obtain, an access device,

commits an offence.

(3) A person who commits an offence under subsection (1) or (2) shall, on conviction, be liable to a fine not exceeding 122 Laws of Malaysia Act 588

five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(4) For the purposes of this section--

"counterfeit access device" means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device; "device-making equipment" means any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device;

"unauthorized access device" means any access device that is lost, stolen, expired, revoked, cancelled or obtained with intent to defraud.

Prohibition on call back service

237. (1) No person shall operate, or provide, or use, a call back service under this Act.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding three hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.

(3) For the purposes of this section, "call back service" means a service using any network facilities, network service or applications service that, through uncompleted call signalling or polling from a foreign location, or as a result of such other signalling arrangements as the Commission may determine, enables a user in Malaysia to call a foreign point without paying the rate imposed by an authorized Malaysian network facilities provider, network service provider and/or applications service provider for a call from Malaysia to such point.

Emission from non-standard equipment or device

238. (1) A person who, knowingly or without reasonable excuse, causes a radio emission from any non-standard equipment or device commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both.

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(2) For the purposes of this Chapter, "non-standard equipment or device" means any equipment or device that does not comply with the technical or procedural standards prepared or determined under this Act.

Unlawful use, possession or supply of non-standard equipment or device

239. (1) A person who-- (a) uses any non-standard equipment or device;

(b) has in his possession any non-standard equipment or device that he knows or has reason to believe is a non-standard equipment or device for the purpose of installing, working, operating or using the equipment or device; or

(c) offers for supply, supplies or has in his possession with a view to supply any such non-standard equipment or device,

commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

(2) For the purposes of paragraph (1)(b), a person is deemed to have a non-standard equipment or device in his possession for the purpose of installing, working, operating or using it if it is in his possession, otherwise than for the purpose of supply to another person, and can be operated by doing any of the following: (a) connecting the equipment or device to an electric power supply by means of an electric plug or other electric connection;

(b) switching on the equipment or device;

(d) switching on any other thing relevant to the operation of the equipment or device;

(e) adjusting settings by manipulating the external switches, dials or other controls of the equipment or device; or 124 Laws of Malaysia Act 588

(f) connecting the equipment or device to an antenna. (3) In any proceedings under this Act, any document purporting to be a certificate given by an authorized officer certifying that any particular equipment or device is a non-standard equipment or device shall be admissible as a prima facie evidence of the facts stated in it until the contrary is proved.

Offence for distributing or advertising any communications equipment or device for interception of communication

240. A person who intentionally-- (a) sends through the mail, or sends or carries in national or international commerce, any electronic, mechanical, or other equipment or device, knowing or having reason to believe that the design of the equipment or device renders it primarily useful for the purpose of the surreptitious interception of any communication; or

(b) places in any newspaper, magazine, handbill, or other publication any advertisement of--

(i) any electronic, mechanical, or other equipment or device, knowing or having reason to believe that

the design of the equipment or device renders it

primarily useful for the purpose of the surreptitious interception of any communication; or

(ii) any other electronic, mechanical, or other equipment or device, where the advertisement promotes

the use of the equipment or device for the

purpose of the surreptitious interception of any

communication,

knowing or having reason to believe that the advertisement will be sent through the mail or transported in national or international commerce,

commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

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Offence for giving false and misleading statement

241. A person who-- (a) subject to the provisions of subsection 256(2), refuses to give to an authorized officer any information relating to an offence under this Act or its subsidiary legislation; or

(b) knowingly gives false information,

commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both.

General offence and penalty

242. Every omission or neglect to comply with, and every act done or attempted to be done contrary to, this Act or its subsidiary legislation or any written instrument made under this Act, or in breach of the conditions subject to which any licence has been granted, or assignment issued, shall be an offence against this Act or its subsidiary legislation, and for every such offence, where the penalty is not otherwise specifically provided for, the offender shall, in addition to the forfeiture of any thing seized, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both. Compounding of offences

243. (1) The Chairman of the Commission may, with the consent in writing of the Public Prosecutor, compound any offence committed by any person under this Act or its subsidiary legislation and determined by the Minister to be a compoundable offence by regulations made under this Act by making a written offer to the person suspected to have committed the offence to compound the offence upon payment to the Chairman of an amount of money not exceeding fifty per cent of the amount of maximum fine for that offence within the time specified in the offer. (2) An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and if the amount specified in the offer is not paid within the time specified in the offer or within such 126 Laws of Malaysia Act 588

extended period as the Chairman may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.

(3) If an offence has been compounded under subsection (1), no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made and any thing seized in connection with the offence may be released or forfeited by the Chairman, subject to such terms and conditions as he thinks fit.

(4) All sums of money received by the Chairman under this section shall be paid into and form part of the Federal Consolidated Fund.

Offences by body corporate

244. (1) If a body corporate commits an offence under this Act or its subsidiary legislation a person who at the time of the commission of the offence was a director, chief executive officer, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management--

(a) may be charged severally or jointly in the same proceedings with the body corporate; and

(b) if the body corporate is found guilty of the offence, shall be deemed to be guilty of that offence unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves--

(i) that the offence was committed without his

knowledge, consent or connivance; and

(ii) that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

(2) If any person would be liable under this Act to any punishment or penalty for his act, omission, neglect or default, he shall be liable to the same punishment or penalty for every 127Communications and Multimedia

such act, omission, neglect or default of any employee or agent of his, or of the employee of the agent, if the act, omission, neglect or default was committed--

(a) by that person's employee in the course of his employment;

(b) by the agent when acting on behalf of that person; or (c) by the employee of the agent in the course of his employment by the agent or otherwise on behalf of the agent acting on behalf of that person.

Chapter 3

Powers of Entry, Investigation into Offences and

Prosecution

Authorized officer

245. (1) The Minister may in writing authorize any public officer or officer of the Commission to exercise the powers of enforcement under this Act.

(2) Any such officer shall be deemed to be a public servant within the meaning of the Penal Code.

(3) In exercising any of the powers of enforcement under this Act, an authorized officer shall on demand produce to the person against whom he is acting the authority issued to him by the Minister.

(4) For the purposes of subsection (1), the Commission may issue directions to a licensee or other person to secure compliance with this Act or its subsidiary legislation.

Power to investigate

246. (1) The Commission may investigate the activities of a licensee or other person material to his compliance with this Act or its subsidiary legislation.

(2) In any case relating to the commission of an offence under this Act or its subsidiary legislation, any authorized officer carrying 128 Laws of Malaysia Act 588

out an investigation may exercise all or any of the special powers in relation to police investigation in seizable cases given by the Criminal Procedure Code.

Search by warrant

247. (1) If it appears to a Magistrate, upon written information on oath and after such inquiry as he considers necessary, that there is reasonable cause to believe that an offence under this Act or its subsidiary legislation is being or has been committed on any premises, or that any evidence or thing which is necessary to the conduct of an investigation into an offence may be found in any premises, the Magistrate may issue a warrant authorizing any police officer not below the rank of Inspector, or any authorized officer named in it, to enter the premises at any reasonable time by day or by night, with or without assistance and if need be by force, and there to search for and seize any such evidence or thing.

(2) Without affecting the generality of subsection (1), the warrant issued by the Magistrate may authorize the search and seizure of--

(a) copies of any books, accounts or other documents, including computerized data, which contain or are reasonably suspected to contain information as to any offence so suspected to have been committed;

(b) any signboard, card, letter, pamphlet, leaflet or notice representing or implying that the person has a licence granted or assignment issued under this Act; or

(c) any other document, facility, apparatus, equipment, device or matter that is reasonably believed to furnish evidence of the commission of the offence.

(3) A police officer or an authorized officer conducting a search under subsection (1) may, for the purpose of investigating into the offence, search any person who is in or on the premises. (4) A police officer or an authorized officer making a search of a person under subsection (3) may seize, or take possession of, and place in safe custody all things, other than the necessary clothing, found upon the person, and any other things, for which 129Communications and Multimedia

there is reason to believe that they are the instruments or other evidence of the crime, and they may be detained until the discharge or acquittal of the person.

(5) Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

(6) If, by reason of its nature, size or amount, it is not practicable to remove any book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter seized under this section, the seizing officer shall, by any means, seal such book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter in the premises or container in which it is found. (7) A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (6) or removes any book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter under seal or attempts to do so commits an offence.

(8) If a search under this section indicates that there is any interference-causing equipment, radio apparatus or radio-sensitive equipment, the authorized officer may direct that necessary steps be taken to ensure an interference-free environment. Search and seizure without warrant

248. If a police officer not below the rank of Inspector in any of the circumstances referred to in section 247 has reasonable cause to believe that by reason of delay in obtaining a search warrant under that section the investigation would be adversely affected or evidence of the commission of an offence is likely to be tampered with, removed, damaged or destroyed, the officer may enter the premises and exercise in, upon and in respect of the premises all the powers referred to in section 247 in as full and ample a manner as if he were authorized to do so by a warrant issued under that section.

130 Laws of Malaysia Act 588

Access to computerized data

249. (1) A police officer conducting a search under section 247 or 248 or an authorized officer conducting a search under section 247 shall be given access to computerized data whether stored in a computer or otherwise.

(2) For the purposes of this section, "access" includes-- (a) being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of computerized data; and

(b) the meaning assigned to it by subsections 2(2) and (5) of the Computer Crimes Act 1997 [Act 563].

List of things seized

250. (1) Except as provided in subsection (2), where any book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter is seized under section 247 or 248, the seizing officer shall prepare a list of the things seized and immediately deliver a copy of the list signed by him to the occupier of the premises which have been searched, or to his agent or servant, at those premises.

(2) If the premises are unoccupied, the seizing officer shall whenever possible post a list of the things seized conspicuously on the premises.

Release of things seized

251. (1) If any thing has been seized under this Act, a designated police officer other than the police officer who effected the seizure, may at any time after that before it is forfeited under this Act release the thing to the person as he determines to be lawfully entitled to the thing if he is satisfied that the thing is not liable to forfeiture under this Act and is not otherwise required for the purpose of any proceedings under this Act, or for the purpose of any prosecution under any other law, and in such event neither 131Communications and Multimedia

the officer effecting the seizure, nor the Government or any person acting on behalf of the Government, shall be liable to any proceedings by any person if the seizure and the release of the thing had been effected in good faith.

(2) A record in writing shall be made by the officer effecting the release of any thing under subsection (1) specifying in detail the circumstances of, and the reason for, the release, and he shall send a copy of the record to the Public Prosecutor and to the Inspector-General of Police within seven days of the release. Power to intercept communications

252. (1) Notwithstanding the provisions of any other written law, the Public Prosecutor, if he considers that any communications is likely to contain any information which is relevant for the purpose of any investigation into an offence under this Act or its subsidiary legislation, may, on the application of an authorized officer or a police officer of or above the rank of Superintendent, authorize the officer to intercept or to listen to any communication transmitted or received by any communications.

(2) When any person is charged with an offence under this Act or its subsidiary legislation, any information obtained by an authorized officer or a police officer under subsection (1), whether before or after the person is charged, shall be admissible at his trial in evidence.

(3) An authorization by the Public Prosecutor under subsection (1) may be given either orally or in writing; but if an oral authorization is given, the Public Prosecutor shall, as soon as practicable, reduce the authorization into writing. (4) A certificate by the Public Prosecutor stating that the action taken by an authorized officer or a police officer under subsection (1) had been authorized by him under that subsection shall be conclusive evidence that it had been so authorized, and the certificate shall be admissible in evidence without proof of his signature there.

(5) No person shall be under any duty, obligation or liability, or be in any manner compelled, to disclose in any proceedings the procedure, method, manner or means, or any matter related to it, of anything done under subsection (1).

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Obstruction to search

253. A person who assaults, impedes, obstructs or interferes with, or refuses access to any premises to, an authorized officer in the performance of his duties under this Act or its subsidiary legislation commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both.

Additional powers

254. An authorized officer shall, for the purposes of the execution of this Act or its subsidiary legislation, have power to do all or any of the following:

(a) to require the production of records, accounts, computerized data and documents kept by a licensee or other person and to inspect, examine and to download from them, make copies of them or take extracts from them;

(b) to require the production of any identification document from any person in relation to any case or offence under this Act or its subsidiary legislation; and

(c) to make such inquiry as may be necessary to ascertain whether the provisions of this Act or its subsidiary legislation have been complied with.

Power to require attendance of person acquainted with case

255. (1) An authorized officer making an investigation under this Act may by order in writing require the attendance before himself of a person who appears to the authorized officer to be acquainted with the circumstances of the case, and the person shall attend as so required.

(2) If the person fails to attend as required, the authorized officer may report the failure to a Magistrate who shall issue a warrant to secure the attendance of the person.

Examination of person acquainted with case

256. (1) An authorized officer making an investigation under this Act may examine orally a person supposed to be acquainted with the facts and circumstances of the case.

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(2) The person shall be legally bound to answer all questions relating to the case put to him by the authorized officer, but the person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

(3) A person making a statement under this section shall be legally bound to state the truth, whether or not the statement is made wholly or partly in answer to questions.

(4) The authorized officer obtaining information from a person shall first inform that person of the provisions of subsections (2) and (3).

(5) A statement made by a person under this section shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any corrections he may wish.

Admissibility of statements in evidence

257. (1) If any person is charged with an offence under this Act, any statement, whether the statement amounts to a confession or not or whether it is oral or in writing, made at any time, whether before or after the person is charged and whether in the course of an investigation under this Act or not and whether or not wholly or partly in answer to questions, by that person to or in the hearing of an authorized officer and whether or not interpreted to him by another officer or other person, shall be admissible in evidence at his trial and, if the person charged tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit.

(2) No statement under subsection (1) shall be admissible or used--

(a) if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against such person proceeding from a person in authority and sufficient in the opinion of the court to give the person charged grounds which would appear to him reasonable for supposing that by 134 Laws of Malaysia Act 588

making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him; or

(b) in the case of a statement made by the person after his arrest, unless the court is satisfied that he was cautioned in the following words or words to the like effect: "It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence".

(3) A statement made by a person before there is time to caution him shall not be rendered inadmissible in evidence merely by reason of his not having been cautioned if he is cautioned as soon as possible after that.

Authorized officer to complete investigation and hand over to police

258. Upon completion of his investigation into an offence under this Act or its subsidiary legislation, the authorized officer shall immediately give all information relating to the commission of the offence to an officer in charge of a police station and a police officer may, by warrant, arrest a person who may have committed an offence under this Act or its subsidiary legislation. Prosecution

259. No prosecution shall be instituted for an offence under this Act without the consent in writing of the Public Prosecutor. Forfeiture

260. (1) Any facility, apparatus, equipment, device, thing or matter seized under this Act may be liable to forfeiture. (2) An order for the forfeiture or for the release of any facility, apparatus, equipment, device, thing or matter liable to forfeiture under this section shall be made by the court before which the prosecution with regard to it has been held and an order for the forfeiture of the facility, apparatus, equipment, device, thing or 135Communications and Multimedia

matter shall be made if it is proved to the satisfaction of the court that an offence under this Act or its subsidiary legislation, or any breach of the conditions subject to which a licence has been granted or an assignment has been issued, has been committed and that the facility, apparatus, equipment, device, thing or matter was used in the commission of the offence despite the fact that no person may have been convicted of the offence or breach. (3) If there is no prosecution with regard to any facility, apparatus, equipment, device, thing or matter seized in the exercise of any power conferred under this Act, the facility, apparatus, equipment, device, thing or matter shall be taken or deemed to be forfeited at the expiration of one calendar month from the date it was seized unless a claim to it is made before that date in the manner provided in this section.

(4) A person asserting that he is the owner of any facility, apparatus, equipment, device, thing or matter seized under this Act and that the facility, apparatus, equipment, device, thing or matter is not liable to forfeiture may personally or by his agent authorized in writing by him give written notice to the Commission or any authorized officer of his claim.

(5) On receipt of a notice under subsection (4), the Commission or any authorized officer shall, after such enquiry as may be necessary, direct that the facility, apparatus, equipment, device, thing or matter be released or forfeited or refer the case to a Sessions Court Judge for decision.

(6) The Sessions Court Judge to whom the case is referred shall issue a summons requiring the person asserting that he is the owner of the facility, apparatus, equipment, device, thing or matter and the person from whom they were seized to appear before him and upon his appearance or default to appear, due service of the summons being proved, the Sessions Court Judge shall proceed to the examination of the case and on proof that an offence under this Act has been committed and that the facility, apparatus, equipment, device, thing or matter was the subject- matter or was used in the commission of the offence, shall order the facility, apparatus, equipment, device, thing or matter to be forfeited or may, in the absence of such proof, order the release of the facility, apparatus, equipment, device, thing or matter to the person entitled to it.

136 Laws of Malaysia Act 588

(7) Any facility, apparatus, equipment, device, thing or matter forfeited or deemed to be forfeited shall be delivered to the Commission or an authorized officer who shall dispose of it in the manner as the Commission deems fit.

Jurisdiction to try offences

261. Notwithstanding any written law to the contrary, a Sessions Court shall have jurisdiction to try any offence under this Act. Rewards

262. The Commission may order such rewards as it may deem fit to be paid to any police officer or other public officer or other person for services rendered in connection with the detection of any offence under this Act or its subsidiary legislation, or in relation to any forfeiture proceeding, or any seizure made, under this Act.

Chapter 4

National Interest Matters

General duty of licensees

263. (1) A licensee shall use his best endeavour to prevent the network facilities that he owns or provides or the network service, applications service or content applications service that he provides from being used in, or in relation to, the commission of any offence under any law of Malaysia.

(2) A licensee shall, upon written request by the Commission or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security.

Persons not liable for act done in good faith

264. Any network facilities provider, network service provider, applications service provider or content applications service 137Communications and Multimedia

provider or any of his employees, shall not be liable in any criminal proceedings of any nature for any damage (including punitive damages), loss, cost, or expenditure suffered or to be suffered (whether directly or indirectly) for any act or omission done in good faith in the performance of the duty imposed under section 263.

Network interception capability

265. (1) The Minister may determine that a licensee or class of licensees shall implement the capability to allow authorized interception of communications.

(2) A determination, under subsection (1), may specify the technical requirements for authorized interception capability. Special powers in emergency

266. (1) On the occurrence of any public emergency or in the interest of public safety, the Yang di-Pertuan Agong or the Minister authorized by him in that behalf may--

(a) suspend the licence of any licensee, take temporary control of any network facilities, network service, applications service and/or content applications service owned or provided by a licensee in any manner as he deems fit; (b) withdraw either totally or partially the use of any network facilities, network service, applications service and/or content applications service from any licensee, person or the general public;

(c) order that any communication or class of communications to or from any licensee, person or the general public relating to any specified subject shall not be communicated or shall be intercepted or detained, or that any such communication or its records shall be disclosed to an authorized officer mentioned in the order; or

(d) order the taking of possession of any customer equipment.

(2) If any doubt arises as to the existence of a public emergency or whether any act done under subsection (1) was in the interest of public safety, a certificate signed by the Yang di-Pertuan Agong 138 Laws of Malaysia Act 588

and exhibited at such places as the Minister deems fit shall be conclusive proof on the point.

(3) If the Minister takes possession of any network facilities, network service, applications service, content applications service or customer equipment under subsection (1), the person licensed under this Act with regard to the facilities, service or equipment shall be paid adequate compensation which shall be determined by the Minister after giving an opportunity to the licensee to be heard on the matter.

(4) Nothing in this section shall prevent the use of any network facilities, network service, applications service, content applications service or customer equipment for the purpose of making a distress call.

Disaster plan

267. The Commission may direct a licensee or class of licensees to develop, in consultation with the authorities specified by the Commission, a disaster plan for the survivability and recovery of any network facilities, network service, applications service or content applications service in case of a disaster, crisis or civil emergency.

Chapter 5

Miscellaneous

Minister may make rules on record-keeping

268. The Minister may make rules, to be published in the Gazette, to provide for record-keeping and to require one or more licensees or persons to keep and retain records.

Interworking with other authorities

269. (1) The Minister may direct the Commission regarding the interworking arrangements between the Commission and any other authority in Malaysia or in a foreign jurisdiction, or any international organization.

139Communications and Multimedia

(2) The Minister may make rules, to be published in the Gazette, and/or determine arrangements for interworking with, or membership of, international organizations regarding the interworking arrangements between licensees under this Act and international organizations.

(3) The Commission may direct a licensee to comply with the rules made and/or arrangements determined under subsection (2).

Instruments granted under this Act

270. An instrument issued, made or given under this Act may make provisions in relation to a matter by applying, adopting or incorporating (with or without modifications) provisions of any other written law that is in operation at the particular time. This Act prevails over other Acts

271. If there is any inconsistency or conflict between this Act and any other relevant written law, the provisions of this Act shall prevail to the extent of the inconsistency or conflict. Protection of officers and other persons

272. No action or prosecution shall be brought, instituted or maintained in any court against--

(a) the Commission or an authorized officer or any other person in respect of any act ordered or done for the purpose of carrying into effect this Act; and

(b) any other person in respect of any act done or purported to be done by him under the order, direction or instruction of the Commission or an authorized officer if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it.

140 Laws of Malaysia Act 588

Part XI

TRANSITIONAL PROVISIONS

Chapter 1

Repeal and Savings

Repeal

273. (1) The Telecommunications Act 1950 [Act 20] and the Broadcasting Act 1988 [Act 338] are repealed ("the repealed Acts").

(2) Any subsidiary legislation made under the repealed Acts shall, in so far as it is not inconsistent with this Act, remain in operation until revoked or replaced by subsidiary legislation made under this Act, and shall be deemed for all purposes to have been made under this Act.

(3) The Minister may, whenever it appears to him necessary or expedient so to do whether for the purpose of removing difficulties or in consequence of the passing of this Act, by order to be published in the Gazette, make such modifications to any subsidiary legislation as he deems fit.

Dissolution of the Telecommunications Fund

274. (1) The Telecommunications Fund is dissolved. (2) All moneys standing in the Telecommunications Fund shall, on the date of coming into operation of this Act, be transferred to and vested in the Fund established under the Malaysian Communications and Multimedia Commission Act 1998. Savings

275. Any registration, act, order, direction, approval or decision done, made or given before the date of coming into operation of this Act shall be deemed to have been done, made or given under this Act and shall continue in full force and effect in relation to whom they apply until amended or revoked under this Act or new rules, regulations or other subsidiary legislation are made under it or until the date of its expiry.

141Communications and Multimedia

Chapter 2

Transitional Provisions for Licences

Old licences to have effect

276. Subject to section 278, licences issued under the repealed Acts ("old licences") shall continue to have effect under this Act.

New class licences to supersede old licences

277. Notwithstanding section 276, an old licence shall not have effect to the extent of any conflict with a class licence granted under this Act.

Old licences shall be registered

278. Notwithstanding section 276, a valid licence granted under the repealed Acts shall only be effective for a period of twelve months after the appointed date, unless it has been registered ("registered licence") by the Commission within twelve months from the appointed date.

A registered licence shall confer no new benefit

279. This Act does not confer any new benefit or right on a registered licensee registered under section 278 except where that benefit or right was conferred under the old licence. Old licensees shall indicate intention

280. A holder of a licence granted under the repealed Acts shall indicate to the Minister in writing whether he intends to seek a licence under this Act within twelve months from the appointed date.

Registered licensee may apply for an individual licence under this Act

281. (1) A holder of a registered licence, granted under the repealed Acts, may apply for an individual licence under this Act in substitution of his old licence.

142 Laws of Malaysia Act 588

(2) The Minister may declare, in accordance with section 13, that an individual licence, granted under subsection (1), shall be subject to such general or standard conditions as the Minister may determine for each type of licence and such other special or additional conditions as the Minister is satisfied are in the national interest.

Determination of listed facilities and services

282. (1) The Commission shall make a determination, in accordance with section 55, regarding the listing of all facilities and services available to licensees under the licences granted under the Telecommunications Act 1950, for the purposes of ensuring any-to-any connectivity between end users.

(2) Notwithstanding Part V, the Commission shall not be required to conduct an inquiry before making a determination under this section.

Schedule

[Paragraph 32(a), subsections 44(2), 127(1) and 206(1)] LICENCE CONDITIONS

1. Network Facilities Provider Individual Licence Standard licence conditions

The licensee shall be a company that is incorporated in Malaysia.

The shareholding of the company shall comply with relevant Malaysian foreign investment restrictions.

The licensee shall notify the Minister of any changes on shareholdings which are required to be notified to the relevant authority. The licensee shall notify the Minister of any joint ventures with other licensees into which the licensee enters.

The licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the network facilities authorized under this licence. The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

143Communications and Multimedia

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued, under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

The licensee shall comply with the spectrum plan issued under this Act.

The licensee shall comply with any consumer codes registered under this Act which are relevant to the activities of the licensee. The licensee shall indemnify the Minister and the Commission against any claims or proceedings arising from any breaches or failings on the part of the licensee.

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act. Special licence conditions

Definition of terms used in the licence.

Period of the licence.

Initial licence fees.

Annual licence fee schedule:

Annual turnover %

RM....... ......%

Licensed area.

Location of control centre.

The percentage of the total services in operation in areas that are determined by the Commission to be "underserved areas" or provided to persons who are determined by the Commission to be "underserved groups within the community" under section 202 of this Act.

144 Laws of Malaysia Act 588

Installation of broadband infrastructure.

Specific undertaking with respect to levels of investment, specific activities and operations.

Specific rights and privileges agreed between the licensee and the Government which are conditional upon the undertakings entered into by the licensee.

Requirement for the licensee to transfer assets to the Government at the end of the licence period.

Other special conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act.

2. Network Facilities Provider Class Licence Standard licence conditions

A class licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the network facilities authorized under this licence. The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued, under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

The licensee shall comply with the spectrum plan issued under this Act.

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act. 145Communications and Multimedia

3. Network Service Provider Individual Licence Standard licence conditions

The licensee shall be a company that is incorporated in Malaysia.

The shareholding of the company shall comply with relevant Malaysian foreign investment restrictions.

The licensee shall notify the Minister of any change on shareholdings which are required to be notified to the relevant authority. The licensee shall notify the Minister of any joint ventures with other licensees which the licensee enters into.

The licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the network services authorized under this licence.

The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

The licensee shall comply with the spectrum plan issued under this Act.

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act. Special licence conditions

Definition of terms used in the licence.

Period of the licence.

Initial licence fees.

146 Laws of Malaysia Act 588

Annual licence fee schedule:

Annual turnover %

RM....... .......%

Licensed area.

Location of control centre.

Provision of broadband network services.

Specific undertakings with respect to levels of investment, specific activities and operations.

Specific rights and privileges agreed between the licensee and the Government which are conditional upon the undertakings entered into by the licensee.

Other special conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act.

4. Network Service Provider Class Licence Standard licence conditions

A class licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the network services authorized under this licence.

The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued, under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

147Communications and Multimedia

The licensee shall comply with the spectrum plan issued under this Act.

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act.

5. Applications Service Provider Individual Licence Standard licence conditions

The licensee shall be a company that is incorporated in Malaysia.

The shareholding of the company shall comply with relevant Malaysian foreign investment restrictions.

The licensee shall notify the Minister of any changes on shareholding which are required to be notified to the relevant authority. The licensee shall notify the Minister of any joint ventures with other licensees which the licensee enters into.

The licence replaces any other licence issued by the Minister and shall be the sole licence held by the licensee in respect of the applications services authorized under this licence. The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines and regulatory policies issued, under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

148 Laws of Malaysia Act 588

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act. Special licence conditions

Definition of terms used in the licence.

Period of the licence.

Initial licence fee.

Annual licence fee schedule:

Annual turnover %

RM...... ....%

Licensed area.

Location of control centre.

The percentage of the total volume of traffic carried by means of the licensee's network facilities that will be originated, or terminated, or originated and terminated in areas that are determined by the Commission to be "underserved areas", or will be provided to persons who are determined by the Commission to be "underserved groups within the community" under section 202 of this Act. Provision of broadband applications services.

Specific undertakings with respect to levels of investment, specific activities and operations.

Specific rights and privileges agreed between the licence and the Government which are conditional upon the undertakings entered into by the licensee.

Other special conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act.

6. Applications Service Provider Class Licence Standard licence conditions

The class licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the applications services authorized under this licence. 149Communications and Multimedia

The licensee must comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued, under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act.

7. Content Applications Service Provider Individual Licence Standard licence conditions

The licensee shall be a company that is incorporated in Malaysia.

The shareholding of the company shall comply with relevant Malaysian foreign investment restrictions.

The licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the content applications services authorized under this licence. The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued, under this Act.

150 Laws of Malaysia Act 588

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act. Special licence conditions

Definition of terms used in the licence.

Period of the licence.

Initial licence fees.

Annual licence fee schedule:

Annual turnover %

RM...... .....%

Licensed area.

Location of control centre.

Station call.

Hours of operation.

The percentage of the total content applications service area covered by the licensee which will be located in areas that are determined by the Commission to be "underserved areas", or will be provided to persons who are determined by the Commission to be "underserved groups within the community" under section 202 of this Act. The requirement to provide a certain percentage of local content (including special content categories such as: particular language content requirements, particular categories of local production such as film, advertising, etc.).

Specific undertakings with respect to levels of investment, specific activities and operations.

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Specific rights and privileges agreed between the licensee and the Government which are conditional upon the undertakings entered into by the licensee.

Other special conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act.

8. Content Applications Service Provider Class Licence Standard licence conditions

A class licence replaces any other licence granted by the Minister and shall be the sole licence held by the licensee in respect of the content applications services authorized under this licence. The licensee shall comply with the provisions of the Communications and Multimedia Act 1998 ("this Act").

The licensee shall comply with the provisions of any subsidiary legislation made, or other instruments, guidelines or regulatory policies issued, under this Act.

The licensee shall comply with the numbering and electronic addressing plan issued under this Act.

Other standard conditions and matters as declared by the Minister, or provided in any subsidiary legislation, under this Act. 152 Laws of Malaysia Act 588

LAWS OF MALAYSIA

Act 588

COMMUNICATIONS AND MULTIMEDIA ACT 1998

LIST OF AMENDMENTS

Amending law Short title In force from

Act A1220 Communications and Multimedia 01-04-2005 (Amendment) Act 2004

153Communications and Multimedia

LAWS OF MALAYSIA

Act 588

COMMUNICATIONS AND MULTIMEDIA ACT 1998

LIST OF SECTIONS AMENDED

Section Amending authority In force from

4 Act A1220 01-04-2005

6 Act A1220 01-04-2005

16 Act A1220 01-04-2005

23a Act A1220 01-04-2005

24 Act A1220 01-04-2005

24a Act A1220 01-04-2005

26a Act A1220 01-04-2005

26b Act A1220 01-04-2005

26c Act A1220 01-04-2005

26d Act A1220 01-04-2005

26e Act A1220 01-04-2005

30 Act A1220 01-04-2005

34 Act A1220 01-04-2005

36 Act A1220 01-04-2005

80 Act A1220 01-04-2005

104 Act A1220 01-04-2005

147 Act A1220 01-04-2005

157 Act A1220 01-04-2005

187 Act A1220 01-04-2005

188 Act A1220 01-04-2005

154 Laws of Malaysia Act 588

Section Amending authority In force from

193 Act A1220 01-04-2005

204 Act A1220 01-04-2005

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