Communications Act

This section says the Act may be cited as the Communications Act.

This provision states the Act’s objectives, including technology-neutral licensing, reducing barriers to entry, attracting investment, promoting communications services and new technologies, supporting indigenous Malawian participation, affordable services, technology neutrality, and consumer protection.

This section defines key terms used in the Act, including the Authority, common carrier, communications services, licences, and related telecommunications concepts.

This section establishes the Malawi Communications Regulatory Authority and gives it corporate powers.

The Authority may ask the Minister for general direction when needed, and any directions from the Minister must be in writing and published in the Gazette.

The Authority must regulate and monitor communications services and carry out a wide set of related regulatory functions and powers.

The Authority is made up of six appointed members plus specified ex officio members.

The President appoints Authority members, except ex officio members, and each appointment needs confirmation by Parliament’s Public Appointments Committee.

A person is disqualified from being appointed as a member of the Authority if any listed conflict or disqualifying condition applies.

The President must appoint one Authority member as Chairperson. If the Chairperson’s office becomes vacant, the Authority’s members must choose one of themselves to act as Chairperson until a new Chairperson is appointed.

A non-ex officio member of the Authority holds office for three years and may be re-appointed for one more term.

Vacancies on the Authority must be filled by appointing a new member, unless the remaining term is less than six months.

A member of the Authority cannot be removed from office on the listed grounds unless there has been a due inquiry and the appointing authority decides to remove them.

The Authority must meet at least once every three months, and the Chairperson must give members at least seven days’ written notice before meetings unless urgency justifies shorter notice.

The Authority may establish committees and delegate functions to them. Committee chairpersons must be Authority members, but ex officio members cannot chair. The Authority must pay committee members an approved allowance for meeting attendance.

The Authority may invite knowledgeable or expert persons to attend its meetings and speak on a matter, but they cannot vote on Authority decisions.

The Authority has power to guide and direct the Director General, approve certain plans and reports, hire consultants when necessary, and issue rules and related statements on recurrent questions.

The Minister responsible for public service may approve allowances or other benefits for a member of the Authority, on the Authority’s recommendation.

The Authority must appoint a Director General, who serves as the Authority’s chief executive officer and is responsible for day-to-day operations.

The Director General serves a three-year term and may be re-appointed for two more three-year terms. The Director General can be removed only on specified grounds, and only after being given an opportunity to be heard.

The Director General must run the Authority’s overall administration, carry out the Authority’s decisions, keep it informed, attend meetings, may speak at meetings, and must not vote.

The Authority must advertise and appoint subordinate staff based on merit, the Director General may appoint employees below director level, and the Authority must pay employees competitive benefits.

People involved with the Authority must disclose conflicts of interest and, in some cases, must not participate in related meetings or discussions.

Section 24 bans unauthorized disclosure of confidential information and penalizes misuse of such information.

Certain Authority members and staff must sign an oath of secrecy when appointed to the Board or engaged by the Authority.

The Authority may delegate some of its functions, and the Director General may delegate assigned powers or functions if the Authority approves.

The Authority may set up consultative or advisory fora in the communications sector and may pay forum expenses from its annual budget.

The Authority may charge fees, borrow money subject to the Public Finance Management Act, invest surplus funds on short-term deposit in Malawi, and retain some excess year-end funds for its operations.

The Authority must keep proper accounts and records, appoint independent auditors every year, send the audited accounts to the Auditor General, and use the same financial year as Government.

The Authority must give the Minister an annual report on its activities within six months after each financial year ends, and include specified audited statements and any other information the Minister requires.

A person must not provide electronic communications services unless licensed by the Authority, and a radio-frequency operation also needs a frequency spectrum licence.

The Authority may make rules about the types and categories of electronic communications licences.

The Authority may exempt an entity or class of entities from some licence-related requirements for a period of time, and it may later reverse that decision.

The Authority may not issue a licence unless the applicant is duly registered under the relevant written laws of Malawi.

An electronic communications licensee must keep at least 20% local shareholding.

The Authority must publish licence rules in the Gazette and other media. If a licence type is not covered by the rules, the Authority must act within a reasonable time by adopting provisional conditions, refusing the application, or exempting the person from needing the licence.

A person providing electronic communications services must apply to the Authority for a licence. The Authority may ask for more information within 30 days, and must grant or reject the application within 60 days and give written reasons if it rejects it.

The Authority must use a restricted procedure to grant a licence when an electronic communications service needs scarce resources allocated.

The Authority must issue a licence under this Act if the application complies with the Act and the applicant is financially and technically able to meet the licence’s obligations and conditions.

Licences issued by the Authority must be paid for by the applicant, state their terms and conditions, specify the services allowed, and take effect when published in the Gazette.

The Authority may amend a licence if the stated conditions are met, and it must publish the proposed amendment for comments before deciding.

A licensee generally cannot transfer, assign, pledge, or otherwise dispose of a licence or related rights without consent from the Authority, and consent can be subject to reasonable terms.

The Authority may suspend or revoke a licence if listed grounds apply, but it must give written notice and consider the licensee’s submissions first.

A licence renewal application must be made at least six months before expiry, in the prescribed manner, with the prescribed fees paid.

A licensee must roll out its network and provide services within the period set by the Authority in the licence.

The Authority may grant an individual licence for operating or providing an electronic communications network, and must classify the licence under the First Schedule categories.

The Authority must issue a class licence for operating or providing electronic communications services, except for licences linked to spectrum, numbers, networks/facilities, or other activities the Authority later determines.

The Authority must state the terms and conditions for a class licence when it issues the licence.

The Authority may sub-classify communication services under the Act, and the sub-classification must be published in the Gazette.

A class licence applicant must complete and file the registration form before starting the activity, and the Authority must register the applicant within 60 days.

The Authority may create new licence categories at any time and may abolish existing ones with reasonable notice.

A licensee must pay fees set by the Authority, including initial, annual, renewal, scarce-resource, and other levies.

The Authority may require any licensee, by notice in the Gazette, to provide specified essential services, and some of those services must be free of charge.

A communications service licensee must not disclose subscriber information in its custody, unless a written law or a High Court order after an inter partes hearing allows it.

The Authority must promote fair competition and equal treatment in the communications service sector, and coordinate with the Competition and Fair Trading Commission when exercising its powers under this Part.

The Authority must regulate interconnexion, access, co-location, and infrastructure sharing.

The Authority must conduct annual market analyses, publish a yearly Gazette list of relevant markets and dominant licensees, issue dominance-criteria rules within 12 months of commencement, and may later amend the list with notice.

The Authority can require dominant market player licensees to disclose, submit, adjust, and separately account for interconnection/access/infrastructure-sharing information, and to offer access to requesting licensees.

The Authority may order a licensee to stop or avoid taking anti-competitive action, but only after giving the licensee a chance to respond.

A licensee may enter into an interconnection agreement with another licensee if the Authority approves it, and the Authority may set rules for what such agreements must include.

The Authority must make rules setting interconnexion terminal rates, and all licensees must apply those rates when negotiating interconnexion agreements.

A qualified licensee may request interconnection, and the receiving licensee must interconnect unless subsection (4) grounds for refusal apply.

Parties to an interconnexion agreement must negotiate the agreement’s technical and commercial terms fairly and transparently, and the Authority may intervene if needed.

Licensees must apply to the Authority for interconnexion approval after negotiating an interconnexion agreement, and attach the proposed agreement.

The Authority may order two or more licensees to enter into an interconnexion agreement, and must give each licensee 30 days’ notice before doing so.

The Authority may set maximum interconnexion rates, and it must consider service accessibility and affordability, plus fair treatment and competition among licensees, when doing so.

The Authority must keep a register of interconnection agreements and register submitted agreements within 14 working days.

The Authority must publish a Gazette list of networks whose access may be shared, and licensees may request, negotiate, refuse on stated grounds, or be required to provide access under this section.

Access agreements must be registered with the Authority before implementation, and the Authority must keep a public register with limited information.

An electronic communication service licensee may negotiate and enter a co-location or infrastructure sharing agreement when it plans to install or use facilities on land; the agreement must be written and include specific terms, and infrastructure providers must share facilities fairly.

An infrastructure provider must respond to a qualifying licensee’s request for co-location or infrastructure sharing by giving an offer and relevant feasibility information, and must provide the relevant information within 30 days. The provider may refuse the request on stated grounds and must refuse in writing with reasons.

A co-location and infrastructure sharing agreement must be submitted to the Authority for registration within 14 working days after it is signed by all parties.

The Authority may step in to resolve certain interconnection-related disputes when asked by a party, and it must issue rules for the dispute-resolution procedure.

A licensee may set or revise tariffs for public services only with prior approval of the Authority, and the tariffs must be based on justifiable economic reasons.

A licensee must give a detailed justification when asking to set or revise tariffs, and must not apply tariffs without prior approval from the Authority.

A licensee must publish approved tariffs in at least two widely circulated daily newspapers in Malawi at its own expense, seven days before the tariffs are introduced, and must provide its communications service according to those published tariffs.

The Authority must keep a public register of tariffs submitted by licensees.

The Authority may and must reframe tariffs in specified ways, including fixing price caps, doing a market analysis before implementation, and making rules on tariff reframing.

The Authority may investigate tariffs set by a licensee, either on its own initiative or after a complaint from any person.

A licensee who contravenes any provision of this Part commits an offence.

The Authority must manage the frequency spectrum and make rules about frequency allocation, assignment, use, interference prevention, and minimum performance standards for electronic appliances.

The Authority must develop and manage a national frequency allocation plan, and it may revise, vary, suspend, or revoke the plan after consulting licensees; if it does so, it must issue a public notice.

The Authority can designate frequency bands and impose licence terms. A person must not do an activity that needs a frequency spectrum licence without first getting the right licence. Breaching that rule is an offence with a fine and possible imprisonment.

A licensee must not transfer the right to use any frequency to a third party.

Frequency spectrum licensees must coordinate their frequency use in good faith, and the Authority can intervene and issue coordination rules if they cannot or will not do so.

The Authority may require a suspected licence-holder to produce the licence, and may enter, search, and take enforcement action with a magistrate court warrant and other stated conditions.

The Authority must regulate electronic communication numbering and keep it efficiently used by monitoring compliance and maintaining a national numbering register.

The Authority must create and keep a national numbering plan, and it may revise, vary, or revoke that plan with public notice.

The Authority must assign electronic communication numbers to licensees and may set conditions; applicants must apply before undertaking covered activities.

A person assigned a number must not transfer the right to use that number to anyone else.

The Authority must issue rules about number portability, a national number portability database, and cost allocation and cost recovery among electronic communications licensees.

People using a generic number or SIM card for voice telephony must register it with an authorized licensee or dealer, and licensees or dealers must collect, verify, and keep subscriber information and certified documents.

Distributors, agents, and dealers selling generic numbers or SIM cards must send certain information and documents to their electronic communications licensee within 7 days, and must report any changes within 7 days.

A person must not sell or distribute a generic number or SIM card without authorization from an electronic communications licensee, or use an unregistered generic number or SIM card.

The Authority must set and publish technical and performance standards for certain electronic communications equipment and issue related rules.

A licensee must get the Authority’s prior approval for the type of equipment before using equipment on an electronic communications network. The Authority may also conduct type approval tests and issue certificates when asked by a licensee, manufacturer, or supplier.

The Authority must regulate content services and may make rules about their standards and related conditions.

A person must not provide content services without a content licence issued by the Authority under this Act.

The Authority must issue the listed types of content licences and may determine additional types from time to time.

The Authority may designate public content licensees, and must consider section 2 objectives plus demand, need, and technical quality when deciding whether to grant a public content licence.

When deciding whether to grant a commercial content licence, the Authority must consider the section 2 objectives and specific factors about the applicant, controllers, and any offences under the Act.

When deciding on a community content licence, the Authority must consider the section 2 objectives and the listed factors about the applicant and the proposed service.

The Authority must not grant a content licence to political parties or other entities that are political in nature.

Non-citizens of Malawi must not control a content service or hold more than 20% financial or voting-capital interest in a content service licence, directly or indirectly.

The Authority must include fee-collection rights in certain public content service licences, and designated licensees must issue television licences on payment and use the fees only for public television services.

A subscription content services licensee must not get exclusive rights that block or hinder free-to-air broadcasting of Malawian sporting events of national importance.

A content service licensee must give the Authority a recording of each broadcast programme, if asked, within 60 days after broadcast. The Authority may regulate content services under the Second Schedule, but this section does not let it view programmes before broadcast.

This section establishes the Malawi Broadcasting Corporation as a public broadcasting services licensee and gives it corporate powers.

The Malawi Broadcasting Corporation must provide public broadcasting in the public interest, without political bias, with balanced election coverage, and may not broadcast its own opinions on current affairs or public policy except editorial comments.

The Malawi Broadcasting Corporation must provide public broadcasting services throughout Malawi and has powers to run related operations, contracts, facilities, advertising, and broadcasting fees.

The Board of the Malawi Broadcasting Corporation must direct the affairs of the Corporation.

The President appoints Board members for the Malawi Broadcasting Corporation, but each appointment needs confirmation by the Public Appointments Committee of Parliament.

Board members (other than ex officio members) serve for three years and may be re-appointed once. Board seats become vacant on listed events, and vacancies are filled by a new appointment unless less than six months remain.

Board members of the Malawi Broadcasting Corporation are to be paid allowances and other benefits from the Corporation’s funds, subject to approval by the Minister responsible for public service on the Board’s recommendation.

This section sets rules for how the Board meets, who convenes and chairs meetings, quorum, voting, and the Board’s power to set its own procedure.

The Board may create committees, give them functions, invite people to meetings, and committees can run their own procedure subject to the Act and Board directions.

This section sets who appoints and manages the Director General and other staff of the Malawi Broadcasting Corporation, and requires secrecy oaths for covered persons.

The Corporation’s funds must come from listed public and commercial sources, and it may invest surplus funds or borrow money only under Finance Minister control and the Public Finance Management Act.

The Malawi Broadcasting Corporation must keep proper accounting records, have its accounts audited every year by independent auditors appointed by the Board, and have them examined by the Auditor General before final board approval and presentation to the Minister.

The Malawi Broadcasting Corporation must publish and submit an annual report within six months after each financial year ends, and the Minister approves the report form.

The Authority may make rules about types of postal services.

A person may not carry out commercial postal services without a licence, and the Authority must issue postal licences for the listed postal activities.

The Authority must issue public postal licences, postal services licences, and courier services licences, and it may determine other licence categories from time to time.

The Authority must allocate and regulate addresses and postcodes, control postcode lists and directories, require postal services licensees to make deliveries available for publication free of charge, and issue rules for the publications.

A public postal service licence must include exclusive rights for the licensee to install personal letter boxes and collection boxes, and to use certain postal-related words for a period set by the Authority.

The Authority may let a postal services licensee provide approved financial services, subject to the Financial Services Act.

Postal services licensees must protect correspondence and postal articles; some limited openings or disclosures are allowed, and unlawful noncompliance is an offence.

A public postal licensee has the exclusive right to issue postage stamps, may arrange for their sale, and may issue stamps subject to rules set by the Authority.

Philatelic materials made by a public postal licensee belong to the Government and must be kept in custody as the Authority directs.

The Authority may make rules exempting certain entities from postal charges and related service charges.

A postal article counts as delivered if it is left in one of the listed places or with one of the listed recipients.

A postal services licensee must give a sender a certificate of posting for an unregistered postal article intended for letterbox transmission if asked and the appropriate fee is paid. A sender must not return a postal article after a certificate of posting has been issued.

A postal services licensee may open and inspect undelivered mail to identify the addressee or sender, then must reseal and explain, hold it up to six months if unidentified, and later may destroy or sell contents if still undelivered.

A postal services licensee may contract with a regular transport service provider in Malawi to carry postal articles.

A person must not send prohibited postal articles by post, and the Authority may prohibit additional articles by rule.

A postal services licensee must immediately report and hand over a postal article if it is reasonably suspected to have been sent unlawfully.

Postal services licensees must pay compensation for damaged, lost, delayed, or mishandled postal articles, must file a compensation policy with the Authority within 3 months of getting a licence, and are exempt from liability in stated cases.

This section establishes the Malawi Posts Corporation as a public postal services licensee.

The Malawi Posts Corporation must provide postal services, run post offices, and may provide financial services subject to the Financial Services Act. It also has powers to contract, build and maintain premises and equipment, levy charges, and represent Malawi internationally.

This section sets the composition of the Malawi Posts Corporation Board, requires the President to consider gender equality and continuity when appointing members, and requires publication of board membership changes in the Gazette.

Board members generally serve for three years and may be re-appointed once. A member’s office becomes vacant if listed events occur, and vacancies are filled in the same manner as section 140, unless the remaining term is under six months.

A Malawi Posts Corporation board member is to be paid allowances and other benefits from the Corporation’s funds, subject to approval by the Minister responsible for public service on the Board’s recommendation.

This section sets how the Board of the Malawi Posts Corporation meets, who gives notice, who presides, and how meetings are decided.

The Board may set up committees, delegate functions to them, and invite people to meetings; invitees may participate but cannot vote.

The Board appoints the Postmaster General, who runs day-to-day operations, attends Board meetings, may speak at them, and cannot vote.

The Board appoints some staff and must use public advertising and merit-based criteria; the Postmaster General can appoint employees below director level; certain people must sign an oath of secrecy.

The Malawi Posts Corporation’s funds come from listed public and private sources, and it may invest unused funds or borrow money only subject to the stated conditions and Minister of Finance approval or direction.

The Malawi Posts Corporation must keep proper accounting records, have its accounts audited annually by independent auditors appointed by the Board, and have them examined by the Auditor General before Board approval and before presentation to the Minister.

The Malawi Posts Corporation must publish and send an annual report to the Minister within six months after each financial year ends.

The Malawi Posts Corporation is generally exempt from liability for certain postal losses, delays, damage, detention, or disposal, unless its licence or regulations say otherwise.

The Authority must protect consumers and other users of communication services, and regulate related service issues.

Licensees must set up and follow customer service contracts and service level agreements, treat consumers reasonably, and address complaints; they cannot publish a contract without Authority approval.

The Authority must prepare and publish a code of conduct for licensees, after consulting them, and it must be published in the Gazette.

Every licensee must follow the Consumer Protection Act, the Competition and Fair Trading Act, and ICT consumer rights and obligations when providing services under this Act.

Universal service includes specified access and services, and the Authority may determine additional services with prior written approval from the Minister.

The Authority must define, plan, coordinate, and monitor universal service and universal access measures, including affordable tariffs and the designation of licensees.

The Universal Service Fund is established, managed by the Authority, and starts operating on a date the Minister appoints by Gazette notice.

The Universal Service Fund must be used for universal service and universal access, including subsidies, financial support, administrative costs, and related research.

The Authority must establish the Universal Service Fund Committee and appoint the members nominated under the section.

The Universal Service Fund must be financed from listed sources, including an operators’ levy, parliamentary appropriations, grants and donations, auctions, income-generating public access projects, and funds from the Authority.

Committee members serve for three years and may be re-appointed for one additional term.

The Authority must make rules for how the Universal Service Fund Committee operates.

The Universal Service Fund Committee must review proposed universal access programmes, budgets, and activity plans, and provide written comments and specific recommendations to improve them.

The Authority must select and designate licensees for universal service, and it may designate multiple licensees in some cases.

The Authority must set obligations for licensees selected to implement the universal service.

Universal service licensees must keep proper accounts and records, submit annual reports within six months after the Government’s financial year ends, and provide report and implementation information to the Universal Service Fund Committee.

The Authority must set up, install, and maintain an electronic monitoring system to monitor licensees’ activities for compliance, but it must not use the system to monitor actual content of communications or network traffic.

If the electronic monitoring system needs a connection to a licensee’s network, the licensee must cooperate with the Authority to provide suitable interface sites so data can be submitted directly to the monitoring system.

The Authority must carry out electronic monitoring under this Act and any regulations made under it.

A licensee who fails to discharge an obligation under this Part commits an offence and, on conviction, is liable to a fine of K20,000,000.

Licensees must send complaints or disputes about electronic communications and postal services to the Authority, which must investigate qualifying matters and set up complaint-handling arrangements.

The Authority must, where practicable, use conciliation, mediation, or other dispute resolution methods. It must also keep a procedure for certain communications-service disputes, and it may intervene when asked by a party.

If the Authority thinks someone has breached or may breach the Act, it must make an appropriate order, and non-compliance with that order is an offence.

A person dissatisfied with an order of the Authority may appeal to the High Court within 30 days of the order being made.

Using an electronic communications service without paying the applicable charge is an offence and can lead to a K1,000,000 fine and two years’ imprisonment on conviction.

This section makes unlawful interception, disclosure, or use of communications an offence, with fines and imprisonment for both a licensee and any person acting without lawful authority.

A licensee, or the licensee’s employee or agent, must not disclose message content or user information except as allowed by the Act, and must not misuse an electronic communications service.

It is an offence to steal, possess stolen, or unlawfully damage or destroy electronic communication infrastructure equipment, with fines and prison terms on conviction.

A person must not, without lawful cause, interfere with or obstruct the transmission or reception of electronic communications.

A person must not send by post any article or thing that is injurious, indecent, or prohibited under the Act.

Operating a postal service without a licence issued by the Authority is an offence.

A person must not convey a postal article, or do services incidental to conveying one, unless acting under the terms of a valid postal licence.

A person must not put dangerous substances or fluids in or against certain letter boxes, cause a nuisance there, or do anything likely to damage them.

A person must not unlawfully intercept, disclose, or use the contents of postal articles.

A person must not unlawfully disclose the contents of a postal article opened under this Act.

A person must not make, sell, use, possess, or distribute fake stamps or related making materials; doing so is an offence.

Providing broadcasting services without a licence is an offence, and so is possessing television-receiving equipment without paying the prescribed fees.

A person must not falsely represent themselves as an Authority member, Authority employee, authorized person, licensee, licensee employee, or authorized licensee person.

A licensee must not ignore or obstruct the Authority’s lawful orders, requests, or inspections; breaches are offences punishable by a fine of K5,000,000 and up to five years’ imprisonment on conviction.

If an offence under the Act has no specific punishment, the convicted person is liable to a K5,000,000 fine and five years’ imprisonment.

Electronic communications licensees must publish and keep updated a reference offer for unbundled access to essential facilities, and network services licensees must provide access on transparent, fair, non-discriminatory and cost-oriented terms, with refusals allowed only on objective grounds.

The Authority must supervise unbundled local-loop access charging to support fair and sustainable competition, and it may change the reference offer or intervene where justified.

A facility-services licensee must apply to the relevant authority before seeking access to land, and may enter land to survey or to build, maintain, alter, or remove specified communications installations.

The Authority must be transparent, submit an annual report to Parliament within six months after the Government financial year ends, and publish the report and Universal Service Fund details in electronic form one month later.

If a licensee breaches the Act or its licence conditions, the Authority may make orders or impose sanctions, and must notify the licensee in writing.

A licensee who is aggrieved by a decision of the Authority may apply to the High Court for judicial review within 30 days of receiving the order.

This section makes certain people and entities share liability for offences or acts linked to a body corporate, firm, or licensee.

Certain consumers, consumer organizations, or aggrieved entities may take a licensee to court after first complaining to the Authority and being dissatisfied with the Authority’s decision.

A licensee may create a code of conduct for best practices, and if it does, it must notify the Authority and provide a copy.

The Minister may make regulations, on the Authority’s recommendation, to carry out the Act. The regulations can cover licensing, local ownership, consumer protection, and can create offences with fines and imprisonment.

The Authority may make rules needed to carry out the Act, must publish those rules in the Gazette, and must notify the public through print and electronic media within 28 days of Gazette publication.

When the Authority is making a decision under the Act, it must consult interested parties and let them comment within a period it specifies. It must also publish the results of any public consultation, unless the information is confidential.

This section repeals the Communications Act, but keeps certain existing subsidiary legislation in force unless it conflicts with this Act.

Existing licences, permissions, frequency assignments, and equipment approvals under the repealed Act continue in force, subject to stated conditions. The Authority must convert all such licences within 24 months, and may extend that period by up to 6 months.

Legal proceedings started before this Act takes effect are treated as having been started against or by the corresponding bodies under this Act.

On commencement, specified assets and liabilities move by law to the corresponding bodies under the Act, except any property the Minister excludes by Gazette notice.

This provision transfers certain employees on commencement and sets licensing, content, advertising, and facility-service rules for the Authority, licensees, and operators.