legal regime for the regulaiton of ict in nigeria
TRANSCRIPT
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CHAPTER ONE
1.0 INTRODUCTIONInformation and communication technology in more ways than one reflect the innate
nature of man to satisfy his thirst for comfort. These technologies are basically aimed
at improving on the art of sharing information through very creative ways without the
limitations of geographical boundaries. Indeed, the rapid advancement of technology
propels the social welfare, for better or worse. Information and Communication
Technology (ICT) is increasingly becoming fundamentally critical to the
development of our societies and economies. Access to the internet and telephones is
expanding rapidly knitting together markets, people and communities as it grows,
facilitating the worldwide exchange of knowledge and services.1
In the 1980s, countries began to recognize the increasingly important role of the
Information and Communication Technology sector for economic growth. Such
economic growth was made possible by new inventions in telecommunication, data
and information sharing through the internet, satellite and wireless services especially
in the financial sectors of such countries. The rapid development of information and
communication technology infrastructure paved way for huge government
involvement. As a result, in primarily developed nations, policies evolved to
introduce competition albeit, often limited in scope, in an effort to inject dynamism
1http://www.carapn.net/21445231-information-and-communication-technology-target-2015-backgrounder.pdf
[Accessed April 3 2011]
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into the sector, spur innovation, increase choice, enhance availability, and lower
tariffs.2
With the very fast pace of development of information and communication
infrastructure within many complex societies such as Nigeria came the proliferation
of certain problems often associated with ICT operations. These were issues ranging
from monopoly to invasion of privacy, cyber crimes, consumer exploitation and
unequal access to such technologies. It is undeniably clear that Information and
Communication Technology causes todays many social ills like cyber-bullying and
privacy intrusion.
Law plays a huge role in trying to regulate the operations of these new technologies
within the society in order to curb its excesses. Law, being an instrument of the
society, is principally concerned with the determination and recognition of societal
standards of conduct. Through this, law strives to spell out what conducts are to be
regarded as standard acceptable behaviour and otherwise unacceptable behaviour.
Governments all over the world have recognized the importance of ICT to the
development of their societies. Such governments have also recognized the huge need
to provide some form of regulatory framework to streamline the excesses and flaws
that arise from the ever developing ICT sector.
2http:// rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April 3 2011].
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Notwithstanding the highlighted importance of the regulation of Information and
Communication Technology, the development of information and communication
technology regulation in Nigeria has for a long time received very little attention.3
As the contemporary world gradually emerges into a global village, increasingly
networked no longer by asphalt but with the bridges of satellite, wireless links, fibre
optics and the likes with the growing realisation of the socio-economic significance
of ICT as the basic infrastructure, it has become clear that increased attention must be
geared towards developing of a viable ICT industry in Nigeria.4 One very obvious
way to guarantee such growth and development is through the legal and institutional
regulation of the industry.
This project shall therefore principally aim to examine the legal regime for the
regulation of ICT in Nigeria, its successes and challenges. In doing so, it seeks to
exam the meaning of Information and Communication Technology, its evolution and
the evolution of its regulation, its operation especially in Nigeria, the international
legal instruments and the legal and institutional framework put in place in Nigeria.
The work shall point out the inadequacies of the legal and institutional framework, its
successes and challenges.
3
Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLA, Vol. 7,p.117 at 117
4Ibid., p. 118
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1.1 THE MEANING OF TERMS AND RELATED CONCEPTS1.1.1
TECHNOLOGY
Technology is a general term for the processes by which human beings fashion tools
and machines to increase their control and understanding of the material
environment. The term is derived from the Greek words tekhn, which refers to an
art or craft, and logia, meaning an area of study; thus, technology means, literally, the
study, or science of crafting.5
The most general definition of technology is the application of science or knowledge
to commerce and industry. Many fields of science have benefited from technology, as
well as commerce and industry over the many centuries of human history. Perhaps
the earliest known use of technology was in the Stone Age when the first knife or
shovel was made from a piece of stone or obsidian. Technology has obviously come a
long way since then. The development of simple tools from wood or shards of rock
show some of the first applications of knowledge to create technology to solve a
problem. The discovery of fire, which provided a way to cook food and create heat
and light, was also a step along the road of technology. These technological
developments allowed people to accomplish tasks more easily and quickly. As
5Merritt, Raymond H. "Technology," Microsoft Encarta 2009 [DVD], Redmond, WA: Microsoft Corporation, 2008.
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knowledge increased, history entered into the Bronze Age.6
The introduction of the
wheel allowed people greater ability to travel and communicate.
Advances continued just as rapidly into the Iron Age where people developed the
ability to work with harder metals than copper and tin. They developed the art of
smelting iron and removing it from ore found in the earth. The Iron Age allowed for
rapid increases in many branches of technology. Weapons making, development of
tools that benefit civilization and greater ability to perform tasks, such as
manufacturing and transportation, are just a few of the technological developments of
the Iron Age.
While each Age builds on the developments of the previous ones, new knowledge is
obtained along the way. This new set of knowledge and the knowledge base of the
past allow for new applications to the needs of society.7
1.1.2INFORMATIONInformation has been defined
8as
1. Knowledge derived from study, experience, or instruction.2. Knowledge of specific events or situations that has been gathered or
received by communication; intelligence or news
3. A collection of facts or data: statistical information.
6
The Bronze Age shows the evolving ability of man to work with metal and the ability to form stronger tools.7 http://www.yourdictionary.com/library/technology.txt [Accessed April 4 2011].
8Ibid
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4. The act of informing or the condition of being informed; communicationof knowledge: Safety instructions are provided for the information of our
passengers.
5. Computer Science Processed, stored, or transmitted data.6. A numerical measure of the uncertainty of an experimental outcome.
Within the field of information science9, information is defined as the knowledge
contained in the human brain and in all electronic and written records.
1.1.3COMMUNICATIONCommunication is the sharing of ideas and information. While many people think of
communication primarily in oral or written form, communication is much more. A
knowing look or a gentle touch can also communicate a message loud and clear, as
can a hard push or an angry slap. Communication is thus defined as10
:
1. The act of transmitting,2. A giving or exchanging of information, signals, or messages as by talk,
gestures, or writing
3.
The information, signals, or message
4. Close, sympathetic relationship5. A means of communicating; specifically, a system for sending and
receiving messages, as by telephone, telegraph, radio, etc.
9
Information science is the scientific study of information: how it is created, transmitted, encoded, transformed,retrieved, measured, used, and valued.
10http://www.yourdictionary.com/library/information.txt [Accessed April 4 2011].
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6. A system as of routes for moving troops and material7. A passage or way for getting from one place to another8. The art of expressing ideas, esp. in speech and writing9. The science of transmitting information, esp. in symbols
This definition suggests that there can be several different types of communication,
falling into the categories of non-verbal or verbal11
.
NON-VERBAL COMMUNICATION
Non-verbal communication involves exchanging information or transmitting data
without the use of words. There are many examples of non-verbal communication
everywhere in the world.
While you may not stop to think about it, a red light or a stop sign is a clear form of
non-verbal communication. No one is physically telling you to stop, but you see that
symbol or signal and know immediately what is expected of you.
Likewise, body language and facial expressions are also examples of non-verbal
communication. Over the years, numerous research studies have been done to suggest
that babies respond to smiling faces the world over, and that when a person sees
someone else smile, he may become a bit happier as well.
11
Lievrouw, Leah A. "Communication," Microsoft Encarta 2009 [DVD], Redmond, WA: Microsoft Corporation, 2008.
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Thus, while understanding non-verbal communication may require some knowledge
of the cultural and social meanings behind the symbols and signs used, some types of
non-verbal communication are instinctual and no teaching is necessary.
VERBAL COMMUNICATION
The system of verbal communication has become quite complex, with unique
languages each having millions of words.
Unlike non-verbal communication, in order for verbal communication to be
meaningful, there must generally be a readily accepted understanding of the meaning
of a series of sounds. In other words, sounds and words alone aren't sufficient to
communicate: the person transmitting the message and the person receiving the
message generally must have a cultural background or shared knowledge that allows
them to understand what those sounds have come to mean.
However, even some oral or verbal communication can be intuitive. For example,
animals use verbal communication all the time to transmit messages to each other.
Birds sing, some bugs chirp when mating, hounds bark to alert the pack on a hunt,
and even whales sing, although scientists aren't 100 percent certain what those songs
mean.
The fact that language was one of man's earliest developments, and the fact that there
are similarities among languages and that animals also engage in oral
communication, all suggest that although some shared cultural understanding is
necessary, the specific act of verbal communication may be innate.
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MEANS OF COMMUNICATION
Over time, the methods and means used to communicate have expanded greatly. In
early records, hieroglyphics and primitive cave paintings were used to communicate
information and transmit messages. Oral stories and traditions were also passed down
through generations and eventually many of these stories also came to be written
down in some cultures.
The use of carrier pigeons, followed by Morse code and telegraph technology
expanded the reach of communication, making it possible for people to send
messages over longer distances.
Today, communication has expanded and is easier than ever before. Television
allows messages to be communicated quickly and instantly to millions of viewers
worldwide, and viewers can watch events such as political elections unfold in real
time.
Perhaps nothing has changed communication so much as the Internet. While
television and radio provided one-way communication, the Internet allows for the
two-way exchange of information and lets people throughout the world send data
instantly and share ideas immediately. Video chat, instant messages and even voice-
over-IP telephone systems make it possible to connect with and communicate with
more people than ever before.
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1.1.4TELECOMMUNICATIONThe concept means simply means electronic communication. Therefore, it involves
instances where devices and systems are used to transmit electronic or optical
signals across long distances. Telecommunication is therefore the transmission of
information, over significant distances, for the purpose of communication. In earlier
times, telecommunications involved the use of visual signals, such as beacons,
smoke, semaphore telegraphs, signal flags, and optical heliographs, or audio
messages via coded drumbeats, lung-blown horns, or sent by loud whistles, for
example. In the modern age of electricity and electronics, telecommunications now
also includes the use of electrical devices such as telegraphs, telephones, and
teletypes, the use of radio and microwave communications, as well as fibre optics and
their associated electronics, plus the use of the orbiting satellites and the Internet.
Telecommunications enables people around the world to contact one another, to
access information instantly, and to communicate from remote areas. 12
Telecommunications usually involves a sender of information and one or more
recipients linked by a technology, such as a telephone system, that transmits
information from one place to another.
Telecommunications devices convert different forms of information, such as sound
and video, into electronic or optical signals. Electronic signals typically travel along a
medium such as copper wire or are carried over the air as radio waves. Optical
signals typically travel along a medium such as strands of glass fibres. When a signal
12http://www.en.wiki pedia.org/wiki/telecommunications [Accessed April 4 2011].
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reaches its destination, the device on the receiving end converts the signal back into
an understandable message, such as sound over a telephone, moving images on a
television, or words and pictures on a computer screen.13
These telecommunication devices operate on several systems. Theses systems are all
independent of the other but all aim at transmitting data and information across long
distances. These systems include telegraph, telephone, radio, television, global
position and navigation systems (GPRS), personal computers, voice over internet
protocol (IP) etc.
Telecommunications systems deliver messages using a number of different
transmission media, including copper wires, fibre-optic cables, communication
satellites, and microwave radio. Wire-based (or wire line) telecommunications
provide the initial link between most telephones and the telephone network and are a
reliable means for transmitting messages. Telecommunications without wires,
commonly referred to as wireless communications, use technologies such as cordless
telephones, cellular radio telephones, pagers, and satellites. Wireless communications
offer increased mobility and flexibility. In the future some experts believe that
wireless devices will also offer high-speed Internet access.14
13
Frieden, Robert. "Telecommunications," Microsoft Encarta 2009 [DVD], Redmond, WA: Microsoft Corporation,200814
Ibid
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1.1.5INFORMATION AND COMMUNICATIONTECHNOLOGY (ICT)
Information and communications technology or information and communication
technology, usually called ICT, is often used as an extended synonym for information
technology (IT) but is usually a more general term that stresses the role of unified
communications and the integration of telecommunications (telephone lines and
wireless signals), intelligent building management systems and audio-visual systems
in modern information technology. Information and Communications Technology
consists of all technical means used to handle information and aid communication,
including computer and network hardware, communication middleware as well as
necessary software. In other words, ICT consists of IT as well as telephony, broadcast
media, all types of audio and video processing and transmission and network based
control and monitoring functions.15
The expression was first used in 1997 in a report
by Dennis Stevenson to the UK government16
and promoted by the new National
Curriculum documents for the UK in 2000.
The term ICT is now also used to refer to the merging (convergence) of audio-visual
and telephone networks with computer networks through a single cabling or link
system. There are large economic incentives (huge cost savings due to elimination of
the telephone network) to merge the audio-visual, building management and
telephone network with the computer network system using a single unified system
15
http://www.wikipedia.org/wiki/information-and-communication -technologies [Accessed April 4 2011].16http://web.archive.org/web/20070104225121/http://rubble.ultralab.anglia.ac.uk/stevenson/ICT.pdf[Accessed
April 2 2011].
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of cabling, signal distribution and management. This in turn has spurred the growth
of organizations with the term ICT in their names to indicate their specialization in
the process of merging the different network systems.
In this era of global integration, information and communication technology (ICT)
becomes indispensable and embedded in everyday activities. The promises of ICT
seem limitless. It can provide governments, businesses, and citizens with access to
relevant information and allow them to communicate to make informed decisions and
enable more efficient processes and services to address various economic, social,
financial, and educational needs. As a sector, Information and Communication
Technology has contributed to the creation of the most rapidly growing industries,
such as electronics, business process outsourcing, and telecommunication and
internet services. As an infrastructure, ICT is seen as an enabler of economic growth
and competitiveness based on the uptake and utilization of ICT in business and
society.17
1.1.6INTELLECTUAL PROPERTYIntellectual property, very broadly, means the legal rights which result from
intellectual activity in the industrial, scientific, literary and artistic fields.18
These
legal rights are known as intellectual property rights. Intellectual property is a general
17Asian Development Bank, Information and communication technology for development: ADB experiences,Mandaluyong City, Philippines: Asian Development Bank, 2010, pp1
18
Intellectual Property Organization (WIPO), Intellectual Property Handbooks: Policy, Law and Use, (Geneva: Wipo
Publication), 2nd
ed., 1993, p.3
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term that covers all the separate rights like copyright, patent, industrial designs,
trademarks and trade secrets which a holder enjoys as a consequence of the exercise
of his or her human intellect.19
Intellectual property law has as its primary object the protection of a certain class of
property intellectual property. This is suggestive of the fact that there are several
classes of property.
PROPERTY
The concept of property has special importance to the organization of society. In
general, the most important feature of property is that the proprietor or owner may
use his property as he wishes and that nobody else can lawfully use his property
without his authorization.20
The key entitlement one may have in relation to property
is the right to possess it exclusively the corollary of which is the right to exclude
others from accessing it21
. This right of exclusivity is a hallmark of property. Thus,
property has been defined22
as the right to possess, use and enjoy a determinate thing
(either a tract of land or a chattel). Property can be divided into different classes
based on its characteristics. The most important is that of real property and personal
property.23
19Nasir, J.M, Trade Secrets and/or Confidential Information as It Relates To Intellectual Property Law(2003) CJLJ,
Vol. 6 No. 6, p.27 at p.2820
Nasir, J. M, Common Licensing Agreement Terms In Intellectual Property (1999) JPPL, Vol. 3, No. 3, p.139 at
p.14021
Andrew, F. C, Intellectual Property and Intangible Assets: Legal Perspective(2005)IPRIAOP,
No. 1/05, p. 1 at p. 922
Blacks Law Dictionary, (U.S.A. West Publishing Company, 8th
ed. 2004) p. 125223
Barnes, A. J, Laws For Business, (New York: McGraw Hill), 2000, p.567
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Real property, according to English legal tradition, is the land and anything firmly
attached to it, such as buildings and the permanent fixtures of those buildings, and the
minerals beneath the surface of the land.24
On the other hand, Personal property is
anything that can be owned other than real property. Real property can be turned into
personal property if it is detached from the earth. Similarly, personal property can be
attached to the earth and become real property. Perennial vegetation, such as trees,
shrubs and grass, which does not have to be seeded every year, is usually treated as
part of the real property. When trees and shrubs are severed from the land, they
become personal property.25
Personal property is usually classified as either
tangible property or intangible property.
Tangible property, also known as corporeal personal property, is any kind of
property that can be seen, weighed, measured, felt, or touched, or is in any other way
perceptible to the senses, such as furniture, cooking utensils, and books In other
words, property that has physical form and characteristics is referred to as tangible
personal property.
Intangible property is that property that has no physical presence. These intangible
personal properties are usually also known as chose in action. A chose in action is
propriety right in personam. An action is said to be in personam when its object is to
24"Property," Microsoft Encarta 2009 [DVD]. Redmond, WA: Microsoft Corporation, 2008.
25Barnes, A. op cit., p. 568
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determine the rights and interests of the parties themselves in the subject-matter of
the action.26
Despite its growing importance, intellectual property remains a challenging area of
law. This is because, unlike the laws of real property, the laws of intellectual property
create rights between individuals that are vested in abstract objects being objects
that, inherently, are difficult to define.27
Intellectual property rights are usually associated with intangible properties. A
common way of classifying those intangible assets that constitute Intellectual
Property is as all those things which emanate from the exercise of the human brain,
such as ideas, inventions, poems, designs, microcomputers and Mickey Mouse28
.
This classification is consistent with the notion that the subject matters constituting
Intellectual Property are primarily derived from human intellectual activity hence
the word intellectual in the title. The particular human intellectual activities that
commonly result in most Intellectual Property are innovation and creativity.
Recent advances in scientific and technological innovation have rapidly transformed
the world, creating new industries, displacing and altering older ones, and
recalibrating business and commercial activity in many ways. This has led to
investments, developing new technology and advancing other creative activities. The
resulting intellectual capital has become a valuable asset class.
26Blacks Law Dictionary, Op cit., p. 1254
27Andrew, F. C., Op cit., p. 4
28Phillips, J., and Firth, A., Introduction to Intellectual Property Law, (London: Butterworths), 3rd ed, 1995, p.3.
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1.2 HISTORICAL EVOLUTION OF INFORMATION ANDCOMMUNICATION TECHNOLOGY
29
The birth of computers and information technology goes back many centuries. The
development of mathematics led to the development of tools to help in computation.
Blaise Pascal, in 17th century France, was credited with building the first calculating
machine. In the 19th century, the Englishman Charles Babbage, generally
considered the father of computing, designed the first "analytical engine." This
machine had a mechanical computing "mill" and, like the Jacquard loom of the early
19th century, used punch cards to store the numbers and processing requirements.
Ada Lovelace worked on the design with him and developed the idea of a sequence
of instructionsa program. The machine was not complete at Babbage's death in
1871.30
Almost a century later, the ideas re-emerged with the development of electro-
mechanical calculating machines. In 1890, Herman Hollerith used punch cards to
help classify information for the United States Census Bureau. At the same time, the
invention of the telegraph and telephone laid the groundwork for telecommunications
and the development of the vacuum tube. This electronic device could be used to
store information represented as binary patternson or off, one or zero.31
29This would attempt to trace the historical evolution of the systems that enable the communication and
information technologies operate.30http://ccis.athabascau.ca/html/courses/comp210/CourseSample/chap01/section1.htm [Accessed April 10 2011]
31Ibid
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The first electronic digital computer, ENIAC32
(Electronic Numerical Integrator and
Computer), was developed for the U.S. Army and completed in 1946. Von
Neumann, a Princeton mathematics professor, developed the idea further. He added
the idea of a stored computer program. This was a set of instructions stored in the
memory of the computer, which the computer obeyed to complete the programmed
task.
The major activities that expedited the information age can be attributed to the
following:
A.In 1820s Charles Babbage invented the ever first computer calledBabbage machine. It was based on mechanical gears & discs. This was
the first step of human mankind towards computer.
B.From 1890 to 1900, abundant and rapid development of electricity.
In 1928, electron movement thesis came that opened various aspects
towards pristine fields. Invention of electronic equipments fuelled the
revolutionary scenario of IT.
C. In 1943, transistor was developed.D.In 1948, ENIAC, the first computer of modern age was invented by US;
it was based on Vacuum Tubes.
32The ENIAC's design and construction was financed by the United States Army during World War II. The
construction contract was signed on June 5, 1943, and work on the computer began in secret by the University ofPennsylvania's Moore School of Electrical Engineering starting the following month under the code name "Project
PX".
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E. In 1958, transistors were used with the advantage of less powerconsumption and been more accurate. Computers accommodated 100s &
1000s of transistors.
F.Integrated circuits (ICs) replaced transistors. They evolved during last 35years and have now become multi tasking, sophisticated algorithm design
based chips.
During this period of evolution, several technologies were developed. These are Data
Processing & storage by computers, 33Communication technology,34 Memory
technologies (Laser disc & CD-ROM.)
The Main thrust of Communication Technology came from development of computer
technology and defence requirements. The internet was started as small project
(ARPANET) to communicate within the defence requirements in 1970s.
35
Optical fibre technology in communication is used today so that information must not
be lost even to a smaller extent.
Satellite technology & internet use has been wide spread. The evolution of satellite
communication began with the exploration of space and space travels36
. In 500
years, when humankind looks back at the dawn of space travel, Apollo's landing on
the Moon in 1969 may be the only event remembered. As a result, weather
forecasting has undergone a revolution because of the availability of pictures from
33These are in the form of silicon based Integrated circuit technology.
34Communication technology is made possible by Optical fibre communication resulting fibre optic link around the
globe.35http://www.opendb.net/element/19287.php (Accessed April 10 2011)36
http://history.nasa.gov/satcomhistory.html (Accessed April 10 2011)
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geostationary meteorological satellites - pictures we see every day on television.
All of these are important aspects of the space age, but satellite communications
has probably had more effect than any of the rest on the average person. Satellite
communications is also the only truly commercial space technology. The launch of
communication satellites over the past few decades reflects the growth of
communication technology. Such satellites in orbit helped improve the capacities
of television, metrological services, telecommunication and indeed making the
world a global village. The chronology of communication satellite evolution is as
follows;37
1956 First Trans-Atlantic Telephone Cable: TAT-1 1957 Sputnik: Russia launches the first earth satellite. 1960 1st Successful DELTA Launch Vehicle 1961 Formal start of TELSTAR, RELAY, and SYNCOM Programs 1962 TELSTAR and RELAY launched 1962 Communications Satellite Act (U.S.) 1963 SYNCOM launched
1964 INTELSAT formed
1965 COMSAT's EARLY BIRD38 1969 INTELSAT-III series 1972 ANIK: first Domestic Communications Satellite (Canada) 1974 WESTAR: 1st U.S. Domestic Communications Satellite
37Ibid
38first commercial communications satellite
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1975 INTELSAT-IVA: 1st use of dual-polarization 1975 RCA SATCOM: 1st operational body-stabilized comm. satellite 1976 MARISAT: 1st mobile communications satellite 1976 PALAPA: 3rd country (Indonesia) to launch domestic comm. satellite 1979 INMARSAT formed. 1988 TAT-8: 1st Fibre-Optic Trans-Atlantic telephone cable