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The Communication Workers Union of South Africa (CWU) is the most progressive union in the Information and Communication Technology Industry. CWU is an affiliate of the Congress of South African Trade Unions (COSATU), and subscribes to non racialism, non sexism and democratic principles. Read More ...

 

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M-Net's And Multichoice's Representations On The Convergence Bill
Document 2: Drafting Proposals
11 April 2005

 

CHAPTER 1: INTRODUCTORY PROVISIONS

s1: Definitions

  1. In the paragraphs below we will set out our proposed amendments to the definitions in s1 of the Bill.
  2. Before dealing with specific definitions, we propose that the beginning of s1 states the following:

"In this Act, unless inconsistent with the context – ".

Apparatus

  1. The word "apparatus" is almost always used in the Bill in the term "radio apparatus". The only time when the word is used on its own is in the definition of "communications facility". We do not believe it necessary to define "apparatus", and that the definition accordingly ought to be deleted. However, "radio apparatus", which is not defined, is often used in the Bill, and accordingly ought to be defined. Later on in this section we will propose wording for this definition.
  2. Proposal: Delete the definition of "apparatus".

Application

  1. If our proposals concerning the key definitions in paragraph 17 in Document 1 are accepted, then this definition ought to be deleted.
  2. Proposal: Delete the definition of "application".

Application service

  1. If our proposals concerning the key definitions in paragraph 17 in Document 1 are accepted, then this definition ought to be deleted.
  2. Proposal: Delete the definition of "application service".

Application service licensee

  1. If our submissions in the preceding four paragraphs are accepted, then this definition ought to be deleted.
  2. Proposal: Delete the definition of "application service licensee".

Black people

  1. As we indicated in Document 1, the current emphasis in South Africa is on empowering "black people", which term is defined in the Broad-Based Black Economic Empowerment Act. We propose that this term be defined, and that the definition be identical to that in the BBBEE Act.
  2. Proposal: Insert a definition of "black people", which is to mean "Africans, Coloureds and Indians".

Broadcasting

  1. We suggest that this definition be simplified, and that it is inappropriate to refer to "broadcasting" as meaning "any form of unidirectional communications service", since it is not per se a service – the notion of a service is dealt with in the definition of "broadcasting service".
  2. Proposal: We propose that the definition of "broadcasting" be amended to mean "any form of unidirectional communications intended for the public, sections of the public, or subscribers to any broadcasting service, having appropriate receiving facilities, which service is conveyed by means of radio frequency spectrum or any other communications network or any combination thereof".

Broadcasting service

  1. We suggest that this definition be simplified and made technologically neutral.
  2. Proposal: We propose that the definition of "broadcasting service" be amended to mean "a service which consists of the broadcasting of visual material and/or sound material to the public, sections of the public, or subscribers to such service, but does not include –

(a) a service which provides no more than data or text, whether with or without associated still images; or

(b) a service or components of a service which makes programmes available on demand on a point-to-point basis, including a dial-up service".

Broadcasting service licensee

  1. This term is used on numerous occasions in the Bill, and accordingly ought to be defined.
  2. Proposal: Insert a definition of "broadcasting service licensee", which is to mean "a person to whom a broadcasting service licence has been granted and issued".

Broadcasting signal distribution

  1. There is no need for the tail end of this definition. It is unnecessary to state "by means of a communications process". Nor is there any need to state "and [includes] multi-channel distribution".
  2. Proposal: We propose that the definition of "broadcasting signal distribution" be amended to mean "the process whereby the output signal of a broadcasting service is taken from the point of origin, being the point where such signal is made available in its final content format, from where it is conveyed to any broadcast target area".

Channel

  1. "Channel" is only used in the definition of "multi-channel distribution service" and in s58(a) of the Bill. Later on in this document we will propose the deletion of the definition of "multi-channel distribution service". If this proposal and our proposed amendments to s58 of the Bill are accepted, the definition of "channel" will no longer be necessary.
  2. Proposal: Delete the definition of "channel".

Class licence

  1. In Document 1 we propose a move away from the use of "communications service" as an umbrella category. Furthermore, not all communications services will be issued class licences, whilst categories of services other than communications services (for example, community broadcasting services) may be issued class licences. For all these reasons, the reference to "communications service" in this definition is inappropriate.
  2. Proposal: Amend the definition of "class licence" to mean "a licence authorising a person to provide a defined category of service".

Class licensee

  1. The term "class licensee" is used a few times in the Bill, and therefore ought to be defined.
  2. Proposal: Insert a definition of "class licensee", which is to mean "a person who is authorised to provide a defined category of service".

Commercial broadcasting

  1. The term which should really be defined is "commercial broadcasting service". It also does not make sense to state "excludes any broadcasting service provided by a public broadcasting licensee", since the last-mentioned term is not defined in the Bill. We accordingly propose that this definition be amended.
  2. Proposal: Amend the definition of "commercial broadcasting" so that it becomes a definition of "commercial broadcasting service", which is to be defined as "a broadcasting service operating for profit or as part of a profit entity, but excludes any public broadcasting service".

Communications

  1. We propose that this definition be simplified.
  2. Proposal: We propose that the definition of "communications" be amended to mean "the emission, transmission, or reception by any means of voice, sound, audio, data, text, visual material, visual images, signals or a combination thereof (whether with or without the addition of value by means of technological interventions), by means of electricity, magnetism, radio or other electromagnetic waves or any agency of a like nature (whether with or without the aid of tangible conductors)".

Communications network

  1. All we wish to suggest, at this stage, concerning this definition is that any reference to "content services" be deleted. This accords with our overall proposals, as set out in paragraphs 18 and 19 of Document 1 to ensure that content services are not brought within the ambit of this Act.
  2. Proposal: Delete any reference to "content services" in this definition.

Communications network service

  1. First, as we indicated in Document 1, we do not believe it appropriate that a "communications network service" is a sub-set of "communication service". Second, it is incorrect to refer to this as a service provided by a "communications network service licensee", since this would then exclude all communications network services provided by any persons who are not licensed. (In other words, the current definition creates a legal loophole which would allow persons who provide a communications network service without a licence to fall outside the definition.) Third, to refer to the making available of, not only a "communications network", but also a "communications facility", makes this definition far too wide. It would capture the provision of a huge cross-section of mere technical components, which we submit could not have been the intention of the drafters. In other words, we doubt the drafters intended that the mere provision of one or more "communications facilities" would compel the person making that provision to apply for an individual communications network service, and be subjected to what may well be extensive regulation. Fourth, the description of the services in paragraphs (a) to (c) require amendment.
  2. Proposal: We propose that the definition of "communications network service" be amended to mean "a service whereby a person makes available a communications network, whether by sale, lease or otherwise –

(a) for that person's own use for the provision of a communications service or a broadcasting service; or

(b) to another person for that other person's use in the provision of a communications service or a broadcasting service; or

(c) for resale to a communications service or a broadcasting service".

Communications network service licence

  1. This term appears a few times in the Bill, and accordingly ought to be defined.
  2. Proposal: Insert a definition of "communications network service licence", which is to mean "a licence granted and issued by the Authority in terms of this Act to a person to provide a defined category of communications network service".

Communications service

  1. We propose that this definition be simplified.
  2. Proposal: Amend the definition of "communications service" so as to mean "a service provided for remuneration to the public, sections of the public, or the subscribers to such service, which consists wholly or mainly of the conveyance of communications over communications networks, but excludes broadcasting services".

Communications service licence

  1. This term is used a few times in the Bill. It accordingly ought to be defined.
  2. Proposal: Insert a definition of "communications service licence", which is to mean "a licence granted and issued by the Authority in terms of this Act for the purpose of providing a defined category of communications service".

Communications service licensee

  1. Proposal: We propose that the definition of "communications service licensee" ought to be amended to mean "a person licensed to provide a communications service".

Competition Act

  1. This term is used a few times in the Bill. It accordingly ought to be defined.
  2. Proposal: Insert a definition of "Competition Act" which is to mean 'the Competition Act, 1998 (Act No. 89 of 1998)".

Community broadcasting

  1. Proposal: The term which ought to be defined is "community broadcasting service", and not simply "community broadcasting".

Content

  1. If our submissions on the key definitions in paragraphs 18 and 19 in Document 1 are accepted, then this definition ought to be deleted.
  2. Proposal: Delete the definition of "content".

Content service

  1. If our submissions on the key definitions in paragraphs 18 and 19 in Document 1 are accepted, then this definition ought to be deleted.
  2. Proposal: Delete the definition of "content service".

Essential facility

  1. If our representations made in Document 1 concerning the approach to competition matters within the communications sector are accepted, it becomes unnecessary to define "essential facility".
  2. Proposal: Delete the definition of "essential facility".

Existing licences

  1. This definition ought to be more precise.
  2. Proposal: Amend this definition so that it is a definition in the singular (as are almost all of the definitions) of "existing licence" to mean "any licence contemplated in s84(1)".

Financial interest

  1. This term is never used in the Bill, and accordingly ought to be deleted.
  2. Proposal: Delete the definition of "financial interest".

Free-to-air service

  1. This term is never used in the Bill, and accordingly ought to be deleted.
  2. Proposal: Delete the definition of "free-to-air service".

Fund

  1. The term "Universal Service Fund" is used on numerous occasions in the Bill, most particularly in Chapter 12. We accordingly propose that a definition of "Fund" be inserted. This accords with our approach to the definition of the "Universal Service Agency" as "Agency", and with the fact that the Fund is defined in the Telecommunications Act (there it is defined as "Universal Service Fund', whereas here we are suggesting that the definition is the abbreviated term "Fund").
  2. Proposal: Insert a definition of "Fund", which is to mean "the Universal Service Fund referred to in Chapter 12".

Harmful interference

  1. The reference to only a "communications" service is inadequate: it ought to be wider, so as to refer to "a service licensed or exempt from requiring a licence in terms of this Act where that service" etc.
  2. Proposal: Amend the definition of "harmful interference" in paragraph (a) so that it reads "… a service licensed or exempt from requiring a licence in terms of this Act where that service is provided in accordance with International Telecommunications Union Radio Regulations, and in terms of this Act and its licence conditions; or". Paragraph (b) can remain as is.

Individual licence

  1. We would advise against referring to any specific section, since a person could also be granted an individual licence by virtue of the transitional provisions.
  2. Proposal: Amend the definition of "individual licence" to mean "a licence which is granted and issued by the Authority to a person to provide a specified category of service".

Multi-channel distribution service

  1. This term is only used in s58 of the Bill. If our proposals concerning that section are accepted, then this definition is no longer necessary.
  2. Proposal: Delete the definition of "multi-channel distribution service".

Political party

  1. The term "political party" is used on a number of occasions in s54 to s56 of the Bill. We accordingly propose that this definition be inserted into the Bill.
  2. Proposal: Insert a definition of "political party" to mean "any party registered in terms of s15 of the Electoral Commission Act, 1996, which party, for the purposes of any particular election, has, before the commencement of the relevant election period, submitted its list of candidates for the relevant legislature".

Public broadcasting

  1. The term which should really be defined is "public broadcasting service".
  2. Proposal: Amend the definition of "public broadcasting" so that it becomes a definition of "public broadcasting service".

Radio apparatus

  1. The term "radio apparatus" is used on numerous occasions in the Bill, and accordingly ought to be defined.
  2. Proposal: Insert a definition of "radio apparatus", which is to mean "a communications facility which is capable of transmitting or receiving any communications by radio, other than a sound radio set and a television set".

Radio frequency plan and radio frequency spectrum

  1. We submit that the terms "radio frequency plan" and "radio frequency spectrum" do not need to be defined: their meaning is commonly understood and is clear. The fact that neither term is defined in the current broadcasting legislation and the Telecommunications Act supports this view.
  2. Proposal: Delete the definitions of "radio frequency plan" and "radio frequency spectrum".

Radio frequency spectrum licence

  1. This definition ought to be similar to the definition of other individual licences (for example a broadcasting service licence). It also ought to use the appropriate defined terms.
  2. Proposal: Amend the definition of "radio frequency spectrum licence" to mean "a licence granted and issued by the Authority in terms of this Act authorising a person to use a radio frequency band".

Registered party

  1. "Registered party" is defined with reference to Chapter 9. However, in s54 to 56 of that Chapter the term "registered party" is never used. Instead, the term "political party" is used, which term we have suggested be inserted as a defined term. The definition of "registered party" is accordingly unnecessary.
  2. Proposal: Delete the definition of "registered party".

Reseller

  1. The only time the word "reseller" is used in the Bill is in s5(3)(a). If our proposed amendments to this section are accepted, then the use of this word falls away, and the definition accordingly becomes unnecessary.
  2. Proposal: Delete the definition of "reseller".

Service charter

  1. This term is only used in s60 of the Bill. Later on in these representation we propose that s60 of the Bill be deleted. If our proposals are accepted, then this definition becomes unnecessary. Even if this section of the Bill is to be retained, we do not believe it is necessary to define the term. Furthermore, the term as defined does not accord with the use of the term in that section.
  2. Proposal: Delete the definition of "service charter".

SMME

  1. The terminology used in this definition is not entirely accurate. First, the statute is the National Small Enterprise Act. Second, the relevant term defined in that Act is "small enterprise".
  2. Proposal: Amend the definition of "SMME" to mean "a small enterprise defined in section 1 of the National Small Enterprise Act, 1996 (Act No. 102 of 1996)".

Sound broadcasting service

  1. The term "sound broadcasting service" is only used once in the Bill, namely in s2(s)(i). If our proposed amendments to that paragraph are accepted, then this definition becomes unnecessary.
  2. Proposal: Delete the definition of "sound broadcasting service".

Subscriber

  1. At the moment this definition refers to only certain services. Given the various contexts in which this defined word is used, we propose that the definition be amended so that it is not so specific.
  2. Proposal: Amend the definition of "subscriber" to mean "a person who receives a communications service or a broadcasting service under an agreement with, or according to terms and conditions determined by, the provider of that service".

Television broadcasting service

  1. The term "television broadcasting service" is only used once in the Bill, namely in s2(s)(i). If our proposed amendments to that paragraph are accepted, then this definition becomes unnecessary.
  2. Proposal: Delete the definition of "television broadcasting service".

This Act

  1. The regulations, etc. all ought to be made in terms of this Act. Accordingly, this definition ought to be amended.
  2. Proposal: Amend the definition of "this Act" by adding the following phrase at the end of the definition "made in terms of this Act".

Visual material

  1. If our proposed amendments to the definition of "broadcasting service" are accepted, then a definition of "visual material" needs to be inserted.
  2. Proposal: Insert a definition of "visual material", which is to mean "visual images, whether with or without accompanying sounds, where the visual images are such that sequences of them are seen as moving pictures".

Use of definitions in the rest of this document

  1. In making proposals as regards the definitions and for the rest of this document, we are using the defined terms as we propose they be defined. Where we have not commented on a definition, it must be understood that we agree with the definition as set out in s1 of the Bill, or that the definition is so specific to telecommunication service that we do not intend commenting on it (e.g. the definition of "number portability").

s2: Object of Act

  1. We support most of the objectives set out in s2 of the Bill. We would, however, like to propose a few minor amendments.
  2. In paragraph (a) we propose that the word "networks" be inserted after "telecommunications", thereby making this objective more focussed.
  3. Given our proposal that competition matters be dealt with by the competition authorities in terms of the Competition Act, we believe paragraphs (e), (f) and (i) ought to be deleted.
  4. Concerning empowerment (paragraph (g)), we have two suggestions. First, the reference to "historically disadvantaged persons" ought to be changed to "black people". Second, the objective needs to be more focussed, so that it refers to empowerment "within the communications sector". We therefore propose that this paragraph reads "promote the empowerment of black people within the communications sector;".
  5. Paragraph (o) provides that one of the objectives is, "subject to the provisions of this Act, [to] promote and facilitate the achievement of the objects of the related legislation". As presently defined, "related legislation" refers to the ICASA Act and the Broadcasting Act. As regards the ICASA Act, we do not believe paragraph (o) is necessary. In relation to the Broadcasting Act, we believe that this paragraph, read with s2 and s3 of that Act, which sections the Bill does not propose to delete, will only result in confusion and, in many instances, conflicting provisions. We accordingly propose that paragraph (o) in s2 of the Bill be deleted, and when we come to deal with the Broadcasting Act, we will suggest that s2 and s3 of that Act be repealed, since most of the objectives set out in those sections are adequately dealt with in this section of the Bill.
  6. Paragraph (w) states that an objective is to "ensure that broadcasting services are effectively controlled by South Africans". However, s5(7) provides that an applicant for a licence will merely have to demonstrate that the applicant, "in the case of –

(a) a natural person, is a citizen of the Republic; or

(b) a company, is, or will be, registered under the laws of the Republic and has, or will have, its principal place of business located within the Republic".

There is therefore a conflict between these two provisions. If s5(7) is to remain as is, then paragraph (w) ought to be deleted. Alternatively, if paragraph (w) is to remain and is to be given effect to, then s5(7) needs to be amended so as to distinguish between broadcasting services on the one hand, and other types of services on the other.

  1. As regards paragraph (x), whilst we appreciate the intention of the drafters, this paragraph uses language which does not accord with defined terms. We propose that it be amended so that it reads "ensure that persons who provide broadcasting services have access to communications network services in order to provide such broadcasting services".
  2. Paragraph (y) makes no sense: members of the public who have appropriate receiving facilities will automatically receive broadcasting services. The paragraph accordingly ought to be deleted.
  3. As regards paragraph (z), there is no justification for singling out multi-channel distribution systems – one of the key purposes of this Bill is to promote a technologically-neutral approach to the regulation of communications. Furthermore, the language used in this paragraph does not accord with defined terms. Finally, paragraph (d), which provides that one of the objectives is to "ensure efficient use of the radio frequency spectrum", adequately addresses this concern. This paragraph accordingly ought to be deleted.
  4. There are two important objectives which are in the IBA Act and which, given the repeal of the entire IBA Act, ought to be reflected in this section of the Bill, namely to –
    1. refrain from undue interference in the commercial activities of licensees, whilst at the same time taking into account the broadcasting needs of the public;
    2. promote the stability of the broadcasting industry.

We propose that these two objectives be added, in an amended form, after present paragraph (c), and that they read as follows:

"(…) refrain from undue interference in the commercial activities of licensees, whilst at the same time taking into account the communications needs of the public;

(…) promote the stability of the communications sector;".

CHAPTER 2: POLICY AND REGULATIONSs3: Ministerial policies and policy directions

  1. Given the concerns we have expressed in paragraph 30 of Document 1 about the power of the Minister in relation to the making of policies, we submit that there ought to be a public consultative process as regards the making of these policies. In other words, since the Authority, in exercising its powers and performing its functions and duties in terms of the Act, must consider policies made by the Minister in terms of subsection (1), there ought to be an opportunity for public comment. We therefore propose that at the beginning of s3(1), the phrase "Subject to subsections (3) and (5) to (8)" be inserted. We also submit that the issues concerning which the Minister may issue policies ought to be determined in the legislation, as opposed to being left open-ended, and that accordingly paragraph (h) of subsection (1) ought to be deleted.
  2. We propose that the remaining subsections of s3 be amended as follows:

"(2) [The Minister must,] Subject to subsections (4) and (8), [(5) issue to] the Minister may direct the Authority [policy directions consistent with the objects of this Act and of the related legislation in relation] to –

(a) [the undertaking of] undertake an inquiry in terms of section 17F of the ICASA Act on any matter within the jurisdiction of the Authority and [the submission of reports] to submit a report to the Minister in respect of such matter;

(b) [the determination of] determine priorities for the development of communications networks and communications services or any other service contemplated in Chapter 3;

(c) [the consideration of] consider any matter within the jurisdiction of the Authority reasonably placed before it by the Minister for urgent consideration[; and].

[(d) the implementation of any policy made by the Minister in terms of subsection (1).]

[(4)](3) [When] Prior to issuing a policy [direction] under subsection [(2)] (1) the Minister must –

(a) [may] consult the Authority; and

(b) [must, in order to obtain the views of interested persons, publish the text of such policy direction by notice in the Gazette] publish such policy in the Gazette, together with a notice –

(i) declaring his or her intention to issue the policy [direction]; and

(ii) inviting interested persons to submit written [submissions] representations in relation to the policy [direction] in the manner specified in the notice within 30 days from the date of the notice.

(4) Prior to issuing a direction under subsection (2), the Minister must consult the Authority.

(5) The provisions of subsection [(4)] (3) do not apply in respect of any amendment by the Minister of a policy [direction] contemplated in subsection [(2)] (1) [as a result of representations received and reviewed by him or her after consultation or publication in terms of subsection (4)] pursuant to consultation or representations received in terms of subsection (3).

(6) Subject to subsection (7), a policy [direction] issued under subsection [(2)] (1) may be amended, withdrawn or substituted by the Minister.

(7) Except in the case of amendments contemplated in subsection (5), the provisions of subsection[(s)] (3) [and (4)] apply, with the necessary changes, in relation to any such amendment or substitution of a policy under subsection (6).

(8) No policy may be issued under subsection (1) and no direction may be issued under subsection (2) – (a) regarding the granting of a licence or the amendment, renewal, transfer, suspension or cancellation of a licence;(b) which interferes with the independence of the Authority or which affects the powers and functions of the Authority.

[(3)](9) The Authority, in exercising its powers and performing its functions and duties in terms of this Act and [the] related legislation, must consider policies made by the Minister in terms of subsection (1) [and policy directions issued by the Minister in terms of subsection (2)].

(10) Any inquiry or investigation contemplated in subsection (2) must be financed by money appropriated to the Authority for that purpose.

s4: Regulations by Authority

  1. We would like to propose a number of amendments to this section. Most of these amendments are directed at ensuring that the Authority's powers to make regulations are appropriately limited, and that there is a public consultative process in relation to the making of regulations. This accords with the approach currently adopted, for example, in s78 of the IBA Act, which deals with regulations. Our proposals are set out below.

"(1) The Authority may make regulations, which may not be inconsistent with this Act or related legislation, with regard to any matter which in terms of this Act or the related legislation must or may be prescribed, governed or determined by regulation. Without derogating from the generality of this subsection, the Authority may make regulations [with regard to] –

(a) with regard to any technical matter necessary or expedient for the regulation of [the licensed services] any service licensed or exempt from requiring a licence in terms of this Act;

(b) with regard to any matter of procedure or form which may be necessary or expedient to prescribe for the purposes of this Act or the related legislation;

(c) with regard to the payment to the Authority of charges and fees in respect of –

(i) the supply by the Authority of facilities for the inspection, examination or copying of material under the control of the Authority;

(ii) the transcription of material from one medium to another;

(iii) the supply of copies, transcripts and reproductions in whatsoever form and the certification [of copies] thereof;

[(iv) the granting of licences in terms of this Act or the related legislation;(v) applications for and the grant, amendment, renewal, transfer or disposal of licences or any interest in a licence in terms of this Act or the related legislation; and](iv) the application, granting, issuing, amendment, renewal or transfer of a licence in terms of the Act or related legislation;(v) annual licence fees;

(d) generally, the control of the radio frequency spectrum, radio activities and the use of radio apparatus;

(e) despite the provisions of this Act, to comply with s10(a) of the Broad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003), and to enable the Authority to take into account, and as far as reasonably practicable, to apply any relevant code of good practice issued in terms of that Act to requirements imposed on existing licensees.

(2) Different regulations may be made in respect of different –

(a) classes or categories of licences granted in terms of this Act or the related legislation; and

(b) categories of radio users, radio frequencies[,] and radio frequency bands [and licences].

[(3) Any regulation made by the Authority in terms of subsection (1) may declare any contravention of that regulation to be an offence, provided that any such regulation must specify the penalty that may be imposed in respect of such contravention.]

[(4)](3) The Authority must, not less than [30] 60 days before any regulation is made, publish such draft regulation in the Gazette, together with a notice –

(a) declaring the Authority's intention to make that regulation; and

(b) inviting interested parties to [make] submit written representations on the regulation and to indicate whether they require an opportunity to make oral representations to the Authority, within a period specified in the notice.

[5](4) The Authority [may] must conduct a public hearing[s] in respect of a draft regulation.

[6](5) The provisions of subsections (3) and (4) do not apply with regard to –

(a) the making of any regulation in terms of subsection (1)(b);

[(a)](b) any regulation made by the Authority which, after the provisions of these subsections have been complied with, has been amended after receipt of [comments or] representations received in terms of a notice issued under that subsection; or

[(b)](c) any regulation which the public interest requires should be made without delay."

CHAPTER 3: LICENSING FRAMEWORK

  1. In Document 1 we raised a number of concerns which relate to this Chapter, and undertook to put forward proposals, in the form of detailed drafting proposals, to address these concerns. Before we do so, we wish to make two points about the overall structure of this Chapter. First, s7, which prohibits the provision of a service without a licence, ought to be the first section of this Chapter. The rest of Chapter 3 only makes sense once one has read this general prohibition. This approach accords with, for example, the approach adopted in the IBA Act, where the general prohibition on the provision of broadcasting services without a broadcasting licence is set out in s39 at the beginning of Chapter VI dealing with broadcasting licences, and the approach adopted in the Telecommunications Act, where the general prohibition on the provision of a telecommunication service without a licence is set out in s32 at the beginning of Chapter V dealing with telecommunication services. Second, in order to make this Chapter clearer and easier to use, this Chapter should be divided into Parts. We suggest that these Parts be as follows –
    • PART I: GENERAL;
    • PART II: INDIVIDUAL LICENCES;
    • PART III: CLASS LICENCES;
    • PART IV: TEMPORARY AUTHORISATIONS; and
    • PART V: SURRENDER, SUSPENSION AND CANCELLATION OF LICENCES.

The numbering of the sections of the Chapter accordingly ought to be amended to the extent necessary.

PART I: GENERAL

s5: Prohibition of provision of service without licence

  1. We propose that this section (currently s7 in the Bill) be amended as follows:

"Subject to the provisions of this Act and [of the] related legislation, [and such exemptions as may be prescribed by the Authority,] no person may provide any service referred to in s[(5)] 6(2) and (3) except under and in accordance with [the terms and conditions of] an individual licence or class licence."

s6: Licensing

  1. We propose that the section dealing with licensing (currently s5 in the Bill) be amended so that it reads as follows:

"(1) The Authority may, in accordance with this Chapter and the regulations prescribed hereunder, grant individual licences and class licences.

(2) The Authority may[, upon application in the prescribed manner] grant an individual licence[s] for the following –

(a) [subject to subsections (4) and (5),] to provide a communications network service[s];

(b) to use radio frequency spectrum [licences];

(c) [subject to subsection (6),] to provide a broadcasting service[s licences]; [and]

(d) to provide such other services as may be prescribed;

(3) The Authority may[, upon application in the prescribed manner] grant a class licence[s for] to provide the following[;] –

(a) a communications service[s, which must include re-sellers];

[(b) an applications services; and]

[(c)](b) such other services as may be prescribed."

[(4) The Authority may only accept and consider applications for communications network services licences as from a date to be fixed by the Minister by notice in the Gazette. (5) The Minister may determine the date when and the geographical area within which communications network services licences may be granted."]

  1. Our proposed amendments to subsections (6) to (12) of s5 of the Bill are so extensive that we felt it would be simpler for us to propose the deletion of these subsections and their replacement with the following subsections –

"(4) The Authority must prescribe –

(a) the manner in which applications for licences referred to in subsections (2) and (3) must be made; and

(b) the licence fees applicable to the licences referred to in those two subsections.

(5) The Authority may only grant a licence to an applicant who, in the case of –

(a) a natural person, is a citizen of the Republic; or

(b) a company, is, or will be, registered under the laws of the Republic and has, or will have, its principal place of business located within the Republic.

(6) The Authority, in granting a licence, must –

(a) ensure that communications services, viewed collectively, are provided by persons or groups of persons from a diverse range of communities in the Republic; and

(b) promote the empowerment of black people in the communications sector.

(7) Class licences are to be issued for an indefinite period."

s7: Exemptions

  1. Given our proposed re-ordering of the first three sections in this Chapter, what is currently s6 will become s7. We suggest that the section be headed "Exemptions", and that the present section of the Bill be replaced with the following subsections:

"(1) The Authority may prescribe the type of service which may be provided without a licence.

(2) The Authority may prescribe –

(a) the radio frequency spectrum licences which may be exempt from sections 9 to 12; and

(b) the procedures which are to apply to the application for and granting, the amendment, the renewal and the transfer of such licences."

s8: Terms and conditions for licences

  1. Our proposed amendments to s8 are fairly extensive. We therefore thought it would be simpler for us to propose the deletion of the existing text of this section and its replacement with the following:

"(1) The Authority must prescribed standard terms and conditions applicable to each category of individual licence and class licence.

(2) In prescribing such standard terms and conditions, the Authority must take into account –

(a) the nature of the service;

(b) the nature of the likely end users of the service;

(c) the likely number of end users of the service;

(d) the geographic reach of the service;

(e) the period for which the licence ought to be granted;

(f) the public interest in securing the efficient functioning of communications facilities and communications networks, including but not limited to preventing or restricting harmful interference with the radio frequency spectrum;

(g) the bilateral, multilateral and international obligations of the Republic, including compliance with relevant international standards; and

(h) the objects of the Act and related legislation.

(3) The Authority may impose additional terms and conditions in an individual licence which –

(a) the Authority considers appropriate for such licence;

(b) are consistent with the objects of the Act and related legislation; and

(c) are similar to any additional terms and conditions in other licences for the same category of service.

(4) In addition to subsection (3), the Authority may impose on the applicant for an individual licence any other terms and conditions resulting from undertakings made by the applicant.

(5) All the terms and conditions which are to apply to a licence must be referred to or specified in the licence, and take effect from the date specified in the licence.

(6)(a) A licensee must commence with the service to which the licence relates within the period determined by the Authority, or within any extension of that period granted by the Authority on good cause shown.

(b) If the licensee fails to commence the service within the period, or extended period, determined by the Authority, the individual licence will lapse."

PART II: INDIVIDUAL LICENCES

s9: Application for and granting of individual licences

  1. Our proposed amendments to s9 are fairly extensive. These are in line with the approach currently adopted in s41 to s43 of the IBA Act and seek to incorporate the procedural safeguards contained in those sections. We therefore thought it would be simpler for us to propose the deletion of the existing text of this section, and its replacement with the following subsections:

"(1) Any person may apply to the Authority for an individual licence in the prescribed manner.

(2) The application must be accompanied by the prescribed fee.

(3) The Authority may require an applicant to furnish the Authority, within a period specified by the Authority, with such further information as may be reasonably necessary in order for the Authority to properly consider the application.

(4) Within 30 days of receipt of any application in terms of this section, the Authority must publish a notice in the Gazette –

(a) containing all the material particulars of the application;

(b) setting out the proposed licence conditions which will apply to the individual licence;

(c) inviting interested persons to submit written representations in relation to the application in the manner specified in the notice within 30 days or such shorter period as from the date of the notice as may be determined by the Authority, but which period may not be less than 15 days; and

(d) inviting persons who submit written representations to indicate whether they require an opportunity to make oral representations at the public hearing to be held concerning the application.

(5)(a) Any person who submits representations pursuant to a notice in terms of subsection (4) must, at the time of submission to the Authority, furnish proof to the satisfaction of the Authority that a copy of such representations has been served on the applicant.

(b) Any person who submits representations may be required by the Authority to furnish it, within a period specified by the Authority, with such further information as the Authority considers necessary.

(6)(a) The applicant may submit written representations in response to the proposed licence conditions and any representations submitted pursuant to a notice in terms of subsection (4) within 60 days of the date of the notice contemplated in subsection (4) or such shorter period as from the date of such notice as may be determined by the Authority, but which period may not be less than 40 days.

(b) The applicant, at the time of submission of any such representations, must furnish proof to the satisfaction of the Authority that a copy of its representations has been served on each person who submitted representations pursuant to a notice in terms of subsection (4).

(7) The Authority must conduct a public hearing in relation to an application for an individual licence as soon as may be reasonably practicable, with due regard being had to subsections (4) to (6), and at such date, time and place as determined by the Authority by notice in the Gazette.

(8)(a) The Authority, after considering the application, written and oral representations made in relation to the application, and any further information submitted to the Authority pursuant to this section, must decide whether to grant the application.

(b) Upon having decided on the application, the Authority must by notice in the Gazette make known its decision, the reasons for that decision, and the licence conditions.

(9) If there is more than one licence application which will involve the use of the same frequency within the same licence area, the Authority, with due regard to the objects of this Act and related legislation, must determine the most suitable applicant, if any."

s10: Amendment of individual licence

  1. Our proposed amendments to s10 are fairly extensive. These are in line with the approach currently adopted in s52 of the IBA Act and seek to incorporate the substantive and procedural safeguards contained in that section. We therefore thought it would be simpler for us to propose the deletion of the existing text of this section, and its replacement with the following:

"(1) Subject to this Act, an individual licence may be amended by the Authority only –

(a) to the extent necessitated by technological change or as may be necessary in the interests of orderly frequency management, provided the amendment will not materially prejudice to the licensee;

(b) if requested by the licensee, and then only if and in so far as the amendment will not –

(i) militate against orderly frequency management;

(ii) materially prejudice any other licensee; and

(iii) be inconsistent with the provisions of this Act and related legislation;

(c) to make the conditions of the licence consistent with conditions being imposed generally in all individual licences granted in the same category for the purpose of ensuring fair competition between those licensees.

(2) Whenever the Authority considers amending an individual licence in terms of subsection (1), it must publish a notice in the Gazette –

(a) setting out the proposed amendment and the date upon which the proposed amendment is to take effect;

(b) inviting interested persons to submit written representations in relation to the proposed amendment and the date upon which it is to take effect in the manner specified in the notice within 30 days or such shorter period as from the date of the notice as may be determined by the Authority, but which period may not be less than 15 days; and

(c) inviting persons who submit written representations to indicate whether they require an opportunity to make oral representations at the public hearing to be held concerning the proposed amendment.

(3) The provisions of subsections (5) to (8) of section 9, with the necessary changes, apply to the amendment of an individual licence."

s11: Renewal of individual licence

  1. Our proposed amendments to s11 are fairly extensive. They are in line with the approach currently adopted in s44 of the IBA Act and seek to incorporate the procedural safeguards contained in that section. We therefore thought it would be simpler for us to propose the deletion of the text of this section and its replacement with the following:

"(1) An application for the renewal of an individual licence must be made by the licensee to the Authority not earlier than 12 months, and not later than six months, before the date on which the licence expires.

(2) The application must be in the prescribed manner.

(3) The application must be accompanied by the prescribed fee.

(4) Within 30 days of receipt of any application in terms of this section, the Authority must publish a notice in the Gazette –

(a) containing all the material particulars of the application;

(b) inviting interested persons to submit written representations in relation to the application in the manner specified in the notice within 30 days or such shorter period as from the date of the notice as may be determined by the Authority, but which period may not be less than 15 days; and

(c) inviting persons who submit written representations to indicate whether they require an opportunity to make oral representations at the public hearing to be held concerning the application.

(5) The provisions of subsections (3) and (5) to (8) of s9, read with the necessary changes, apply to the renewal of an individual licence.

(6) The Authority may refuse an application for the renewal of an individual licence only if the licensee has failed to materially comply with the provisions of this Act and related legislation and its licence terms and conditions, and if the Authority is satisfied that the applicant would not so comply if the licence were renewed.

(7) Notwithstanding subsection (8), the Authority must attempt to decide the application for renewal prior to the date on which the licence will expire.

(8) An individual licence will continue to be of force and effect until the Authority has decided on the application for the renewal of the licence.

(9)(a) Notwithstanding subsection (1), an individual licensee may at any time after the end of the six-month period referred to in that section, but before the expiry of the licence, apply for the renewal thereof.

(b) The Authority may impose a penalty in the prescribed amount in respect of each day by which the licensee delayed in timeously applying in terms of subsection (1) for the renewal of the licence.

(c) Notwithstanding any provisions to the contrary, the Authority may not renew an individual licence until the licensee upon whom such a penalty has been imposed has paid that penalty to the Authority.

(10) If the Authority refuses an application for the renewal of an individual licence, such refusal becomes effective on the date of the notice, or the date on which the licence expires, whichever is the later."

s12: Transfer of individual licence

  1. Our proposed amendments to s12 (which is currently s13 in the Bill) are fairly extensive. We therefore thought it would be simpler for us to propose the deletion of the existing text of this section and its replacement with the following:

"(1) An individual licence may not be transferred –

(a) unless the service to which the licence relates is transferred together with such licence to the same transferee; and

(b) without the prior written permission of the Authority.

(2) The provisions of s9, with the necessary changes, apply to the transfer of an individual licence and the granting of permission by the Authority for such transfer."

PART III: CLASS LICENCES

  1. We submit that the four sections in the Bill dealing with class licences, namely s16 to s19, are not clear, and that a number of the provisions are repetitive. Examples of the latter is are s16(2), s17(1) and s17(3). We accordingly propose that these sections be deleted and replaced with the sections set out below.

s13: Application for and granting of class licences

  1. We propose that this section (currently s16 and s17 in the Bill) be replaced with a section to be worded as follows:

"(1) Any person may apply to the Authority for a class licence in the prescribed manner.

(2) The application must be accompanied by the prescribed fee.

(3) The only information the Authority may require in an application for a class licence is –

(a) a description of the service in relation to which the class licence is sought;

(b) particulars of the person who will provide the service, including particulars which will demonstrate whether that person meets either of the requirements set out in s6(5);

(c) the date from when, and the period for which, the service is to be provided;

(d) particulars which will indicate whether the applicant complies with the provisions of this Act to the extent that these provisions apply to the category of service for which the licence is sought; and

(d) an address in the Republic at which the applicant will accept service of any document or process.

(4) The Authority must consider an application made in terms of this section and, if the Authority approves the application, must publish a notice thereof in the Gazette within 60 days of the date of the Authority's receipt of the application.

(5) The notice in the Gazette must state –

(a) the name of the person to whom the class licence is granted;

(b) the specified category of service which may be provided in terms of this licence;

(c) the date from when and the period for which the service may be provided;

(d) the provisions of this Act with which the licensee is required to comply; and

(e) an address in the Republic at which the licensee will accept service of any document or process.

(6) Publication of the notice contemplated in subsection (4) grants a class licence to the person referred to in subsection (5)(a) to provide the service referred to in subsection (5)(b) from the date referred to in subsection (5)(c)."

s14: Refusal to grant class licence

  1. Our proposed amendments to s14 (which is currently s18 in the Bill) are fairly extensive. We therefore thought it would be simpler for us to propose the deletion of the existing text of this section and its replacement with the following:

"(1) The Authority may only refuse an application for a class licence if –

(a) the application does not contain all the information required by the Authority;

(b) the applicant does not meet either of the requirements set out in s6(5);

(c) the applicant does not comply with any of the provisions of this Act with which it is required to comply; or

(d) the application contains false or misleading information.

(2) If the Authority decides to refuse an application for a class licence, the Authority must advise the applicant in writing of this refusal within 60 days of the date of the Authority's receipt of the application."

s15: Notification of changes to Authority

  1. We propose that this section (currently s19 in the Bill) be re-worded so that it reads as follows:

"(1) A person who has a class licence to provide a service must notify the Authority in the prescribed manner of any change to the information provided to the Authority in the application for the licence at least 30 days prior to the change taking effect.

(2) Provided none of the circumstances contemplated in subsection (1) of section 14 arise, the Authority must publish a notice of this change in the Gazette within 60 days of the date of the Authority's receipt of the notification of the change."

s16: Register of licences

  1. s16(3) to (5) of the Bill provides that the Authority is required to keep a register of class licences. We submit that there ought to be a specific section which deals with this issue, and which could be worded as follows:

"(1) The Authority must create and maintain a register of all class licences, arranged according to category.

(2) Any person may inspect and obtain copies of the register in accordance with the provisions of s62A.

(3) At least once every calendar year the Authority must publish the register in the Gazette."

PART IV: SURRENDER, SUSPENSION AND CANCELLATION OF LICENCES

s17: Surrender of licence

  1. We propose that this section (currently s12 in the Bill) be amended as follows:

"(1) A licensee may at any time by written notice surrender [a] its licence to the Authority [in accordance with the requirements set out in the licence or] in the manner prescribed by the Authority.["]

(2) If a licensee ceases to provide the service for which it is licensed, the licensee must surrender its licence within 30 days of the service having ceased."

s18: Suspension or cancellation of licence

  1. It is difficult to comment meaningfully on this section (currently s14 in the Bill) without having seen s17M which is to be inserted in the ICASA Act: we have no idea of the grounds on which the Authority may order the suspension or cancellation of a licence, nor whether the procedural provisions as regards enforcement are adequate. Apart from this concern, we would suggest that the following minor amendments be made to this section:
    1. In subsection (2), the word "expiration" is incorrectly used. The correct word is "expiry".
    2. We propose that subsection (4) be deleted, since there is no need for it.

Effect of suspension, cancellation, surrender or expiry of individual licence

  1. We do not believe this section (currently s15 in the Bill) is necessary. More particularly, if our proposed s5 (the equivalent section in the Bill is s7) is accepted, there is no need for subsection (1). Concerning subsection (2), we fail to understand how the continued provision of a service is necessary in order for a licensee to wind up its affairs. Concerning subsection (3), our proposed wording to s11(1), read with s11(9), makes this subsection unnecessary: a person whose licence has expired cannot thereafter apply for its renewal.

PART V: TEMPORARY AUTHORISATIONS

s19: Temporary authorisations

  1. The Bill deals with temporary authorisations in a section dealing with licences (see s5(6)(a)(iv) of the Bill). However, since these authorisations are not licences, we believe it would be more appropriate to deal with them in a distinct section, which section we propose reads as follows:

"(1) Any person may apply to the Authority in the prescribed manner for a temporary authorisation to research, develop and test a service, regardless of whether this service is defined in this Act.

(2) The Authority must decide whether to grant such authorisation, and must advise the applicant in writing of its decision within 30 days of the date of receipt of the application for the temporary authorisation.

(3) If the Authority decides to grant the temporary authorisation, the Authority must advise the person to whom the temporary authorisation is granted of the terms and conditions of the authorisation."

CHAPTER 5: RADIO FREQUENCY SPECTRUM

  1. There are currently five sections in this Chapter of the Bill. We submit that the order of these sections ought to be amended somewhat. More particularly, we submit that the present s34, which deals with the radio frequency plan, ought to be the second section in the Chapter: there ought to be clarity about the plan before one deals with radio frequency spectrum licences.
  2. As regards s33 of the Bill, which currently deals with frequency co-ordination, we do not support the proposal that holders of radio frequency spectrum licences co-ordinate frequency usages. It is for the Authority to seek to prevent, and where it arises, to deal with, harmful interference. The Authority must also seek to ensure the efficient use of the radio frequency spectrum. Turning to disputes concerning the radio frequency spectrum and between radio frequency spectrum licensees, this ought to be dealt with in the enforcement Chapter, where all enforcement issues ought to be dealt with. We therefore propose that the present s33: Frequency co-ordination ought to be removed from the Bill.
  3. We accordingly propose that the sections in this Chapter be as follows:
    1. s30: Powers, functions and duties of Authority in relation to radio frequency spectrum;
    2. s31: Radio frequency plan;
    3. s32: Radio frequency spectrum licences;
    4. s33: Control or possession of radio apparatus.

s30: Authority's powers, functions and duties in relation to radio frequency spectrum

  1. We propose that s30 be headed "Authority's powers, functions and duties in relation to radio frequency spectrum". Our proposed amendments to this section are fairly extensive. We therefore thought it would be simpler for us to propose the deletion of the existing text of this section and its replacement with the following:

"(1) Notwithstanding any other law to the contrary, the Authority must control, plan, administer and manage the licensing and use of the radio frequency spectrum.

(2) In controlling, planning, administering, managing and licensing the use of the radio frequency spectrum, the Authority must –

(a) comply with the applicable standards and requirements of the International Telecommunications Union and its Radio Regulations, as agreed to or adopted by the Republic;

(b) honour the commitments of the Republic in terms of bilateral, multilateral and international agreements concerning the radio frequency spectrum;

(c) ensure that the radio frequency spectrum is utilised and managed in an orderly, efficient and effective manner;

(d) plan for the conversion of analogue uses of the radio frequency spectrum to digital uses;

(e) prioritise applications for the digital use of radio frequency spectrum;

(f) ensure that radio frequency spectrum licensees are protected from harmful interference or anything else which interferes with their ability to use the radio frequency spectrum assigned to them; and

(g) allow for the shared use of radio frequency spectrum, provided this does not result in any harmful interference."

s31: Radio frequency plan

  1. Our proposed amendments to this section (currently s34 in the Bill) are fairly extensive. We therefore thought it would be simpler for us to propose the deletion of the existing text in this section and its replacement. We propose that this section be worded as follows:

"(1) The Authority, within 12 months of the commencement of this Act, must prepare a radio frequency plan for the allocation of the radio frequency spectrum among users and potential users.

(2) In preparing the radio frequency plan, the Authority must –

(a) have due regard to the reports of experts in radio frequency spectrum planning, and to internationally accepted methods for preparing such plans;

(b) take into account existing uses of the radio frequency spectrum and any radio frequency plans in existence or in the course of preparation; and

(c) consult with the Minister about the security services' current use, and the government's proposed use by the security services, of the radio frequency spectrum.

(3) The Authority must give notice in the Gazette of its intention to prepare a radio frequency plan, and in such notice must invite –

(a) interested parties to submit written representations on the radio frequency plan to the Authority within 30 days or such longer period as may be specified in such notice; and

(b) persons who submit written representations to indicate whether they require an opportunity to make oral representations at the public hearing on the radio frequency plan.

(4) The Authority, at the end of the period contemplated in subsection (3), must hold a public hearing on the radio frequency plan.

(5) After considering the written and oral representations made in terms of this section, the Authority must finalise the radio frequency plan and publish it in the Gazette.

(6) The radio frequency plan must be kept at the offices of the Authority and be open for public inspection and copying in accordance with the provisions of s62A.

(7) The Authority must annually review the radio frequency plan.

(8) The provisions of subsections (2) to (6), read with the necessary changes, apply to any amendment to, or review of, the radio frequency plan."

s32: Radio frequency spectrum licences

  1. Our proposed amendments to s32 (which is currently s31 in the Bill) are fairly extensive. We therefore thought it would be simpler for us to propose the deletion of the existing text in this section, and its replacement with the following:

"(1) Subject to subsection (3), no person may transmit any communication by radio or use radio apparatus to receive any communication by radio except under and in accordance with a radio frequency spectrum licence.

(2) A radio frequency spectrum licence is required in addition to any licence contemplated in subsections (2) and (3) of s6 if the provision of such service or the use thereof entails the use of radio frequency spectrum.

(3) Subsection (1) does not apply to a person who utilises radio frequency spectrum –

(a) in the course of making proper use, as an end user, of a service which is licensed or exempt from requiring a licence in terms of this Act; and

(b) in accordance with the regulations contemplated in subsection (4).

(4) The Authority may prescribe categories of radio apparatus the use or possession of which, or the circumstances in which the use or possession of which, does not require a radio frequency spectrum licence."

s33: Control or possession of radio apparatus

  1. We propose that this section be amended as follows:

"(1) Subject to section [31(5)] 32(4), no person may possess any radio apparatus unless he or she is in possession of a permit granted by the Authority in terms of this section or a radio frequency spectrum licence.

(2) [The Authority must prescribe the procedure for obtaining a permit referred to in subsection (1).] Any person may apply to the Authority in the prescribed manner for a permit to possess radio apparatus, and the application must be accompanied by the prescribed fee.

[(3) The Authority may, subject to this Act, the related legislation and other applicable law, enter onto property for purposes of inspecting radio apparatus in accordance with subsection (4).]

[(4)](3) [Where] If a person is found in possession of any radio apparatus in contravention of [the provisions] this section, the Authority may –

(a) seal or alter such apparatus or any part thereof in order to [– (i)] prevent the use of that radio apparatus for the purpose of transmission or reception[;], and [(ii)] grant to such person a permit for a limited period authorising the possession of that apparatus on condition that it is not, during such period, used for such purpose; or

(b) seize such apparatus, whether or not it is sealed as contemplated in paragraph (a), for disposal in terms of subsection [(5)] (4).

[(5)](4) Radio apparatus seized under subsection (3)(b) must be held by the Authority until –