SABC

ADDITIONAL WRITTEN SUBMISSIONS ON THE CONVERGENCE BILL

10 June 2005

1. INTRODUCTION
1. On 8 April 2005 the SABC made initial written submissions ("the initial submissions") on the Convergence Bill, 2005 ("the Bill") to the Parliamentary Portfolio Committee on Communications ("the Committee").
2. In order to assist the Committee in its deliberations, the SABC has decided to make its further considerations of the provisions of the Bill available in writing to the Committee. The SABC's further considerations focus particularly on certain broadcasting-related aspects of the Bill and the SABC trusts that the Committee will find these to be of assistance.
2. PRACTICAL SUGGESTIONS FOR OVERCOMING SECTION 192 OF THE CONSTITUTION CONCERNS
1. The SABC is well aware that a number of other stake holders have raised concerns over the legality of certain provisions of the Bill due to its potential conflict with the provisions of section 192 of the Constitution of the Republic of South Africa Act, 1996 ("the Constitution"). The SABC does not intend to revisit the grounds upon which it and other stakeholders have concerns regarding the constitutionality of certain of the Bill's provisions.
2. The SABC believes that the best way it can contribute to the process in this regard is to provide practical, workable proposed amendments to the Bill to achieve the following objectives:
1. address legitimate concerns about the importance of government playing a key and guiding role with regard to appropriate policy development in respect of the entire communications sector;
2. address concerns with regard to the unconstitutionality of certain of the existing provisions of the Bill, particularly in regard to the role and position of the Independent Communications Authority of South Africa ("ICASA"); and
3. assist the Committee in addressing both of these concerns in order to ensure that the public interest is served by having Government being able to play a leading role in the development and direction of the communications sector without there being any suggestions of this being done in an unconstitutional manner, and therefore of Parliament being found to have acted illegally.
3. In its original submissions, the SABC made it clear that it is of the view that the Convergence Bill represents a major step forward for the communications sector and the regulation thereof. In particular, the SABC commends the drafters for the fact that the position of ICASA set out therein is far more coherent and well-regulated in comparison to the bifurcated nature of its powers and functions as set out in the existing broadcasting and telecommunications legislation. While the SABC understands the historical background to these developments, it none the less believes that the Bill represents a significant improvement upon ICASA's current position and therefore welcomes the Bill. However, as the SABC and a number of other stakeholders have pointed out, constitutionality concerns arise in respect of two main and important areas, namely:
1. licensing; and
2. the management of the frequency spectrum.
4. The SABC is of the view that the potentially unconstitutional provisions in the Bill can, in fact, be rectified fairly easily through some wording changes to the Bill. The SABC sets out below its suggested amendments to certain provisions of the Bill to guard against a declaration of unconstitutionality (words in bold and in square brackets ought to be deleted and words underlined ought to be inserted):
1. Section 5(4) of the Bill:

Except in so far as the communications network services licences are to be used for the distribution of broadcasting signals, [T]the Authority may only accept and consider applications for communications network services as from a date to be fixed by the Minister by notice in the Gazette.

1. Section 5(5) of the Bill:

Subject to subsection (4), [T]the Minister may determine the date when and the geographical area within which communications network services licences may be granted.

1. Section 9(2)(e):

submit to the Minister the proposed licence conditions in order to obtain the Minister's views and comments thereon [for approval].

1. Section 34(7):

After the hearing, if any, and after due consideration of any written representations received in response to the notice mentioned in subsection (5) or tendered at the hearing, the Authority must forward the radio frequency plan to the Minister and the Minister must [for approval and implementation of]:

a.       approve the plan if it complies with the Republic's International Telecommunications Union's obligations; and

b.       implement any migration plan identified therein

1. Section 34(14)(a)

The Minister may allocate appropriate portions of the radio frequency spectrum for the exclusive use of the security services where this is necessary to safeguard national security.

1. AMBIT OF THE BILL
1. The SABC wishes to augment the arguments made in paragraph 3.1 of the initial submissions as set out below.
2. In order to ensure the most coherent legislative environment for communications regulation, the SABC reiterates the importance of re-naming the Broadcasting Act, 1999 ("the Broadcasting Act") the South African Broadcasting Corporation Act, as so many of the general provisions in the Broadcasting Act are already to be repealed by the Bill.
3. In addition to the repeal of sections provided for in the Bill, the SABC suggests that the following sections or provisions require to be repealed or amended as they do not relate to the SABC or are not required to be maintained in the Broadcasting Act:
1. the preamble: references to matters that are now to be dealt with in the Bill ought to be repealed and where necessary, carried over into the provisions of the Bill;
2. section 1: all definitions that are not specifically mentioned in body of the Broadcasting Act after it has been made to apply specifically to the SABC ought to be repealed and carried over into the provisions of the Bill. Subject to these being correct. In this regard the SABC notes the following example of problems with the definitions section:
1. in terms of the schedule to the Bill, the definition of broadcasting signal distribution licensee in the Broadcasting Act is to be amended to provide that this means, inter alia, the holder of a communications service licence. However, this directly contradicts the provisions of section 85(3)(f) of the Bill which provide that broadcasting signal distribution licences are communications network services. The SABC submits that the latter is the correct position;
2. the Bill introduces the definition of "investigation unit". However:
1. this term is not referred to elsewhere in the Broadcasting Act;
2. this definition refers to a body established in terms of section 17H of the Independent Communications Authority of South Africa Act, 2000 ("the ICASA Act"). However section 17H of the ICASA Act does not exist. The SABC reiterates that it appears as if it is the intention of the Executive to amend the ICASA Act but an ICASA Amendment Bill has not been introduced in Parliament as yet. The SABC reiterates that it is of the respectful view that to make reference to sections that are intended to be amended without providing the public with an opportunity to see and to comment on such provisions, denies the public an opportunity for involvement in the legislative process in contravention of the requirements of section 59(1)(a) of the Constitution; and
3. in the Bill itself, the committee to be established in terms of s17H of the ICASA Act is in fact called the Complaints and Compliance Committee;
3. section 2: all objects that do not relate to the SABC specifically ought to be carried over into the provisions of the Bill;
4. Chapter II, that is sections 3 and 4, ought to be repealed and carried over into the provisions of the Bill;
5. section 5 ought to be repealed and carried over into the provisions of the Bill;
6. section 38 ought to be repealed and, provided the Committee is satisfied as to the efficacy of this body which has been provided for in legislation for six years, carried over into the provisions of the Bill;
7. section 42 ought to be subject to the provisions of the Constitution which, legally, is the supreme law of the Republic; and
8. section 43 ought to be amended to refer to the SABC Act.
4. The SABC specifically reiterates its concern at the apparent mistaken repeal of section 27 of the Broadcasting Act by the Bill. This section, providing for television licences is critical to the financial viability of the public broadcaster, something that is an object of the Bill in terms of the provisions of section 2(t) of the Bill, and ought not to be repealed.

1. THE LEGISLATIVE FRAMEWORK FOR BROADCASTING GENERALLY
1. The SABC respectfully submits that key legislative requirements regarding broadcasting appear to have been overlooked in the drafting of the Bill. The SABC makes the suggestions for ensuring appropriate regulation of broadcasting as set out below. These are, of course, to be read in conjunction with the submissions made above and in its original submissions.
2. The objects contained in section 2 of the Independent Broadcasting Authority Act, 1993 ("the IBA Act") are required to be appropriately synthesised with the relevant objects of the Broadcasting Act to ensure against unnecessary repetition and these must be carried over into the objects of the Bill. While the SABC appreciates that this has been done to a certain extent, there are a number of important objects in the IBA and Broadcasting Acts which are missing from the objects of the Bill, for example: sections 2 (gA), (j), (l), (n), (s), (t) and (u) of the IBA Act and sections 2 (a), (b), (d), (e), (k) and (r) of the Broadcasting Act.
3. The SABC is concerned that a number of provisions in the IBA Act which deal with the powers and functions of ICASA have been repealed without being carried over into the Bill. It may well be that the intention is that these will form part of an ICASA Act Amendment Bill. However no such Bill has been introduced and therefore it is imperative that the Committee ensure against a lacuna developing in the communications legislative framework in respect of ICASA. The provisions referred to above include:
1. section 13, which deals with important general powers and functions of ICASA;
2. section 17, which deals with ICASA's authority to open and maintain a bank account;
3. sections 21, 22, 62, 63, 64 and 65, which deal with the establishment and workings of the Broadcasting Monitoring and Complaints Committee ("the BMCC");
4. section 27, which deals with ICASA's authority to appoint experts to assist it in the exercise of its work;
5. sections 28 and 28A, which deal with ICASA's ability to conduct enquiries;
6. section 66, which gives ICASA the authority to make orders in respect of proven non-compliance with the IBA Act, licence conditions or codes of conduct;
7. section 66A, which gives ICASA the authority to grant permits or make authorizations in respect of certain broadcasting signal distribution equipment and apparatus in respect of subscription broadcasting services;
8. section 68, which deals with the keeping of minutes of ICASA's council and its committees;
9. section 69, which deals with delegation by the ICASA council;
10. section 70, which requires ICASA to maintain a register of licences;
11. section 71, which deals with informing ICASA about changes in a control in a licensee and with the statistical information that ICASA may require broadcasters and signal distributors to keep. While the SABC is aware that section 13 of the Bill is likely to deal with the first clause in section 71 and that broadcasters are required to keep programme records in terms of section 50 of the Bill. However ICASA ought to have the authority to require other kinds of record keeping in respect of licensees should the public interest require this;
12. section 72, which authorizes ICASA to demand production of licensees' books, records and other documentation relating to obligations upon licensees;
13. section 73, which authorizes ICASA to make various inspections in relation to its powers and functions under the IBA Act;
14. section 74, which restricts persons from using the name or implying a connection with ICASA;
15. section 76, which provides for limitation of liability of the councilors, staffers and advisors to ICASA in respect of the good faith performance of their duties;
16. section 77, which imposes upon ICASA a duty of confidentiality; and
17. section 81, which provides against the liquidation of ICASA.
4. The provisions of section 67 of the IBA Act set out a range of different penalties applicable to different offences in respect of the IBA Act. While section 64 of the Bill deals with offences and penalties, the SABC submits that it is insufficiently nuanced to deal appropriately with the different types of conduct that may occur in contravention of the Bill and thus the SABC submits that the provisions of section 67 of the IBA Act, with appropriate amendments, be incorporated into section 64 of the Bill.
5. The SABC is concerned that a number of important provisions regarding the regulation of signal distribution (now to be known as communications network services) have not been appropriately provided for in the Bill. In this regard:
1. section 35 contains important provisions regarding, inter alia, transmissions characteristics of signal distribution services and ICASA's authority in regard to approving amendments to these. These ought to be incorporated into the Bill with appropriate amendments;
2. section 36 contains the general obligations of broadcasting signal distributors, including environmental etc obligations and these ought to be incorporated into the Bill with appropriate amendments; and
3. section 38A sets out limitations on foreign ownership of broadcasting signal distribution licensees and while ICASA is granted general powers to regulate in respect of ownership issues in terms of section 13 of the Bill, unfortunately, this section makes no reference to foreign ownership issues and it is not clear whether ICASA is able to regulate in respect of foreign ownership limitations. Consequently, the SABC suggests that this ought to be provided for appropriately in the Bill.
6. The SABC is concerned that a number of important provisions regarding the regulation of broadcasting services have not been appropriately provided for in the Bill. In this regard:
1. section 43 of the IBA Act deals with the imposition of licence conditions in respect of broadcasting licences. The SABC refers the Committee to its concerns with section 8 of the Bill in this regard, which concerns are contained in paragraph 3.7 of its original submissions. The SABC suggests that section 43 be incorporated into section 8 of the Bill with appropriate amendments;
2. section 46 of the IBA Act deals with key issues in regard to the licensing of commercial broadcasting licensees. The SABC suggests that section 43 be incorporated into Chapter 9 of the Bill with appropriate amendments;
3. section 47 of the IBA Act deals with key issues in regard to the licensing of community broadcasting licensees. The SABC suggests that section 43 be incorporated into Chapter 9 of the Bill with appropriate amendments;
4. Sections 48 – 51 of the IBA Act deal with specific legislative policy with regard to appropriate ownership limitations in respect of broadcasting licences. With the exception of section 51, which is provided for in section 49 of the Bill, the other sections are not reflected in the Bill. The SABC reiterates its concerns in this regard, which are contained in paragraph 3.11 of its original submissions and suggests that section 48-50 of the IBA Act be incorporated with appropriate amendments along the lines of the suggested amendments which ICASA has already forwarded to the Minister of Communications following the publication of its Position Paper of the Review of Ownership and Control of Broadcasting Services and Existing Commercial Sound Broadcasting Services dated 13 January 2004.
7. The SABC submits that section 82 of the IBA Act, which provides that the IBA Act binds the State and the President, ought to be carried over into the Bill.

1. CONCLUSION
1. Once again, the SABC thanks the Committee for the opportunity to make these additional submissions as part of the oral hearings process.
2. The SABC wishes to reiterate that it is supportive of the aims and objects of the Bill and offers its services and resources to the Committee, particularly in regard to issues pertaining to ICASA and broadcasting generally, should these be of value to the Committee in making the necessary amendments to the Bill before it is enacted.