Independent Communications Authority of South Africa Amendment Bill

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• Independent Communications Authority of South
  Africa Amendment Bill
• Presentation to the
• Portfolio Committee on Communications

24 October 2005
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Roadmap

• INTRODUCTION
• APPOINTMENT OF THE ICASA COUNCILLORS
• FINANCING OF THE AUTHORITY
• CONDUCT OF INQUIRIES
• COMPLAINT AND COMPLIANCE COMMITTEE
• CONCLUSION

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• INTRODUCTION

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Introduction

• MTN welcomes an opportunity to make an oral
  presentation on the ICASA Amendment Bill.
• The ICASA Amendment Bill is inextricably linked
  to the Convergence Bill and our input would have
  been enriched if this Bill was released earlier.
• MTN further notes the objectives of the Bill and
  urges the Committee to carefully consider these
  objectives as they may have negative consequences
  and the contents may not advance these objectives
• The objectives of the Bill which may have
  negative consequences are
• Amendment of the procedure for the appointment of
  Councillors
• Financing of the Authority

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• APPOINTMENT OF ICASA COUNCILLORS

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Appointment of ICASA Councillors

• The Bill seeks to amend the ICASA Act by
  replacing the current procedure for the
  appointment of the ICASA Councillors by
  Parliament
• The Bill proposes that the authority to make
  appointments is bestowed on the Minister of
  Communications on the recommendation of an
  Independent and impartial panel constituted ad
  hoc by the Minister
• MTN does not support this approach for the
  following reasons
• A separate regulatory authority are able to
  implement government policy in an objective and
  impartial manner
• Market confidence in the impartiality of
  regulatory decisions generally increases with the
  degree of independence from both government and
  operators
• The role envisaged for the Minister in the Bill
  is worrisome because of direct shareholding in
  Telkom and the interest in Sentech and the SNO.
• The Regulator must be seen to be insulated from
  political and commercial influence.

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Appointment of ICASA CouncillorsCont

• Langa DP, in the New National Party of South
  Africa v/s Government of the Republic and Others,
  made the following points regarding institutions
  supporting constitutional democracy
• Are independent and subject only to the
  Constitution and the law
• Are accountable to the National Assembly
• Must report on their activities and functions to
  the National Assembly
• Must be protected by other organs of state
  through legislative and other measures to ensure
  their independence, impartiality, dignity and
  effectiveness and
• Should not be interfered with in the execution of
  its functions by any person or organ of state
• These principles should apply ICASA by virtue of
  section 192 of the Constitution which enjoins
  Parliament to establish an Independent Authority
  to regulate Broadcasting

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• FINANCING OF THE REGULATOR

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FINANCING OF THE REGULATOR

• Section 15 of the ICASA Act is amended to allow
  the Authority to receive money determined in any
  other manner as may be agreed between the
  Minister and the Minister of Finance and approved
  by Cabinet.
• According to international precedents, financing
  of the regulator through monies derived from
  licence fees is the first step in attaining true
  regulatory independence and autonomy
• The funding of regulatory agencies other than
  through monies determined by the Governmental
  Departments is a key measure of independence of
  the regulator
• MTN submits that the Bill should allow funding of
  the Authority through the retention of a portion
  of licence and spectrum fees based on the budget
  requirements of the regulator

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• CONDUCT OF INQUIRIES

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Ambiguities surrounding the Conduct of Inquiries

• Section 4C(7) of the Bill seems to propose that
  the findings made by the Authority will be made
  enforceable and binding on all licensees and
  other stakeholders in the postal and
  communications sector
• This provision fails to provide fair warning to
  affected parties of the conduct that is expected
  of them. It also seeks to impose a result on
  entities that may not necessarily be party to an
  enquiry
• Also, these provisions in the ICASA Amendment
  Bill creates the possibility that the market
  analysis process in Chapter 10 of the Convergence
  Bill to comply with competition principles could
  be circumvented by a general enquiry
• MTN proposes that section 4C(7) should be deleted

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• PROCEDURE COMPLAINT AND COMPLIANCE COMMITTEE

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Procedure for Complaint and Compliance Committee

• Section 17C 1(a) of the Bill provides that a
  person who has a reason to believe that a
  licensee is guilty of non-compliance may lodge a
  complaint with the Authority
• The reason to believe test in the discretion of
  the complainant is inappropriate. This could lead
  frivolous complaints if left unchecked
• MTN proposes that the test used to refer a
  complaint to the Authority must be objective and
  that the complainant must at least provide prima
  facie proof of his/her allegations.

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• CONCLUDING REMARKS

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Conclusion

• Parliament must endeavour to give ICASA the
  autonomy and independence that is needed
• This could be achieved by adopting a funding
  model that allows ICASA to keep a percentage of
  licence and spectrum fees that it collects
• The answer to address problems with the current
  appointment procedures of councillors does not
  lie in shifting the power of making appointment
  from Parliament to the Minister of Communications
  and an ad hoc panel
• This approach will have a significant set back to
  the country, including perceived political
  interference, non-compliance with the WTO
  commitments as well as other negative
  ramifications
• MTN urges Parliament to avoid negative
  ramifications by removing the problematic
  provisions in the Bill.