The Changing Communications Regulatory Landscape Convergence

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The Changing Communications Regulatory Landscape
- Convergence

• Aynon Doyle
• 7 March 2006
• SANGONeT Conference Exhibition ICTs for Civil
  SocietyIndaba Hotel, Sandton

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Disclaimer
Any views expressed in this presentation are
those of the individual presenter, except where
the presenter specifically states them to be the
views of ICASA. This presentation may not be
reproduced without the prior written consent of
the author and ICASA Management.
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Overview
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1. Introduction

• In 2005, the Minister of Communications tabled
  two Bills in the National Assembly aimed at
  changing the regulatory framework to meet the
  needs of convergence.
• The Convergence Bill B09-2005 set out a
  converged licensing framework and proposed the
  repeal of the existing broadcasting and
  telecommunications legislation. This Bill was
  later renamed the Electronic Communications Bill.
• The ICASA Amendment Bill B32-2005 deals with
  amending the functions and organisation of the
  regulator, as well as introducing holistic
  enforcement and compliance structures to reflect
  convergence between networks.

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2. NEW REGULATORY FRAMEWORK
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2.1 Electronic Communications Bill Impact

• The most fundamental impacts of the Electronic
  Communications Act (ECA) once it commences will
  be the
• repeal of the Telecommunications Act and the
  Independent Broadcasting Authority Act and the
  substantial amendment of the Broadcasting Act
  (potentially to be renamed the SABC Act)
• Convergence of Telecommunication and Broadcasting
  regulation making processes into one process in
  terms of the ECA
• Replacement of the existing telecommunications
  and broadcasting licensing frameworks with a
  single licensing regime
• Enhancement of the Authority's competition powers
  in terms of dispute settlement and significant
  market power determinations and
• Setting of specific timelines for transition
  which the Authority must comply with.

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2.2 ICASA Amendment Bill Impact

• The most fundamental impacts of the ICASA
  Amendment Act once it commences will be that the
• Functions and staff of the postal regulator are
  incorporated into ICASA
• Role of the Council Chairperson is increased
• Council size increases from 7 to 9
• Inquiry processes for telecommunications and
  broadcasting are converged into one process
• Council appointment and performance management
  process now are the responsibility of the
  Minister
• Telecommunications and broadcasting complaints
  hearing and enforcement functions and processes
  now reside within a single body, namely the
  Complaints and Compliance Committee (CCC) and
• Powers of inspectors are increased and functions
  clarified.

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2.3 ICASA Simplified Value Chain
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Scope of Regulation

• electronic communications means the emission,
  transmission or reception of information,
  including without limitation, voice, sound, data,
  text, video, animation, visual images, moving
  images and pictures, signals or a combination
  thereof by means of magnetism, radio or other
  electromagnetic waves, optical, electromagnetic
  systems or any agency of a like nature, whether
  with or without the aid of tangible conduct, but
  does not include content service. Final Bill
• electronic communications means the emission,
  transmission or reception by electronic means of
  information including without limitation, voice,
  sound, data, text, video, animation, visual
  images, moving images and pictures, signals or a
  combination thereof. Portfolio Committee Final
  Deliberations, September 2005

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2.4 New Approach to licensing

• All licences are now divided into Individual,
  Class or Exempt.
• An Individual licence is a licence which is
  customised in terms of its licence conditions to
  be specific to the applicant being licensed.
• A Class licence can be described as an out of
  the box licence, it involves no more than a
  registration process of 60 days.
• Exempt means exempt from having to apply for a
  licence or register, but does not necessarily
  exclude such an operator from the general
  provisions of the Act once it commences.

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Individual Class licences
Generic provisions of the Bill apply to all
relevant activities
Standard licence conditions common to Individual
and Class licenses
Standard Licence Conditions common to Individual
Licenses
Special conditions
Undertakings
Exempt
Individual
Class
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New Approach to licensing (2)

• The Act, once it commences, creates four markets
  or licensable activities within the ambit of
  Individual and Class licenses.
• The licensable activities are
• Electronic Communication Network Services
• Electronic Communication Services
• Broadcasting Services
• Radio Frequency Spectrum.
• The diagrams which follow illustrate the four
  licences and their relationship to Individual,
  Class and Exempt, as well as providing some
  examples of their operation as provided by the
  Act once it commences.

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Four licensable activities or markets
4 licensable activities or markets
Individual
Class
Exempt
Licensed
Unlicensed
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(No Transcript)
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New Approach to licensing (3)

• Terms and conditions
• The ECA provides that the Authority shall
  prescribe standard terms and conditions to be
  applied to individual and class licences
• A list is provided of standard terms and
  conditions which the Authority may take into
  account in Chapter 3, e.g. licence area,
  duration, public interest
• The Authority may impose additional obligations
  on any individual or class licence in accordance
  with Chapter 10 (Competition Matters) and
  universal service and universal access.

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New Approach to Licensing (4)

• Licence periods
• Individual licences may be issued for a period of
  20 years, unless a shorter period is requested by
  the applicant or designated by the Authority
• Class licences may be issued for a period of 10
  years unless the Authority indicates to the
  contrary

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New Approach to Licensing (5)

• Licensing Regulations
• The Bill provides that the Authority shall
  prescribe regulations for licences and may
  prescribe different regulations for different
  types of individual and class licences.

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3. Impacts of Change on the Regulator
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3.1 Structural Impacts

• The commencement of the Electronic Communications
  Act and the ICASA Amendment Act will result in an
  increase in functions of the Authority in the
  areas of investigation, inspection, complaints
  handling, dispute resolution, adjudication,
  regulation, and conduct of market review studies.
  
• This will require the Authority to restructure
  itself internally to deliver on the new
  requirements, as well as introduce new
  regulations to support the ECA and ICASA
  Amendment Acts provisions.
• Restructuring will have a number of budgetary
  implications.
• ECA establishes Consumer Advisory Panel and ICASA
  Amendment the Complaints and Compliance Committee.

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3.2 Transitional Provisions

• All current issued licences remain valid until
  converted and all services that did not
  previously require a licence have a deemed
  licence exemption until notified by the Authority
  that a licence is required.
• Existing licences must be converted with 24
  months of the ECA commencing and any extension
  period to this may not exceed 6 months.
• Any current applications, process,
  recommendations pending before the ECA came into
  force will be considered as if submitted in
  accordance with the ECA.

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Transitional Provisions (2)

• Within 30 days of the ECA commencing the
  Authority must gazette a schedule in terms of
  which it intends undertaking the licence
  conversion process.
• The notice must
• Identify the holders of existing licences and
  nature of existing licence
• Set out a time frame for conversion including
  time frame for granting new licences
• Set out the form and content and information that
  must be provided to the Authority by existing
  licensees to assist the conversion process

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Transitional Provisions (3)

• Set out the process the Authority plans to
  undertake in converting existing licences, and
• Confirm the rights of applicants to participate
  in such process
• Separate licences will be issued where the
  existing licence spans categories set out in
  chapter 3 of ECA.
• The Authority may not grant or include in any
  licence converted any monopoly or exclusionary
  rights in any network or service and any such
  rights that exist by virtue of IBA Act, Sentech
  Act or Telecommunications Act are null and void.
  Radio Frequency spectrum assigned to licence
  holder is not viewed as being monopoly or
  exclusionary rights.

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Transitional Provisions (8)

• Within 24 months of ECA coming into force current
  regulations must be repealed or amended, however
  they will remain in force until repealed or
  amended.
• However, in order to do the conversion of
  existing licences to the new framework within 24
  months all regulations impacting on licensing
  must be repealed, amended and/or new regulations
  must be issued in terms of the ECA. To meet the
  deadline for conversion of existing licences this
  will need to be done within 8-12 months of the
  ECA commencing.

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3.3 Other tasks with specified time limits

• Make carrier pre-selection regulations by 1 July
  2006 (s.42)
• Prepare national radio frequency plan or modify
  existing plan to conform to Act within 12 months
  of Act commencing (s. 34(4)).
• Number portability measures to be introduced in
  2005 or soon thereafter (s.68(1)(b))
• There are also a number of provisions that state
  as soon as reasonably possibly

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• Concluding Remarks