REGULATORY AFFAIRS S.A.

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ICASA AMENDMENT BILL Vodacoms Presentation to
the Portfolio Committee on Communications Presen
ted by Pakamile Pongwana 24 October 2005
REGULATORY AFFAIRS S.A.
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Outline of Presentation

• Introduction
• Vodacoms Key Concerns and proposed Wording
• Sections 4, 4B, 4C and sections 17 and 17C
• Section 21(2) of the current ICASA Act.

REGULATORY AFFAIRS S.A.
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Introduction

• Vodacom thanks the Portfolio Committee for the
  opportunity to comment on the Independent
  Communications Authority of South Africa (ICASA)
  Amendment Bill
• Vodacoms comments are limited to a few sections
  in the Bill and specifically aimed at eliminating
  ambiguity and uncertainty regarding ICASAs
  authority in terms of this Bill and the
  underlying legislation

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Introduction

• Vodacoms comments pertain to
• Sections 4, 4B, 4C and sections 17 and 17C
• Section 21(2) of the current ICASA Act

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Section 4(3)(e) - Powers must be qualified

• Ad Section 4(3)(e) - Function of the Authority
• As a body of statute, ICASA has delegated powers
  and no original powers
• ICASAs powers and authority, i.e. to grant,
  renew and amend licenses must therefore be
  qualified in terms of the enabling and underlying
  legislation
• Section 4(3)(e) should therefore be extended to
  read as follows
• (e) must grant, renew and amend licenses in
  accordance with the underlying statutes

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Section 4B C- Ambiguity and uncertainty

• Ad Section 4B - Inquiries by the Authority read
  with Conduct of Inquiries Section 4C
• These sections when read together are ambiguous
  and unclear specifically regarding the
• purpose for which an enquiry will be held
• is an enquiry an information gathering process to
  assist ICASA to make regulation subsequent to the
  conducting of an enquiry?
• Or
• is it a complaints and compliance hearing?
• legal status of the findings of an enquiry

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Section 4B C- Ambiguity and uncertainty

• Reason for uncertainty is that
• The adversarial nature of the process in section
  4D advocates against an information gathering
  process and rather resemble a hearing or a court
  case
• and
• Section 4C(7) creates the impression that the
  findings of an enquiry will have the same status
  as a regulation or a finding of guilty in respect
  of a statutory violation or a breach of a licence
  term and condition
• It is also not clear when ICASA would use section
  4B to address complaints and compliance issues
  and when section 17B must be utilized?

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Section 4B C- Ambiguity and uncertainty

• Vodacom agrees that ICASA must be authorised to
  hold public enquiries for the purposes set out in
  the Bill
• However to prevent prosecution by public
  opinion statutory and licence compliance must be
  dealt with by the Complaints and Compliance
  Committee

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Section 4B C- Ambiguity and uncertainty

• Vodacoms proposed amendments therefore are that
• Section 4B(c) and (d) should be deleted as
  section 17(B) deals comprehensively with
  complaints and compliance hearings
• Sections 4C(2), (3), (4), (5) and (7) are not
  relevant to an inquiry and pertain to hearings
  and should be deleted in section 4C and
  transferred to section 17B

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Section 4B C- Ambiguity and uncertainty

• To ensure informed public participation Section
  4B(2) should be extended to impose on ICASA an
  obligation not to only indicate the subject
  matter of an enquiry but to publish a discussion
  document that explains the basis of, the reasons
  for and the purpose of the public enquiry
• Vodacom proposed wording for Section 4B(2)
  therefore is
• The Authority must, in the Gazette, give notice
  of its intention to conduct an inquiry and such
  notice must indicate the subject matter of the
  inquiry, together with a discussion document,
  which shall set out the basis and the reasons for
  the inquiry, and invite interested persons to -

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Section 4B C- Ambiguity and uncertainty

• To ensure that the regulation making process is
  not bypassed Vodacom propose Section 4C(7) to be
  extended to include the bold underlined words
• The findings contemplated in subsection (6) are
  enforceable and binding on all licensees and
  other stakeholders in the postal and
  communications sector to the extent that such
  findings are incorporated in regulations and are
  applicable to their regulated activities

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Why delete section 17(2) to 17(9)?

• Ad Section 17 Standing and Special Committees
• It is not clear why sections 17(2) to 17(9) of
  the current ICASA Act have been deleted
• The mentioned sections should be retained as it
  provides much needed clarity and certainty with
  regard to the constitution of a committee,
  Councillor representivity on a committee,
  decision making procedures etc.

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Section 17C Just administration

• Ad section 17C Procedure of Complaints and
  Compliance Committee
• Just administrative action requires that any
  complaint lodged with the Authority has to comply
  with the following requirements
• it has to be in writing
• it has to state the date, time and place on which
  the licensee has breached its licence terms and
  conditions or the provisions of the underlying
  legislation
• it has to motivate why the specific action or
  failure of the licensee constitutes a breach of
  the licence terms and conditions or the
  provisions of the underlying legislation
• Section 17C(1)(a) should therefore incorporate
  the above provisions

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Section 17C Just administration

• Vodacoms proposed amendments to
• Section 17C(1)(a)
• A person who has reason to believe that a
  licensee is guilty of any non-compliance with
  the terms and conditions of its licence or with
  this Act or the underlying statues may lodge a
  complaint in writing, stating the nature of the
  breach as well as the date, time and place on
  which the breach has occurred
• Section 17C(6) should be deleted and should be
  replaced with the wording of section 4C
  (2)(3)(4)(5) and (7)

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Why delete Section 21? Pending Matters

• Ad the deletion of section 21(2) Pending
  Matters
• A number of decisions by the PMG and/or SATRA are
  still and will continue to be relevant to the new
  converged environment
• Section 21(2) of the current ICASA Act deems any
  order, ruling or direction made by a former
  authority to have been made or given by ECASA and
  must therefore remain
• Vodacom proposes the retention of section 21(2),
  i.e.
• Section 21(2)- Any order, ruling or direction
  made or given by the former authorities
  immediately before the establishment date must be
  regarded as having been made by the Authority

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THANK YOU
REGULATORY AFFAIRS S.A.