Telkom

1
Telkoms Submission to the Parliamentary
Portfolio Committee on Communications on a Bill
to amend the ICASA Act

• 24 October 2005

2
Telkoms delegation

• Dr. Gabriele Celli Acting Group
• Executive
• Adv. Benitto Lekalakala Executive
• Mr. Izaak Coetzee Executive
• Ms. Nozicelo Ngcobo Senior Manager
• Mrs. Raksha Singh Senior Specialist

3
Agenda

• Introductory remarks
• Detailed comments
• Conclusion

4
Introductory remarks

• Telkom supports the proposed legislation and
  appreciates the opportunity to contribute to it
• Telkom views the Bill as a positive development,
  that will provide certainty through
• better definition of the functions and powers of
  ICASA
• broader scope to its financing
• establishment of the Complaints and Compliance
  Committee and of inspectors

5
Concerns on some aspects of the Bill

• Purpose of inquiries by the Authority
• Power of the Authority to delegate any of its
  functions too broad
• Standing and special committees that need not
  comprise a Councillor
• Some of the powers of the Authority not
  explicitly linked to the underlying statues
• Possible overlap of responsibilities between the
  Complaints and Compliance Committee and the
  inspectors, which could lead to confusion

6
Functions of the Authority Chairperson
s.4(3) (c) manage the radio frequency spectrum
(e) grant, renew and amend licences (f)
approve technical parameters Suggest that
clauses (c) to (f) be deleted as more
appropriately addressed in the underlying
legislation
7
Functions of the Authority Chairperson
s.4(4) Council may delegate any function of the
Authority to a councillor, a committee of the
Council or the CEO Too wide may confer powers
on a committee or the CEO which are not
appropriate and may result in the Authority
fettering its own powers. Recommend that the
section be augmented with the safeguards similar
to s.91 of the Telecommunications Act
8
Enquiries by the Authority
s.4B The Authority may conduct an inquiry for
the purpose of improving the performance of its
functions The Authority should be empowered to
conduct public enquires on any matter that it
deems relevant to the performance of its
functions and to achieve the objects of the Act
(e.g. whether existing regulations are effective,
whether changing market conditions require
additional or different regulatory interventions,
etc.)
9
Enquiries by the Authority
The Authority may also enquire on 4B(1) (c)
compliance with the Act and the
underlying statutes and (d) compliance with
the terms and conditions of a
licence Compliance by persons with the statutes
or with the terms and conditions of any licence
is the subject of ss.17A to 17E. Recommend that
s.4B(1)(c) and (d) be deleted.
10
Conduct of Inquiries
Section 4C(2) provides for the power to subpoena
information to be produced and persons to appear
at an enquiry. Section 17H(1) makes a failure
to comply with 4C(2)(a) or (b) or (c), an offence
under the Act. Yet no provision has been made in
s.4C(1) for the qualifications of the person
presiding at the enquiry. Recommend that the
person presiding be a member of council.
11
Conduct of Inquiries
Section 4C(6) provides that the Authority must
make findings and section 4C(7) provides that
such findings are enforceable and binding on all
licensees. If the finding is that, to improve
the performance of the Authoritys functions,
some enforceable intervention may be necessary,
such will probably require the making of
regulations, as provided for in the underlying
statutes. Recommend that s.4C(7) be deleted to
prevent alternative process of rule making.
12
Constitution of and Appointment of Councillors
Constitution of and appointment of councillors
Minister appoints councillors. Minister is the
shareholder in several licensees. Could result in
conflict of interest.
Confidentiality Section 14C provides for the
protection of confidential information by the
Authority and its employees. If experts and
inspectors are not employees of the Authority
they should be brought within the ambit of
section 14C.
13
Standing and Special Committees
Subsections (2) to (9) are repealed. These
subsections provide for membership of committees,
to be chaired by a councillor, and for procedural
matters relating to meetings of the
committees. These committees may be involved in
addressing matters of great importance (licence
applications, enquiries, regulations, etc.) which
may affect the rights of interested
persons. Recommend that Subsections (2) to (9)
be retained.
14
Establishment of Complaints and Compliance
Committee (CCC)
Section 17A is supported, but would have
preferred this body to be in the nature of a
tribunal, so as to separate the Authority's rule
making powers from its adjudicative
powers. Recommend that the CCC be established
within 6 months.
15
Establishment of the CCC clarifications needed
- Permanent or ad hoc body - Relationship with
the staff of the Authority, its financing and
remuneration - Possible interim arrangements if
s.100 of the Telecommunications Act is repealed
by the Convergence Act.
16
Functions of the CCC

• The CCC must investigate
• all matters referred to it by the Authority, and
• all complaints and allegations of non- compliance
  referred to it (by whomever).
• Contradictory to section 17C(1)which provides
  that complaints should be lodged with the
  Authority (not directly with the CCC. Section
  17C(1) is more appropriate, allowing the
  Authority to assess nature of complaint.
• Recommend that s.17B(a)(i) and (ii) be deleted

17
Procedures of the CCC
S.17C provides that persons may lodge with the
Authority complaints for non-compliance by
licensees. The Authority should be able to
investigate any person who may be in
contravention of the Act. Guilt can only be
determined after due process. Recommend that
s.17C be amended to refer to allegations of
non-compliance and to extend the investigative
powers beyond licensees.
18
Findings by the CCC
s.17D provides that the CCC must make findings
and make recommendations to the Authority for
decisions on actions to be taken. The findings
should explicitly be based on the underlying
statutes, the scope of investigations should be
extended beyond licensees, and all affected
parties should be informed of the
findings. Recommend that s.17D be amended
19
Decision by Authority
s. 17E provides that in making a decision, the
Authority should take into account all relevant
matters, including the recommendation of the
CCC. The findings and recommendations of the CCC
should be the primary basis of the decision to be
made by the Authority. The other considerations
contemplated in s.17E should then be taken into
account by the Authority when exercising its
discretion. Recommend that s.17E be amended
20
Inspectors

• Subsection (s.17F 5) could create confusion or
  overlap between CCC and the inspectors in
  initiating investigations
• - there should be a single point of entry for
  lodging complaints with the Authority
• - inspectors should not be empowered to receive
  complaints or to initiate investigations other
  than from the Council or the CCC
• - any action by the inspectors should be mandated
  
• Recommend that s.17E be amended

21
Offences and Penalties

• Subsection 17H(1)(c) provides that it is an
  offence to make a false statement before the
  Authority knowing such statement to be false or
  "not knowing or believing it to be true.
• The last provision poses an unreasonable burden
  on the person making a statement.
• Recommend that the phrase not knowing or
  believing it to be true be deleted

22
Concluding Remarks

• The Bill will assist the Authority to exercise
  its functions more efficiently
• Telkom substantially supports the Bill and hopes
  that its comments and suggestions are a positive
  contribution
• Telkom wishes the Portfolio Committee on
  Communications success in this very important
  endeavour

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Thank you