Independent Communications Authority of South Africa Amendment Bill Presentation to the Portfolio Committee on Communications 24 October 2005

Roadmap INTRODUCTION APPOINTMENT OF THE ICASA COUNCILLORS FINANCING OF THE AUTHORITY CONDUCT OF INQUIRIES COMPLAINT AND COMPLIANCE COMMITTEE CONCLUSION LEGAL AND CONSTITUTIONAL ARGUMENTS. CONCLUDING REMARKS.

INTRODUCTION

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

APPOINTMENT OF ICASA COUNCILLORS

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.

Appointment of ICASA Councillors Cont… 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

FINANCING OF THE REGULATOR

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

CONDUCT OF INQUIRIES

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

PROCEDURE COMPLAINT AND COMPLIANCE COMMITTEE

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.

CONCLUDING REMARKS

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.