ELECTRONIC COMMUNICATIONS AMENDMENT BILL NAB PRESENTATION 27 November 2018

NAB DELEGATION NAB Chairperson: Philly Moilwa Executive Director: Nadia Bulbulia Executive Policy & Regulation: Tholoana Ncheke

Introducing the NAB The NAB is the leading representative of South Africa’s broadcasting industry, comprising all three tiers of broadcasters -public, commercial and community, as well as signal distributors, training institutions and industry associates. The NAB is a voluntary association funded by its members. 1

Members of the NAB Membership includes: The five television services and 19 radio services of the SABC. commercial radio media groups; Primedia, Kagiso Media, Tsiya Group, AME, MSG Afrika, as well as independents, Classic FM, Kaya FM, YFM, Smile FM, and All licensed commercial television broadcasters ( e.tv, Multichoice, M-Net, and Starsat/ODM). A host of community radio broadcasters and community television broadcaster, Faith Terrestrial. Both the licensed broadcast signal distributor and the selective and preferential broadcast signal distributors, Sentech and Orbicom. Associate members including Nemisa, Media Connection, LM Radio, and ACM. 2

Mandate of the NAB To ensure a broadcasting system that provides choice and diversity for audiences. To create a favourable climate for broadcasters to operate within. To ensure a broadcasting industry grounded in the principles of constitutionalism, democracy, diversity and freedom of expression. To ensure members adhere to the Code of Conduct as administered by ICASA and/or BCCSA. 3

ELECTRONIC COMMUNICATIONS AMENDMENT BILL SUMMARY OF KEY CONCERNS 4

Focus of NAB Submissions Background context Institutional arrangements Spectrum management High demand spectrum – implications for broadcasters Frequency licences Inter-governmental policy processes likely to impact the Bill Closing Remarks 5

Background This public participation process follows the legislative review process initiated by the Department of Telecommunications and Postal Services (DTPS) in November 2017. The NAB notes that this revised version of the Bill has taken into account earlier comments made by the NAB and ECNS licensees who are broadcasting signal distributors, are now correctly excluded from the open access provisions of the Bill 6

Background However, the NAB is still concerned with certain provisions relating to spectrum management and institutional arrangements. 7

Institutional arrangements The independence of ICASA - s30 Section 192 of the Constitution of the Republic of South Africa provides for the independent regulation of broadcasting The independence of the regulator and regulation is further safeguarded by section 3(4) of the ECA read together with sections 3(3) and 5(4) of the ICASA Act The Bill introduces a new provision in terms of which ICASA must now comply with ministerial policies and policy directions in its administration and management of spectrum 8

Institutional arrangements The independence of ICASA - s30 This amendment may have the unintended consequence of weakening the independent regulation of broadcasting as broadcasters are also users of radio frequency spectrum The NAB strongly recommends that the Bill be revised to give meaningful effect to ICASA’s independence 9

Institutional arrangements Implications of new provisions on ICASA’s capacity The Bill stipulates timelines within which ICASA is to develop regulations and also proposes substantial tasks for ICASA without any indication of whether there has been consideration of ICASA’s capacity to deliver thereon Any revision of these timelines would necessitate another legislative review process which requires time and resources The NAB respectfully cautions against this approach 10

Spectrum management Administration of spectrum - s30 Spectrum is assigned for services including broadcasting services in accordance with the National Radio Frequency Plan The effect of the proposed amendments is that assignment of all spectrum is now placed squarely within the purview of the Minister responsible for administering the ECA The sustainability of the broadcasting sector depends on the availability of sufficient spectrum, we trust that the Minister will engage with the broadcasting industry as part of the development process of the National Radio Frequency Plan 11

Spectrum management Spectrum sharing – s31C The Bill proposes provisions for spectrum sharing subject to either a notification to or approval from ICASA depending on whether the spectrum is high demand. The Bill further provides that ICASA must prescribe spectrum sharing regulations within 12 months of commencement of section 31C. The NAB recommends that this provision must only come into effect after the regulations have been developed and finalised to ensure that spectrum sharing is only implemented in instances where it has been determined that it will not cause any harmful interference as the regulations will determine the criteria and conditions for spectrum sharing 12

Spectrum management Spectrum re-farming – s31D The NAB understands that the demand for new technological services is growing at a rapid pace - resulting in spectrum re-farming The impact of spectrum re-farming on the broadcasting industry must also be given due regard, to ensure that licensed broadcasters are not squeezed out as a result of competition for limited frequencies on the radio spectrum over which they broadcast 13

High demand spectrum – implications for broadcasting High demand spectrum - s31E The Bill seeks to enable the licensing of the WOAN which will provide wholesale electronic communications networks and facilities on open access principles as defined in the Bill On 27 September 2018, the Minister published a notice inviting comments on the proposed policy directive to ICASA on the licensing of unassigned high demand frequency spectrum The proposed policy directive identifies the 700 MHz, 800 MHz and 2600 MHz as the suitable spectrum bands to operationalise the WOAN 14

High demand spectrum – implications for broadcasting High demand spectrum - s31E Whilst this published policy directive is a separate process from the legislative review process, broadcasters have a number of digital terrestrial television transmitters operating in the 700 MHz and 800 MHz bands. After analogue switch-off, these transmitters need to be migrated to below 694 MHz following a process of restacking. Any use of these bands while the aforementioned transmitters are still in operation will result in serious interference and prejudice to broadcasters. 15

High demand spectrum – implications for broadcasting High demand spectrum - s31E The NAB recommends that the timelines for the determination and assignment of the high demand spectrum should take into account the Broadcasting Digital Migration and the restacking processes as well as the spectrum needs of broadcasters Since they are already in use, these spectrum bands can be brought to use for the WOAN only after analogue switch off, and digital to digital migration has been completed, even if the bands are licensed beforehand. The NAB has made similar recommendations on the proposed policy directive. 16

Frequency : licence terms and conditions The Bill provides that radio frequency licences that include exclusively or individually assigned high demand spectrum as determined by the Minister may not be renewed on the same terms and conditions at the end of the licence term The NAB respectfully submits that this provision should be carefully reconsidered as it is likely to prejudice licensees who make substantial long-term investments in their infrastructure and networks 17

Inter-governmental policy processes likely to impact the Bill The Bill provides that ICASA must conclude a concurrent jurisdiction agreement with the Competition Commission which will address inter alia management of complaints, mergers, market reviews and market definitions Parallel to this legislative review process, on 11 July 2018 the Minister of Economic Development tabled the Competition Amendment Bill, which was subsequently passed by the National Assembly and referred to the National Council of Provinces for concurrence 18

Inter-governmental policy processes likely to impact the Bill The Competition Bill seeks to inter alia to empower the Competition Commission to initiate and conduct market inquiries. Upon completion the Commission must submit its report together with recommendations to the Minister of Trade and Industry. The recommendations may also be to other regulatory authorities in respect of competition matters. The NAB submits that regulatory certainty is crucial to ensure stability and increased investment in the broader ICT sector. We therefore trust that matters falling within the above-mentioned concurrent jurisdiction agreement will be co-ordinated and managed in a clear and consistent manner 19

Closing Remarks The NAB has been an active industry association for over 25 years - having made various submissions on policy, legislative and regulatory processes We appreciate the opportunity to make this submission at a time when government prepares to reintegrate the DTPS and DOC toward stability in the ICT industry We look forward to policy certainty and to future engagements with a single harmonised Portfolio Committee Our support and best wishes are also extended to Minister Stella Ndabeni-Abrahams 20

THANK YOU www.nab.org.za