ICASA AMENDMENT BILL COMMENTS Presented by: Karabo Motlana 24 October 2005

INTRODUCTION Cell C is grateful for the opportunity to submit its comments to Parliament on the ICASA Amendment Bill. We note that the Amendment Bill’s significance lies in the fact that it sets out a major revision to the framework in accordance with which regulation of the communications sector takes place. This is of particular importance at this time, as the Convergence Bill is about to be finalised and will undoubtedly result in an increased role and responsibilities for ICASA .

OUTLINE OF MAJOR ISSUES Part I: INSTITUTIONAL FRAMEWORK Financial Autonomy (Section 17, insertion of section 15(1)A of ICASA Act) Functions of the Authority (Section 4) Part II: PROCEDURES (TRANSPARENCY & NON-DISCRIMINATION) Register of Information Conduct of Enquiries (Section 7, insertion of sections 4B and 4C of ICASA Act) Establishment of Complaints and Compliance Committee (Section 20, insertion of section 17A – 17H)

INSTITUTIONAL FRAMEWORK

Financial Autonomy (15(1)A) Cell C welcomes the expansion of the sources from which ICASA can obtain additional financing Cell C is however concerned that section 15(1)A, as drafted, is vague in that it does not address or outline the potential sources of such financing. It would therefore be advisable to provide a transparent framework for the terms on which additional or alternative funding can be provided (as done for NER, Civil Aviation Authority, Competition Commission). all or any part of the license fees, administration charges, levies or other charges imposed by or payable to ICASA. The fact that ICASA can receive funding from alternate sources, does not negates the need for accountability. In line with the current proposal in the Bill a request for such monies must be justified and motivated to the relevant Minister/s

Functions of the Authority (Section 4) Cell C welcomes the inclusion of a thorough list of functions for the Authority and Chairperson in the Amendment Bill as it is imperative that a creature of statute has a clear mandate. Regulatory certainty has a positive effect on investment and uncertainty negatively impacts on efficient planning and resource utilisation. It is therefore proposed that an amendment be made requiring that ICASA publish an annual plan to guide the Authority, government and the industry, and that this requirement be added to the list of stated functions in section 6 of the Amendment Bill. Cell C also proposes that the Authority be mandated to not only monitor compliance as set out in section 4(3)(b), but also to investigate and evaluate alleged contraventions of the Amendment Act and underlying statutes. Cell C proposes that ICASA should aim to always seek the least intrusive regulatory mechanisms to achieve its policy objectives. Sound research is the basis for good regulatory policy. Cell C submits that ICASA must be required to conduct research on all matters affecting the postal and communications sectors in order to exercise and perform its duties in an informed manner. It is therefore proposed that subsection (h) be amended to direct ICASA to conduct research.

Functions of the Authority (Section 4) [2] Of extreme importance to Cell C is that ICASA must act at all times within the parameters of administrative justice. It is proposed that a provision be added to the functions of the Authority that requires the Authority to consult affected stakeholders in performing any function in terms of this Act. Cell C also believes that ICASA should be sufficiently empowered to investigate and evaluate communication network providers, communication service providers and broadcasters to ensure compliance to licenses and regulations, and to endorse and enforce findings of the Complaints & Compliance Committee. The ability to endorse and enforce the CCC’s findings should be set out in ICASA’s functions for the sake of clarity. The Authority should furthermore be able to impose penalties and other sanctions in line with section 17E of the Amendment Bill and the relevant provisions of the Convergence Bill. Lastly, consideration should be given to instances where jurisdiction is shared between ICASA and other regulatory authorities. It is therefore proposed that the level of overlap of functions should be managed by agreements to be concluded between the regulators that share jurisdiction.

PROCEDURES

Register of Licenses/Documents Cell C welcomes the addition of a provision to register licences, particularly in light of ICASA’s increased licensing role under the Convergence Bill. However, Cell C proposes that in the interests of transparency and proper access to information by participants in the sector, ICASA should not only have to register licences, but the Amendment Bill should go one step further and ICASA should be required to register all documents and set out a framework for accessing them. ICASA should, like the Competition Commission, have a “Registry Office” It is therefore proposed that ICASA keep a register of all: notifications; licences; spectrum assignments; and complaints which should be available at all times for public inspection & may use its library for such purposes. ICASA should furthermore make regulations setting out the procedure for delivering, issuing and accessing documents.

Enquiries by Authority (Section 4C) ICASA should not be allowed to conduct an enquiry regarding any specific alleged contravention by regulated parties – this function should be reserved for the Complaints and Compliance Committee and /or Communications Tribunal. Section 4B(1)(d) which allows for ICASA to conduct an enquiry into licence-related compliance matters is problematic and Cell C proposes that it should be deleted. Cell C believes that ICASA should have two broad options after conducting a public enquiry: It should publish its findings and, based on its findings, draft regulations, should the inquiry indicate such a need. This is currently provided for in terms of section 27 of the Telecommunications Act. Should the inquiry have been instituted to clarify and /or provide guidance on the application of existing regulations, ICASA’s findings will be binding to the extent to which they, clarify or provide such guidance. Currently, in the telecommunications regulatory framework, this is not possible. ICASA cannot enforce a finding or clarify an aspect of the regulatory framework except through regulation.

Complaints & Compliance Committee (s17) The precedent for the establishment of the Committee is clearly the Broadcasting Monitoring and Complaints Committee (BMCC), but the converged communications sector will be vastly more complicated: There are competing & sometimes irreconcilable interests; The capital investment and revenue generated by the communications sector and the impact of non-compliance with license provisions and underlying legislation requires a far more robust adjudication body and adjudication procedures. Such adjudication body and procedures should result in the adjudication investigation and enforcement powers of the various bodies being clearly separated and the assertion of the adjudicating body’s independence. An appeal mechanism is also key.

Complaints & Compliance Committee (s17) [2] Ideally, in Cell C’s opinion, a Tribunal should be established and appointed by a third party, namely the President, based on recommendations made by the Minister. The complaint process should unfold in the following manner: The Authority receives a complaint and/or allegation of non-compliance with license provisions or underlying legislation. The Inspectors, appointed by the Authority, should assess and if necessary investigate the complaint or allegation of non-compliance and present their findings in person before the Committee. The Committee should be a sub-committee of ICASA with a judicial head and constituted by industry experts. The Committee should hear complaints and matters of non-compliance and refer its findings to the Authority which should take administrative action based on such findings. The independent Tribunal should consider appeals lodged by parties in response to the Authority’s decisions.

Complaints & Compliance Committee: Proposal in the Bill Appoint Committee Complaint Authority (Council) Complaints and Compliance Committee Make Decision permitted by Act or underlying statutes Hold hearing into complaint Refer Complaint Make findings and recommendations to Authority Appoint Investigators Refer Complaint after investigating ALL WITHIN THE POWER AND INFLUENCE OF THE AUTHORITY Investigators Complaint Appear before Committee

Separation of Powers: Complaints and Compliance Committee Appoint Committee Complaint Authority (Council) Complaints and Compliance Committee Make limited Decisions provided for in Act Hold hearing into complaint Refer Complaint Make findings and forward to Authority Appoint Investigators May Initiate Complaint Investigators Appear before Committee

Communication Tribunal President President Complaint Appoint Tribunal Appoint Authority Authority (Council) Communication Tribunal Hold hearing into complaint Refer Complaint on Appeal Appoint Investigators& Commitee Make a Decision provided for in Act SEPERATION OF POWERS BETWEEN AUTHORITY AND TRIBUNAL

Complaints & Compliance Committee (s17) [3] It is important to ensure that the members of the CCC are not involved in any matter wherein there may be a conflict of interest. It is therefore proposed that a provision to that effect be added as section 17A(A). It is also noted that there is no specific provision dealing with the remuneration of members of the CCC and Cell C therefore proposes the addition of this in section 17A(B) There is no procedure provided for interested persons to participate in a hearing. Cell C therefore proposes the addition of section 17C(B). To alleviate Cell C’s concern that there should, throughout the Amendment Bill, be due process and transparent procedures, we have in our submission proposed the inclusion of a clause which makes provision for a public process, where required.

Conclusion The Amendment Bill is key to ensuring that the regulatory framework is built on a solid foundation, and that the regulator is well equipped to facilitate the growth of the communications sector, which in turn is critical to socio-economic development in South Africa. The Amendment Bill, and the provisions in it relating to the establishment of the regulator and the regulatory framework, are key to providing both international and local investors, with the necessary confidence in the stability, predictability and of impartial treatment in the South African environment.

THANK YOU