1. Telkom Oral Submission to the Portfolio Committee on Communications Convergence Bill
14 June 2005

2. Telkom delegation Nkenke Kekana - Group Executive
Benitto Lekalakala - Executive
Dr. Gabriele Celli - Executive
Izaak Coetzee - Executive
Nozicelo Ngcobo - Snr. Manager (Parliament)
Keso Mbali - Snr Specialist
Francois Slabbert - Snr Specialist
Maphelo Mvunelwa - Specialist
Kenny Pasensie - Specialist

3. Discussion Points Policy vacuum Licensing framework
Limited time to comment
Amendment of the ICASA Act
Managed liberalisation
Powers of ICASA
Licensing framework
Conversion of existing licenses
Special terms and conditions for licences
Interconnection and facilities leasing
Competition issues

4. The Convergence Bill
Telkom recognises the reality of convergence in content, in the technological platforms used to convey and distribute such content, and in the equipment that people use to access it
Telkom recognises the necessity of legislating for convergence and supports the core objects the Bill
The Bill will assist the development of the communications sector in South Africa if it creates certainty in the sector for investors, and it enhances consumer benefits through better services and lower costs of communications
The Bill is primarily aimed at harmonising the regulation of infrastructure and the powers and functions of the regulator
However, the Bill does not fully address content regulation, although it consolidates the regulation of broadcasting services within a single statute

5. Policy vacuum
Major legislative initiative since the IBA and Telecommunications Acts
First draft of Bill published for comment in 2003 without a Green Paper and White Paper process
Many complex policy issues underlying convergence have not been debated
Essential to raise and debate issues to establish broad policy principles as basis for such fundamental legislation: market liberalisation, powers of ICASA, competition issues, transitional provisions
Recommendation:
The PCC should allow a thorough debate on essential issues and allow the sector to contribute to the passing of good law

6. Limited time to comment
Very tight time for comments on the Bill has been given
Telkom has not had the opportunity to make detailed comments on all the provisions of the Convergence Bill

7. Amendment of the ICASA Act
Bill contains references to an amended ICASA Act, which has not been passed
Both pieces of legislation are inextricably linked and one cannot be debated without the other
Transparency, stability, predictability, certainty and fairness cannot be achieved
Recommendation:
The Convergence Bill must be read with or after an ICASA Act A/B to provide certainty and avoid any ambiguity

8. Managed liberalisation
Lack of a policy framework for market development
Bill deviates from current policy of managed liberalisation, not yet completed
Move towards convergence most appropriate in markets that have been liberalised
Recommendation:
A phased approach to the revision of the market structure and licensing framework is recommended

9. Powers of ICASA (1/3) Previous legislation:
Limited independence in Telecommunications (licensing, regulations, policy directions)
Constitutionally protected independence in Broadcasting
Attempt to address the discrepancy not fully successful

10. Powers of ICASA (2/3) Enhanced powers:
Requires ICASA to simply “consider” ministerial policy directions
Regulations do not need ministerial approval
ICASA has final say over the award of individual licences

11. Powers of ICASA (3/3) Impaired powers: Minister has final say over
Conditions for individual licences (including broadcasting service licences)
Approval of the radio frequency plan
Minister need not consult with ICASA or to invite comment from the PCC before issuing a policy direction

12. Procedural Issues Dispute resolution processes
s37,s42 (unwillingness to negotiate): parties not heard;
s40, s45 (disputes under agreement): Complaints and Compliance Committee?
Amendment of individual licences
Licensee “consulted”, no public process unlike for new licenses or renewal
Conversion of existing licences (s85)
ICASA may grant additional rights and impose additional obligations. No guidance as to the circumstances or the nature of such additional rights or obligations
Defining markets, market power and dominance for the purpose of competition
No process or consultation stipulated

13. Licensing framework (1/4)
The Bill proposes the following licence categories:
communications network services
communications services
broadcasting services - (online and internet content excluded?)
application services: the provision of enhanced services (e.g. VANS)
radio frequency spectrum
other services as may be prescribed: why?
content services - defined but not included as a licence category

14. Licensing framework (2/4)
The Bill proposes the following licence categories (cont):
Individual licences:
communications network services broadcasting services, radio frequency spectrum and other
Class licences:
for communication services, application services and other
Licence exempt services

15. Licensing framework (3/4)
Confusing and flawed framework
No rationale for distinction between individual and class licences (lack of policy framework)
Individual licence for all communications network services (e.g. PSTN, local broadcasting signal distributor) but class licence for all communication services (e.g. PSTS, small ISP)
Recommendation:
Individual licences should be issued, across all categories, for major licences with large social and/or economic impact, or where scarce national resources such as spectrum or numbers, have to be used
Guidance to be provided in policy framework and/or legislation

16. Licensing framework (4/4)
Confusing and contradictory definitions and provisions
inconsistent use of "communications services"
“Application services” definition points to VANS, but VANS classified as “communication services” in s85
Recommendations
A major review of the licensing regime is required, together with a revision of the various service definitions, to provide consistency and clarity to the licensing framework
The revision should be based on an appropriate and consistent policy framework

17. Conversion of existing licences (1/4)
Protection of existing investment is the cornerstone of investor confidence
The licensee business case on which it based its investment in the South African telecommunications market remains unchanged
Conversion must take place on no less favourable terms than the existing licence terms and conditions

18. Conversion of existing licences (2/4)
The Bill does not provide for the automatic recognition of existing licence rights and obligations and fails to provide adequate protection of investment interests
An existing licensee must offer to "surrender its licence upon conversion and to be granted one or more new licenses"
The licence holder is coerced, by the risk of loosing its existing rights, to relinquish such rights in return for undetermined, and possibly inferior, rights at an undetermined price

19. Conversion of existing licences (3/4)
ICASA can, in converting licences, grant additional rights to licensees “with commensurate licence obligations”.
no restrictions on ICASA’s powers
licensees have no choice
No indication as to the nature of the additional rights or obligations, and no guidance as to the criteria to be applied in deciding whether or not to grant additional rights or impose additional obligations

20. Conversion of existing licences (4/4)
Existing licence types mapped:
to communications service, or
to communications network services
to application services?
from USALs, public payphone services?
Ambiguity created by combining communications network services and communications facilities. No specific license exist to provide communications facilities and no conversion is required

21. Special Terms and Conditions for licences (1/2)
The Bill proposes:
Special conditions applicable to certain licensees to prevent market abuse
Conditions in licence or in regulations?
Authority can act unilaterally
no procedural safeguards,
licensees have no right to be heard
Misalignment with Competition Act
Conflates dominance with market power

22. Special Terms and Conditions for licences (2/2)
Recommendation:
A market in which competition concerns suggest that ex ante regulations may be necessary, must be dealt with in accordance with the principles of competition law (see e.g. EU, Malaysia, SA Competition Act):
accurate definition of the relevant market
accurate analysis of its non-transitory entry barriers, be they structural or statutory, and of its dynamic character, and
unbiased and rigorous analysis of the market participants to assess the existence of market power
Appropriate and proportionate remedies must be applied
Critical framework absent in the Bill

23. Requests for Interconnection
Criteria for determining reasonableness of Interconnection request:
Technically and financially feasible
Promote efficient use of communications networks
Propose following amendments:
Technically and economically feasible
Implementable on reciprocal basis

24. Requests for Facilities Leasing
Criteria for determining reasonableness of Facilities Leasing request:
Technically and financially feasible
Propose following amendments:
Technically and economically feasible
More efficient use of communications networks
The Bill must create certainty w.r.t. international communications facility agreements. This has implications for future investments

25. Competition Issues (1/4)
Ex ante - prevent, by regulatory intervention, potential abuse of market power:
is a forward-looking intervention in potential market failure
Ex post - punish actual abuse of market power:
is a backward-looking intervention in actual market failure

26. Competition Issues (2/4)
Ex ante and ex post both require:
Critical market review processes based on sound economic analysis:
market definition in accordance with the principles of competition law
identification of market participants
existence of dominance or market power
Extensive public consultation, and right to be heard of persons likely to be affected
Remedy proportionate to the nature of the problem

27. Competition Issues (3/4)
The Bill empowers ICASA to act unilaterally, with full discretion over eligible markets, licensees, facilities and applicable regulatory remedies
Prospective or actual licensees are given no opportunity to be heard.
No procedural safeguards
No hierarchy of:
an investigative body,
an adjudicative body, and
an appeal body

28. Competition Issues (4/4)
Competition authorities have expertise and experience in economic analysis of markets and market practices
Competition authorities operate within a well defined structure and procedures
ICASA has primary expertise in licensing, technology, and public interest matters in the communications industry
Identification of market risks, dominance and power should vest with the competition authorities. Appropriate remedies should be decided in conjunction with ICASA

29. Concluding Remarks
Telkom recognises the necessity of legislating for convergence and supports the core objects the Bill
We need more players, more consumer benefits in an orderly and sustainable market place
The Bill will assist the development of the communications sector in South Africa if it creates certainty in the sector for investors, and it enhances consumer benefits through better services and lower costs of communications
We trust that the key concerns raised and the recommendations made in this submission will provide valuable input in the process moving forward

30. Thank you Regulatory & Public Policy Telkom Tower North
Proes Street, Pretoria
telephone