ICASA AMENDMENT BILL Vodacom’s Presentation to the Portfolio Committee on Communications Presented by: Pakamile Pongwana 24 October 2005 REGULATORY AFFAIRS S.A.

Outline of Presentation Introduction Vodacom’s Key Concerns and proposed Wording Sections 4, 4B, 4C and sections 17 and 17C Section 21(2) of the current ICASA Act. REGULATORY AFFAIRS S.A.

Introduction Vodacom thanks the Portfolio Committee for the opportunity to comment on the Independent Communications Authority of South Africa (ICASA) Amendment Bill Vodacom’s comments are limited to a few sections in the Bill and specifically aimed at eliminating ambiguity and uncertainty regarding ICASA’s authority in terms of this Bill and the underlying legislation REGULATORY AFFAIRS S.A.

Introduction Vodacom’s comments pertain to: Sections 4, 4B, 4C and sections 17 and 17C Section 21(2) of the current ICASA Act REGULATORY AFFAIRS S.A.

Section 4(3)(e) - Powers must be qualified Ad Section 4(3)(e) - Function of the Authority As a body of statute, ICASA has delegated powers and no original powers ICASA’s powers and authority, i.e. to grant, renew and amend licenses must therefore be qualified in terms of the enabling and underlying legislation Section 4(3)(e) should therefore be extended to read as follows: (e) must grant, renew and amend licenses in accordance with the underlying statutes REGULATORY AFFAIRS S.A.

Section 4B & C- Ambiguity and uncertainty Ad Section 4B - Inquiries by the Authority –read with Conduct of Inquiries – Section 4C These sections when read together are ambiguous and unclear specifically regarding the: purpose for which an enquiry will be held is an enquiry an information gathering process to assist ICASA to make regulation subsequent to the conducting of an enquiry? Or is it a complaints and compliance hearing? legal status of the findings of an enquiry REGULATORY AFFAIRS S.A.

Section 4B & C- Ambiguity and uncertainty Reason for uncertainty is that: The adversarial nature of the process in section 4D advocates against an information gathering process and rather resemble a hearing or a court case; and Section 4C(7) creates the impression that the findings of an enquiry will have the same status as a regulation or a finding of guilty in respect of a statutory violation or a breach of a licence term and condition It is also not clear when ICASA would use section 4B to address complaints and compliance issues and when section 17B must be utilized? REGULATORY AFFAIRS S.A.

Section 4B & C- Ambiguity and uncertainty Vodacom agrees that ICASA must be authorised to hold public enquiries for the purposes set out in the Bill However to prevent “prosecution by public opinion” statutory and licence compliance must be dealt with by the Complaints and Compliance Committee

Section 4B & C- Ambiguity and uncertainty Vodacom’s proposed amendments therefore are that: Section 4B(c) and (d) should be deleted as section 17(B) deals comprehensively with complaints and compliance hearings Sections 4C(2), (3), (4), (5) and (7) are not relevant to an inquiry and pertain to hearings and should be deleted in section 4C and transferred to section 17B

Section 4B & C- Ambiguity and uncertainty To ensure informed public participation Section 4B(2) should be extended to impose on ICASA an obligation not to only indicate the subject matter of an enquiry but to publish a discussion document that explains the basis of, the reasons for and the purpose of the public enquiry Vodacom proposed wording for Section 4B(2) therefore is: The Authority must, in the Gazette, give notice of its intention to conduct an inquiry and such notice must indicate the subject matter of the inquiry, together with a discussion document, which shall set out the basis and the reasons for the inquiry, and invite interested persons to :-

Section 4B & C- Ambiguity and uncertainty To ensure that the regulation making process is not bypassed Vodacom propose Section 4C(7) to be extended to include the bold underlined words: The findings contemplated in subsection (6) are enforceable and binding on all licensees and other stakeholders in the postal and communications sector to the extent that such findings are incorporated in regulations and are applicable to their regulated activities

Why delete section 17(2) to 17(9)? Ad Section 17 – Standing and Special Committees It is not clear why sections 17(2) to 17(9) of the current ICASA Act have been deleted The mentioned sections should be retained as it provides much needed clarity and certainty with regard to the constitution of a committee, Councillor representivity on a committee, decision making procedures etc.

Section 17C – Just administration Ad section 17C – Procedure of Complaints and Compliance Committee Just administrative action requires that any complaint lodged with the Authority has to comply with the following requirements: it has to be in writing it has to state the date, time and place on which the licensee has breached its licence terms and conditions or the provisions of the underlying legislation it has to motivate why the specific action or failure of the licensee constitutes a breach of the licence terms and conditions or the provisions of the underlying legislation Section 17C(1)(a) should therefore incorporate the above provisions

Section 17C – Just administration Vodacom’s proposed amendments to: Section 17C(1)(a) A person who has reason to believe that a licensee is guilty of any non-compliance with the terms and conditions of its licence or with this Act or the underlying statues may lodge a complaint in writing, stating the nature of the breach as well as the date, time and place on which the breach has occurred Section 17C(6) should be deleted and should be replaced with the wording of section 4C (2)(3)(4)(5) and (7)

Why delete Section 21? – Pending Matters Ad the deletion of section 21(2) – Pending Matters A number of decisions by the PMG and/or SATRA are still and will continue to be relevant to the new converged environment Section 21(2) of the current ICASA Act deems any order, ruling or direction made by a former authority to have been made or given by ECASA and must therefore remain Vodacom proposes the retention of section 21(2), i.e. Section 21(2)- Any order, ruling or direction made or given by the former authorities immediately before the establishment date must be regarded as having been made by the Authority

THANK YOU REGULATORY AFFAIRS S.A.