1. 2007 NAB’S ORAL REPRESENTATIONS TO THE PORTFOLIO COMMITTEE ON COMMUNICATIONS REGARDING THE ELECTRONIC COMMUNICATIONS AMENDMENT BILL [B38-2007] 31 OCTOBER 2007

2. 2007 PRESENTATION OUTLINE 1.Nature and Role of the NAB 2.Introduction and Background 3.Constitutionality of the Bill 4.Provisions Contrary to EC Act and ICASA Act 5.Conclusion

3. 2007 THE NATURE / ROLE OF NAB NAB is the leading representative of SA broadcasting industry: –the three television and the nineteen radio stations of the SABC –all licensed commercial broadcasters in both radio and television –both the common carrier and the selective and preferential carrier licensed signal distributors –over thirty community radio and television broadcasters Aims to further interests of the broadcasting industry by contributing to its development

4. 2007 INTRODUCTION AND BACKGOUND Bill [B38-2007] published in Notice 1200, 2007 in Government Gazette 30307 on 17 September 2007. Minister requested comments by 26 October 2007. Committee published advert in print media on 14 October 2007 requesting comment on same Bill by 24 October 2007. NAB thanks the Portfolio Committee for the opportunity to make this oral submission.

5. 2007 CONSTITUTIONALITY OF THE BILL Insertion of section 13(b) allows Minister to issue policy direction, after obtaining Cabinet approval, to provide policy framework for licensing a public entity. Public entity is broadly defined and would include Sentech and possibly SABC. Insertion grants executive direct power to deal with licensing issues – direct infringement on section 192 of constitution, as far as broadcasting is concerned. S192 provides for “an independent authority to regulate broadcasting” Effect of Bill is to remove jurisdiction conferred by Constitution and Parliament on ICASA and allow Minister to exercise it. NAB’s view that proposed amendment of s13(b) is unconstitutional.

6. 2007 CONTRARY PROVISION OF THE BILL s3(3) of ICASA states: “The Authority is independent, and subject only to the Constitution and the law, and must be impartial and must perform its functions without fear, favour or prejudice.” Proposed amendment empowers Minister to direct ICASA to issue a licence. No discretion for ICASA to refuse such a licence. Also contrary to s3(4) which states that ICASA must function without political or commercial interference. S2(j) states objects of the ECA is to provide clear role allocation and task assignment. The proposed amendment blurs these lines. Due to technology neutral and objects of the Act, the amendment applies to broadcasters by default and this renders it unconstitutional.

7. 2007 CONTRARY PROVISION OF THE BILL s3(3) of EC Act states: “No policy made by the Minister in terms of subsection1(1) of policy direction issued by the Minister in terms of subsection 2 may be made or issued regarding the granting, amendment, transfer, renewal, suspension or revocation of a licence, except as permitted in terms of this Act.” It was clearly the intention of the legislature that the Minister should not be involved in licensing activities. s3 of ECA contains numerous safeguards and procedures for the Minister to follow in issuing a policy direction. These safeguards do not exist for the proposed amendment in s5.

8. 2007 CONCLUSION NAB understands the need for government to make strategic interventions in ICT sector. However, proposed amendments go beyond strategic intervention and grants Minister powers in licensing arena. This is unconstitutional. NAB proposes that section 3 of ECA could be amended to allow for strategic intervention by the Minister but only to the extent necessary to achieve this objective.

9. 2007 THANK YOU