“The Toothless Regulator” or ICASA’S REGULATION OF THE SABC

1. “The Toothless Regulator”orICASA’S REGULATION OF THE SABC Prinola Govenden

2. STRUCTURE PRESENTATION • Background Research • Brief historical Context ICASA and SABC • ICASA’s mandated role with regards to the SABC • What ICASA is doing in practice / processes/ protocol • Challenges and gaps in ICASA’s regulation of the SABC • Future - what is needed so ‘ICASA regulate SABC in the public interest’?

3. Background to Research • Masters dissertation, entitled “Toothless regulator?” A critical analysis of ICASA’s regulation of the SABC so that it functions as a public service broadcaster. • The research addressed three questions: 1. What actions has ICASA taken and not taken to ensure that the SABC performs its role as a public service broadcaster in the public interest? 2. What factors enable or undermine ICASA’s ability to regulate the SABC effectively? 3. In what ways can ICASA be strengthened to become more effective? (general, ICASA as an institution).

4. Background Research… • Timeframe- conducted over a year February 2008 - February 2009. • Informing the study: -Documents -Press reports -Interviews

5. BRIEF HISTORICAL CONTEXT • SABC regulated, owned and controlled by the state, used as a vital tool in Apartheid era. • The SABC used to combat anti-apartheid forces. • From 1991 a process of restructuring of the SABC began. • A new “Vision and Value” framework was created for the SABC, (1993/1994). • Need for independent public broadcaster was clear; • Also need for independent regulator, to act in public interest; • ICASA’s predecessor - Independent Broadcasting Authority (IBA) created, as Chapter 9 Institution in SA Constitution - highlighting its importance.

6. HISTORICAL CONTEXT… First Tasks of the IBA: • Repositioning the SABC as independent public broadcaster • Conduct a wide-ranging policy inquiry - known as the “Triple Inquiry” including analysis of viability of public service broadcaster • The Triple Inquiry Report recommended the nature and funding of the public service broadcaster • IBA Act, entrenched the role of IBA in protecting the independence of SABC enabled the IBA to more fully play a role in safeguarding SABC

7. HISTORICAL CONTEXT… • Early IBA mired in controversy and corruption • Despite these had many important successes, transformation of industry, as well as Community Radio licences • In 2000 IBA merged with the South African Telecommunications Authority (SATRA) to become ICASA, in order to regulate the telecommunications and broadcasting industries, and more recently postal services.

8. ICASA’s role - SABC Determined by policy including: - The ICASA Act 2000 as amended, independent authority to “regulate broadcasting in the public interest” - The Electronic Communications Act 2005, ICASA protect the integrity and viability of the SABC and ensure that it services specific needs; in its regulation of the SABC, ICASA must not unduly interfere in the commercial activities of the SABC. - The Broadcasting Act 1999 as amended, ICASA monitor and enforce compliance SABC Charter

9. SABC CHARTER Amid the noise and confusion: • The SABC Charter upholds principles universality, accessibility, diversity and editorial independence etc. -The SABC provide official languages; wide range of programming; diversity -SABC offer a variety of news, information and analysis -The SABC whilst pursuing its objectives and exercising its powers, must enjoy freedom of expression, creative and programming independence. (Broadcasting Act 99 as Amended)

10. REGULATION • ICASA monitors SABC licences and other regulatory documents, including Broadcasting code of conduct and local content for broadcasters. In terms of the SABC: • The SABC regulatory environment: -Answerable to ICASA. -Answerable to the BCCSA for complaints -ICASA has jurisdiction investigate complaints of alleged non-compliance SABC licences -Accountable to Advertising Standards Authority (ASA) complaints on advertisements -The SABC member of the National Association of Broadcasters (NAB) - AND of course: Parliament and the DOC

11. The process thus far • ICASA informed by policy • Use the policy to make regulations • Then use those to inform the licence conditions for broadcasters with special conditions for the SABC

12. SABC TV AND RADIO licenceS… • While each service/channel has its own conditions there are some common to all. • Including, ensuring that: -The SABC offers a public service that fulfils specific requirements in the Act -Adheres to certain programming and news requirements -Includes advertisements and subsidising of revenue -The SABC then has to furnish ICASA with specific information.

13. SABC TV AND RADIO licenceS… Public service - ICASA ensure that SABC provides a public service upholds the principles of universality, accessibility, independence news and public affairs Programming - ICASA ensure programming upholds the principles of universal service, local content and diversity -ICASA ensure SABC’s news, information and current affairs offers balanced coverage and is independent Advertising (i.e. Funding) • ICASA ensure SABC not broadcast more than an average of ten minutes and excess of twelve minutes of advertisements per hour. • -The SABC may draw revenues from advertising, sponsorships, grants, donations and licence fees

14. SABC TV AND RADIO licenceS… • Information -The SABC must furnish ICASA, on quarterly basis, information involving company documents, programming, advertisements and complaints -The company documents include: details of SABC board member removed from office, the SABC’s memorandum and articles of association, judgements awarded in a court of law against the SABC, annual financial statements and other related financial information that ICASA requires -Programming documents, SABC show the extent of the different genres, South African television content or music content, and use of official languages -Advertising documents, the extent of advertisements broadcast in every hour, a written report on complaints received and the way in which the SABC addressed each complaint

15. The process thus far… • ICASA’s role informed by policy • Use the policy to make regulations • Then use those to inform the licence conditions for broadcasters with special conditions for the SABC • ICASA monitors compliance and SABC submits information to ICASA to prepare reports (discussed later) • What can ICASA do? What is their power in respect of the above?

16. ICASA’S MANDATE AND POWER • ICASA has the power to grant, develop, renew, amend, transfer, revoke, suspend, cancel and enforce the licence conditions; required to develop necessary regulations (EC Act 2005). • The ICASA Act 2000 as amendedstipulates that ICASA has the power to obtain from any licencee any information pertaining to licences, to conduct research, undertake inquiries within its jurisdiction, investigate and adjudicate complaints received. • The EC Act 2005 states that ICASA also has the power to demand from a licencee a recording of any programme broadcast.

17. PROCESS ICASA’S REGULATION ICASA COUNCIL ICASA MONITORING AND COMPLIANCE UNIT SABC POLICY AND REGULATORY AFFAIRS DEPT. COMPLAINTS AND COMPLIANCE COMMITEE

18. ICASA MONITORING AND COMPLIANCE DEPT. Dept. steers the entire process of monitoring the SABC. The actual monitoring is conducted by the ICASA Compliance Officers. The monitoring with regards to SABC’s radio, commercial and community broadcasters is divided among eight permanent Compliance Officers. There are also eight part time Compliance Officers employed on a six month contract, who are dedicated to monitoring SABC TV. ICASA requests the recorded programs from the SABC so that the necessary information is obtained for monitoring and compliance

19. ICASA REGULATORY PRACTICES ICASA monitors and ensures compliance of the SABC licences through focus on quantitative measurement of the different genres, music, talk, news, local content, programming, languages and other relevant areas. ICASA also monitors areas such as the number of news bulletins per day, news sources, its universality and diversity. Also, monitors the SABC’s Black Economic Empowerment and gender of its personnel to determine if it is reflective of the demographics of the country. ICASA also makes a note of the advertising by the SABC. Previously the regulator did focus on the SABC’s funding and its impact on their capacity to produce programming. Currently, the regulator briefly takes into consideration funding when compiling a report on the SABC.

20. PROCESS BREACH LICENCE SABC informed of it in writing; SABC rectifies the breach timeously then ICASA makes a record of it and does not escalate it further. If SABC does not respond and rectify the breach, the ICASA Compliance Officer refers the SABC to CCC for sanction. In the event of a breach ICASA may also suggest to the SABC to apply to amend their licence, if for instance the SABC indicates that they lack sufficient local drama to air on television. The SABC, says Rankin, have been co-operative in rectifying every breach ICASA has brought to their attention.

21. PROCESS BREACH LICENCE... During the period ICASA did not have to escalate the SABC to the Complaints and Compliance Committee (CCC) for non compliance of the SABC licences. One interviewee (SABC) believed that the system was effective on an administrative level. For example: If SABC informed ICASA that they were unable to meet a language quota, ICASA would ensure the process was escalated and that the SABC had to demonstrate progressive movement towards rectification.

22. COMPLAINTS AND COMPLIANCE COMMITEE • Adjudicate complaints pertaining to alleged non-compliance of licences. • It is also required to hear (if appropriate), investigate, and make a finding on all matters and complaints referred to it on allegations of non-compliance. • The CCC, upon making a finding, recommends ICASA’s council: • Warning a licencee to desist from any further contravention • fine or take specific steps. • If a licencee is repeatedly been found guilty of material violations, ICASA may amend or revoke the licence, or prohibit the licencee from providing the licenced service for a period not exceeding thirty days.

23. SABC POLICY AND REGULATORY AFFAIRS UNIT Liaises with ICASA on behalf of the SABC, and submits reports, recordings and the relevant information to ICASA, and ensures that the SABC fulfils its licence conditions and other regulations prescribed by ICASA. Interacts with ICASA administratively and submits regular quarterly reports to ICASA with regards to its compliance with language, content and other requirements. Strategic interaction between ICASA and the SABC that occurs at the Group executive level, on engagements such as regulations for elections, television political promotions and issues of funding.

24. Challenges and gaps in ICASA’s regulation of the SABC • Whilst to some degree effective administrative level; quantitative measurement; and license conditions uphold important ‘public service’ values. • General consensus- only entity satisfied ICASA’s regulation SABC is ICASA itself, even SABC not satisfied. • According ICASA, SABC fulfilling licence conditions, never referred to CCC for non-compliance. • However SABC shadow what a public service broadcaster should be.

25. Challenge: Silent Regulation • ICASA has adopted a problematic stance limiting its regulatory mandate to only monitor the licence conditions (quantitative) • ICASA’s regulation characterized by a lack of pro-active regulation in several areas, “silence” in SABC controversies: -commercial funding model and crises -allegations of editorial bias -withdrawing programmes, -‘blacklisting’ -suspensions Executive members -Calls for the SABC Board to step down

26. AN ICASA VIEW of SABC CRISES Rankin, • ICASA not overtly concerned with the SABC’s controversies because it is “none of ICASA’s business” • ICASA can only become directly involved if the matter is related to a licence contravention. • ICASA’s domain is to follow up on the failure of the SABC to submit information, to the highest level of management if necessary • ICASA tends to steer away from the SABC’s “internal politics” as the SABC is “in a sense a politically charged body because of the appointments of the SABC board” • Allegations against the SABC in the public domain are noted in ICASA’s Compliance function and put in Annual report. • ICASA also notes the newspaper reports and the number of complaints and judgments at the BCCSA, against the SABC.

27. Challenge: Regulatory methods • Quantitative measurement and “silence” • PhumeleloNtombela-Nzimande: -a more aggressive stand in the regulating broadcasting industry, esp. private operators e.g. not promulgating sports of national importance, SABC cannot compete with private operators for sports rights in an open market -type of method ICASA, not to be so prescriptive in terms of quantitative measurement of quotas, restricts the SABC’s creativity- has confronted ICASA -Rather find a way quantifying through other means, e.g. allowing a trade off, provided the SABC demonstrates the fulfilment of other developmental imperatives. -Unreasonable targets set, have to sell every minute, responsibility argue to Fiscus increase funding -Libby Lloyd, ICASA move away “rigid annual monitoring of the SABC” to issues such as diversity of news across all broadcasters.

28. Challenge: Enforcement • Need for broader monitoring and enforcement beyond licence condition adherence • Johann Koster, ICASA have reasonable regulations, problem lies in lack of enforcement of broader issues -Communication plays a major role in enforcement and ICASA has never been strong on communication. E.g. ICASA no blueprint of broadcasting in ten years. -Libby Lloyd, ICASA’s major issue not consistently monitoring on broader issues and holding SABC accountable for breaches. -Anton Harber “it seems that ICASA has shown itself to be ‘toothless’ in enforcing” its important regulatory requirements.

29. Challenge: LEGISLATION • Legislation is unsatisfactory • Libby Lloyd, vagueness of the SABC’s Charter and licence conditions, ICASA cannot actually monitor the SABC on, broad statements on universality, diversity, children’s programming -Lloyd, not certain ICASA done SABC debacles, because the SABC Charter is so vague. -Lloyd states that the law is not clear enough allows ICASA to “slip and slide and dodge its responsibilities”. • Kevin Bloom, difficult for an independent regulator, legally no mandate to sort out what is essentiality an internal problem. • PhumeleloNtombela-Nzimande argues “ICASA does not appreciate the legal ‘teeth’ it has to address the SABC’s issues” • Draft Public Service Broadcasting Bill- transfers power to other organs.

30. Challenge: MANDATE AND POWER • Does ICASA have sufficient power and the mandate to intervene and legislate on contentious issues • Harber argues “ICASA does not have enough power because they are not given sufficient resources to be able to exercise their power”. • Ntombela-Nzimande ICASA does have strong mandate and power but “does not realise the sharpness of teeth they have, they do not bite even when they have teeth” • Rankin, ICASA has enough mandate and power. • Koster “quite a strong arm and can punch a lot of people if they need to”, using this strong arm depends on enforcement and communication, “does not communicate well enough and their resources in terms enforcement is problematic”.

31. Challenge: MANDATE AND POWER… • Lloyd suggests ICASA’s legislation needs clarification so that there are no loopholes that “either ICASA, the industry or the Minister can exploit”. • Van Rooyenstates that ICASA definitely has sufficient mandate and power however “the relevant Act is inherently tricky to apply”: -ICASA “teething problems” because it has huge tasks with the new law. -ICASA does have the “teeth” and are able to impose a maximum fine of a million rand a day, however this will only be imposed in exceptional circumstances -ICASA would rather “make proper regulations which are fair” and “if there is intentional malice then “teeth”, but “one must be careful when dealing with ordinary actions and accepting there was malice”.

32. Challenge: Independence • Allegations of ICASA’s lack of independence • Harber, three way relationship/process, between the Minister of Communications, ICASA • Koster, ICASA’s independence questionable ICASA reports to “politically motivated people whom are running the country”. • Harber, ICASA’s passivity and failure to take an independent stance has allowed the Minister of Communications to play a greater role SABC. E.g. ICASA’s passivity SABC’s shareholders compact • Lloyd ICASA’s questionable “one gets the sense that ICASA is scared of taking positions that are seen as opposing government”. ICASA’s fear of the government evident in its lack of a submission amendment Broadcasting Bill concerning the SABC removal clauses.

33. Challenge: Fear and lack of will • ICASA “fear” to get involved • Koster, ICASA is “fearful” and hesitant to assume involvement as the regulator does not “want to be seen as interfering in the internal processes of the SABC”. • Skinner, despite ICASA’s underfunding, lacks political will, regulators around world possess much less resources than ICASA and yet are more proactive.

34. Challenge: Appointments • Attribute ICASA’s “silence” to appointment of councillors. • Harber- ICASA not appointing people who are asserting an active role at the SABC. • Skinner, many lay claim that a number of ICASA’s appointments are political.

35. Challenge: Resources and Capacity • ICASA lacks sufficient resources and capacity to regulate SABC effectively. • Koster states that in certain areas ICASA is adequately funded however its enforcement, communication and research areas are not allocated sufficient funds. • Nadia Bulbulia states that the monitoring of the new SABC licences should be a “stand alone department”, does not possess the necessary resources • Libby Lloyd, ICASA inadequate monitoring capacity (staff members and skill) for monitoring of all the broadcasters countrywide and around the clock.

36. Effects of ICASA’s under-funding • Sean Rankin, lack of sufficient funding and human resources is a “huge impediment to the regulator effectively regulating the SABC” • ICASA contracts part time SABC Monitors only on a six months basis, more funding full time. • Budgetary constraints forestalled the acquiring of new monitoring units, better monitoring equipment • ICASA’s “Monitoring Report on SABC TV services 2006” challenged by the SABC on the basis of methodology, shows that ICASA’s capacity to be able to monitor the SABC needs to be addressed, SABC questioned the methodology, correctness and content of this report, and ICASA agreed to issue an addendum to it because of factual inaccuracies (finds breaches licence).

37. Effects ICASA’s under-funding… • ICASA’s Annual Report 2007 • Fails to mention the number of monitoring visits by ICASA to the SABC. It does mention conducted 64 visits in total to commercial and community stations. Appears to be neglect of SABC in comparison to others. • ICASA produced the least amount of monitoring reports on the SABC, as compared to the community (40) and private (11) broadcasters. • ICASA Compliance Officer Sean Rankin ascribes this neglect to a human resource problem.

38. Effects ICASA’s underfunding… • Attribute ICASA’s “silence” in the SABC’s controversies to under resourcing: -Harber ICASA’s “silence” issue of resources, ICASA is inundated with work, ICASA is “swamped” with work and “if they can ignore a problem they will”, which is a kind of an “enforced passivity”. -Libby Lloyd, more skills such as people that are equipped to conduct economic analysis. Lloyd adds that with skills such as economic analysis, ICASA would be enabled to “question the SABC on spending money”.

39. Relationship SABC and ICASA Keys to a successful relationship: • Trust and honesty; • Communication; • Respect; • Dependability.

40. Challenge: Relationship SABC and ICASA • Rankin, one of the major areas of challenge to the regulator SABC: “is sustaining a co-operative and respectful working relationship” • SABC Policy and Regulatory Department populated with ex IBA/ICASA employees, familiar regulator functions, advantage frustrating or manipulating the process

41. Challenge: Relationship… • Rankin: SABC has an antagonistic relationship with the regulator and an “arms length” relationship: -The SABC does not respect ICASA as the regulator, ICASA has a respectful relationship with E-TV • SABC not co-operative e.g. Rankin recalls an instance when he could not visit the SABC’s Good Hope FM, did not receive response. Other broadcasters in terms of visits and inspections are co-operative.

42. Relationship (Historically) • Difficult relationship can be traced back days of the (IBA) • Nadia Bulbulia, Triple Enquiry there was a very “untenable relationship” between the IBA and SABC. • SABC did not honour the IBA as the regulator who had the power to oversee the SABC’s delivery of its mandate. • -Bulbulia contends that “there was no clear recognition by the SABC that they were in fact regulated by the IBA”. • Libby Lloyd, “conflicting relationship” -SABC initiated and argued very strongly “they did not have to deal with the IBA because they accounted to Parliament not the regulator”. • Rankin stems from historical roots: -Rankin, IBA formed attempted to implement certain policies in terms of the IBA Act of which the SABC was not in favour of, i.e. Selling of SABC stations. -Initial argument 1996/1997 when ICASA questioned the SABC about their advertising spend, ICASA co-chairperson De Klerk and SABC Chief Executive Officer Sisulu, fallout made the front cover of the Financial Mail.

43. Future: Strengthening ICASA’s regulation of SABC • ICASA needs specific transformation to become an effective “Watchdog” for a democratic South Africa, rather than be perceived as a “Toothless” regulator-Need a full audit of ICASA. • ICASA’s independence needs to be bolstered in reality. • Suitable process appoint the “best people” and not the most “politically correct/connected” people. • Clarification on the SABC charter • Mandate and powers of ICASA needs urgent clarification • ICASA and the SABC’s relationship need to be one that follows “the rules” • Increased funding (Perhaps the industry and retaining a portion of the surplus funds it submits to the National Revenue Fund) for: -Establish sufficient, focused capacity to comprehensively monitor the SABC, -Increase its staff capacity -Better monitoring equipment -Conduct more visits and inspections and compile reports and make available to the public. -To enable a focus on real issues, and not be immobilized by a deficient budget

44. Future: Strengthening ICASA’s regulation of SABC • Finally: For an independent effective public broadcaster it is critical that we have a “dynamic”, independent and effective regulator. I.e. We need to Re-think the whole process of regulation of the SABC and regulatory practices. Thank you! Prinola

45. DOCUMENTS-Policy and Regulatory • Policy documents- -IBA Act 1993 -The Broadcasting Act 1999 as amended -ICASA Act 2000 as amended -The Electronic Communications Act 2005. • Regulatory documents- -The SABC’s eighteen television and radio licences -The South African music content regulations -South African television content regulations -Local content regulations. -The monitoring/programming/compliance documents

46. DOCUMENTS-Annual Reports • ICASA Annual Report 2007 • SABC Annual Report 2007 * The ICASA and SABC Annual Reports 2008 not used in the study- eventual issue, too late inclusion, study mature stage of completion.

47. DOCUMENTS- Press reports • Press reports time period 1 January 2006 to 30 August 2008. -The Freedom of Expression Institute website -The Mail and Guardian online -Empire magazine -Maverick magazine -The Media magazine • “ICASA” and “SABC” • SABC’s performance as a public service broadcaster • SABC’s controversies • ICASA’s regulation of the SABC • critiques of ICASA’s performance • ICASA’s institutional arrangements

48. INTERVIEWSNine Informants • Sean Rankin -ICASA Compliance Officer • Kobus Van Rooyen -A ICASA councillor, member of ICASA’s Complaints and Compliance Committee (CCC). -Chairperson of the Broadcasting Complaints Commission of South Africa (BCCSA). • Phumelelo Ntombela-Nzimande -The SABC’s Chief People Officer (CPO) -Former head of the SABC’s Policy and Regulatory Affairs Unit. *The Chief Executive Officer of the SABC Dali Mpofu not interviewed, recommended Phumelele

49. INTERVIEWS… • Nadia Bulbulia -Former IBA/ICASA councillor -Former SABC board member • Libby Lloyd -Former IBA/ICASA councillor. -Former CEO of the Media Development and Diversity Agency (MDDA). • Johann Koster. -Executive Director of the National Association of Broadcasters (NAB). -Former head of ICASA’s Monitoring and Complaints Unit. • Kate Skinner -Co-ordinator SOS coalition

50. INTERVIEWS… • Kevin Bloom -A Journalist -Former joint editor of Empire magazine, former editor-at-large Maverick, and founding editor the Media magazine. • Anton Harber -Caxton Professor of Journalism and Media Studies at Wits University -Former head of Kagiso Broadcasting -A Business Day columnist