Enhancing ICASA's Regulatory Powers: A Detailed Presentation

PRESENTATIONTOPARLIAMENTARY PORTFOLIO COMMITTEEON THE ICASA BILLBYSENTECH LIMITED 24th October 2005

SENTECH TEAM • Chief Operating Officer: Mr Gladwin Marumo • Executive: Regulatory & • Government Mr Dingane Dube • Specialist: Government Mr Matime Nchabeleng • Relations

Additional powers and functions of ICASA Inquiries undertaken by ICASA Complaints and Compliance Committee Constitution and Appointment of Councillors Delegation Confidentiality General EXECUTIVE OVERVIEW

ADDITIONAL POWERS AND FUNCTIONS • ICASA’s powers to be widened to make it the regulator of – • All communications services • Postal services • Electronic communications and transactions services • Powers will be derived from – • Electronic Communications Bill • Broadcasting Act • Postal Services Act • Electronic Communications and Transactions Act (“ECT Act”) • ICASA Act

ADDITIONAL POWERS AND FUNCTIONS • ICASA currently has vested powers under the Telecommunications Act, Independent Broadcasting Act and Broadcasting Act to regulate broadcasting and telecommunications • Powers to regulate broadcasting and communications will continue under the Electronic Communications Bill • ICASA currently has no authority to act as regulator for postal services or electronic transactions and communications

ADDITIONAL POWERS AND FUNCTIONS • The ECT Act and Postal Services Act will have to be amended to vest ICASA with the powers to regulate postal services and electronic communications and transactions • The Postal Services Act and the ECT Act will have to be amended to clearly show which powers will be transferred to ICASA and which will be retained by the Minister, Director-General or Domain Name Authority • The required amendments must be done prior to or simultaneously with the promulgation of the ICASA Act

ICASA INQUIRIES • Existing powers of ICASA to conduct inquiries under the Telecommunications Act and the IBA Act must not be lost and ICASA must be able to conduct inquiries into – • the performance of its functions • issues which affect consumers • The procedure for inquiries should be detailed in the ICASA Act or in regulations and should not be subject to the discretion of the presiding officer

ICASA INQUIRIES • The rights given to ICASA under section 4C(2) are inappropriate to the extent that they may compel participation and attendance at public hearings on proposed regulations and other inquiries into sector activities • There is a danger that section 4C(2) will discourage open discussion and debate and may even result in animosity towards ICASA and amongst operators • Section 4C(2) should be limited in application and confined to the investigation of licence or statutory contraventions • There must be a requirement to only hold in camera inquiries under exceptional circumstances

COMPLAINTS AND COMPLIANCE COMMITTEE • Qualified independent persons from the communications industry should be appointed to the Complaints and Compliance Committee • Complaints and Compliance Committee to consist of permanent and temporary members • Grounds for disqualifications should be the same as those in section 6(1)(a) to (l) of the Bill

COMPLAINTS AND COMPLIANCE COMMITTEE • Minimum time periods for the investigation of complaints should be imposed on the Complaints and Compliance Committee • Investigation and reporting of all complaints should be done within 60 days • Limited time period for the lodgement of complaints should be extended to 90 days

COMPLAINTS AND COMPLIANCE COMMITTEE • Complaints and Compliance Committee must be empowered to investigate and adjudicate consumer complaints • Procedural rules for the investigation and hearing of complaints should be detailed in the ICASA Act or in regulations • Procedures for the bringing of urgent interim relief applications should be included • The sanctions which ICASA is authorised to impose must be specified

CONSTITUTION ANDAPPOINTMENT OF COUNCILLORS • Not clear whether the term “Councillor” is inclusive of the chairperson • ICASA Bill must be amended to reflect that all provisions applicable to Councillors will be applicable to the chairperson otherwise there will be no provisions dealing with – • the basis upon which the chairperson is entitled to resign • the suspension or removal from office of the chairperson

CONSTITUTION ANDAPPOINTMENT OF COUNCILLORS • The ICASA Bill does not contain any procedures in respect of the right to remove Councillors and this must be addressed • A right to suspend Councillors pending their removal from office should also be included in the ICASA Bill

DELEGATION • Council’s right to delegate its powers and functions should be limited as follows – • the power to make regulations should not be subject to any form of delegation • the power to grant, renew, amend or transfer any individual licence should only be capable of being delegated to a Councillor or to a Committee of Council • Where powers, functions or duties are delegated to the CEO that power, function or duty should be capable of being performed by any other staff member authorised by the CEO

CONFIDENTIALITY • The confidentiality obligations imposed on ICASA must be widened to include information pertaining to business activities, intellectual property, strategic objectives, market positioning and commercial agreements subject to confidentiality undertakings • Non-disclosure obligations should be extended to material which becomes lawfully part of the public domain • All Councillors, employees, consultants and experts should be required to adhere to confidentiality obligations

GENERAL • The register of licences kept by ICASA should include all approvals and certifications as well as a list of all formal documents maintained by licensees (i.e. spectrum assignments and ownership and control reports) • The ICASA Bill should be amended to allow for appointed inspectors to investigate licence and statutory contraventions • Appointed inspectors should also be allowed to investigate the illegal or unlicensed provision of broadcasting or communication services

Thank you