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Electronic Communications Amendment Bill Presentation to the Portfolio

Presentation to the Portfolio Committee on Communications outlining amendments to the Electronic Communications Act of 2005 to address challenges and promote socio-economic development through ICT. The bill aims to align with broad-based economic empowerment legislation, improve licensing processes, enhance competition, and advance broadband access in schools. It also includes provisions for regulatory efficiency and financial management.

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Electronic Communications Amendment Bill Presentation to the Portfolio

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  1. Electronic Communications Amendment Bill Presentation to the Portfolio Committee on Communications 06 August 2013 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  2. Table of contents • Background to amendments • Process • Objective • Summary of key amendments 2 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  3. Background to amendments (1) • The Electronic Communications Act was promulgated in 2005. • The ECA repealed the Telecommunications Act of 1996. • ECA heralded as a law to foster convergence in the ICT sector. It provided for separation between policy and regulation making roles of the Minister and ICASA; provided the legal instruments to foster competition in the sector as well as encouraging the participation of SMEs and black-owned licensees. In addition, it sought to protect the interests and welfare of consumers (price and quality of services) in the sector and at the same time encouraging strategic infrastructure investments and innovation • More than seven years into the operation of the law, it is evident that many elements of the legislation require amendment or modification. 3 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  4. Background to amendments (2) • Ambiguity of some of sections of the Act create interpretational challenges and exposes the regulator to frequent litigations. • Continued market failure, resulting in, inter alia, continued high costs to communicate. • Parts of the ECA have dated as a result of High Court judgements, notably the Altech case of 2008. • Numerous other parts have been surpassed by technology, for example, reference to Geographic Number Portability. • Other amendments are required to certain timeframes not being adhered to. 4 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  5. EC Amendment Bill: Process • Electronic Communications Amendment Bill published in Government Gazette in July 2012. • Period of consultation extended by another two weeks due to written requests by some stakeholders. • More than 40 written submissions received- more than 500 pages to consider. • Re-iterative process undertaken internally to analyse each submission. • Government consultation- Infrastructure Development Cluster , the Competition Commission and Department of Finance. • Cabinet approval in May 2013. • Introduction to Parliament in July 2013. 5 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  6. Objectives • The Act is amended to: • Insert new, amend existing and repeal obsolete definitions; • Align the ECA with the provisions of broad-based economic empowerment legislation; • Refine provisions related to licensing; • Decrease turn-around times for consultative processes; • Make further provisions towards ensuring effective competition amongst persons licensed under the Act; • Remove regulatory bottlenecks; • Require the Minister of Communications to establish a council to advise the Minister on broadband policy and implementation; • Make further provision for the discounted rate at which internet services must be provided to schools and other educational institutions; 6 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  7. Objectives • The Act is amended to: • Authorise the Minister to require that certain information be submitted to the Minister; • Make provision for the fiduciary duties of members of the Board of the Universal Service and Access Agency of South Africa; • Provide afresh for the appointment and conditions of appointment for the utilisation of money in the Universal Service and Access Fund; and • Provide for matters connected therewith. 7 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  8. Amendments of Introductory Provisions and Definitions (1) • Amendment of section 1 of the Act 36 of 2005 • New definitions are included. Some definitions are revised and others deleted. • Definitions aligned with ITU regulation, taking into consideration technological advancements which have rendered some of the definitions redundant. • Advertising Standards Authority of South Africa • Allocation: in relation to a frequency band • Assignment: authorisation for use of radio frequency under specified conditions as determined by the Authority • Broadcasting service radio frequency bands- correct terminology of table of allocation • Definition of broadband is included • Days refer to calendar days and not working days 8 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  9. Amendments of Introductory Provisions and Definitions (2) • Amendment of section 1 of the Act 36 of 2005 • Definitions aligned with ITU regulation, taking into consideration technological advancements which have rendered some of the definitions redundant. • Common carrier – Sentech and any other person • Expanded definition of electronic communications facility • Corrected spelling of ITU • Cross-referenced radio frequency plan with provisions of section 34 • Radio frequency spectrum definition to include also broadcasting • Service licence to include any licence authorising the holder to provide any service contemplated in Chapter 3 of the EC Act 36 of 2005 9 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  10. Amendments of Object of Act • Amendment of section 2 of the Act 36 of 2005 • Historically disadvantaged persons, including Black people, replaced with broad-based black economic empowerment 10 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  11. Amendments of Chapter 2: Licensing & Regulations • Amendment of section 4 of the Act 36 of 2005 • In line with ITU regulations and the Cabinet approved Radio Frequency Spectrum Policy for South Africa, the word control is substituted for use in respect of radio frequency spectrum, radio activities and the use of radio apparatus • In relation to the Authority’s obligations to informing the Minister of its intentions to making regulations, it is now made a requirement for ICASA to furnish the Minister with a copy of such regulations. 11 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  12. Amendments of Chapter 3: Licensing Framework • Amendment of sections 5 -19 of the Act 36 of 2005 • The licensing framework is refined through the substitution of the word regional by provincial in terms of ECNS, ECS and BS that require individual licence • Expand scope of issuing of ECNS, BS and ECS that require a class licence to also include electronic communications services of district municipality or local municipal scope operated for commercial purposes • Align terminology of empowerment provisions with the principal BBBEE legislation • Terms and conditions for licences: ICASA is empowered to impose additional terms and conditions that may be applied to any individual or class licence subject to provisions of Chapter 10. • To strengthen coherence between ICASA and USAASA in respect of universal service and universal access, the Authority is now obligated to consult with USAASA on such matters. 12 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  13. Amendments of Chapter 3: Licensing Framework • Amendment of sections 5 -19 of the Act 36 of 2005 • Application of and granting of individual licences: ICASA is empowered to either impose the required 30% equity ownership by historically disadvantaged groups or any other requirements the Authority may prescribe in terms of section 4(3)(k) of the ICASA act. • In respect of the transfer of individual licences or change of ownership: • Prior written permission from ICASA is required to let, sub-let, cede or transfer the control of an individual licence • In respect of class licences, the amendment Bill makes it clear that: • ICASA may issue a class licence provided that the class licence provided by one individual does not collectively assume the scope or coverage of an individual licence • No class licence may be ceded, let or sub-let without prior written permission from ICASA. If within 30 days there is no written reply whether an application is refused or denied the cession or sub-letting, it shall be deemed that permission is given. 13 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  14. Amendments of Chapter 3: Licensing Framework • Amendment of sections 5 -19 of the Act 36 of 2005 • In terms of registration for class licences, the Bill refines the class registration process as well as turn-around times. 14 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  15. Amendments of Chapter 5: Electronic Communications Networks and Electronic Communications Facilities • Amendment of sections 20-29 of the Act 36 of 2005 • Sections 20 and 21 are amended to empower the Authority to, within 18 months of the coming into force of the Electronic Communications Amendment Act, 2013, prescribe how licensees must exercise their rights and fulfill their obligations in respect of the rapid deployment of electronic communications facilities. • The word Guideline is replaced by policy and policy directions to remove the legal uncertainty of the word Guideline. • ICASA is further empowered to impose conditions and obligations on licensees, having regard to any policy directions issued by the Minister in section 21. • Other matters include updating the names of specific departments- DPLG to COGTA ; Land Affairs to Rural Development and Land Reform as well as Environmental Affairs to Water and Environmental Affairs. 15 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  16. Amendments of Chapter 6: Radio Frequency Spectrum • Amendment of sections 30-34 of the Act 36 of 2005 • In March 2010, the Cabinet approved the Radio Frequency Spectrum Policy for South Africa. The amendments in terms of Radio Frequency Spectrum are aimed at aligning the provisions of the policy with that of legislation. • In this regard, the following amendments are made: • The concept of assignment is introduced to confirm ICASA’s licensing role in respect of spectrum and in line with ITU standards; • Prior written approval is required from ICASA in respect of letting, sub-letting, assigning, ceding or in any way transferring of control of a radio frequency spectrum licence; • Within 60 days, the Authority must inform a licensee of its decision with regard to an application for an amendment of a spectrum licence; and • The coordination and approval of any regional radio frequency spectrum plans applicable to the Republic is re-inforced as the role of the Minister. 16 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  17. Amendments of Chapter 6: Technical Equipment and Standards • Amendment of sections 35-36 of the Act 36 of 2005 • The amendment in this section seek to close the loophole by requiring that persons possessing equipment and facilities must also obtain any type of approval from ICASA. • The Standards Act, 1993 (Act No 29 pg 1993) is replaced with the current Standards Act, 2008 (Act No. 8 of 2008). 17 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  18. Amendments of Chapter 7: Interconnection • Amendment of sections 37-42 of the Act 36 of 2005 • The amendments in these sections are aimed at redefining reasonability of facilities leasing requests by changing the requirements for financial feasibility to economic feasibility, in order to have wider application. • The amendments also provide clarity on how essential facilities are to be treated and provided without delay. This promotes a non-discriminatory access regime. • The new provisions now enable class licences to enter into interconnection agreements. 18 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  19. Amendments of Chapter 8: Electronic Communications Facilities Leasing • Amendment of sections 43-47 of the Act 36 of 2005 • Expand scope by the Authority to determine reasonableness in terms of the requests to lease electronic communications facilities. Feasibility now includes economic feasibility, which is more appropriate. • All ECNS licensees receiving requests for leasing of essential facilities are obliged to agree on a non-discriminatory terms and conditions within ten days of receiving the request. • If the licensee can prove that the request neither technically nor economically feasible, the ECNS licensee may refuse the request. • If the parties cannot reach an agreement on a non-discriminatory terms and conditions, ICASA must impose terms and conditions consistent with this Chapter within five days of receiving notification or the failure to reach an agreement. • Any exclusivity provisions contained in any agreement that is prohibited is invalid three years under the commencement of the EC Act, 2013. 19 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  20. Amendments of Chapter 9: Broadcasting Services • Amendment of sections 48-66 of the Act 36 of 2005 • ICASA is empowered to regulate scheduling of advertisements, infomercials and programme sponsorships. Previously these were regulated via regulations issued in 1999. • The provisions relating to regulations on advertising and sponsorships are important within the context of monitoring the allocation and use of advertising by subscription broadcasters. • The obligations of a common carrier are addressed by the amendments. • Furthermore the common carrier is now obligated to submit its tariffs for approval by ICASA. • In this regard the regulatory oversight by the Authority over the common carrier is strengthened. 20 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  21. Amendments of Chapter 10: Competition Matters • Amendment of section 67 of the Act 36 of 2005 • Amendments seek to ensure that there is a clear demarcation between ex-ante regulation, which is the exclusive preserve of ICASA and ex-post regulation which is the domain of the Competition Commission. • The Authority is further empowered to prescribe regulations to determine markets where there is ineffective competition, licensees with significant market power and imposing appropriate and sufficient pro-competitive conditions on such licensees. • A list of pro-competitive licence terms and conditions, which is not exhaustive, is now contained in the Amendment Bill. 21 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  22. Amendments of Chapter 11: Numbering • Amendment of section 68 of the Act 36 of 2005 • This clause seeks to delete a redundant timeframe 22 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  23. Amendments of Chapter 13: General • Amendment of sections 72-79 of the Act 36 of 2005 • Amendments are made in this section to ensure that the public can access government directory, information and related services free of charge. • SITA is currently providing this service on behalf of the DPSA. • The four-digit number 1020 is allocated for this service. This call centre handles calls for government information, queries, directory and related services. • The limitation imposed by the current provisions, which refers to government directory information services, effectively means that the DPSA carries the costs of such calls. This defeats the initial intention. • The wording is changed to make it clear that licensees may not levy any charge on calls to the centre. 23 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  24. Amendments of Chapter 13: General • Amendment of sections 72-79 of the Act 36 of 2005 • The Minister is empowered to establish the National Broadband Council to advise the Minister on broadband policy and implementation. • The e-rate provisions are now extended to all public and private schools as well as to all private and public institutions of higher learning. • The wording on e-rate provisions are refined to assist with the enforcement of these provisions. • Proposed section 79A seeks to ensure that the State and persons employed at 112 Emergency Centres do not attract liability when performing an act in good faith and in accordance with the Act. • Proposed section 79B seeks to enable the Minister to access information held by ICASA, USAASA and any other person for the purposes of the performance of the functions of the Minister. 24 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  25. Amendments of Chapter 14: Universal Service and Access Agency of South Africa • Amendment of sections 80-91 of the Act 36 of 2005 • The provisions make it clear that USAASA is subject to the Public Finance Management Act of 1999. • Governance provisions of the Agency are strengthened: • Sets the framework for the removal of any Board member where good cause is shown by the Minister; • Fiduciary duties of Board members are clearly spelled out; • Conditions and termination of employment of CEO; • Conditions under which an acting CEO can be appointed; • Conditions under which the CEO can delegate his or her powers and assign his or her duties to an employee of the Agency; and • Agency is under the direction and control of the CEO. 25 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  26. Amendments of Chapter 14: Universal Service and Access Agency of South Africa • Amendment of sections 80-91 of the Act 36 of 2005 • Reference to ECNS, ECS and BS in the context of subsidies that may be paid out of the USAF is corrected. • Minster of Communications, acting in concurrence with the Minister of Finance may prescribe additional uses of money in the USAF from time to time. • Every two years, USAASA must prescribe application procedures for persons to apply for subsidies from the USAF for all of the purposes for which funds may be distributed under section 88(1). • ICASA is now obliged to review the definition of under-serviced areas every two years instead of bi-annually. • USAASA may make recommendations to the Minister every two years to determine the meaning of needy persons. • USAASA must collect monies due to the USAF from the Authority 26 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  27. Amendments of Chapter 15: Transitional Provisions • Amendment of sections 92-98 of the Act 36 of 2005 • Amendment to section 95 is made so as to remove the 24 month time-frame which has now passed. • This amendment empowers ICASA to repeal or amend regulations issued under now repealed Acts. • Short title: The name of the Act is provided for. In addition, the different dates for the coming into operation of different sections of this Act will be provided for by Notice in the Gazette. 27 A global leader in the development and use of Information and Communication Technologies for socio-economic development

  28. THANK YOU mameetse@doc.gov.za 28 A global leader in the development and use of Information and Communication Technologies for socio-economic development

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