Broadcasting and convergence

1. Broadcasting and convergence Presented by : Lumko Mtimde Chief Executive Officer Media Development and Diversity Agency 30 August 2006 Convergence – Broadcast $ Telecommunications Summit The Wanderers Club, Johannesburg

2. Roadmap of the presentation Introduction - About the MDDA Highlights of the Broadcasting history in S.A. Broadcasting Regulatory Framework – mandate and core functions The current broadcasting landscape MDDA ECA and MDDA Act Conclusion

3. Map of South Africa

4. About MDDA • Section 16 and 32 of the Constitution Act provides for freedom of expression and access to information. • The MDDA Act provides for a statutory body entrusted with the responsibility of promoting media development and diversity in S.A. by providing financial and other support to community (non profit) and small commercial media projects.

5. About MDDA • Help create an enabling environment for media development and diversity that is conducive to public discourse and which reflects the needs and aspirations of South Africans. • www.mdda.org.za

6. Broadcasting history in S.A. Pre 1993 • Regulated via the then Apartheid’s Government, Department of Posts and Telecommunication, and to some extent self-regulation. 1993 • IBA Act established a functionally independent and impartial regulator, the IBA, for broadcasting and signal distribution, in the public interest. • The Interim Constitution No. 200 of 1993 guaranteed this independency. 1996 • Telecommunications Act established the SATRA to regulate telecommunications in the public interest. • Minister retained various policy-making powers, more importantly certain licensing functions and a veto power on all telecommunications regulations. • Constitution Act No. 108 of 1996 re-enforced the IBA. • 1999, enactment of the Broadcasting Act providing a new broadcasting policy and legislative framework. 2000 • Anticipating convergence of technologies - the two regulators (IBA and SATRA) were merged into a single regulator, ICASA, in terms of the ICASA Act • Retained the independence character enshrined in the Constitution Act.

7. Broadcasting history in S.A. • Prior to 1994 • SABC run as a state broadcaster, mouthpiece of the Nationalist Party regime. • 702 Radio, Capital Radio and the homeland broadcasters (TBVC stations) • No other private broadcasters and no community broadcasters • No policy and proper legislative framework • 1994 and post 1994 • Transformation of SABC • Establishment of the IBA • Protection of the independence of the regulator through the Constitution and the Act • Convergence.

8. S.A. Regulatory Framework – mandate and core functions • 1993 and 1996 Constitution Act of S.A. • Section 192 provides that national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society • ICASA is the independent authority to regulate broadcasting and telecommunications in the public interest • ICASA’s mandate is to perform duties and exercise powers under: • the Telecommunications Act of 1996, re - telecommunications • the IBA Act of 1993 and the Broadcasting Act of 1999, re - broadcasting • from 19 July 2006, the Electronic Communications Act of 2005, which repeals the above laws except the Broadcasting Act. • In respect of broadcasting matters, ICASA remained functionally independent, in respect of its licensing and regulatory powers, whereas in telecommunications matters the Minister retained some licensing powers and veto powers on regulations developed by the Authority. • Electronic Communications Act (ECA) strengthens ICASA’s licensing and regulatory powers over the entire electronic communications sector.

9. S.A. Regulatory Framework – mandate and core functions • Policy and regulatory development by ICASA in the sector is informed by, amongst others,: • The Constitution, Act 108 of 1996 (as amended) • Independent Broadcasting Authority Act, No. 153 of 1993 (as amended) repealed by ECA • IBA’s Triple Inquiry Report, 1995 • White Paper on Broadcasting Policy, 1998 • Broadcasting Act, No. 4 of 1999 (as amended) • Independent Communications Authority of South Africa Act, No. 13 of 2000 (as amended) • Broad-Based Black Economic Empowerment Act, No. 53 of 2003 • Telecommunications Act, No. 103 of 1996 (as amended) repealed by ECA • Films and Publications Act, No 65 of 1996 (as amended) • Draft ICT BBEE Charter, 2005 • Competition Act, No. 89 of 1998 (as amended) • Promotion of Administrative Justice Act (as amended) • Electronic Communications Act of 2005 (ECA) from 19 July 2006

10. S.A. Broadcasting Regulatory Framework – mandate and core functions • 1994 and post 1994 • ICASA regulates in terms of the law and is obliged to conduct public processes in conducting its functions • Regulator required by law to promote administrative justice, in terms of the Promotion of Administrative Justice Act, which stipulate timeframe for consideration matters by administrative bodies and require “Reasons for Decisions” to be provided. • Regulator obliged to act transparently and in the public interest • Regulator developed a number of regulations (through public participation) in order to provide clarity and certainty regarding its positions on a number of regulatory areas • Regulations give meaning and effect to the laws.

11. S.A. Broadcasting Regulatory Framework – mandate and core functions • In the main, ICASA’s mandate and core function is : • Licensing, including the issuing of clear and measurable terms and conditions for licenses, • Developing a Regulatory framework, • Managing the broadcasting frequency spectrum, • Monitoring compliance to the license, regulations and the law, and • Regulating the industry in the public interest. • ICASA invites applications, consider applications, grant and issue licenses • Three tiers of broadcasting licenses in South Africa: • Public • Commercial • Community

12. Current S.A. Broadcasting Landscape • Broadcasting Division (Licensees) • Television • 3 Public National Free-to-air Broadcasting Services (SABC) • 1 Commercial National Free-to-air Broadcasting Service (e-tv) • 1 Terrestrial Subscription Broadcasting Service (M-net) • 1 Community Television Broadcasting Service (TBN, which was grand-fathered) and (a few others from time to time on special events licenses, Soweto, Grahamstown, Cape Town, Durban) • 2 Public Regional Television Broadcasting Services (SABC – not operational yet) • SABC Africa • In addition to these licenced services there are 2 satellite based television broadcasting services (Vivid and DsTV) which are not licensed yet, but which do have permission to continue broadcasting until their applications have been dealt with by the Authority.

13. Current S.A. Broadcasting Landscape • Broadcasting Division (Licensees) • Sound Broadcasting (Radio) • 18 Public Sound Broadcasting Services • 13 Commercial Free-to-air Sound Broadcasting Services • 100 (82 are currently on air) Community Sound Broadcasting Services • In addition there is 1 satellite based commercial sound broadcasting service (WorldSpace) which has permission to continue broadcasting until its application has been dealt with by the Authority. • Broadcasting Signal Distribution • 1 Category One Licence – Common Carrier (Sentech) • 1 Category Two Licence – Commercial (Orbicom) • Some Community Sound Broadcasters are licensed to self provide their own signal distribution as Category Three Broadcasting Signal Distribution licences.

14. ECA • Promotes convergence in the broadcasting, broadcasting signal distribution and telecommunications sectors; • Provide the legal framework for convergence of these sectors; • Make new provision for the regulation of electronic communications services, electronic communications network services and broadcasting services; • Provide for the granting of new licenses and new social obligations; • Provide for the control of the radio frequency spectrum; • Provide for the continued existence of the Universal Service Agency and the Universal Service Fund; • Provide for other related matter incidental thereto.

15. ECA and broadcasting • Broadcasting is defined as any form of unidirectional electronic communications intended for reception by : • The public • Sections of the public • Subscribers to any broadcasting service; Whether conveyed by means of radio frequency spectrum or any electronic communications network or any combination thereof, and broadcast is construed accordingly. • Broadcasting service is defined as any service which consists of broadcasting and which service is conveyed by means of an electronic communications network, but does not include – • A service which provides no more than data or text, whether with or without associated still images; • A service in which the provision of audio-visual material or audio material is incidental to the provision of that service, or • A service or a class of service, which the Authority may prescribe as not falling within this definition. • Chapter 9 of the ECA recognise broadcasting services and applies only to broadcasting service licensees.

16. ECA and MDDA Act • Chapter 14 provides for continued existence of Universal Service Agency, henceforth called Universal Service and Access Agency of South Africa. • Section 89 (2) provides that the Authority must prescribe— • (a) the basis and manner of determination of such contributions, which must not exceed 1 per cent of the licensee’s annual turnover or such other percentage of the licensee’s annual turnover as may be determined by the Minister after consultation with the affected parties, by notice in the Gazette; and • (b) the dates when such contributions become payable and the manner in which they may be paid. • Section 89 (3) provides that broadcasting service licensees contributing to the Media Development and Diversity Agency (‘‘MDDA’’) must have their annual MDDA contribution set off against their prescribed annual contribution to the Universal Service and Access Fund.

17. ECA and MDDA Act • MDDA Act provides for a partnership between Government, major print and broadcasting companies established in order to assist in the development of community and small commercial media in South Africa, for promoting media development and diversity and furthering the objects of the MDDA Act. • ECA provides for a sustainable mechanism for funding the objects of the MDDA Act. • Broadcasting Service Licensees can now review their partnership with MDDA, taking into account the mechanism provided through the ECA.

18. CONCLUSION • The two Agencies (MDDA and USAASA) need to discuss how best to implement their respective mandates, in the interest of growth of the communications sector and the promotion of the goals of universal service and access. • The era of convergence provides for an opportunity for growing the industry and therefore, facilitate economic growth and development, empowerment, people driven democracy and poverty reduction.

19. Ndiyabulela • Ke a leboga • Ngiyabonga • I thank you • Lumko Mtimde • lumko@mdda.org.za • www.mdda.org.za • 30 August 2006