ICASA on its monitoring of SABC regulatory compliance

Meeting report

ICASA On SABC Regulatory Compliance and Monitoring
Ms Nomvuyiso Batyi, ICASA Councillor, gave an overview of the mandate of ICASA over the SABC. She detailed the universal service obligations of the SABC and said that it was ICASA’s job to monitor and enforce compliance. She provided a breakdown of the programming obligations of SABC 1, 2 and 3. She said the methodology guiding local content criteria was that local content was defined under Section 61(2)(a) of the Electronic Communications Act as being actual programme time and not programme length which might include commercials etc.

She said a complaint had been lodged in June 2016, following a SABC media statement in May 2016 that the SABC would not broadcast footage of the destruction of public property during civil protests because that might encourage others to do the same. The complaint was heard in June 2016 by the Complaints and Compliance Commission (CCC), an independent committee of ICASA. In July the CCC presented its findings that the SABC withdraw its resolution not to air footage of public property destruction and that the SABC board chairperson had to confirm this within a week. The findings were endorsed by ICASA. On 20 July 2016, the SABC confirmed it would abide by ICASA’s decision but the SABC has not provided proof of the withdrawal of the May 2016 resolution, instead it said that it had not implemented it.

ICASA then sought further information from the attorney representing eight SABC employees who had filed a court application against the SABC. The attorney said that none of the eight received any formal notification that the policy not to broadcast destruction of public property had been withdrawn. She said that numerous written demands had been made to the SABC for it to comply with the order. ICASA had then decided to pursue criminal charges against the SABC and a case was opened at the Bramley police station on 28 November 2016. The matter was still under investigation by the Hawks.

She then went through an appendix detailing a list of complaints lodged during the municipal elections. She said the SABC had a system in place to programme political party advertising but mistakes had been made in the flighting of election advertisements.

Discussion
Mr M Gungubele (ANC) said that there was a background of historic concerns over the ability of ICASA to implement its mandate. The SABC issue had happened a long time ago and a police case was only now being opened and the Hawks were being asked to investigate. How did ICASA determine what was in the public interest? He said ICASA’s status appeared to be that of an ordinary citizen who had to rely on the police. How autonomous was ICASA? Were they legally empowered? He asked if there was a score sheet on whether the SABC was keeping to the required percentage breakdown of the content flighted.

Ms P Van Damme (DA) said that an ICASA with teeth was needed. Over the past few years it had not been as firm as it should be. In the last few months there had been talk of fake news and propaganda campaigns. She suggested that ICASA conduct an enquiry and table a report to Parliament. She noted that there was no listing of any hearing into eTV’s application to stop its prime time news.

Mr W Madisha (COPE) said that the criminal charges needed to be ‘actualised’. The people responsible, those on the SABC Board, in reality did not exist. What was ICASA’s programme of action because notwithstanding that ICASA had gone to court and was now laying criminal charges, the people responsible on the SABC board were not there. Who was ICASA going to charge?

The Chairperson said that there had been a number of interactions with the SABC before the decision to lay charges at Bramley police station. When was the last interaction? What was the response time to resolve a matter of this nature where a complaint was lodged in May 2016?

Ms Batyi replied that the best way to see how ICASA executed its mandate in the public interest was during an election year when more than 35 full time monitors were hired on a full-time basis. At other times it relied on reports from licensees and complaints that it received from members of the public. ICASA took a random six-week sample to see if licensees complied with their conditions and it published a compliance report annually.

On the comment that ICASA had the status of an ordinary citizen, she said the laws governing ICASA called for it to issue a cease and desist order against offending licensees initially. Thereafter, it could direct the licensee to pay a fine within a prescribed range. For non-compliance, it could direct the licensee to take remedial action. When the licensee was found guilty of repeatedly violating the Act, the licensee could be suspended from broadcasting for a period not exceeding thirty days. If a person was found to have not complied with an order of ICASA, that person had to be criminally charged by SAPS. Therefore, the first port of call for ICASA was to lay a criminal charge at the police station.

On the fake news stories, she would take guidance from the Committee because she had no authority to speak on the matter as ICASA did not regulate the content of the news, it only regulated that the news be done in a fair and transparent manner.

On eTV’s application to stop its prime time news, she said that the application was still under consideration. Hearings had been held in December 2016 and an outcome would be provided in due course.

On the proactive execution of ICASA’s mandate, Ms Batyi replied that being proactive only came into play for new licensees. Compliance was done on a historic basis. It did do compliance education programmes with community broadcasters because they did not have a lot of resources as well as doing education programmes during election years to ensure that all licensees were familiar with the requirements.

Ms Batyi replied she would provide in writing the date of the last interaction with the SABC before going to the police. On the time frame to resolve disputes, she said that the SABC matter was executed within 90 days. However, the monitoring of the follow up to ensure compliance was another issue.

On who was being charged at the SABC, she said that in terms of legislation the corporation was the entity that was charged because it was a juristic person.

Ms Van Damme said ICASA should investigate more proactively. It was empowered by section 4 of its Act to look at any sector in the area that it regulated and called for it to conduct an investigation on fake news in the broadcast media.

Mr Gungubele said that ICASA was reactive and that they should deal with issues proactively.

The Chairperson asked about the complaint against the SABC to cancel a Rous House production. How long ago was the complaint laid because a date for the hearing still needed to be set.

Mr W Madisha asked how the amount of the fine paid by parties was determined. Who sat on the Committee that decided whether a party was guilty and what fine it had to pay? What was done if a party did not pay?

On the reactive/proactive comments, Ms Batyi said that in the SABC case, ICASA was dealing with a complaint so that the matter had already occurred when it reached ICASA. On compliance, she said that each licensee had a financial year end and submitted an annual report. ICASA did weekly checks on radio and annual checks on TV against their licence requirements and a random six-week period was taken to check whether they were consistent with what was reported. A compliance report was issued. ICASA sets out the local content quotas for radio and TV.

On the issue of fake news, she said she still sought the guidance of the Committee as to what constituted fake news. ICASA did not regulate the news content. ICASA could only conduct an enquiry if a complaint was made that a programme or news item contained misleading or fake information.

Ms Van Damme said she would forward written submissions to ICASA on the fake news issue.

Mr Gungubele made a proposal that ICASA present to the Committee its regulatory plan. How was ‘in the national interest’ and ‘in the public interest’ defined. While ICASA might legally have teeth, it would be seen by the public as toothless if matters took over a year to be resolved.

In reply to Madisha, Ms Batyi said ICASA did not regulate political parties, it only regulated broadcasters. She said the SABC had paid the fines. The ICASA Act provided for who sat on the CCC which adjudicated the fines. The CCC comprised seven members who held a three-year term of office and had to include a judge, advocate, attorney or magistrate. Currently, Prof Kobus van Rooyen SC was the chairperson of the CCC which made recommendations under section 17 of the Act.

Regarding the Rous House complaint, Ms Batyi said a complaint had been lodged in December 2016. There had been an exchange of papers with the complainant and the CCC had yet to set a date to hear the matter.

The Chairperson said the view of the Committee was that ICASA should be more proactive. It should be the responsibility of ICASA to monitor the broadcaster’s compliance from time to time to prevent matters from reaching the point where it had to be taken to court.

The meeting was adjourned