Sports Broadcasting Regulations: ICASA briefing

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Communications

23 October 2018
Chairperson: Mr H Maxegwana (ANC)
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Meeting Summary

The Independent Communications Authority of South Africa (ICASA) said it was doing a review of its sports broadcasting regulations because the last time this had been done was in 2010. It had met with a number of sports federations to acquire information to understand the business models of the federation bodies and to see how the public’s interest could best be served in the revised regulations.  It said that the subscription broadcasting services could not acquire exclusive rights that prevented or hindered the free-to-air broadcasting of national sporting events, as identified in the public interest from time to time by the ICASA, after consulting with the Ministers of Communications and Sport and in accordance with the regulations prescribed by the ICASA. It referred to the dispute resolution mechanisms, and explained the terms ‘broadcast live’, ‘delayed live’ and ‘delayed,’ and the public’s interest. New draft regulations would be published by the end of November 2018, and thereafter the public would be invited to submit inputs by the end of January 2019. The regulations would be published by the end of the financial year.

Members wanted ICASA to justify the long time it had taken before starting the review. How seriously was ICASA at risk to sports bodies with deep pockets? To what extent did international contracts for listed events adhere to SA law? Could ICASA comment on indigenous sports? Members said the law governing broadcasting services said subscription broadcasting services may not acquire exclusive rights to prevent or hinder the broadcast of national sporting events, yet the SA Broadcasting Corporation (SABC) had never disputed contraventions of this law. The regulations should include a list of what national sporting events this law applied to, and the list of events should be included in the SABC’s policy to protect the SABC. Members said the dispute between the SABC and SAFA could not wait until the end of the financial year to be resolved. They asked if ICASA was going to all nine provinces for the public hearings, because they were not sure that this could be done in one month. The Regulator should put in place mechanisms to ensure that the ‘bigger pockets’ did not monopolise the acquiring of sports rights because of the role sport played in uniting the country.

Other matters raised by Members included the clarification of the key issues raised by stakeholders when ICASA did their review; whether ICASA was involved, as negotiators, in mediation between the SABC and SAFA over money to be paid to SAFA; and what the rights of international sports federations were. They suggested that ICASA should take the initiative, as Regulator, to intervene rather than wait for a dispute to arise between two bodies. They also asked about the reasons for community radios stations closing down. Members wanted to know if ICASA was considering shortening party election broadcasts from 90 seconds to 30 seconds.

Because some of the candidates to fill the four vacancies on the board of the SABC would be out of the country on 30 October, the Committee agreed to reschedule the interviews for 6 November.

Meeting report

Sports Broadcasting Regulations: ICASA briefing

Ms Palesa Kadi, Councillor; Independent Communications Authority of South Africa (ICASA), and chairperson of its Sports Broadcasting Regulations Committee, said ICASA was doing a review of its sports broadcasting regulations. The last time this had been done was in 2010. It had met with sports federations, as well as the South African Broadcasting Corporation (SABC), Multichoice, e-TV, the SA Rugby Union (SARU), Athletics SA (ASA), the Premier Soccer League (PSL), Cricket SA (CSA), Netball SA, the SA Football Association (SAFA) and Boxing SA. It had not yet met with the SA Sports Confederation and Olympic Committee (SASCOC). It was consulting with the Ministers of Sport and Recreation and of Communications. These meetings were to acquire information and were not hearings. ICASA was trying to understand the business models of the federation bodies. The review also sought to see how the public’s interest was being taken care of.

She said subscription broadcasting services may not acquire exclusive rights that prevent or hinder the free-to-air broadcasting of national sporting events, as identified in the public interest from time to time by the ICASA, after consulting with the Minister and the Minister of Sport, and in accordance with the regulations prescribed by the ICASA. Disputes had to be resolved by ICASA in accordance with the ICASA’s regulations. Since 2010, no disputes had been lodged with ICASA, but ICASA had seen disagreements between the broadcaster and federations, and ICASA had not been party to these disputes. She spoke to the terms ‘broadcast live’, ‘delayed live’ and ‘delayed’ and the public’s interest.  She said the regulations contained the current list of national sporting events as well as minority developmental sports. The object of the regulations was to regulate the broadcasting of national sporting events in the public interest within the Republic, and she described the criteria used for determining national sporting interest. 

She said ICASA had found that federations were operating with different business models, and the Department of Sport and Recreation (SRSA) should convene a meeting with them to work towards establishing standards for purposes of regulation and broadcasting.

Ms Nomonde Gongxeka-Seope, ICASA Councillor and deputy chairperson of its Sports Broadcasting Regulations Committee, said the question to ask was why there was a listing of events. She said sport had an important role in nation building, social cohesion and had the power to unite the nation.

She then referred to the regulation of sports broadcasting. One of the big concerns of the SABC was that they were not told timeously by the commercial broadcasters that they had acquired rights to a listed event, leaving the SABC with limited time to generate commercial value. Sometimes contractual partners were at loggerheads, but the current ICASA dispute resolution mechanism was not being used much. Federations could report an unresolved dispute and if there was a contravention of any regulation then it could be reported to the Complaints Compliance Committee (CCC).

She said that the new draft regulations would be published by the end of November 2018, and thereafter the public would be invited to submit inputs by the end of January 2019 and the regulations would be published by the end of the financial year.

Discussion

The Chairperson said that the process should be wrapped up by the end of the financial year. The Committee would invite ICASA back to get an update on the final regulations before the end of March 2019.

Mr N Xaba (ANC) wanted ICASA to justify the long time it had taken before starting the review. How seriously was ICASA at risk to bodies with deep pockets? To what extent did international contracts for listed events keep to SA law? Could ICASA comment on indigenous sports? To what extent were new, youth orientated sports like car- spinning recognised?

Ms P van Damme (DA) said the law governing broadcasting services was the Electronic Communications Act, and section 61 said subscription broadcasting services may not acquire exclusive rights to prevent or hinder the broadcast of national sporting events. DSTV was not allowed to get exclusive rights over national sporting events, yet the SABC had never disputed this. The regulations should include the list of what national sporting events this law applied to and the list of events should be included in SABC’s policy to protect the SABC. She said that ‘delayed live’ broadcasts were a form of exclusivity, and it was a pity that ICASA had been inactive and had not improved its regulations. She wanted South African citizens to be able to see these events live on SABC and on radio.

Mr B Bongo (ANC) agreed with Ms Van Damme’s comments. He asked how collusion or corruption, whether by omission or commission, could be avoided. He said the matter between SABC and SAFA could not wait until the end of the financial year to be resolved. It should be resolved before then.

Ms M Matshoba (ANC) asked if ICASA was going to all nine provinces for the public hearings, because she was not sure that this could be done in one month.

Mr R Tseli (ANC) said that the Regulator should put in place mechanisms to ensure that ‘bigger pockets’ did not monopolise the acquiring of sports rights because of the role sport played in uniting the country. He thought ICASA would provide the reasons why people were not using ICASA’s dispute resolution mechanisms. He asked what the role of ICASA was when a PSL game was blacked out. He noticed a contradiction between a slide which spoke of a list of sporting events which must be broadcast live or delayed live or delayed by free-to-air television broadcasting licensees; and another slide which spoke of a listed national sporting event that may be broadcast live, delayed live or delayed by a free-to-air broadcasting service licensee. What were the key issues stakeholders were raising during ICASA’s consultations?

The Chairperson wanted further clarification of the terms ‘broadcast live’, ‘delayed live’ and ‘delayed’.

Mr M Kalako (ANC) asked what the key issues raised by stakeholders had been when ICASA did their review. He asked if ICASA had been involved, as negotiators, in mediation between SABC and SAFA over money to be paid to SAFA. He asked for an explanation of the rights of international federations.

The Chairperson asked when ICASA, as the Regulator, did intervene, because there had to be some sort of intervention.

ICASA’s response

Ms Gongxeka-Seope said she recognized Mr Bongo’s views and his concern that the SAFA/SABC matter had to be speedily resolved. On avoiding collusion, she said that ICASA could not get involved unless a dispute was registered. SAFA had expressed the frustrations it had with the SABC, but the matter had to be brought to ICASA officially.

Ms Kadi said the issue of delayed live broadcasts had been around for a long time. She said technology was overtaking the media so even in real time, broadcasting was being affected through the impact of social media.

Mr Bongo said that what was required was that ICASA should do things differently. ICASA should take the initiative, as Regulator, to intervene rather than wait for a dispute to arise between two bodies. He said it should be possible for an intervention to be made, and for the SAFA/SABC issue to be resolved before March 2019.

On why there had been such a long gap since the regulations were reviewed, Ms Gongxeka-Seope said ICASA had just put stringent performance agreement contracts in place and had strengthened the international monitoring and evaluation division so that a lack of reviewing regulations did not occur again. In addition, for the first time in many years, ICASA had a full council complement in place.

On what ICASA learnt from the consultations, she said they found there were issues of governance and that there was no standardisation on how federations were managing their contracts. In discussions, ICASA had picked up that the sports code list should be revised annually. She said that because some sports were played on a two- or three-year cycle, it had been suggested that the review of the sports list should be reviewed annually. Sometimes sporting codes entered into commercial contracts with clauses that locked them in.

Ms Kadi said car racing was an emerging focus, and this car-spinning would be investigated. The review study would reflect more on indigenous sport.

On the question on international events, she used the example of the World Cup. She said that a country’s broadcasting rights ceased. The rights were vested in FIFA and not SAFA, and thus the SABC had no leverage. As a result, Multichoice and others could bid and take up rights.

ICASA had heard the concerns from all over South Africa over delayed live broadcasts.

She said the public hearings were a call for anybody to express their views on the current regulations.

On the matter of monopolies and ‘bigger pockets’, she said she knew there was not a level playing field -- there were many disparities and there were monopolies. What had to be remembered was that it was commercial agreements being entered into. She wondered how the rights and the values of these rights were determined, as it was a business transaction.

She said SAFA had written to the Minister on the SAFA/SABC matter, but ICASA could not move beyond the law as its actions would then be null and void. Negotiations were being taken up by SRSA.

There was a big variance in what federations were paid. The business model of the federations was such that money put in by the Department of Sport and Recreation was mainly for development, and there was a lot of expectation from the state by the federations. The expectations needed to be looked at to see whether they were achievable. ICASA’s main interest was to see that the public could see national events.

On the enforcement of regulations, she said ICASA could not go on its own to a federation, as it would appear that ICASA was interfering or targeting that body. It was important for SA citizens to take up their rights.

The Chairperson asked how aware South Africans were of their rights. What education was ICASA doing?

Ms Gongxeka-Seope said it was clear the public was not aware of ICASA’s processes, and so it had embarked on national road shows to inform people who ICASA was and to invite them to lodge complaints

On whether all provinces were catered for in terms of the road shows, she said she had just come back from workshops on the elections, and ICASA was visiting all the provinces and even the deep rural areas. Four teams had criss-crossed the country.

On commercial investments in sporting bodies, she said ICASA had picked up that the funding of the sporting codes was as if they were living in the apartheid era, and there was a bias towards the big codes like rugby.

Mr Xaba asked about community radio stations which were important for security guards or petrol attendants who depended on radios, which he said could not be closed down. He said Karabo community radio station was off air, and communities were suffering.

Ms Van Damme said there had been talk of shortening Party Election Broadcasts (PEBs) from 90 seconds to 30 seconds. Was this something ICASA was considering?

Mr Tseli said he did not agree with the view that ICASA, as Regulator, was interfering. ICASA should be regulating. It had a clear mandate to ensure there was compliance. Where there were violations, the Regulator should be able to intervene whether there was a complaint or not.. He said that if a code was listed, it had to be broadcast live -- there should not be options of delayed live or delayed.

Ms Gongxeka-Seope said ICASA had done an analysis to understand why community radio stations were closing down and at what point should ICASA engage with radio stations before they were closed down.  They had asked their compliance teams what they were doing to empower community radio stations. Some of the reasons given in compliance reports was because stations flouted governance issues, while others transgressed programming rules.

On PEBs, she said that historically they were 180 seconds, then they were reduced to 90 seconds and currently they were 60 seconds. The draft regulations would be published by the end of November and would be open to the public to comment. There had been no decision on a 30-second slot.

Ms Kadi added that the 60 seconds was too long, so now it was 50 seconds. From the Independent Electoral Commission’s (IEC’s) perspective, there might be more political parties contesting the election. No other party would get an extra 10 seconds.

Ms Gongxeka-Seope said the 50 seconds did not include the opening and closing parts.

On community radio stations, Ms Kadi said there was a lack of community participation and this was troublesome and made the licensing component burdensome. ICASA was working to understand why there was a lack of respect for licensing obligations.

She had taken note of Mr Tseli’s comments on interference and intervention, and they were reviewing even ICASA’s laws in as much as they acted as a restraint. ICASA was looking at how best it could be a more active participant and Regulator.

On the matter of ‘delayed live’, ICASA awaited the submissions because it was hearing a number of divergent views on ‘delayed live’ from the state and from other relevant parties, but not much from civil society. ICASA also had to make sure it did not over reach, however.

Mr Xaba asked for an explanation on the matter of Karabo radio station, as a solution needed to be found. He was not interested in reports.

The Chairperson said there was a need for citizens to be proactive. He asked about the ICASA road shows, because they needed to ensure that they reached out. Perhaps ICASA could partner with other agencies.

Committee Programme

The Chairperson said it would be difficult for the interviews of candidates to fill the four vacancies at the board of the South African Broadcasting Corporation to be held on 30 October 2018, as some of them would be out of the country. It would be rescheduled to 6 November 2018. The State Security Agency had  intimated that its processes would require extra time, and Parliament’s schedule also needed to be taken into account.

Ms Van Damme said the chopping and changing made things difficult for her to plan, and she would be unavailable on 6 November.

Mr Xaba said the matter was of national importance and the matter must proceed on the 6 November.

The Chairperson said only one interviewee would not be available on the 6th. He said on 30 November, the Committee would meet with the Special Investigating Unit (SIU) for an update on issues around security companies used by the SABC, as well as an update on the SABC board member who had a problem with North West University. The BRRR report would be adopted at that meeting. On 6 November, the Committee would do the SABC interviews. On 13 November it would be briefed on the implementation of digital migration. On 20 November, the Department would brief the Committee on its performance management and on ICASA. On 23 November there would be a briefing by the Government Communication and Information System (GCIS). He said the study tour was still under consideration.

Ms Van Damme suggested the SABC candidates be adopted on 6 November.

Mr Tseli had an issue with that, as the Committee needed time to reflect on the decision.

Mr Xaba said that the public would in effect also be providing input.

The Chairperson suggested the Committee could meet on Thursday 8 November, at 12.30pm.

The meeting was adjourned

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