Electronic Communications Amendment Bill: discussion

Telecommunications and Postal Services

04 December 2018
Chairperson: Mr J Mahlangu (ANC)
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Meeting Summary

The Committee met to chart the way forward regarding the Electronic Communications Amendment (ECA) bill, and to flag issues that needed to be resolved. It had received correspondence from two bodies requesting that their submissions be heard, notwithstanding that the submissions date had passed. The matter would be referred to Parliament’s legal office. The Parliamentary Legal Advisor gave his opinion on this matter.

There was also a discussion on a letter a Member of the Committee had sent relating to ICASA which the Chairperson felt was not within the scope of the Committee to decide on, as ICASA was funded by another portfolio committee. Members said it was clear that the 5th Parliament would not finish work on the bill before its term ended. The next Parliament would be dealing with the bill, and it would be up to them to decide whether to hear these submissions or not.

They raised issues of terminology used in the bill that needed more clarification, and noted the tagging of the bill as a section 76 bill, which meant the National Council of Provinces (NCOP) process would start in the next Parliament. Other contentious matters discussed included the authority vested in the Minister, landowners’ and municipalities’ right of access to land, trenching, the allocation of high demand spectrum, the amount of Wireless Open Access Networks (WOANs) there would be, the constitutionality of the bill, and whether the bill created policy uncertainty.

Members said that ICASA should be focused on the allocation of the high demand spectrum, and that the concerns of the offtake of network operators should be resolved quickly. They felt ICASA’s independence had to be entrenched. The rapid deployment aspect of the bill was not necessary and could be dealt with through regulations. They said the Committee needed legal advice from people who had no commercial vested interest. The Department had an open window to go back to the drawing board to redraft the bill, otherwise the Committee would have to draft it.

Meeting report

Electronic Communications Amendment (ECA) bill: Way Forward
The Chairperson said the meeting was about charting the way forward regarding the Electronic Communications Amendment (ECA) bill. He was getting correspondence from other important participants, one of which was the eThekwini municipality, which had written to reserve their right to take the Committee to court if their submissions were not heard. This matter would be referred to Parliament’s legal advisors, but his personal view was that they should be heard. It was clear that the 5th Parliament would not finish the work on the bill.

Mr C Mackenzie (DA) said bending the rules of process would set a precedent. SALGA had appeared at the hearings and eThekwini municipality was part of SALGA.

The Chairperson said SALGA had been allowed to give a supplementary hearing. The Committee of the next Parliament would be dealing with the bill. This Committee could not receive the presentation currently, and it would be up to the next Parliament to decide to hear eThekwini municipality or not, or they had to use the opportunity of SALGA’s supplementary hearing to put forward their views. He asked the Parliamentary Legal Advisor for advice on the procedural issues around eThekwini’s municipality’s request to be heard, because they claimed they had not been aware of the advertisements that had been placed nationally. He wanted to know if the request could be referred to the next Parliament, bearing in mind the question of setting a precedent.

Adv Frank Jenkins, Senior Legal Advisor, Parliament, said the Committee should look at complying with the constitution, which called for giving the public a reasonable opportunity for meaningful participation. What Parliament had done so far appeared reasonable, and this should not concern the Committee. What one could do was to accept their submissions and ask a researcher to summarise and advise the Committee on the submissions, as they might contain issues already mentioned in other submissions. Instead of a deadline for submissions, there should be a deadline after which the Committee would start with its work. The question of whether the next Parliament would receive the submissions was for that Parliament to decide.

The Chairperson said Ms Shinn had sent a letter to him on the Independent Communications Authority of South Africa (ICASA), and he was unsure if the Committee was the right forum for it, as the letter related to ICASA, which fell under the Portfolio Committee of Communications.

He said there were three types of issues raised by the hearings:

  • Technical issues which needed to be looked at and clarified;
  • Issues where members held different opinions but were not sticking points; and
  • Contentious issues.

The first category was of the nature of developing better definitions for the terms being used in the bill. Terms such as ‘open access’, ‘significant impact’, ‘effective’, ‘electronic transaction’, and ‘WOAN’. He said a contentious issue was the tagging of the bill.

Mr Mackenzie said that the bill had been tagged as a section 76 bill.

The Chairperson said that that meant that the National Council of Provinces (NCOP) process would start in the next Parliament.

Adv Jenkins said he had always advised that it be tagged as a section 76 bill. There had been a typographical error in the processing which had led it to be provisionally tagged as a section 75 bill.

The Chairperson said this could have affected possibly interested parties from a public hearing submissions perspective. Other contentious issues were the authority vested in the Minister, landowners and municipalities right of access to land, trenching, the allocation of high demand spectrum, the amount of Wireless Open Access Networks (WOANs), the constitutionality of the bill, and whether the bill was creating policy uncertainty.

Ms M Shinn (DA) said her understanding was that the bill was in disarray, and needed to be withdrawn. She asked that ICASA be focussed on the allocation of the high demand spectrum and that the concerns of the offtake of network operators should be resolved quickly.

She said the letter to the Chairperson contained a document which had been sent to the Department by the network operators, in which they had offered to take 30% of the WOAN offtake. The Department had said they had no knowledge of the document and she felt this was a deliberate lie, and the DG or legal advisors should be censured. She felt there was a disconnect between the Department and the public input received. She said ICASA’s independence had to be entrenched. The rapid deployment aspect of the bill was not necessary, and could be dealt with through regulations. There had to be competition in the area of WOANs. One did not want a WOAN monopoly, and competition would be good for the development of small businesses.

Mr Mackenzie said the work of the Committee would set the scene for the next 100 years, and the bill should not be pushed through with undue haste. Stakeholder issues needed to be ironed out. Investment would come if there was policy certainty.

Ms D Tsotetsi (ANC) said the Committee needed legal advice from people who had no commercial vested interest. Policy uncertainty was a concern regarding small businesses and job creation. She did not want a quick fix bill, but a bill that was beneficial.

Ms N Ndongeni (ANC) said the Committee needed legal advisors, content advisors and researchers to assist them in their deliberations. The Department and the Minister could be called to explain why they were taking the side of ICASA.

On ICASA and its powers, Adv Jenkins said that he could unpack the bill carefully for the Committee in relation to ICASA. He said the Minister may make policy for broadcasting, because policy direction was not an administrative decision, but he could not decide whether to give to industry or to the WOANs, because that was not policy direction.

Ms Tsotetsi said holding a workshop would assist in dealing with issues over which there were question marks.

The Chairperson said Parliament had not given the Committee enough support to tease out the issues. Having listened to the input, the Department had an open window to go back to the drawing board; otherwise the Committee would have to draft it.

On the letter by network operators to take 30% of the WOAN allocation, he said the Department of Communication had raised the issue that the letter spoke of 30% by each operator at one point in the letter, and 30% by all the operators at the end of the letter. He was prepared to wait to early the following year and would not rush the bill. The new Parliament needed to be thoroughly schooled in the bill. There was a general consensus to ensure that communication prices came down, and that those denied participation should be allowed to participate.

The Committee Researcher said the sector had a lot of critical and sensitive issues. There was a dire need for an inclusive economy, but that the consultative process was equally important. He gave some historical context and said that 20 years ago, the then DG had the vision to align the law and to create one information communication technology (ICT) policy environment. In 2014, however, that environment was split up and two ministries were created, with ICASA reporting to both. There was then never a holistic picture, and now they wanted to re-join what had been split. In a converged environment, it did not make sense to deal with the bill without reference to other pieces of legislation. He did not have a sense that the Department of Performance Management and Evaluation (DPME) had been consulted on the socio-economic impact assessment of the bill. ICASA’s independence was also questionable, because sometimes this independence was used for their own benefit. He said the original split of ICASA between two the departments had been to separate broadcasting from the rest of the mandate, but it had created a nightmare.  

Ms Shinn said the Committee needed to make a decision on the current process of the bill. She felt that ICASA could get busy with the spectrum allocation, and Treasury should be influenced to facilitate the ICASA doing rapid deployment.

The Chairperson said the question was whether the Committee had the standing to do this, as the Committee did not provide ICASA’s budget -- ICASA fell under another portfolio committee.

Ms Shinn said the Minister could be motivated to fast track the process to make sure the spectrum auction and rapid deployment happened.

The Chairperson said that government was on course with spectrum allocation, which was happening.

Ms Shinn said she wanted it formalised in writing to the Department, that they engage with the sector and report back early in the following year.

The meeting was adjourned

 

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