Convergence Bill: hearings

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Communications

15 August 2005
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Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
16 August 2005


CONVERGENCE BILL: HEARINGS

Chairperson: Mr M Lekgoro (ANC)

Documents handed out

Convergence Bill [B9-2005]
South African Communications Forum submission
Law Society of South Africa submission
Print Media SA submission
Print Media SA presentation
Online Publishers Association submission
Online Publishers Association presentation
Media Institute of South Africa submission
Media Institute of South Africa presentation

SUMMARY
In the morning session, the South African Communications Forum (SACF) presented its concerns regarding the Bill, and emphasised the need for a policy framework. As a body representing the historically disadvantaged, the SACF proposed that community-based co-operatives be expressly included in the Bill, and suggested that they possibly qualified for class licenses. The Bill should also include express mention of the ICT Charter, and that should be the basis from which funds from the Universal Service Fund were deployed.

The Law Society emphasised the need for increased competition in the sector to drive prices down. They highlighted the apparent need for content services to be licensed. This and the unacceptably high tariffs for all services would have a detrimental effect on investment and the economy. It was essential that the local loop be ‘unbundled’, and there should be minimum regulation but with a very strong regulator.

A delegation from the Print Media SA (PMSA) noted significant concern at the apparent licensing requirement for content services. Unlawful and undesirable content had been dealt with sufficiently in a number of other pieces of legislation. The Bill did not offer full convergence however, since broadcasting services were still one-directional.

The Department of Communications emphasised that there was no intention to license content services, noting that content had been included in the definitions precisely to define what was being excluded. The Members concurred on the need for absolute clarity on the issue.

In the afternoon session, the Online Publishers Association (OPA) expressed concern that the Bill did not require the licensing of online publishing. It also objected to the Bill providing for specific licensing of "application services" in clause 8(2). The Media Institute of South Africa (MISA) stressed the need for the regulator to be independent and impartial. They feared the Bill gave too much power in key areas to the Minister. MISA believed that ICASA should be allowed to allocate radio frequency spectrum for the security services in Clause 34, and not the Minister.

During the discussion, the DA Members found it startling that MISA appeared to be arguing in favour of analogue services and not digital services, and stated that the Department had been dragging its feet for years in providing digital broadcasting services. The Department stated that an internationally co-ordinated digitisation process was currently underway, and those countries who went on their own were now having to undo all the progress they had made. OPA believed that the regulation of pornographic and harmful material on the Internet would best be dealt with by the private sector itself, and not in the Bill.

The ANC disagreed with MISA and the DA, and stated that the Minister was constitutionally mandated to determine policy, whereas ICASA was mandated to implement that policy. The Minister was able to check whether the regulations passed by ICASA were in line with her policy determinations. The IFP questioned the constitutionality of the catch-all provision of Clause 3(1)(h). The Department assured the Committee that an almost identical provision was contained in the Broadcasting Act and it therefore should not be misconstrued as an underhand manner to direct broadcasting in a particular direction.

MINUTES

SA Communications Forum submission
Ms M Nkone explained that the SACF represented the historically disadvantaged South African practitioners in the Communications Information Technology and Broadcasting industry. Its mission was to promote active participation of historically disadvantaged individuals and organisations in the development of all sectors of the communication industry and to enhance economic development on the African continent.

It was of particular concern that the drafting of the Bill had not been informed by a policy framework. The underlying policy issues were the fundamental building blocks on which the legislation should be built, and the lack of a policy framework could lead to confusion and uncertainties in the implementation of the Bill. The Bill did not define "convergence", for example, and one of the difficulties in this definition might be a lack of a policy framework setting out convergence principles from a South African perspective.

The SACF believed that community based co-operatives could be a new form of ownership of telecommunications services, particularly in under serviced areas, and suggested that the active development and promotion of co-operatives be included as one of the objectives outlined in Clause 2. The licensing process for co-operatives should be made as straightforward and basic as possible, and co-operatives should be eligible for class licenses.

The SACF was committed to the principles of empowerment. They proposed that Chapter Clause 5(8)(b) be amended by the inclusion of "in accordance with the requirements of the ICT Charter", as the Charter process had defined black people as the key beneficiaries of government’s black economic empowerment (BEE) strategies and plans. The Independent Communications Authority of South Africa (ICASA) should also adopt the ICT Charter as a Code of Good Practice.

The granting of a license for 25 years was excessive, given the rapid increase in technological advancement, and it might hamper the pace of development in the industry. Certain criteria should be applied when determining the length of each license. One criterion to be applied would be the level of investment required. Those licenses requiring high levels of investment should be of greater length, and in application this would mean that class licenses and licenses for application services would be issued for a shorter period.

The SACF was aware of the current process of redefining the objectives and functions of the Universal Service Agency (USA), and the Bill should take note of this, and the functions of the Agency be redefined in accordance with the outcomes. The Agency had also been hampered by the challenge of funding. The Agency was currently unable to use the Universal Service Fund (USF) to fund research, training or institutional and capacity building in terms of the beneficiaries of the Fund. A percentage of funding by contribution made by licensees should go directly to the Agency, and the Agency should make a recommendation to the Minister in respect of a formula for the apportionment of these funds. Subclause 80(1) should be amended to insert "sustainable use" in the application of funds from the USF. It was also anomalous that licensed beneficiaries of the USF were expected to contribute to the fund, and Subclause 81(1) should be amended to except "present Small, Medium and Micro Enterprises (SMME) beneficiaries of the Fund and co-operatives".

The roles and functions of ICASA would necessarily change given the new framework established in the Convergence Bill, and a parallel process should be established to re-examine the power and functions of ICASA. In addition, the Bill referred to Section 17H of the ICASA Act, and this was not in the current Act. It was of concern that the Bill referred to a Section that the public had not yet had an opportunity to consult.

Law Society of South Africa submission
Mr G McLachlan (Chairperson, IT/E-Commerce Committee) emphasised the need for South Africa to be information competitive, and that everything depended on good communication and information processing tools being cheaply and easily available. The Convergence Bill had largely achieved technology neutrality, but new opportunities should be grasped and brought into being. In general, the definitions could be improved, and the Bill would not increase competition sufficiently in and of itself. The ICASA Amendment Bill was an integral part of the process, and this had still not been published. The Convergence Bill also did not contemplate local loop unbundling.

Licensing definitions should be clarified, and particularly all references to application services and application service licenses be removed from the Bill. It was important that the issue of whether or not content would be licensed should not be left unclarified. Self-provisioning rights were not clear either. In terms of voice over Internet protocol (VoIP), the Bill did not address its regulation. For example, VoIP providers in the United States did not give access to emergency numbers or help services unless they were forced to do, and such a provision should be included in the Bill.

Deregulation was essential, but with a strong regulator. The Electronic Communications and Transactions (ECT) Act had provided a basic framework for e-business, but bandwidth was lacking and expensive. It was vital to have a strong regulator whose mission was to increase competition and expand the services available. ICASA powers and duties should be clearly set out, and it should be given adequate resources to carry out its functions. ICASA, rather than the Minister, should oversee licensing and interconnection to enhance competition, and ICASA and the Competitions Board should work together for consumer benefit. Interconnection and communications facilities leasing should be compulsory.

Cellular charges were too high, and competition was limited. In Hong Kong, for example, there were at least eight cellular providers, and prices were good. Increased competition and access to data provisioning would drive costs down naturally. Mobile vehicle network operators (MVNOs) should be allowed and licensed to target their chosen market. If any service was poor or collapsed, that would be the result of market forces. Telkom would certainly survive without protection. The more services and access available, the more people would be needed for supply and maintenance. Government itself had been inhibited by the costs imposed. There should not be such huge profits in the provision of a basic human right, and this had to change.

Print Media SA (PMSA) submission
Mr T Ncube (President) explained that Print Media SA was a non-profit organisation representing the interests of a broad range of media publications, including daily, weekly and community newspapers, consumer, trade and technical magazines, and professional and specialist magazines.

Before convergence, communications services had been carried on specific transmission media; for example, broadcasting had been transmitted to television sets via Sentech. With convergence, communications services could be carried on a network of transmitters, but the Bill did not give true convergence, as broadcasting was still one-directional. Content regulation was permissible through licensing of broadcasting services, but not through licensing of communications services.

A number of issues arose as a result of the inclusion of content and content services in the Bill, namely technical difficulties and the inadvertent licensing of content, with concomitant policy and regulatory concerns, constitutional concerns and negative economic and investment effects. Other content services had to be distinguished from broadcasting services. Broadcasting was distributed to the public at large, controlled by the broadcaster and distributed over the frequency spectrum, which was a scarce resource. Online content provision was posted and removed on a daily basis, private in nature and the content was selected by the end user. Any attempt to licence online publishing and information services would be contrary to Section 16 of the Constitution. The Internet was a unique medium giving effect to one of the rationales underpinning the right to freedom of expression, namely the right to self-actualisation. Licensing of online content and other information services would amount to a prior restraint.

Licensing of content would also have the effect that service providers would host their services overseas, and availability of local content would diminish while the costs of accessing local content would increase. Undesirable or unlawful content was already subject to appropriate regulation, including the constitution, the Promotion of Equality and prevention of Unfair Discrimination Act and the Films and Publications Act. To the extent that valid concerns existed with regard to unlawful or undesirable content, it was submitted that these concerns were catered for in terms of existing legislation. Owing to the difficulties associated with the inclusion of content and content services, PMSA believed that all references to content and content services be removed.

Discussion
Ms D Smuts (DA) concurred with PMSA’s submission on the question of content and applications, and noted that clarity was required. The only rationale for licensing broadcasting was the scarcity doctrine, but people had already started to "nibble away" at the definition of broadcasting, so it would be an interesting challenge going forward. Section 192 of the Constitution addressed the question of licensing of broadcasting, but as technology advanced, the question arose of whether this should just be broadcasting, and whether the highest possible degree of independence should be given to the regulator. There was good case law from Zimbabwe and the European Union that supported the view that there should not be concurrent jurisdiction with the Minister.

Mr C Molusi (PMSA) noted that the issue was that, where there was a public interest matter, Constitutional independence was important, but where economic issues were concerned, or where it was a public policy matter, policy makers might have a right to champion a certain cause. Some parameters had to be set.

Ms Smuts remarked that it was all very well to say that Hong Kong had eight competitors. The truth was that these usually settled at two or three, but she concurred with the suggestion that entrepreneurs take the risk. Why had the Law Society suggested that VoIP be regulated? Surely it was for the consumer to decide whether they preferred a cheaper service with a poorer delivery?

Ms Smuts concurred that co-operatives were clearly a form of telecoms rollout to explore, but queried whether it was necessary to include them in the objects of the Act. Were they not a form of SMME?

Ms Nkone replied that there were distinct issues between SMMEs and co-operatives, as co-operatives were essentially community-based structures, although they could also function as profitable business. They should be mentioned because of the dynamics between ownership and beneficiaries.

Ms Smuts suggested that empowerment should be dealt with by the BEE Act rather than the ICT Charter. Charters were voluntary agreements, while Codes had been published, and these had the status of law.

Ms Nkone replied that there was now a BEE Code of Good Conduct, and noted that this would be the Code to which Charters would have to conform.

Mr J Mjwara (Deputy Director General: Multi-Media: Department of Communications) noted that once a Charter was beyond the point of industry agreement, it would become enforceable. The Department of Trade and Industry published a guideline, but each sector had to take into account its own concerns. The IT industry had already agreed to the Charter, and the next step was to publish it as a Code of Good Practice. It would be binding. There would have to be a review of regulations, and licensing conditions and provisions would be harmonised.

Ms Smuts asked whether it was likely that Charters would be renegotiated as difficulties were encountered, suggesting that reference should rather be made to the BEE Act if the Charters were living documents.

Mr Mjwara replied that there were both pros and cons to living documents, but noted that there would be a five year review of the ICT Charter, which spanned a ten year period, after which it would be reviewed in terms of prevailing conditions. It was an interactive process, and went beyond the question of procurement, and included ownership and control.

Ms S Vos (IFP) referred to the SACF proposal in Clause 5(8)(b) to include the requirements of the ICT Charter, and asked the SACF view on the impact of this on the dilution of shareholding. How could the provision be drafted to ensure that shareholding stayed where it was meant to be?

Ms Nkone replied that the Code would ensure that all businesses had guidelines in terms of BEE. People would use their choice and sell shares back, but the Code remained and the company would have to align itself with the law.

The Chairperson noted concern at the selling back of empowerment shares to white entities.

Mr R Pieterse (ANC) expressed concern at the examples given of Hong Kong and the United Kingdom, suggesting that this was a comparison between apples and pears. The Second Network Operator (SNO) would not necessarily drive prices down; many more operators were required for that. The print media had many dailies and weeklies, and was very competitive. Something similar could happen in ICT, within managed liberalisation.

Mr McLachlan concurred, and explained that he had been drawing attention to the benefits of competition with as light a regulatory touch as possible.

Mr Pieterse asked whether ICASA should not be in charge, and have all complaints referred to it. They would then refer these on to the Competition Commission or the Complaints Commission.

Mr Molusi replied that the centre of the argument was that there were different sets of expertise. There would clearly be a slight overlap. While ICASA dealt with matters relating to licensing, within the Competitions Authority, a set of institutionalised processes were needed when dealing with the nature of issues that arose in mergers and so on. There did not appear to be any contradiction in saying that, where this overlap occurred, the two institutions should work together. It was a question of efficiency and where the expertise lay.

Mr Pieterse suggested that provisions on the regulator would be best dealt with in the ICASA Act.

Ms Vos suggested that there was clear intent to regulate the Internet in the definitions. The Department had said that this did not appear in the licence section, so the inference should not be drawn. This needed absolute clarity.

Mr Mjwara replied that there was specifically no inclusion of content services in the licensing framework. Content had been defined in order to know what was excluded.

Mr McLachlan acknowledged the uncertainty on the issue and noted that this arose from the definitions. Perhaps content could be dealt with in terms of the exemption section?

Mr V Gore (ID) noted that the ICT Charter had specific reference to black people with disability, and asked whether this implied that other persons with disabilities were not affected by discrimination. Ms Smuts interjected that this should include discrimination against women.

Mr Mjwara emphasised that the BEE Charter had been drawn up according to the BEE Act, which defined what the Charter should address. Other legislation addressed the issue of people with disabilities, but BEE was very specific on what it wanted to address. The focus in the charter to blackness arose out of that. Other instruments would address other issues of empowerment.

A representation of the SACF noted that the ‘bottom tier’ in the past had been black women, whether disabled or not. Legislation had to focus on correcting previous disadvantages, and it was right that the focus was on those who had been most disadvantaged.

Online Publishers Association submission
After the lunchbreak, Mr JP Farinha, General Manager of MWeb Studios, outlined the background to the Online Publishers Association (OPA) and its primary concern that the Bill not require the licensing of online publishing. He outlined OPA’s specific concerns with the definitions clause, as well as its objection to the Bill providing for specific licensing of "application services" in clause 8(2).

Media Institute of South Africa submission
Mr Raymond Louw, Deputy Chairperson, stated that MISA was indeed appreciative of the opportunity to make further representations on the Convergence Bill before the National Assembly's Portfolio Committee on Communications. This was an important Bill that would lay down the basis of the country's communications structure for years to come. MISA believe that every effort should be made to ensure that the structure would open up and broaden communications and the manner in which they were regulated and so achieve the freest and widest possible communications environment.

South Africa ten years ago had energetically tried to reduce transparency, constrict the channels of communication and the flow of information, and prevent people from knowing the realities of South Africa. They did this by maintaining firm legislative control over major communication instruments in the country and by preventing others from having access to even a portion of it. The Bill was dealing with the great modem technological advances in the communications sphere and would ensure that South Africa never allowed that to happen again; that transparency and freedom, the watchwords of the Constitution, were given real meaning and that communication was opened to all.

The first step was to adopt a principled approach to South Africa's policy towards convergence. The values of freedom of expression and those of Article 19 of the Universal Declaration of Human Rights should be paramount. Article 19 stated: 'Everyone has the right to freedom of opinion and expression', this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers '.

Article 19 had been adopted as the core value of the World Summit on the Information Society (WSIS) and South Africa would be the first country in the world to follow on WSIS's decision by adopting that core value as the essential base for bolstering its communications structures. WSIS indicated that the world was taking the open communication route. Government should not deviate and should adopt Article 19 as the basic value of the Convergence Bill and state so clearly and unambiguously. At the same time it should give the communications regulator powers to regulate independently, transparently and in the public interest.

MISA could not stress sufficiently the need for the regulator to be independent and impartial, but it feared the Bill gave too much power in key areas to the Minister. The Bill enabled the Minister not only to introduce policy but to say how it should be carried out, thus detracting from the independence of the regulator. The power came from her dictating "policy directions" without consulting the head of the Independent Communications Authority of South Africa (ICASA). MISA submitted that the Minister should lay down policy - and only after its acceptance by the National Assembly — and let ICASA decide how to implement it. That was what independence was all about.

MISA believed that too much power was given to the Minister in the Bill and this meant that open communication was being brought about not in the public interest but in the government's interest and this was undesirable. MISA placed itself in danger of the government's voice prevailing on the airwaves, the Internet and in communications generally. Empowering the Minister in the manner it was done in this bill would place her at the start of a slippery slope that lead to authoritarianism. One example where the Minister had no right to tread was in the allocation of radio frequencies to the security services. This was properly the job of ICASA. There appeared to be no good reason for giving that power to the Minister. ICASA should allocate those frequencies in the way it did for the Defence Department.

Finally, MISA had concerns with the intrusion on individual rights. In the laying of telephone and other communication lines over private property, there was no recourse to appeal by a property owner who objected. This was draconian and there should be proper channels of appeal available before a property owner's rights were overridden.

Ms René Smith, MISA: Broadcasting Diversity Researcher, outlined MISA’s specific proposed amendments to the Bill. MISA believed that the constitutional right to freedom of expression should be specifically included in the Preamble to the Bill, as well as the regulation of broadcasting, broadcasting signal distribution and telecommunication sectors in the public interest. Clause 2 should be amended to include a specific reference to Chapter 9 of the Constitution and to provide for the needs of women, children and people with disabilities. Clause 3 should be amended to ensure that the Minister did not act unilaterally without reference to the National Assembly and without consulting ICASA before issuing a policy statement. The licensing categories in Chapter 3 should be clarified in order to avoid the current ambiguities, and Clause 5(5) should be amended to entrench the independence of ICASA. The promotion of consumer rights should be integrated throughout the Bill, especially in Clause 27. MISA believed that ICASA should be allowed to allocate radio frequency spectrum for the security services in Clause 34, and not the Minister. The principle of equality before the law would be infringed in the proposed regulatory environment in so far as digital use of communication facilities was preferred over analogue, and thus MISA proposed the deletion of Clause 30.

Discussion
Ms M Smuts (DA) agreed with OSA that the ambiguity in Clause 2(x) should be clarified, and that Clause 2(y) be deleted. She agreed with OSA that Clause 8(2)(a) needed clarity, and requested the Department to do so.

Secondly, she stated that she found it quite startling that MISA argued in favour of analogue services under Clause 30, based on the grounds of equality. The Bill prioritised digitisation precisely because South Africa was so far behind in it. It was the executive and not ICASA who had been dragging its feet in this regard, and had for years been sitting on reports produced by specially convened commissions tasked with looking into this matter. She asked MISA to explain whether it necessarily followed that community broadcasters would remain with analogue.

Ms Smith responded that MISA was not suggesting that it favoured analogue ahead of digitisation. Instead its concern was that once digitisation was prioritised without ensuring that the playing fields were levelled, unfair discrimination would occur. MISA conducted research to ascertain the exact process and extent of equipment roll-out, but encountered great difficulty in gaining an exact response in finding out which community radio stations were in fact involved in the digitisation process. MISA consulted with sector organisations, contacted the Department and was aware of organisations that were involved with equipment roll-out for community radio stations. MISA’s concern was thus that until such time as the playing fields were levelled and everyone had access, it would not be feasible to suggest a prioritisation because those currently left behind would continue to be left behind.

Mr J Mjwara, Department Deputy Director-General (DD-G), stated that there was currently an international process led by the International Telecommunications Union (ITU) which was looking into the migration of broadcasting services in Europe, Africa and the Middle East. This process was agreed upon internationally and the SA government was also participating in it. The process would ensure the migration of broadcasting services within those three continents, in an orderly fashion, towards digital broadcasting. At a certain time it was envisaged that a meeting be held in Geneva in May 2006 which would take decisions on how to handle the migration.

This was a complicated process that affected one’s neighbours, and for that reason it needed to be co-ordinated at an ITU level. The frequency bands, which were now regarded as broadcasting, would be affected by that movement and the decisions that would be taken. It was thus not the case that government had been dragging its feet in providing digital broadcasting, but instead that government was very aware that any rush to digitisation had quite serious consequences. As a result government needed to operate within the ITU processes as explained, and it had decided not to rush because there was this international process already underway. South Africa had been involved in this process for two years now. He stated that even community radio stations would be required to migrate, as the co-existence of digital and analogue broadcasting would be effected in accordance with that ITU plan.

Ms Smuts sought clarity on MISA’s objections to the role of the Minister in allocating frequency spectrum for the security services, and whether there was a comparative precedent on the matter.

Ms Smith replied that MISA grappled with the issue that if there were already a precedent with regard to the South African National Defence Force (SANDF), why would it be different in this case. In this area the tradition was to err on the side of caution. MISA therefore believe that, in order to avoid any unnecessary interference, the precedent with regard to the Telecommunications Act should be adopted. This precedent stipulated that this should fall within ICASA"s jurisdiction.

Mr Louw added that the current formulation of Clause 34 derogated from the authority of ICASA, as it created the impression that in the long run it was the Minister herself that had the final say. The final say should however be granted to the regulator. MISA was unable to assess the need for the security services to have a spectrum allocated to it by a Minister, when that could quite easily be done by ICASA. There would be no question of the content of that spectrum being interfered with by the regulator.

Ms Smuts stated that the reference made by MISA to the positions of the African Charter on Broadcasting and the African Union Declaration of Principles on Freedom of Expression, went a long way to clarifying the currently confused matter of the dual jurisdiction between ICASA and the Minister. It argued that communications networks required independent regulation.

Mr K Khumalo (ANC) asked MISA to explain whether it meant the principles in the African Charter on Broadcasting and the African Union Declaration of Principles on Freedom of Expression should be included in the Bill, or whether the Bill should merely be premised on those principles.

Secondly, he disagreed with MISA’s proposed amendments under Clause 3, and argued that it referred to "Ministerial policies’ precisely because they would be devised by the Minister herself and not by the regulator. The submission stated that the Minister intruded on the powers and functions of the regulator, and he requested MISA to indicate the specific areas in which the Minister was ‘giving orders to ICASA’ as alleged in the submission.

Ms Smith responded to these three questions by stating that the MISA proposed amendments to Clause 3 for example moving away from the permissive formulation and instead requiring the Minister to consult the regulator when passing policy. This formulation would ensure that the language was clearer and would remove the perception that the Minister was intruding on the powers and functions of the regulator.

Mr Louw added that the current formulation of Clause 3(1) meant that the Minister did not have to consult ICASA at all when making policies, and this derogated from the concept and function of an independent arbiter. Furthermore, consultation between the Minister and other bodies was given a very vague description in the Bill, and should for example stipulate that the Minister shall consult the public when making such policy determinations. Consultations were after all part of the governmental process.

Mr Khumalo asked the OPA to explain how pornographic, racist and other harmful information on the Internet could be regulated.

Mr Farinha replied that he focused on access to pornographic content on the Internet by children or minors, as the Constitution itself stipulated that the accessing of pornographic content by adults on the Internet or elsewhere was not illegal. He did not however believe that the Bill was the ideal vehicle with which to address the problem. The correct place would probably be in the private sector where, for example, Internet Service Providers (ISPs) had products that could be used by their customers to limit exactly what their children could and could not see on the Internet.

One of the major practical problems in regulating content on the Internet was that most of the content was in fact not based in South Africa. A very small portion of Internet content was sitting in South African hosting centres; in fact it would not be economically feasible to host a South African pornographic site in South Africa because the bandwidth was so expensive here. Most of the online pornographic businesses were based overseas in any event, and they could thus not be regulated, least of all through the Convergence Bill.

Ms Smith replied that MISA believed that legislation currently existed that dealt with this in the form of the Film and Publications Board Amendment Act. It dealt specifically with child pornography.

Ms S Vos (IFP) informed OPA that during the morning session the Department assured a previous presenter that there was no intention to licence content services. Secondly, she asked MISA to explain its proposed insertion of ‘news’ in Clause 2(s)(i), when 2(s)(ii) dealt precisely with news.

Mr Louw replied that MISA believed that community broadcasting services should not only deal with sharing entertainment, education and information, but should also provide news for the community.

Ms Vos asked MISA to explain its proposed amendment in Clause 2(v), which dealt with not only ownership but also the actual control of those broadcasting entities.

Mr Louw responded that political parties were prevented from running broadcasting stations and it was therefore important that a community broadcasting station did not become a quasi-political broadcasting station. It was for that reason that MISA proposed the Clause 2(v) amendment. There could be an infiltration both of ownership and operations of political broadcasters in the absence of such a provision, and this was most undesirable.

Mr R Mohlalonga (ANC) suggested that the MISA submission questioned the need for a Minister of Communications, as it proposed that any policy decisions taken by the Minister by subjected to a veto by ICASA. He stated that this subjugation of the Minister and her powers was problematic. He proposed that MISA committed the error of ‘confluencing’ the determination of policy and its implementation. The Minister was constitutionally mandated to determine policy, whereas ICASA was mandated to implement that policy. The further question was the extent to which the Minister was able to check whether the regulations passed by ICASA, in so far as it had these powers, were in fact in line with her policy determinations. This was important because if it were not the case the danger was that it would create an independent and unaccountable regulator, and this was problematic. The MISA proposal also contradicted Section 85(2)(b) of the Constitution. .

Mr Louw replied that he was under the impression that ICASA was accountable to Parliament, and would thus be held in line by Parliament. He disagreed with Mr Mohlalonga that MISA’s proposal would eliminate the role of the Minister, and its proposal was merely aimed at protecting the regulator and not at doing away with the Minister.

Ms Vos stated that Mr Mohlalonga’s argument had many counter-arguments, one of which was that his logic seemed to suggest that the legislature itself be done away with.

The Chair stated that this was a matter that would continue to be the subject of debate. He stated, similarly to Mr Mohlalonga, that the Minister derived her power to devise policy from the Constitution itself and used vehicles such as ICASA to implement those policies. It was thus natural for a Minister to exercise her oversight power and check whether such vehicles were in fact abiding by her policies.

Ms Smuts disagreed and stated that the regulator’s role extended slightly beyond mere implementation. She stated that this matter should be discussed in depth at another date.

Mr Khumalo disagreed with MISA’s proposed amendment to Clause 3 that the Minister should not pass policies without reference to Parliament or without consulting ICASA, as this violated Section 85(2)(b) of the Constitution. Furthermore, MISA’s proposals regarding Clause 5(5) of the Bill suggested, as argued by Mr Mohlalonga, that there was a perception that Ministers were out to erode the powers of independent regulators.

Ms Smuts stated that the fact was that Namibia and Mauritius already had digital terrestrial television, and there was thus no reason why South Africa could not move in the same direction at a much faster pace.

Mr Mjware replied that the difference between South Africa and Namibia was that Namibia was currently trying to scramble back in an attempt to regularise what they had done, because they were currently falling outside the international processes. It was a distinct possibility that any progress they had made with regard to digital broadcasting or any infrastructure that had been rolled out would have to be undone. This was also the case with regard to Mauritius. Unless South Africa moved within an internationally agreed manner of assigning allotment and also preserving the allocations made in the past, it would fall foul with regard to the ultimate decisions that would be agreed upon internationally. This was the biggest problem facing Europe because they used analogue systems to launch digital broadcasting networks.

This had especially serious effects with regard to Digital Audio Broadcasting (DAB), as it required very high level reception which households could simply not access. The reception could also not be increased artificially by the signal distributor, because there were limitations on the spectrum assigned to it. The result was that DAB could not be rolled out in Europe, and was a major problem for them.

He stated that government first began considering the provision of certain digital services approximately three years ago when the international co-ordinated plan was already in operation. Government decided that it was very important for it to fall within the international process, and thus decided against unilaterally implementing its own digital broadcasting systems.

Ms Vos stated that Clause 3(1)(h) was a catch-all provision which also included inter-broadcasting and matters in the national interest. She asked the Department to explain whether this open-ended provision included broadcasting. She proposed that the Clause could create constitutional problems.

Mr Mjware responded that the Bill enumerated matters in which the Minister could make policies on matters of national interest. The decision had to be made whether the Bill contain a provision that dealt exhaustively with all the matters in which the Minister may make policy decision, or whether such an open-ended clause should instead be adopted. The closed list approach imposed an artificial limitation that was recognised and done away with by the open-ended formulation of Section 85 of the Constitution. Clause 3(1)(h) was "as innocent as it could get" and merely stipulated that if there were any other aspects which required Ministerial policy, the Minister would then invoke that provision and do so. The phrase "and related legislation" referred to legislation such as the Broadcasting Act and the Telecommunications Act. He stated that an almost identical provision was contained in the Broadcasting Act, and it should therefore not be misconstrued as an underhand manner to direct broadcasting in a particular direction.

The meeting was adjourned.

 

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