Convergence Bill: deliberations

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
13 August 2005
CONVERGENCE BILL: DELIBERATIONS

Chairperson:

ANC Proposed Amendments on Chapter 1
ANC Amendments to Clauses 2 & 3 (up to Clause 9)
ANC proposed amendments: Chapters 3 (Clause 10 -19)
ANC Proposed Amendments to Chapter 4: Clauses 20-29
ANC proposed amendments: Chapters 5 - 8
ANC Proposed Amendments of Chapters 9 to 12
ANC Proposed Amendments to Chapter 12 - 14
ANC Proposed Amendments to Chapter 15: Transitional provisions
Convergence Bill [B9-2005]

SUMMARY
In the morning session, the Committee concluded Chapter 1 of the Convergence Bill. The Department presented the proposed amendments for the definitions. Members agreed to refer to "electronic communications" instead of "communications". The Democratic Alliance encouraged Members to consider changing the name of the Bill to the "Electronic Communications Bill" as had been proposed by the Director-General during a previous meeting. With respect to the Objects of the Act, the Committee agreed to include black people in Clause 1(g) and to add a provision that promoted stability in the sector.

In the afternoon session, the Committee covered Chapter 2 and began Chapter 3. The Democratic Alliance pointed out that Chapter 2 could not properly be considered until the ICASA Amendment Bill was tabled. The latter would provide clarity on the regulation-making power of the Authority. The party was concerned that Clause 3(1)(h) allowed the Minister to set policy for the SABC, which should not be allowed.

ETV, the SABC, Multichoice and ICASA proposed that Clause 5 be amended to allow community broadcasting to be regarded within individual licences, because the licence catered to the specific interests of a particular community. The ANC maintained that community broadcasting should be retained as part of the class licences, but that ICASA would have to set stricter terms and conditions for the community broadcasters in their class licences.

The Democratic Alliance proposed the deletion of Clause 5(6) because it prevented people from approaching ICASA to apply for a certain kind or size of network service licence, but instead required people to wait for the Minister to issue a policy determination as to the appropriate time to apply.

[This covers the proceedings of the meeting until 7pm. The 7pm to midnight session will be available here late on 19 September]

MINUTES
Ms M Smuts (DA) felt that the formal voting on the Convergence Bill could only take place after the Committee had viewed the ICASA Amendment Act.

The Chairperson remarked that Members had agreed to conclude those clauses that were not affected by the ICASA Amendment Act.

Chapter 1: Introductory provisions

Clause 1 Definitions
Mr Mjwara, Department Deputy Director-General: Multimedia, proposed to change the following in the preamble of the Bill: to delete "and" after "communications" and insert "services" instead, to add "communications" before "network services", and to include "and broadcasting services" thereafter. Further, to insert "to change the name of the Broadcasting Act of 1999 to the South African Broadcasting Corporation Act" after "Universal Service Agency".

Ms L Shope-Mafole, Department Director-General: Communications, pointed out that the word "communications" would be changed to "electronic communications" in all the relevant clauses.

Ms Smuts highlighted that the word "communications" had to be changed to "electronic communications" throughout the Convergence Bill. She encouraged Members to consider changing the name of the Bill to the "Electronic Communications Bill" as had been proposed by the Director-General during a previous meeting.

Mr P Ponguana, Vodacom Managing Executive, asked whether the Department had considered the definition for "electronic communications" as used in the Electronic Communications and Transactions Act. The definition referred to in that Act should be the same as the one in the Convergence Bill.

Ms Smuts said that if necessary, the title of the Electronic Communications and Transactions Act should be reconsidered. She felt that a few chapters of that Act should be repealed.

Mr Mjwara said that the definition for "broadcasting service radio frequency bands" had been amended and read as follows: ""Broadcasting service radio frequency bands means that part of the electro-magnetic radio frequency spectrum which is allocated for the use of broadcasting services by the Authority, taking into account the ITU table of allotment, in so far as such allocation has been agreed to or approved by the Republic".

Ms Smuts suggested deleting "by means of a communications process" in the definition of "broadcasting signal distribution".

Ms Shope-Mafole said that the communications process related to the electronic telecommunication process. Therefore, she agreed to delete "by means of communications process", but suggested inserting "by means of electronic communications" instead.

Mr G Oliphant (ANC) asked whether it was correct to delete "reception" in the definition of "broadcasting". Mr Mjwara agreed that the word "reception" had been deleted mistakenly.

Mr D Dube, Sentech Executive: Regulatory and Governmental Affairs, stressed that the definition for "common carrier" as used in the Broadcasting Act should be included in the Convergence Bill.

Mr Mjwara said that the definition for "common carrier" read as follows: "Common carrier is a person licensed to provide an electronic communications network service who is obliged to provide signal distribution for broadcasting services on a non-discriminatory and non-exclusive basis".

Ms Smuts wondered whether the term "common carrier" appeared in the Convergence Bill. She remarked that common carriers would no longer be deleted from the Broadcasting Act.

Mr Dube remarked that not only the Broadcasting Act, but also the SABC Act had to be considered in this regard.

The Committee agreed to include the proposed definition for "common carrier".

Mr R Mohlaloga (ANC) commented that "Universal Service Agency" should be changed to "Universal Service Agency of South Africa" (USASA) in the preamble.

Mr Oliphant said that the definition for "class licence" should refer to Clause 5(4).

Ms J White, Mukwevho Mkhabela Adekeye Inc Attorneys, suggested inserting "by electronic means" after the word "information" in the definition for "communications" in order to provide clarity.

Mr Mjwara felt that the definition was clear and no amendment was necessary.

Ms C Mack, MIH Group Executive: Policy and Regulation, wondered whether emission and transmission described the definition of "communications" sufficiently.

Ms Shope-Mafole recommended to reinsert the deleted technical definition of electronic communications that read: "by means of electricity, magnetism, radio or other electromagnetic waves, optical, electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conductors, but does not include content services". The word "electricity" should however be deleted. As a consequence of these amendments, "by any means" had to be deleted as well.

Ms Smuts asked whether deleting "electricity" in the definition for "electronic communications" would still be correct if power stations started to convey broadband.

Ms Shope-Mafole explained that the technical definition of "electronic communications" did not include electricity but electromagnetic waves.

Members agreed to the amended definition of "electronic communications".

Ms Smuts asked why there was a reference to the state in the definition of "communications service". She queried what kind of communications service was only provided to the state.

Mr Mjwara felt that the problem with the definition of "communications service" was the wording "for remuneration". He thus suggested deleting the latter.

The Committee agreed to adopt the Deputy Director-General’s proposal.

Mr Mjwara proposed to refer to business instead of calendar days in the definition for "days". The definition of "election" had been amended and read as follows: "Election means election defined in section 1 of the Electoral Act, 1998 (Act No. 73of 1998)". The definition for "historically disadvantaged persons" had been deleted.

Mr Oliphant felt that business days were not as clear as working days or calendar days. He asked what the reason was to delete the definition for "historically disadvantaged persons". He queried whether the reference to Clause 5(2) in the definition for "individual licence" was correct.

Mr Mjwara explained that the reason for having deleted the definition for "historically disadvantaged persons" was that there were different definitions in various statutes for that term, for instance in the Black Economic Empowerment Act. This had led to confusion. The Department did not know to which Act the definition should refer.

Mr Oliphant expressed concern about deleting the definition for "historically disadvantaged persons", as the Convergence Bill referred to that term in Clause 1(a).

Mr Mjwara said that Clause 1(a) gave context to the term "historically disadvantaged persons" as it made reference to women, youth and people with disabilities.

Ms Smuts agreed with the Department. The Constitution did not refer to the term "historically disadvantaged persons". Unfair discrimination was the key concept in the Constitution in terms of the equality clause.

Mr Mjwara suggested including "black people" in Clause 1(a).

Mr S Kholwane (ANC) recommended using working day instead of business days in the definition for "days".

Ms White pointed out that the definition for "harmful interference" had to make reference to broadcasting services.

Ms Smuts suggested inserting the word "environmentally" after "economically" in the definition for "essential facility". Signal distributors had argued for many years to receive access to the high sites. A high sight was an essential facility.

Mr Mjwara said that the Department first had to discuss the issue of high sites before they could amend the definition.

Ms Shope-Mafole felt that the word "environmentally" should be inserted in the definition for "essential facility" irrespective of the high sites issue. She further suggested deleting "by competitors", taking into account that it was not always a competitor that required to use the facility. Sentech had recently requested to declare certain facilities as essential facilities. She thus proposed to add "or other facilities" after "communications". The issue of high sites would then also be dealt with.

Mr Kholwane asked why the Department had not changed the definitions of "Director-General" and "Minister" as suggested previously. Rather than referring to the name of the Department, the definitions would then refer to the responsibilities – information and communication technologies – of the Director-General and the Minister.

Mr Mjwara answered that the Public Administration Act would have to be changed in order to make this amendment. The Department had therefore decided not to change the definitions.

Ms Smuts asked why the Department had included "or other public stated-owned enterprises" in the definition for "public broadcasting". The SA Broadcasting Corporation (SABC) was responsible for public broadcasting in this country. She was opposed to setting up another enormous corporation to do public broadcasting.

Ms Shope-Mafole replied that they were in the process of establishing regional broadcasters.

Ms Smuts said that under current legislation, the SABC had to apply for regional licenses.

Mr Mjwara added that paragraphs (b), (c) and (d) in the definition for "public broadcasting" had been deleted and instead "or other public state-owned enterprises" inserted. The Constitution did not require that public broadcasting should only be provided by the SABC. The definition had been extracted from the Broadcasting Act.

The Committee agreed not to amend the proposed definition for "public broadcasting".

Mr Mjwara proposed to amend the last part of the definition of "radio station" to "necessary at one location for carrying any electronic communications authorised by the Regulator". The definition for "retail" had been amended as follows: "Retails means the sale, lease or otherwise making available of services offered by licensees to subscribers".

Ms Shope-Mafole stressed that the definition of "radio station" had to include "communication service". The definition should read as follows: "Radio station means one or more transmitters or receivers or a combination of transmitters and receivers, including the accessory equipment, necessary at one location for carrying a communication service or any electronic communication authorised by the Authority". The Department of Science and Technology had requested this provision. They had been concerned about the term "communication service" because the latter required a licence. The Department had thus agreed to insert "or any electronic communication", but had however insisted that the Regulator had to authorize any research undertaken.

Mr Mjwara recommended including broadcasting services in the definition of "universal access" and "universal service". The definition of "vertical relationship" had been amended as follows: "Vertical relationship shall have the same meaning as defined in the Competition Act".

Ms White expressed concern about the effect of the definitions of "retail" and "subscriber" on free-to-air broadcasting services. The Convergence Bill should provide a clear distinction between consumers and subscribers. Subscriber referred to the receipt of a service upon a payment of a fee. She asked whether the term "subscriber" had this meaning in the Convergence Bill.

Ms Smuts remarked that Members had previously agreed to substitute the term "end-user" for "subscriber". She asked why the Committee had decided to change the term. She felt that there was a problem with these definitions. A person who watched ETV was not a subscriber, for instance.

Ms Shope-Mafole suggested adding "for a fee" in the definition for "subscriber".

Ms Smuts said that the problem was that people who were not paying a fee were then still not included.

Ms White commented that the SABC would pay careful attention to the clauses that made use of these definitions to ensure that free-to-air services were included. The Director-General’s suggestion to include "for a fee" in the definition for "subscriber" was important.

Mr A Doyle, ICASA Senior Manager: Broadcasting Policy Development and Research, commented that the problem was that the definition for "service charter" was limited to subscribers. He thus suggested including either consumer or end-user.

Mr Oliphant suggested replacing "in consultation" with "after consultation". The reference to Clause 80(3) in the definitions for "universal access" and "universal service" was very limiting. That clause dealt with the appointment of a board. He recommended referring to the whole of Chapter 14 instead.

Clause 1: Object of the Act
Mr Mjwara reiterated the proposal to include black people in Clause 1(g).

Ms Smuts felt that the vision of the Convergence Bill was not captured well in Clause 1(a). She thus suggested the following amendment: "to promote and facilitate the development of interoperable and interconnected electronic networks and the provision of the services contemplated in the Act over such networks by creating a technologically neutral licensing framework". She further proposed to delete Clause 1(o) because each of the related Acts promoted its own objects. Further, Clause 1(t) should be deleted because the viability of public broadcasting services was protected by the Broadcasting Act. She suggested inserting "when viewed collectively" after "broadcasting services" in Clause 1(w), taking into account that Clause 5(9) (a) which dealt with the matter used that wording.

She further suggested extracting two paragraphs from the Independent Broadcasting Authority (IBA) Act. Clause 1(y) would read as follows: "refrain from undue interference in the commercial activities of broadcasting service licensees while taking into account the communication needs of the public". Clause 1(z) would read as follows: "ensure equitable treatment of political parties by all broadcasting licensees during elections". Finally, she recommended including a paragraph that provided stability in the sector. The latter appeared both in the Telecommunications Act and the IBA Act.

Mr Oliphant recommended not amending Clause 1(a) but instead improving 1(i).

Ms Smuts wondered whether a definition for the word "convergence" was necessary if Clause 1(a) would not be amended. No such definition was needed, provided that the Committee changed the name of the Bill.

Mr Oliphant was not opposed to inserting a definition for "convergence".

Ms Shope-Mafole felt that Clause 1(a) was needed, but had to be improved. She suggested substituting "broadcasting signal distribution" for "information technology". The amended Clause 1(i) could become Clause 1(b). Convergence was possible because of digitalisation. Interoperability was however not a necessary consequence. Two separate provisions were thus needed.

Ms Smuts suggested amending Clause 1(a) to "promote the convergence of network and services in the ICT sector".

Mr Oliphant reiterated his proposal not to amend Clause 1(a) as the present formulation was broad enough. Clause 1(i) should instead be amended.

Ms Shope-Mafole said that Ms Smuts’ proposed amendment for Clause 1(a) should become 1(b). Consequently, Clause 1(i) had to be deleted.

Mr Mjwara remarked that the creation of a technologically neutral licensing framework was not an objective of the Convergence Bill. This part should thus be deleted in the amended Clause 1(b). The objectives of the Bill had to be separated from the means of achieving these objectives.

Mr Shope-Mafole felt that it was important to include the creation of a technologically neutral licensing framework as an objective, and suggested replacing "by" with "and" in the proposed clause. The amended Clause 1(b) would then read: "to promote and facilitate the development of interoperable and interconnected electronic networks and the provision of the services contemplated in the Act over such networks and creating a technologically neutral licensing framework".

Mr Oliphant reserved his position on the proposed amendment of Clause 1(b).

Ms White was strongly opposed to the deletion of Clause 1(t) as had been proposed by Ms Smuts. She agreed that the Broadcasting Act would become the SABC Act. However, the protection of the integrity and viability of public broadcasting services involved a wide range of regulatory processes in terms of the Convergence Bill. The Independent Communications Authority of South Africa (ICASA) would be responsible for these processes.

Mr Mjwara objected to the deletion of Clause 1(o). Ms Smuts agreed not to delete Clauses 1(o) and (t). Mr Oliphant recommended including the concept of harmonisation in Clause 1(o).

Mr Mjwara suggested to insert "and harmonise" in Clause 1(o). With respect to Ms Smuts’ proposal for Clause 1(w), he felt that the insertion "when viewed collectively" could imply that some of the individual licences would not be controlled by South Africans. Foreign ownership was limited to about 20%. He was therefore opposed to her suggestion. Ms Smuts accepted Mr Mjwara’s argument.

Ms Shope-Mafole agreed to insert the proposed paragraph (y). The Regulator needed the power to interfere, however not unduly. She also welcomed the insertion of a paragraph that promoted stability in the sector.

Mr Oliphant asked whether these provisions from the IBA Act were still relevant.

Ms Smuts remarked that the Committee had incorporated many sections from the IBA Act in the Convergence Bill.

Mr Oliphant felt with respect to the proposed paragraph (z) that it was not the objective of the Convergence Bill to deal with equitable treatment of political parties. Mr K Khumalo (ANC) agreed.

Mr Oliphant agreed to insert a provision that promoted stability in the sector.

Clause 2: Objects of Act
Ms N Bulbulia (ICASA Councillor) expressed that it would be appropriate to include "cater for a broad range of services specifically for the programming needs in respect of children, women, the youth and people with disabilities" as a new 2(s)(iii), as that was a theme that permeated the Bill. This phrase was taken directly from the Broadcasting Act.

The Chairperson noted that the Committee agreed to the proposed amendment.

Chapter 2: Policy and Regulations

Clause 3: Ministerial policies and policy directions
After the lunchbreak, Mr J Mjwara stated that no additional amendments had been effected to this Chapter since the Committee’s last deliberations on it.

Ms M Smuts (DA) was of the view that this Chapter could not be properly considered until the ICASA Act was finalised, as it would provide clarity on the regulation-making power of the authority. She stated that she was pleased to note that the DA’s proposal in 3(3was adopted, because it clarified the zone of jurisdictional independence of ICASA. However, the phrase "except as permitted in terms of this Act" needed some discussion. Furthermore, she sought clarity on the meaning of and reason for 3(1)(h).

The Chairperson informed Ms Smuts that the Committee had already discussed these matters thoroughly.

Mr G Oliphant (ANC) agreed and stated that the Committee had already adopted the current formulation of 3(1)(h). He noted that 3(2)(d) had reappeared in the Bill, whereas the Committee had agreed to its deletion at the previous meeting.

Ms L Shope-Mafole responded that 3(1)(h) referred to the rights of the State as they currently stood, as many policy directives that had recently been issued regarding state-owned enterprises ensured that the institutions were actually delivering on their mandates. It was thus an accountability provision, and was included for emphasis.

The Chairperson stated that 3(2)(d) should be deleted, as Mr Oliphant reminded.

Ms Smuts stated that her concern was that this would apply to the SABC as well.

The Director-General explained that the public broadcaster did function within the context of State policy, such as the building of unity, ensuring social cohesion etc. It could not function in a vacuum.

Mr Oliphant contended that Ms Smuts was under the impression that the SABC was in fact a state-owned enterprise.

Ms Smuts replied that the SABC had full Section 16 powers to freedom of expression rights and it was thus completely out of the question for a Minister or government to ever set policy for the public broadcaster, any more than it could for any other broadcaster. Thus the Director-General’s reply was concerning. The SABC was not usually regarded as a state-owned enterprise because it was in the media and free speech business. However, if it was regarded as a state-owned enterprise, then this clause was very problematic. She proposed the deletion of the provision.

Mr Oliphant stated that the first point the ANC wished to make was that the SABC was not a state-owned enterprise. Secondly, he reiterated the point made by the Director-General that the aim of the provision was to harmonise state-owned enterprises in the ICT sector with state policy. He understood Ms Smuts’ concern regarding the SABC but, as the SABC was not a state-owned enterprise, the ANC had no problem with the 3(1)(h).

Mr K Khumalo (ANC) cautioned against engaging in political discussions on matters that had already been discussed in great detail by the Committee. Those matters on which no consensus could be reached, would have to be left to a vote.

The Director-General proposed that "subject to the Broadcasting Act" be inserted at the beginning of 3(1)(h), as it appeared that that would cure Ms Smuts’ concerns.

Mr Mjwara proposed that 3(1)(h) be subjected to the Companies Act as well. He stated that the provision had nothing to do with the day to day decisions regarding the editorial content, but instead dealt with the direction and control of companies. Most of the state-owned enterprises were in fact incorporated companies, and were thus subject to the Companies Act.

The Chairperson stated that the public broadcaster should operate within the policies of the government.

Mr S Kholwane (ANC) contended that the present formulation be retained, with the Director-General’s proposed amendment, as the Committee was of the view that the SABC was not a state-owned enterprise.

Ms Justine White of Mukwevho Mkhabela Adekeye Inc Attorneys, represented. She agreed that the SABC was not generally regarded as a state-owned enterprise, but legally it was a company established under the Companies Act, with a single shareholder that was the government of South Africa. By definition, this then made it a state-owned enterprise. Thus if the aim of the ANC was to ensure that the provision did not apply to the SABC then that should be made explicit in the provision, because at the moment it included the SABC.

Mr Oliphant stated that the provision could be amended to make it clear, as Ms White had proposed.

The Chairperson agreed that it be tightened up, as proposed by the Director-General and Mr Mjwara.

Ms Smuts stated that 3(2) should be amended to refer to "(3), (4), and (5)", as the referencing was incorrect.

Mr Oliphant stated that the DA proposals to 3(3), as contained in the text box, be deleted as part of it was covered under 3(3).

Ms Smuts stated that she would accept the deletion, as parts of her concerns were now included in 3(3).

Clause 4: Regulations by Authority
Ms Smuts stated that the inclusion of "inform" in 4(5) meant that ICASA did not have to take any active steps, and did not specifically require the assent of the Minister.

The Chairperson stated that the Committee agreed that this matter would be parked.

Mr Oliphant stated that there was nothing that needed to be ‘parked’ as the ANC was very clear on the clause, and thus proposed its retention.

Ms Smuts proposed the replacement of the word "may" in 4(6) with "should".

Mr Oliphant proposed that it remain as "may", so that ICASA retained the discretion to hold hearings.

The Chairperson noted that the Committee agreed.

Chapter 3: Licensing Framework

Clause 5: Licensing
Mr Mjwara stated that the Director-General proposed that "communications networks and services" be amended to include the term electronic. The DA proposed the deletion of 5(6) that dealt with managed liberalisation policies.

Mr Oliphant stated that the ANC proposed the retention of 5(6).

Ms Smuts stated that the second "the Authority may" in 5(2) should be deleted, as it was a duplication. The Chairperson agreed.

Ms Smuts stated that she was happy with the excellent new licensing framework, but 5(3)(e) was too vague. She proposed that the provision instead stipulate "such other services as may be prescribed that the Authority finds have significant potential for socio-economic development", which was in fact proposed by the Director-General on a previous occasion. This formulation had a more refined ambit and was a better criterion upon which ICASA could decide on the granting of individual licences. She proposed that the same be done in 5(5) which dealt with class licences.

Mr Oliphant proposed that the words "impact on" replace the words "potential for" in Ms Smuts’ reformulation of 5(3)(e). Ms Smuts agreed. The Chairperson noted that the Committee agreed to the amendment.

ETV proposed that community radio broadcasting be regarded as individual licences, because of the nature of the licence which was catered to the specific interests of the community in question. She stated that Multichoice and the SABC approved of this proposal.

Ms L Kantor, SABC General Manager: Policy and Regulatory Affairs, added that the reasons for the proposal were not based solely on the commercial impact of community radio. Instead that often community radio applications in themselves were competitive, and there would thus be one frequency available for a variety of community organisations that would compete for that limited frequency. The SABC, ETV and Multichoice thus struggled to see how that would be provided on a ‘first-come-first-served’ basis. They thus proposed that the only class licences in broadcasting be the low power 1 watt licences, which really caused very little interference.

ICASA agreed that the community radios be required to apply for individual licences. ICASA’s reasons were also not based on commercial reasons, but instead because the very nature of community radio was to reflect the specific local community whose voices they were supposed to be articulating. As such a hearing process allowed ICASA to customise the license to suit the demographics and needs of the particular community, whereas a class licence would be almost a standard set that applied to any community.

Ms Smuts stated that she approved of the proposed amendment regarding community radio licences.

The Director-General reminded Members that in a previous Committee meeting the Department did indicate that community broadcasters, because of their nature, could not be ordinary class licences. The Department indicated that they would either have to be class licences with stricter conditions, or individual licences with lighter conditions.

ICASA proposed that an application process be required for community broadcasting licences, instead of a registration process. This would take into account all the problems that would be encountered if a registration process were followed.

Mr Khumalo stated that the ANC had not had enough time to caucus this matter and thus proposed that it be parked for the time being. However, if the Committee needed to decide on this now, he proposed that the current formulation be retained as is.

Mr Oliphant proposed that the ICASA concern be taken seriously because it was raising practical, implementation problems.

The Chairperson stated that ICASA had enough time to raise this concern with the Committee during the processing of the Bill and, in fact, ICASA itself recommended the registration process. He stated that the Committee would now break for tea at which point the ANC could discuss the matter, as requested.

After the tea break, Ms N Mokoto (ANC) stated that the ANC view was that community broadcasting should be retained as part of the class licences, because historically community broadcasting was over-populated by people who did not have enough financial capacity. Thus, for the sake of the viability of the community broadcasters it would be better to ensure they remained under the class licences. Furthermore, the ANC did not wish for the process of application to be restrictive to the historically disadvantaged people. The ANC also noted that ICASA would have to set stricter terms and conditions for the community broadcasters in their class licences.

Ms Smuts reiterated her support for the ICASA, SABC and ETV proposal that community broadcasters be subject to individual licences. Secondly, she sought clarity of the effects of 5(5)(a) on metropolitan municipalities. Thirdly, she interpreted 5(5) to mean that a municipality could even apply for a licence to conduct a commercial service.

Mr Oliphant responded that the ANC preferred to leave the provision silent on these matters, and the discretion would be left to ICASA to decide on the matter when the application was tabled. He thus proposed that the provision remain as it currently stood.

The Chairperson noted that the Committee proposed the provision remain as it currently stood.

Ms Smuts reiterated the DA proposal that 5(6) be deleted because it prevented people from approaching ICASA to apply for a certain kind or size of network service licence. It instead required people to wait for the Minister to issue a policy determination as to the appropriate time to apply. She proposed the deletion of 5(6) and the introduction of a situation in which they could simply approach ICASA for network licences. If this amendment were not entertained by the Committee, then at the very least broadcasting signal distribution should be deleted from the clause, by inserting after "individual communications network services licences" the phrase "excluding broadcasting signal distribution licences". Alternatively, the sentence "this subsection does not apply to broadcasting signal distribution" should be added at the end of the clause, as it would avoid any challenges of unconstitutionality.

Mr M Mohlalonga (ANC) contended that Ms Smuts’ amendment would give ICASA the responsibility to make policies on managed liberalisation. The danger was that a situation could arise in which the introduction of those licensees into the market could possibly disrupt the sector. The government policies on managed liberalisation were thus aimed at implementing competition in a manner that was responsible and non-disruptive.

Secondly, the DA seemed to forget, conveniently, that the Minister had powers to make and implement policy. He stated that he was of the view that the clause, as it currently stood, was sufficient with regard to the Minister’s powers to implement policies. He was also comfortable with the powers it granted to ICASA to devise regulations for licensing. The current formulation should thus be maintained.

An transcript of the recorded proceedings from 7pm until midnight will be placed here late on 19 September.