Telecommunications Amendment Bill: deliberations

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
17 October 2001
TELECOMMUNICATIONS AMENDMENT BILL: DELIBERATIONS

 

Telecommunications Amendment Bill [B65- 2001]
Document C: Proposed Amendments to the Telecommunications Amendment Bill
Document D: Telecommunications Amendment Bill [compilation]
Telecommunications Operators’ definition of "Multimedia Service" (see Appendix 1)
MNET/Multichoice definition of "Multimedia Service" (see Appendix 2)
ITU definition of "Multimedia Service" (see Appendix 3)

SUMMARY
The clauses in the Bill were revisited in an attempt to reach consensus on the substantive issues that had been flagged.

In reply to opposition parties again raising the concern that broadcasting should be included in the Telecommunications Act, the Chair stated that one could not postpone dealing with matters immediately affecting the country and wait for them to be dealt with in future unknown legislation.

Members discussed whether the definition of resale should include local access service licencees as well. It was decided that it could be included, as long as the ultimate objective of rolling out in under-serviced areas is not defeated.

The Committee and the Authority discussed ways in which to balance the need for transparency of the Regulator when making licencing recommendations with the need to close loopholes that could lead to litigation.

A revised draft of clause 9 is expected from the State Law Advisor, and insertion of "compelling" reasons was rejected. The clause, as amended, was agreed upon by the committee.

The time frame of clause 12 was altered and the stipulated time period in clause 15 was amended. All agreed that clause 22 would be deleted, and that the new proposed clause 23 would be enacted.

Clause 29 dealt with the establishment of a "Government Directory Information Service", and it was decided that a new section would be introduced in the Telecommunications Act to deal with this issue.

The discussion regarding the granting of more extensive powers to the Authority under section 27 of the Telecommunications Act of 1996 was considered but flagged.

The handling of "multimedia services" under the proposed section 32C of the Telecommunications Act was discussed, and further clarity on the licencing procedure under section 34 of the Telecommunications Act was requested.

MINUTES
Clause 2
Mr R Pieterse (ANC) proposed that the amendment should be accepted.

Ms S Vos (IFP) pointed out that broadcasting should not be included in a Telecommunications Bill.

The Chair asked how this would be achieved.

Ms M Smuts (DP) said that she had no problem with its inclusion if it was implemented.

The Chair asked what the rush was. Once a convergence law is introduced there would still be problems. The Democratic Alliance was always talking about merging the two different laws. He suggested that Ms Smuts should table what she thinks should be in this Convergence Bill. The Committee cannot shift matters affecting the country at present to be dealt with in another Bill, the contents of which no one knows.

Ms Smuts suggested that the Committee should move on but added that the Minister and Director General have for years being talking about this issue and have done nothing about it.

Ms Vos suggested that the provisions (r) and (s) should be merged so as to take out the term 'broadcasting'. This would read as follows: 'the promotion and facilitation of ICT technology and developing a strategy for the Republic in order to bridge the digital divide'.

The Chair asked if it is the common understanding of the Committee that broadcasting is not a telecommunications activity.

Ms Vos said that nowhere in the principal Act does it refer to broadcasting.

Mr E Magashule (ANC) asked why broadcasting should be excluded from the Bill.

Ms Vos replied that, according to the Constitution, broadcasting should not be included in telecommunications legislation.

Mr Pieterse argued that the provisions should remain separate for the sake of clarity.

The Chair stated that this again indicated that there is no common understanding on the issue. In addition, the Constitution does not define 'broadcasting'. The Broadcasting Act refers to broadcasting as a telecommunications activity conveyed from one point to a multi-point.

Ms Vos reiterated that it is not mentioned in the principal Act.

The Chair replied that it is mentioned in the Act many times. He asked the Committee if the provisions should be merged.

Mr Pieterse suggested that they remain separate.

The Chair asked the State Law Advisor if there is a common understanding of the term 'strategy'.

Mr H Smuts replied that the ordinary dictionary definition applies. It refers to 'policy' or 'direction'.

Clause 3
Ms Smuts asked if the Committee was including broadcasting in the definition of ‘multimedia’. She asked if this definition was still applicable.

The Chair asked the Law Advisor if 'if applicable' covers this issue.

Mr Smuts responded that it is for the Committee to decide. Leaving these words in could create some confusion. One first has to determine if broadcasting would be included under the definition of ‘multimedia’.

The Chair suggested that the Committee should move on until the issue of multimedia is dealt with.

Ms Smuts pointed out that S28 (3) has already been repealed and should therefore not appear in the Bill.

Clause 4
Ms Smuts stated that the proposed amendment was a major improvement, as the Authority now has the discretion to hold hearings or not.

The Chair asked if subsection (7) of the Bill would remain. The Committee agreed.

Clause 5
Ms Smuts stated that 'fixed mobile service' should be omitted, as fixed mobile is not a service but a form of connectivity.

The Chair pointed out that the Committee has already agreed to a definition of fixed mobile.

Mr Smuts indicated that he had already captured this. All references to 'mobile operators had been replaced with 'mobile cellular operators'.

Ms Smuts said that this is not what she was referring to.

The Chair asked if public service telecommunications service (PSTS) licence in Clause 11 is referring to a fixed mobile activity.

Ms Smuts said that the definition of fixed mobile in the Definitions clause applies here.

The Chair said that when Telkom therefore applies to provide PSTS, it is implied that they will be able to provide fixed mobile services as well.

Ms Smuts argued that this means that 'fixed mobile services' can therefore be omitted, as it is part of PSTS activity.

The Chair agreed.

Ms Smuts indicated that she was voting against the clause on the basis that Parliament should not be able to allocate the frequency.

Mr Magashule referred to S30A (2) (c). He suggested that the 'payment of a once-off' fee should be replaced by 'against the payment of a fee as will be determined by the Minister in the Gazette'.

Ms Vos suggested that the clause should refer to an 'annual' or 'periodic payment as shall be determined by the Minister in the Gazette'.

The Chair said that the phrase 'such fee, over a period, as the Minister shall determine by notice in the Gazette' was preferable.

Ms Vos asked what 'over a period' means.

The Chair stated that this would introduce flexibility.

Ms Vos suggested 'payment of fees as the Minister shall determine'.

The Chair said that they were attempting to remove the idea of a 'once-off' payment.

The Committee accepted the clause as amended by the Chair.

Clause 6
The Chair stated that in (b), reference to 7 May 2005 would be deleted. In addition both (b) and (c) would be shifted until after line 45 of the original Bill.

Ms Smuts moved for the deletion of (2) (a). The Second National Operator (SNO) should be allowed to piggy-back on Telkom's infrastructure indefinitely.

The Chair referred the member to the discussion on resale in which it was stated that the arrangement would be revisited after the two years.

Ms Smuts insisted on moving for the amendment. Ms Vos seconded it on behalf of the IFP.

Mr Pieterse lodged an objection on behalf of the ANC.

The Chair pointed out that one is dealing with facility-based competition. This has to be for a limited period only or it would become service-based competition.

Ms Smuts stated that 'after' in Clause 6(6) (a) (ii) should be changed to 'from'.

Mr Smuts said that this would have a completely different meaning. If one is saying that it actually takes effect on 7 May then this change is acceptable.

The Chair said that this was the case and that the time had to be adjusted so that switch-on could occur on 7 May.

Mr Smuts suggested that this would be captured in 'by 8 May 2005' which the Committee accepted.

Clause 8
The Chair said that with regard to (b) (i), the provision should remain as it had been in the Act.

When Mr Magashule asked the reason for this, the Chair replied that the Committee had already discussed this.

Clause 9
The Chair confirmed that 'intended' had been removed from S35 (1) (a) (aa).

Mr S Nyoka (CEO of ICASA) stated that having both (aa) and (2) in the clause implies that there is still a two-tiered approach. There is a need to eliminate (2) in order to clarify that only one recommendation is needed. He asked why 'on request' had been included in (bb).

Ms Smuts explained that ICASA wished to change the two-step process to a one-step process.

The Chair asked why, after the applicant is informed of the decision s/he still has to request reasons for the Authority's decision. Why not give the applicant reasons when the Authority notifies him/her of the decision?

The DDG pointed out that if the word 'intended' had remained then both (aa) and (2) would have been necessary. Since 'intended' had been deleted, only one of the clauses was needed.

Mr Nyoka stated that when an administrative body makes any decision, it is required by the Administrative Justice Act to notify the losing party.

Mr Magashule said that the Authority notifies the applicants of its recommendation, but it is the Minister making the decision. S35 (1) (aa) and (2) are therefore not the same. ICASA has to be held accountable for its actions. Nothing in the clause derogates from the responsibility of the Authority to furnish reasons.

ICASA explained the situation, which had arisen when Cell C had been recommended for a licence. All the applicants had been informed of the intended recommendation prior to it being made to the Minister. Applicants then went to court to get an interdict preventing the Authority from making this recommendation.

The Chair said that it is important to avoid a recurrence of this event. The Committee has to find a way to deal with a person who learns of the intended recommendation and then attempts to stop the Minister from deciding. At the same time it is important to ensure transparency. Does the applicant have the right to be informed of the intended recommendation? Who must furnish reasons for the decision?

Mr Smuts stated that a recommendation has no legal consequences. According to the Constitution a person has a right to administrative justice when a decision is taken which will adversely affect such person. However at the stage of the recommendation, the decision has not yet been taken.

The Chair asked if the clause could be redrafted in such a way that would ensure that a recommendation remains a recommendation. This would prevent loopholes being opened for litigation. Thus, one has to balance the need for the openness and accountability of ICASA with the need to prevent the opening of loopholes. The Committee had to decide if they would by law require the Authority to make the announcement of its intended recommendation. They should consider that the announcement might allow room for litigation.

Mr Nyoka explained that if the recommendation was announced it could be challenged before it reaches the Minister. A recommendation is not a decision. Reasons are to be given for decisions and not for recommendations.

The Chair flagged this issue for discussion at a later stage.

Clause 10
Mr V Gore (DP) asked if the clause could not be tightened further. There is still room for the Minister to ignore the licencing procedure.

Mr Pieterse argued for the inclusion of bidding (along with references to beauty contest and auction). He criticised the DA for working from the premise that the Minister cannot be trusted. It is important to accept the actions of the Minister in good faith.

The Chair appealed to members to be practical. In the clause, one needs to allow government to be able to say that applications would be dealt with on a tender or auction basis. If, for example, they choose auction, one has to decide if the Minister can now decide on the licencing conditions that will apply.

Mr Pieterse said that until now there had only been one way to award licences, that is, the contest method. This is being widened in terms of this clause. He suggested that it should include bidding.

Ms Smuts argued for the deletion of 'and the licencing conditions that will apply' in (a).

Mr Magashule reiterated the fact that bidding should be included.

The Chair pointed out that 'bidding' referred to auctions.

Ms Smuts argued that 'in consultation with the Authority' should be inserted in (a).

The DG stated that this had already been included in S34(c).

Ms Smuts pointed out that S35A started with the phrase, 'Notwithstanding sections 34 and 35'. She suggested that it should read 'Subject to S34'.

The Chair argued that this is not possible as S35A deals with alternative licencing procedures.

Clause 11
Ms Smuts referred to S36A (1) (h) (ix). She stated that the clause is confusing. It has to specify that the reference to 'equipment located on a customer's premises' is not a reference to exclusive service.

The Chair stated that (ix) has to be read together with Section 36A(1) (h). This is a repetition of (h). He asked if (ix) could be deleted.

Mr M Karabu (Telkom) explained that it should not be deleted. It should not be dealt with as part of (h), but should stand alone as sub-section (i). Sub-clauses (h) and (i) refer to two distinctly different services. Whereas (h) refers to installation, maintenance and repair, sub-clause (i) refers to service complementary to those mentioned in (h).

The Chair asked what complementary services are. Do they include Telkom repairing a telephone that they had installed?

Mr Karabu explained that some of Telkom's own equipment is located on the customer's premises. This would however not fall under customer premises equipment. Telkom wishes to protect their right of access to their own equipment such as the distribution frame.

Cell C stated that (ix) [the new sub-clause (i)] should remain as is, except that the words in brackets should be deleted.

The Chair suggested that 'whether provided on a fixed or mobile basis' should remain. The phrase 'or a combination thereof' should be deleted.

The Committee accepted the clause as amended.

Clause 12
The Chair asked why reference to the feasibility study had been included, as it has already been completed.

The DG explained that this explains the amount of time that must elapse before the operator can be licensed.

Clause 15
The Committee accepted the clause as amended.

Ms Smuts indicated her objection to the reference to 'Voice over the Internet Protocol'.

Clause 16
Ms N Magazi (ANC) wanted the following phrase to be included under 2(b) after the word applications ' controlled and managed by women'.

Ms Vos argued that women are part of the historically disadvantaged and should not be mentioned as a separate category.

Clause 18
The Chair asked the mobile operators to comment on interconnection rates.

Mr Karabu stated that there are different interconnection rates, depending on the termination of the services. In respect of a particular service, a common interconnection rate shall be offered.

Cell C differed, saying that interconnection rates are agreed to between operators, irrespective of the services.

The Chair said that the aim is to ensure the transparency of interconnection rates. This should be inserted.

Sentech appealed for equity with regard to interconnection rates. They suggested that the interconnection rates should be referred to the Regulator.

Mr T Beale (Vodacom) stated that there are already mechanisms in place to ensure the transparency of interconnection rates. These include interconnection guidelines, conditions in the licences and S53 of the Telecommunications Act.

Clause 23
Ms Smuts referred to the 'supply, sell, offer for sale or lease or hire' of telecommunications equipment without the approval of the Authority. She stated that ICASA had appealed for offences to be created.

The Chair pointed out that they are already offences under S101. It would however be possible to draft a clause declaring these activities to be offences.

Afternoon session
The Chair called on the committee to be more productive during this session, and noted that all the clauses that have been considered would be discussed again at a later stage.

Clause 15
The Chair drew members’ attention to the objection raised by the South African Value-Added Network Service Authority (SAVA) with the current formulation of Clause 15. It is their contention that, should the proposed amendment be enacted, it would not allow the Value-Added Network Service (VANS) to access the Telkom infrastructure. SAVA suggested that the proposed subsections 2(a) and (b) of clause 15 of the Bill be re-inserted, and that proposal 2 on page 8 of Document C that deals with clause 15 be incorporated as the new subsection 2(c).

Ms Smuts insisted that the word "or" at the end of line 28 in clause 15 be replaced with "and".

Multichoice suggested that the comma after clause 15(2)(b) be removed and that the wording in brackets in lines 26 to 28 be inserted here, and that the proposed subsection 2(c) be removed.

Mr Smuts, State Law Advisor, expressed his preference for lines 26 to 28 to remain in clause 15, and also urged the committee to retain the proposed subsections 2(a) and (b).

The Chair disagreed with Mr Smuts’ suggestion as 7 May 2002 is intended as the final date. For this reason, the clause cannot include a provision allowing the Minister to fix a date beyond 7 May 2002.

The Multichoice spokesperson suggested, in response to the Chair’s assertion, that the phrase "until 7 May 2002" be inserted at the beginning of the proposed clause 15(2)(a). This would obviate the need for the proposed clause 15(2)(c) on page 8 of Document C. She furthermore recommended that the word "and" be inserted at the end of clause 15(2)(a), and that the phrase "or a date fixed by the Minister" be included at the end of the current clause 15(2)(b) of the Bill.

Ms Smuts insisted that the date stipulated in the provision be retained as once the date has passed, customers would be able to procure the services concerned from whomever they so choose. This would foster "real competition" within the telecommunications market after 7 May 2002.

Ms C Mack, a representative of MNET/Multichoice, cautioned against the adoption of the stipulated date as it creates a problem when new technology is introduced into the market.

The Chair considered all these concerns and decided against the insertion of the formulation suggested by Multichoice. He noted that the Committee agreed to the above proposals and consented to the adoption of the Clause 15 as amended in this discussion. He noted further that clauses 16 to 21 are also accepted by members.

Clause 22
Ms N Mtsweni (ANC) suggested that this entire clause be removed, and recommended that the relevant provisions in the Independent Communications Authority of South Africa Act 13 of 2000 be amended instead.

Ms Smuts agreed that Clause 22 should be deleted, but questioned Ms Mtsweni’s reasons for amending the ICASA Act instead.

The Chair intervened and suggested that the matter is probably relevant to the ICASA Act and thus properly belongs there.

Ms S Vos (IFP) agreed with these recommendations.

Ms Smuts drew the committee’s attention to the alternate proposed amendment on page 11 of Document C, and urged that it be dealt with not as an alternate solution but indeed on its own merits. The reason for this assertion is that ICASA is sincerely requesting the power to make declaratory orders which is an important part of this process, and should thus be considered as such.

The Chair responded that this entire issue would be discussed further at a later date. He noted that all were in favour of the deletion of Clause 22 of the Bill in its entirety, and further noted the agreement of the committee on the adoption of the new clause 23 of the Bill on page 11 of Document C. This new clause would be discussed in greater detail when section 101 of the Telecommunications Act 103 of 1996 (the principal Act) is considered at a later stage.

Clauses 23 to 29
The Chair noted that Clauses 23 to 25 of the Bill were approved by the committee.

Mr Smuts clarified that Clause 26 dealt with state-owned companies.

The Chair noted that members agreed to this clause, as well as clauses 27 to 29.

Clause 12: Cell C
Cell C was called to raise possible concerns with the clauses that have been discussed.

Dr P Doany (Cell C) drew the committee’s attention to proposal 4 on page 7 of Document C dealing with clause 12 of the Bill, and suggested that the phrase "after 31 December 2003" be inserted after "such licence may be granted" in the proposed subsection 5.

Ms Smuts stated that Cell C has to be fully licenced and operational before 31 December 2003 to offer the best possible product, services and tariffs to the consumer.

The Chair replied that, from the customer’s point of view, Cell C must be allowed a period of time during which it can recover from "price squeezes" and other anti-competitive measures employed by its competitors.

Dr Doany suggested that his earlier proposal be inserted after subsection 5 in a new section 6(a).

The Chair maintained that the amended provision would read that the licence would be "issued" after the stipulated date as only the authority could properly "issue" this licence, whereas the Minister alone may "grant" a licence.

Mr T Beale (Vodacom) raised a concern with the term "multimedia" in section 37 of the principal Act.

The Chair interrupted Mr Beale and ruled his proposal "out of order" as a proper formulation of the "multimedia" definition is awaited from the SLA before this committee may continue on that matter.

Clause 1: Definition of "multimedia service"
The Chair drew the committee’s attention to the handwritten document submitted by MNET and Multichoice dealing with the definition of a "multimedia service", as well as the document submitted by the telecommunication operators dealing with the same issue.

Mr Njoka, CEO of ICASA, informed the committee that the alternate proposed amendment on page 11 of Document C is not intended as an alternative to creating a tribunal. Furthermore, the notion of the declaratory order is at the heart of this dispute and can indeed be resolved via effective legislation. The current provision allows ICASA to make declaratory orders yet does not make such orders "binding law", with the result that ICASA then has to make a second order in terms of section 27(8) of the principal Act. It is thus suggested that section 27(8)(b) be amended to read "pursuant to such recommendations and findings, the Authority shall make such a declaratory order as it deems appropriate", and subsection 8(c) should be inserted to read "such resolutions, conclusions and declaratory orders are binding and effective".

The Chair disagreed and stated that the conclusions by the Authority have always been subjected to the will of the courts, and therefore sees no need for a provision stating expressly that it has to be enforced.

Mr Njoka replied that if the current formulation is retained the orders and resolutions made by ICASA will be open to debate in terms of whether they are binding law. Furthermore, if indeed they are not, parties would not obey the conclusions drawn and this would drastically erode the confidence and powers invested in ICASA.

Ms Smuts agreed that ICASA’s powers under the principal Act are limited, and consequently suggested that the above proposal should be enacted via regulation.

Mr Njoka responded that the principal Act stipulates that a provision must bestow this power on the Authority to make such regulations, and then the Authority would have to conduct an inquiry which is still not binding on the parties concerned and then another process would have to be completed to make this decision binding. This is the reason for the proposal.

The Chair still questioned the need for a provision stating that ICASA’s conclusions and recommendations would have the "force of law".

Ms Smuts requested the SLA to provide clarity on whether the current formulation of section 27 of the principal Act affords ICASA sufficient powers that have a binding effect on the parties concerned.

Mr Smuts replied that some form of sanction has to be imposed on the parties (if they fail to abide by the Authority’s declaratory order or conclusion) to afford these conclusions any binding effect.

The Chair replied that the solution lies not in fining the parties for defying ICASA’s recommendations, but rather whether such order could indeed be defied. Furthermore, the precise purpose behind publishing this conclusion in the Government Gazette was questioned.

Mr Smuts reiterated that the primary concern is whether the sanction imposed is in any way connected to the ICASA order, because if so, it would create an offence that would effectively "force" the parties to comply with the ICASA order.

Mr Njoka stated that if ICASA were indeed granted this power, it would stipulate in the ensuing regulations what precisely the penalty for such defiance is. The penalty could be as severe as the withdrawal of any licence issued or granted.

The Chair urged both the Authority and the SLA to limit the inquiry to the "power of the Authority" with regard to the establishment of a tribunal, as well as whether it shares any powers with the Council for Conciliation, Mediation and Arbitration (CCMA). This issue is at the heart of the discussion in terms of whether ICASA may use another channel to resolve such matters. It seems apparent that ICASA currently has sufficient powers to deal with this concern effectively, and that an amendment is not needed, but this matter will be discussed further at a later stage.

Clause 9
The Chair asked the SLA how far it had progressed with the revised drafting of this clause regarding the decision on applications. Input from the SLA in this regard is eagerly awaited.

Mr Smuts suggested that the proposed section 35(1)(a)(ii) and section 35(2) be deleted, also "and the proposed licence conditions" in section 35(1)(a)(i)(aa) be replaced with "and may propose licence conditions". The phrase "the reasons therefore" should be inserted after "its decisions," in the proposed section 35(1)(a)(i)(bb). Furthermore, the reference in line 58 to "subsection 2" must be changed to "subsection 1(a)".

The Chair noted that the Committee consented to these amendments

The phrase "compelling reasons" in the proposed section 35(9)
Mr Pieterse disagreed with the insertion of this phrase and called for the clause to remain as it is, as the reasons for acceptance or rejection of an application are always available to an interested party.

The Chair inquired whether the proposed section 35(1) should then be deleted in its entirety, as section 35(9) already requires reasons to be furnished in this regard.

Ms Vos reminded members that this right vests in ICASA as well, and therefore the proposed section 35(9) should be amended to include "the rights of ICASA and of an applicant to be furnished with reasons".

Ms Mtsweni agreed with Mr Pieterse that this concern is already covered by the proposed section 35(9), and therefore needs no further amendment.

Ms Vos reiterated her concern that the rights of ICASA are not being sufficiently protected by this section, and urged the committee to reconsider her proposal.

Mr Magashule stated that the Minister has the right to accept or reject applications under this section, and that requiring her to furnish disgruntled applicants with "compelling" reasons creates the impression that the Minister is not properly applying her mind to the decision.

Ms Vos insisted that the Minister might in fact not have provided any reasons for her decision to reject the application, and for this reason the provision should be amended to make such provision compulsory.

The Chair attempted to resolve the disagreement by suggesting that a provision be included to the effect that "any decision by the Minister shall be communicated to the Authority".

Mr Pieterse maintained that it only seems logical that a decision to reject an application would necessarily be accompanied by reasons for such decision.

The Chair then suggested that the requirement that the reasons be "compelling" be removed.

Mr Smuts stated that the Minister usually does inform ICASA of her decision.

The Chair noted that all agreed to clause 9 as amended. He noted further that no objections were raised to clause 10 of the Bill.

Clause 29
Mr P Pongwane, the Deputy Director General (DDG), stated that in addition to the provision of a "four digit number" that enables the general public to access government services and information, this service has to be free and accessible and the specific number must be net-coordinated and also prescribed by the Authority.

The Chair requested a draft from the Department so that the Committee could further consider the matter.

Ms Mtsweni informed the Chair that the ANC has indeed prepared such a draft formulation that reads "the Authority shall determine a four digit toll-free number through which the public may access government information".

Ms Smuts pointed out that the Promotion of Access to Information Act of 2000 in any event requires every state department to establish and maintain an information department for this precise purpose. Furthermore the primary issue lies with the amount and type of information that is disclosed via this service, and the practical implications regarding this provision could be significant indeed.

The Chair was satisfied with the formulation proposed by Ms Mtsweni, but suggested that the problem lies with the actual establishment of such call centres as far as budgetary constraints of the particular departments is concerned.

The Director General reassured the Chair that a feasibility study had been conducted and the results did show that the state would indeed be able to provide such a service. The study also indicated that the telephone calls were made to such government information centres from the most remote to the most modern areas of South Africa. Furthermore, the public information terminals do display an email address that could be used by the public to direct any questions they may have in this regard. All these measures are part of the E-Government initiative pioneered by the Department of Telecommunications together with the Department of Public Service and Administration. The "four digit number" would allow the public to access this service without wasting any unnecessary time and money in first calling many different numbers before accessing such information. This service would, however, be a directory service only that would provide only general information regarding the specific department.

The Chair requested a formulation from the Department in this regard.

Mr Pieterse requested that this number be made accessible to the disabled as well.

Ms Smuts requested clarity on whether this is a directory service or a service whereby the public may access information about the government.

The DG informed the committee that this issue was included in the Telkom licence as a matter to be considered at a later date.

Ms Smuts suggested that it be termed a "directory of government information services".

The DG reassured Ms Smuts that this service would only provide general information regarding the specific department, such as its physical or email address and the like.

The Chair agreed with the formulation proposed by Ms Smuts.

Ms Smuts then reiterated her earlier concern with the fact that the Promotion of Access to Information Act of 2000 itself requires all state departments to publish a directory of services as suggested above.

The Chair called for a new section to be included in the principal Act entitled "Government Directory Information Services".

Mr Smuts agreed that a completely new section would have to be introduced in the principal Act to deal with this issue.

The Chair noted that all were in favour of the adoption of such new section dealing with the proposed issue in the formulation suggested.

Mr Pieterse reiterated his earlier concern and called for a provision to be included in the new section providing that "such number must also have the capability to be used by disabled people".

The Chair suggested that this concern could be treated under the objects of the Act itself in terms of the mandatory provision of telecommunication services to the general public, including the disabled. Therefore this concern does not expressly have to be included in this section. Mr Pieterse agreed and commended the Chair on his insight.

Clause 6 – Sentech’s multimedia service licence
Ms Vos called for a formulation of the proposed section 32C in clause 6 of the Bill that provides that Sentech cannot derogate, undermine or erode any existing rights of licencees or licenced entities.

The Chair agreed with this proposal. He noted that the definition proposed by the Telecommunications Operators (TO’s) seemed like the most viable option. The decision now facing this committee is whether the term "combines" in the Clause 1 definition should be replaced with the phrase "integrates and synchronises" as suggested by the TO’s. He called for any objections to the incorporation into the Bill’s definition of the services listed in (a) to (j) in the TO’s proposed definition.

Ms Vos questioned the need for the insertion of all the services listed from (a) to (j) when the TO’s had formulated such a comprehensive definition. Surely one or the other would suffice.

The Chair replied that this is not necessarily the case, as even the definition proposed by the ITU included a lengthy list. The definition proposed by the TO’s seems the most feasible, but this committee now has to finally decide on a definition to be enacted.

The Chair noted that the proposed TO definition requests the inclusion of the phrase "to any person who requests such service" at the end of the proposed section 32C(1)(b) of the Bill.

Ms Vos suggested that the phrase "upon request, as a common carrier, on an equitable, reasonable and non-discriminatory basis" be inserted at the end of the proposed section 32C(1)(b) on clause 6 of the Bill.

The Chair disagreed with this proposal as the provision of a service "on an equitable, reasonable and non-discriminatory basis" is the very principle upon which the notion of a "common carrier" is premised. Therefore the most viable formulation in this regard seems to be that of the TO’s and consequently their proposed section 32C(1)(b) should be enacted, with the only exception that the phrase "on an equitable, reasonable and non-discriminatory basis" be included.

Mr Magashule suggested that "person or entity" be inserted.

The Chair consented to its insertion into the Bill.

Ms Vos recommended that provision be made for those persons or entities who are already providing a service similar to that to be provided by Sentech, or even merely elements thereof.

The Chair acknowledged this concern, and assured Ms Vos that it would be considered in greater depth at a later stage of the discussion.

Ms Smuts suggested that the issuing of the section 34(1) licences should fall within the exclusive jurisdiction of ICASA, as the state cannot allow every "website holder" and VANS licencee to follow the entire prescribed procedure. Furthermore this procedure is then subjected to verification by the Minister which causes the unnecessary procedural requirements. For this reason these licences should be dealt with under the proposed section 34(1) of the Bill.

The Chair stated that the current section 34(1) "does not say much" as it only provides "in the manner prescribed", and that the notion of the provision of a "service" has to be included in the proposed section 34(2)(a) of the Bill if section 34(1) is referred to. The proposal by MNET/ Multichoice refers to section 34(1) and contains such licencing procedure in proposal (5).

The Chair suggested that the new proposed subsection 5 be inserted after the proposed section 34(1) in the principal Act to deal with "multimedia services". The reason is if the power to issue multimedia licences is granted to any other person or body other than ICASA and is also made subject to section 34(1), it has to be included under section 34(2)(a) licences.

Mr V Gore (DP) suggested that "holders" of an E-Commerce webpage should also be required to apply for a multimedia licence.

The Chair agreed with this proposal and suggested that point 5 in the MNET/Multichoice proposal should be included, but that the word "grant" be deleted from the current formulation.

Ms Mtsweni agreed with the Chair’s suggestion.

The Chair then requested clarity on the precise meaning and content of the phrase "manner prescribed" in section 34(1) of the principal Act.

The Multichoice representative replied that section 34(1) deals with the procedure whereby the Authority processes VANS and Public Switched Telecommunications Service licences (such as the licence granted to Sentech), whereas section 34(2) deals with situations where the applicant is invited by the Minister to apply for the licence (such as the Second National Operator. If ICASA is responsible for the licencing under section 34(1) of the principal Act dealing with the issuing of the Sentech licence, then the issuing of a multimedia service licence should also be included under this section and the Minister does not have to be involved in the matter.

The Chair stated that the precise procedure to be followed under section 34(1) has still not been clearly articulated

Ms Vos noted that the draft Bill made no mention of a licencing procedure for section 34(2).

The Chair suggested that the Bill provides two distinct licencing procedures. Firstly the procedure followed by Sentech in section 34(1), and then the procedure in section 34(2) followed by the SNO.

The DDG responded that in this regard the granting of the Sentech licence would be done in the same manner as the granting of the third generation licence in the proposed section 30B.

Ms Mtsweni urged for the formulation of an effective licencing procedure under section 34(2) as it regulated the granting of a rather important licence.

Ms Vos disagreed.

The Chair stated that a procedure has to be decided on by the Committee. The provision of a multimedia service in this regard is totally anti-competitive in nature, as Sentech will be the only body in South Africa that would provide this service. For this reason it cannot be used in the same manner as a VANS licence, as the very nature of the service being provided is drastically different.

Mr Pieterse drew the committee’s attention to the TO’s proposed formulation of section 32C(5), and suggested that the phrase in subsection 5(a) reading "by 7 May 2003" be replaced with "within 12 months". Furthermore, in the proposed subsection 5(b) "(b) and (c)" and "with the necessary changes" should be deleted.

Ms Vos disagreed because the persons concerned could not be deprived of their existing rights in this regard.

Ms M Magazi (ANC) stated that the ANC is in favour of the enactment of the proposed 34(2).

The Chair informed the committee that if section 34(2) is accepted then the new section 34(2)(a)(5) will be enacted dealing with the provision of a multimedia service by Sentech. It is suggested that this licencing process can be introduced within the first 12 months after 12 March 2003 once Sentech has been granted a licence.

Ms Vos suggested that the Chair is confusing the "service" with its "carrier" when referring to section 34(2) as a "service".

[The remaining hour of the meeting was not minuted by PMG.]

Appendix 1:
Telecommunication Operators definition of "Multimedia Service"
[Sentech, Telkom, M-Cell, Orbicom, Cell C, Transtel, Vodacom, MTN]

"Multimedia Service"means a telecommunications service that integrates and synchronises various forms of media to communicate information or content in an interactive format, including services such as:

1. internet through television,
2. pay-per-view,
3. video an demand,
4. electronic transactions, (including e-commerce),
5. text,
6. data,
7. graphics
8. animation,
9. audio,
10. visual content,

but shall not include mobile cellular telecommunication services and public switched telecommunications services.

Section 32C

1. With effect from 7 May 2001, Sentech shall be granted a license to provide;

1. an international telecommunication gateway service enabling it to operate as a carrier of carriers , and
   (b) multimedia services, to any person who requests such a service.
   
   (2) [as per Bill]

(3) [as per Bill]

(4) [as per Bill]

(5) The holder of a telecommunications license shall not be precluded from providing services which are the same as, or similar to , multimedia services, provided such services fall within the ambit of the telecommunications service license so held.

(6) No person who provides the service contemplated in subsection (1)(b) shall permit such services to be used for the carrying of voice until a date to be fixed by the Minister by notice in the Government Gazette.

Appendix 2:
MULTCHOICE AFRICA, M-NET AND MIH. definition of "Multimedia Service"
S1: 'Multimedia service' means a telecommunication service that combines various forms of media to communicate information or content in an interactive format;

S32(c): Subsections (1) to (4) as they are in the Bill.
-(5) The Authority may grant and issue a license to provide a multimedia service to any person or entity who applies for such license in terms of S34 (1).
-(6) A person who provides a multimedia service, or a service that is similar to or has elements of a multimedia service, in terms of a telecommunications license or together with one or more telecommunications service licensees, shall not be required to hold a multimedia license to provide those services.

Note:
Since multimedia service is now defined as a telecommunication service there is no need for the amendment to S3. In clause 3 of the Bill, delete the words ' and in relation to multimedia services (if applicable)'.

Appendix 3:
ITU definition of "Multimedia Service"
3. Multimedia service is a service in which the programme information consists of more than one type, such as text, graphics, sound, image and video, and where the information is organised to provide more than one way of access (a decision-tree access).