Astronomy Geographic Advantage Bill [B17-2007]: public hearings

Meeting report

SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
1 August 2007
ASTRONOMY GEOGRAPHIC ADVANTAGE BILL: PUBLIC HEARINGS

Chairperson: Mr E Ngcobo (ANC)

Documents handed out:
Astronomy Geographic Advantage Bill [B17-2007]
Vodacom submission
Telkom submission
PowerPoint Presentation: Telkom
PowerPoint Presentation: Vodacom

Audio recording of meeting

SUMMARY
On the second day of public hearings, the Committee heard oral submissions by Telkom SA Ltd and Vodacom (Pty) Ltd on the Astronomy Geographic Advantage (AGA) Bill. The major issue was the extent of the radio frequency spectrum required by the Square Kilometre Array (SKA) project, which virtually covered the spectrum in use by the fixed line and cellular operators. Concerns were raised over the ability of the operators to continue to provide services to the community and to meet their obligations in terms of the operating licences granted to them. Both companies requested clarification on the definitions and provisions that were contained in the Bill. It was recommended that the Independent Communications Authority of South Africa (ICASA) was appointed the management authority in terms of the Bill. Although the SKA provided significant advantages and benefits to the country, there was a risk to the economic development in the SKA area as a result of the inability of the operators to provide communications services to the affected communities. Significant developments in technology were expected within the foreseeable future. It was suggested that other affected Government Departments be included in the process.

Members of the Committee shared these concerns and requested detailed written submissions on the Bill from Telkom. Although several issues raised were discussed during the first day of the hearings, Members asked delegates to provide further explanations on their concerns. Questions were asked about the number of people that would be affected and the number of jobs that may be created. The benefits to South Africa and the opportunity to develop its skills and expertise in the area of astronomy and the development of new technology were emphasised.

MINUTES
Telkom SA Ltd submission
Ms Mpumie Plaatjie (Stakeholder Manager, Telkom) introduced the delegates from Telkom.

Dr Andrew Barendse (Regulatory and Public Policy Executive, Telkom) presented the introduction and background to Telkom’s presentation to the Committee (see attached document). The AGA Bill addressed many complex issues and was introduced at a time when the communications sector was undergoing a process of reform. It affected the licence conversion process (due for completion by 15 November 2007), the review of the market definitions of fixed, wholesale and broadband services and the NEPAD objectives for satellite, terrestrial and undersea connectivity. Telkom acknowledged the importance of radio astronomy and the unique opportunities created by the Karoo Array Telescope (KAT) and the SKA projects. The challenge was to realise the benefits of these projects together with the ongoing objective to provide communication infrastructure and services to communities.

Dr Barendse  said that the focal issue was the radio frequency spectrum – a scarce resource used by stakeholders in communication, broadcasting, radio astronomy, the maritime and aeronautical sectors and the weather services as well as the Departments of Defence (DoD) and Trade and Industry (DTI). It was not clear how the requirements of all the stakeholders would be met.

Telkom was involved since the inception of the process and although some of its recommendations were incorporated in the AGA Bill, other concerns were not yet sufficiently addressed. The key arguments were the need for further consultation, the undertaking of an impact analysis on the use of the radio spectrum, the clarification of definitions and the consistency of the Bill with other legislation and regulations.

Mr Johan Smit (Senior Specialist: Regulatory and Public Policy Executive, Telkom) continued the presentation and explained the international management of radio astronomy, the international recognition of the SKA and the national coordination function of the SKA to the Committee.

Telkom had three major concerns with regard to the SKA:
· the 70 MHz to 25 GHz frequency of operation encroached on existing mobile and other telecommunication frequency bands;
· the SKA was extremely sensitive to interference from other radio signals and should apply mitigation techniques to minimise such interference; and
· the size of the core, the central and (in particular) the coordinated areas. Maps of these areas indicating the existing Telkom services, Q-Trunk base stations and TDMA network stations within the AGA zones were shown.

Mr Smit said that the wording of the Bill created uncertainty for the operators as it gave the Minister extensive powers that could be detrimental to the provision of services in the SKA areas. The extent of the impact cannot be assessed but it was potentially significant, particularly in the coordination zone. There was also the potential for pressure to be applied by the international community on the Minister to enforce the legislation without consideration for the social obligations towards the community.

Telkom’s concerns with regard to the AGA Bill included:
· Potential conflicts between the AGA and the Electronic Communications Act (ECA). Mr Smit pointed out that, in terms of its licence and other legislation, Telkom had obligations to deliver services and that practical and financially viable alternatives to existing services needed to be found.
· Section 50 introduced a new spectrum of management powers. The need to protect the core area was acknowledged but Telkom preferred that ICASA was the management authority for the coordinated zone.
· In respect of Section 22, it was necessary to convert analog transmissions to digital and the existing Q-trunk network needed to be replaced throughout the country. Financial compensation was required to implement alternative technology.
· Section 23 imposed unacceptable restrictions on service delivery within the AGA area.
· The extent of the ministerial powers in terms of Section 37 was unknown but potentially held major operational implications for Telkom.
· The coordination area was Telkom’s biggest concern and the provisions in Sections 24, 25 and 27 raised issues with regard to the identification, review, standards and conditions of activities in this area. It was felt that four months was an excessive timeframe in terms of service delivery and the cost of impact assessments to be borne by the operator was unfair. It was suggested that the coordination area remained under ICASA management, that the size of the area was limited and that timeframes be shortened to thirty days.

In conclusion, Telkom felt that the Bill favoured radio astronomy and science to the detriment of the communications public. It acknowledged the opportunity for consultation in the drafting of the Bill but felt that the Minister had almost unrestricted powers on all radio and spectrum matters affecting areas beyond the AGA zones. Telkom was very concerned over the restrictions within the coordination zone.

Discussion
Mr Ngcobo thanked Telkom for its presentation and agreed that, as discussed during the previous day’s hearings, the finding of a win-win solution was the way forward.

Mr J Blanche (DA) said that the more he heard, the more concerned he became over the effects on consumers living within the AGA areas and that steps needed to be taken to ensure that they are not worse off. He was worried about the effects on economic development in the area as a result of the removal of communication systems. He suggested that Telkom submit detailed written recommendations on what should be included in the Bill to the Committee. He suggested that the Portfolio Committees on Communication and Agriculture were kept informed as well.

Mr Ngcobo agreed that the Portfolio Committee on Communication should be involved in the drafting of the Bill. He pointed out that there were overlapping concerns between Telkom and the submissions heard by the Committee during the previous day’s hearings. He mentioned that 350 000 people were affected at television level and 280 000 at radio receiving level. These numbers were not insignificant and it was important that solutions were found. It was necessary to consider the massive costs involved in the conversion and replacement of systems.

Ms B Ngcobo (ANC) suggested that the Department of Environmental Affairs and Tourism also be involved. She wanted to know to what extent the people living in the area were informed and asked the Department of Science and Technology (DST) to explain the issues so that people may understand them.

Mr Ngcobo agreed and requested that the DST take note of the concerns and requests for clarification in the wording of the Bill.

Mr S Dithebe (ANC) said that the SKA was very important for South Africa and everything necessary must be done to support it. He expected that not everyone would be happy with the final outcome. He asked Telkom to advise what methods it had that could assist the process. He requested further details of which powers Telkom felt should be vested in ICASA rather than in the Minister, bearing in mind that the role of ICASA was under consideration and was expected to change in the near future.

Mr Ngcobo mentioned that the role of ICASA was extensively discussed at the previous day’s hearings, during Mr Dithebe’s absence.

Prof I Mohamed (ANC) remarked that the scientific achievement was important for South Africa and that the project was crucial for the future of mankind and the understanding of the universe. He wanted to know what Australia’s capability was to pursue this scientific objective. He was concerned by the cost implications of relocating people and wanted to know how many people would be affected.

Mr Smit replied that it was important that provision was made in the Bill for the implementation of the legislation by someone who does not have any vested interests. ICASA was given the task of managing radio frequency allocations and Telkom had more faith in that body to be a neutral, disinterested party than in the astronomy authority, which had a vested interest in the matter.

With regard to compensation, Mr Smit said that major technical developments can be expected over the next ten years but the problem now was the replacement of the old analog technologies with other wireless options. Telkom presently used 98% of the proposed SKA frequency range of 70 MHz to 25 GHz and needed more certainty of the real SKA requirement. Certain alternative solutions also operated within the SKA range and Telkom would have more confidence in migrating to other technologies if it knew that it fell outside the SKA requirement. It was not known what the requirements would be by 2015 and no-one knew exactly what the impact would be by then. The concern was that the Bill provided the Minister with full powers to “switch off” services and although it was acknowledged that was not the intention, nevertheless, control resided with someone who had a vested interest.

Dr Barendse  added that Telkom had already made three written submissions in addition to this oral submission but was willing to provide the Committee with a document wherein the issues relating to the definitions, equipment, advantage areas, issues of governance and the envisaged role of ICASA versus another management authority were spelt out.

Mr Ngcobo asked whether Telkom already had such a document.

Dr Barendse  replied that he was replying to the requests of the Members to submit written comments and recommendations.

Mr Dithebe was concerned that use of the phrase “someone with vested interests” implied that the Minister was not able to act impartially. He realised that the phrase was used in relation to the proposed body and ICASA but the Minister must act within the constraints of the Constitution. He asked for clarity on the use of the phrase as it could have different meanings to different people.

Mr Ngcobo explained that the issue was discussed during the previous day’s proceedings. The Minister was the host of the AGA Bill and ICASA’s role was clearly defined. It was stated that the Minister was to act in concurrence with ICASA in order to satisfy the constitutionality of the role of ICASA and the Electronic Communications Act (ECA).

Mr Puseletso Loselo (Head – Legal Services, DST) referred to Sections 7, 9 and 11 of the Bill, which dealt with the identification, declaration and proclamation of the AGA areas. These Sections included the public participation processes that needed to be followed.

On the question of the proposed management authority's independence, Mr Loselo explained that Section 15 of the Bill stated that the Minister can appoint any public entity or organ of state to this position. ICASA was a public entity in this sense. He added that it was difficult to determine the independence of an entity.

Mr Ngcobo expanded on the previous day’s discussions around the adoption of the phrase “concurring” in preference to the phrase “consulting” in the Bill. The DST was requested to restructure the relevant clauses in the Bill.

Dr Bernie Fanaroff (SKA Project Director, DST) regretted that further discussions had not been with operators such as Telkom, Sentech, NAB, Vodacom and others. He felt that Telkom was looking at a theoretical worst-case scenario. All the identified stations in the coordination zone would not be affected as many were point-to-point transmissions that would not be seen by the telescope unless the transmissions were pointed at it.

Dr Fanaroff said that it was important to understand the reasons for the SKA project. In addition to participating in a major international scientific project, South Africa was not strong in innovation and tended to create niche products from technology developed in other countries. World trade was growing in knowledge products rather than in raw materials. South Africa and Australia traditionally traded in raw materials. It was necessary for South Africa to have mission-driven and exciting innovation projects in order to develop the skills and expertise needed to compete in the global market. SKA was such an exciting project and could be used to encourage young people to develop in the scientific and engineering fields. South Africa was already participating at an international level and making significant contributions in the field of astronomy.

Dr Fanaroff reported that the SKA project team was working on various mitigation strategies and was happy to share the work that was already done with Telkom and the other operators. He extended an invitation to Telkom to visit their offices in Pinelands, Cape Town. He said that the MeerKAT telescope was scheduled for completion by 2012 and would operate within a restricted frequency range of 500 MHz to 4 GHz. The next stage was 10% of the SKA telescope. Technology could be expected to change in future and it was important that the SKA project worked with Telkom.

Dr Fanaroff pointed out that South Africa was not in a position to change the frequency range of 70 MHz to 25 GHz as it was determined by the international SKA Consortium. If South Africa was unable to accommodate this, the project would be lost to Australia. South Africa could benefit from the 1.5 billion Euros invested in the project as well as the 100 million Euros per annum earmarked for operational costs in addition to the opportunity to develop its skills and expertise. He said that the SKA project could accelerate the case studies that were undertaken in order to present the facts when consulting with Telkom, Sentech and the other operators

Mr Ngcobo remarked that it was prudent to consider the worst-case scenarios so that fail-safe systems could be designed. It was correct to explore all possibilities and to address challenging scenarios.

In response to Ms Ngcobo’s question, Mr P Monyobo (Project Manager, Department of Education, Northern Cape) reported that the Northern Cape Provincial Government was developing a strategy to inform the community of the issues and key aspects of the Bill. A meeting had been held during the previous week which was attended by representatives from the municipalities situated in the affected area. The province was well-informed of the issues around SKA and the Bill and it was providing information to the affected communities.

Mr Ngcobo mentioned that the DST had been requested to form a forum where stakeholders could address and resolve the issues that might arise.

Mr Dithebe said that it was very important for Telkom, Sentech and the other operators to work with the DST in order to resolve the issues and to find solutions to the challenges. Members of the Committee lacked the technical expertise to be of assistance in this regard. He said that it was not appropriate for the Committee to cast aspersions on the Bill in any way. South Africa must be part of the world economic development – this was as important as political development. Care must be taken to avoid acting in an irrational manner or to be irrationally skeptical. It was necessary to make progress, to move forward and to support the process by finding the win-win solutions.

Mr Ngcobo replied that all these points were discussed during the previous day’s session, during which the formation of a platform to address the issues that were raised by the stakeholders had been agreed to. He said that no stakeholder had cast any doubt on the AGA Bill and that the concerns raised and questions asked pertained to making it work. There was no doubt over support for the Bill.

Mr Blanche wanted to know how many jobs had been created and were expected to be created by Telkom and the SKA.

Ms Xoliswa Mdludlu (State Law Adviser, Department of Justice) looked forward to receiving the proposals from Telkom and would comment at that stage. She suggested that the Bill be read and interpreted as a whole rather than considering single words or lines in isolation. She pointed out that the policy had been approved by Cabinet and questions about the desirability of the Bill should be considered in that light. She reserved further comment at the end of the process of obtaining public comment.

Mr Ngcobo said that the role of Parliament was to scrutinise anything, including legislation, to listen to public views, to uphold the principles of the Constitution and to create a multiparty platform where legislation could be passed where it is in the public interest. He felt that the stakeholders agreed in principle with the Bill, provided that some concerns were addressed.

Prof Phil Charles (Director, South African Astronomical Observatory) agreed with Dr Fanaroff’s views and said that the issues raised so far did not affect the Southern African Large Telescope (SALT). The benefits of SKA to the country were potentially fantastic. Australia was also a strong contender. South Africa and Chile were in a unique position in the southern hemisphere to provide astronomy services and the facilities at Sutherland were far superior to those in Australia. He said that the Bill was important as it provided a framework that was necessary to protect and strengthen South Africa’s advantage. It was necessary to establish the framework sooner rather than later and it was important that stakeholders such as Telkom knew what the framework was. He regretted that more departments were not involved in the process in order to create the win-win solutions necessary to ensure that the operators were in a position to provide services and South Africa was able to deliver the world-class astronomy it was capable of.

Mr Dithebe said that it was not appropriate to ask the Office of the State Law Advisor (SLA) to comment during the Bill formulation process. Its presence at the Committee meetings was merely to ensure that the correct proceedings were followed.

Mr Ngcobo replied that it was not un-constitutional to invite the SLA for comment during the proceedings.

Dr Bethuel Sehlapelo, Deputy Director General, DST, said that the DST was consulting with the Departments of Communication, Trade and Industry, Defence and Land Affairs.

In conclusion, Ms Plaatjie thanked the Committee for the opportunity for Telkom to comment on the Bill. She said that Telkom would elaborate on the proposals as requested by the Committee and thanked the DST and the SKA for the invitations issued to share knowledge and to visit the SKA facility.

Vodacom (Pty) Ltd submission
Mr Wellington Ngwepe (Executive Head for Special Regulation, Vodacom) introduced the delegates from Vodacom and Mr David Smuts (Compliance Manager, MTN).

Mr Mortimer Hope (Executive Head of Technical Regulation, Vodacom) then presented the company’s submission to the Committee (see attached document). The radio frequencies used by cellular operators overlap with the SKA and KAT frequencies. Vodacom had held discussions with the SKA project team and was concentrating on developing mitigation techniques within the 300 km buffer zone around the core area (i.e. the coordination zone). The objective was to provide protection to the core by reducing transmissions towards the core area and to avoid the necessity to shut down the Vodacom sites. Graphic illustrations of the effect of mitigation techniques deployed at two Vodacom sites were shown.

Mr Hope said that Vodacom was not aware of any consultations that were held with the affected communities and requested that the company be advised when such meetings were to be held. Vodacom was concerned that communities would be left without coverage if its sites were shut down and requested that provision be made to provide alternative communication services to the affected communities.

Vodacom had made substantial financial investments in providing services in the affected areas and was concerned that the company may not be able to fulfill the rights and obligations under its licence. It was suggested that alternatives that would allow the company to meet its obligations be considered. The company welcomed the provision in the Bill for compensation to be paid if it was forced to shut down any sites.

As a licensed mobile cellular operator, Vodacom requested that the company was placed on the Minister’s register of interested and affected parties. With regard to the withdrawal of declaration or exclusion of part of the core, central & coordinated Astrological Advantage Areas (AAAs), Vodacom requested more clarity as it was not clear under which conditions such withdrawal could take place.

The restrictions placed on access to the core and central areas was a major concern as it was necessary for Vodacom employees to have access to the sites for various reasons. It was suggested that provision be made for employees to have access to the sites without the need to first apply for authorisation whenever it was necessary to carry out repairs. Customers expected repairs to be effected within the hour.

The provisions regarding consultation between the Minister of Science and Technology, the Minister of Communications and ICASA were ambiguous and there was potential for conflict. Vodacom suggested that the Minister should give direction to ICASA but that responsibility for the management of the radio frequency spectrum remain with ICASA. The company also suggested that the Regulations made by the Minister be dealt with in the ECA.

Discussion
Mr Blanche agreed that Vodacom should have access to its property and asked for further information.

Mr Hope explained that should a site go off the air, Vodacom’s technicians needed access to the site. Written authorisation was required but it was not clear whether such authorisation would be granted for a specific incident (i.e. one visit) or if it would be valid for a certain period (e.g. one year).

Mr Ngcobo said that many stakeholders had requested clarity on the meaning and definition of certain issues and that the DST was to address the matter.

Mr Blanche asked under which conditions the Minister could withdraw rights in terms of the legislation.

Mr Sehlapelo replied that this Section of the Bill allowed for the review of the situation should it become necessary in future to accommodate changes to the AGA. In this case, stakeholders and the public would be informed of the evidence and provided with the reasons for any changes.

Mr Loselo added that it was necessary to define the circumstances under which the Minister could withdraw certain areas under the Bill.

Mr Blanche said that the legislation would become an Act of Parliament and that it might be necessary to include a clause in the Bill to allow for the withdrawal of rights by the Minister.

Mr Sehlapelo replied that public participation was required in the process of making changes and that it was not the sole decision of the DST about which changes needed to be made to the legislation.

Dr Fanaroff said that provision had been made for the Minister to issue Regulations and cautioned that it was a lengthy process to make changes to the Act.

Mr Blanche said that the area had to be proclaimed in a similar manner to the proclamation of marine or nature reserves and that de-proclamation took place by means of an Act of Parliament.

Dr Fanaroff replied that the declaration was to be made by means of a Regulation by the Minister and not by an Act of Parliament.

Mr Ngcobo explained the process of passing a Bill and the issuing of Regulations and said that procedures existed for changes that needed to be made to an Act.

As Neotel had failed to arrive to present its submission at the meeting, the Chairperson invited Prof Charles to inform the Committee on what was meant by “bridging the digital divide”.

Prof Charles presented a graphic illustration of the work done by the Stanford Linear Accelerator Centre (SLAC) over the last twelve years in monitoring the improvement in the use of bandwidth by the rest of the world and comparing it to the progress made by the US. This information was available on the internet. The graph clearly showed the slowest rate of growth to be in Africa. As the only monitoring done took place in Cape Town, this referred to the growth rate in South Africa in particular. South Africa was rapidly falling behind the rest of the world and it was crucial for the economy that improvements were made in the growth rate in the use of bandwidth by the country.

Mr Blanche asked whether South Africa lagged behind in developments because no satellite tracking stations were built in Africa when the first satellites were launched.

Prof Charles replied that satellite technology was feasible at the end of the last decade but that new developments were expected to take place in the field of fibre optic technology. It was predicted that within the next five years, 90% of television would be watched through the internet. The opportunity existed to expand the use of broadband technology in the Northern Cape area.

Mr Siphiwe Dlamini (Chief Director, ISAD and Communication, Office of the Premier, Northern Cape) commented that the Northern Cape Province comprised an area of 368 000 square kilometers and the population of one million people was concentrated in three main areas. Government service delivery was adversely affected by the vast distances that had to be covered and the application of new technology was desperately needed by the Province.

Mr Sehlapelo warned against over-promising and said that the DST gave careful consideration before presenting new developments.

Mr Ngcobo thanked the participants for their submissions and adjourned the meeting.