Discussion Document on Ownership and Control of Licences
Update: Public hearings will be held from 5 – 7 June 2010.
Ownership & Control Discussion Document – Hearings Schedule
ICASA are finally tackling the thorny issue of ownership and control of broadcasting and electronic communications service licensees, an issue which sprang to the fore in the recent debacle surrounding the sale and unbundling by Telkom SA of its shareholding in Vodacom (Pty) Ltd. In that matter the failure by ICASA to update control and ownership regulations passed under section 52 of the Telecommunications Act of 1996 resulted in massive confusion as to the procedure to be followed.
Discussion Document on Ownership and Control November 2009
The closing date for submissions is 19 February 2010.
The Discussion Document has been divided in Section A: Individual Broadcasting Services and Section B: Individual Electronic Communications Services and Electronic Communications Network Services, reflecting the different policy considerations at play as between broadcasting and telecommunications. Both sections feature international benchmarking research as well as a study into local conditions. Section B also sets out results of interviews conducted with listed companies as well as a table detailing historically disadvantaged ownership in electronic communications service licensees.
Existing regulations under the Telecommunications Act 103 of 1996:
Telecommunications Act: Section 52 Regulations on Ownership & Control
ICASA has published set of draft regulations intended to act as a guide to holders of electronic communications network service, electronic communications service and broadcasting service licensees. The draft regulations set out what is expected of licensees and provide sets of forms to be used as templates in submitting the required reports and submissions.
Draft Compliance Manual Regulations
Submissions from the public will be received until 7 May 2010.
Applications for IECNS licences for the provision of broadcasting servicesICASA has published licence applications received pursuant to the ITA for IECNS licence for provision of Broadcasting Services 2009 published by ICASA earlier on 26 March 2009.
Five responses to the ITA were received:
eTV
On Digital Media
Telkom Media
Walking on Water
Worldspace
[Note that we have stripped out the annexures containing corporate documentation - the full 17Mb .pdf image file can be obtained from the www.icasa.org.za if you are so minded.]
Comments on the applications are required to be submitted to ICASA by 31 July 2009.
ITA for IECNS licences for the provisioning of broadcasting servicesICASA has published a notice inviting “broadcasting services licensees to apply for individual electronic communications network services (IECNS) licences for the provisioning of broadcasting services. The publication of this ITA comes in the wake of a Ministerial Policy Directive published on 9 January 2009.
ITA for IECNS licence for provision of Broadcasting Services 2009
The Policy Directive, according to ICASA, requires it to prioritise, amongst other things, licensees intending to use satellite infrastructure for the provisioning of broadcasting services and applicants whose primary target is the poor “in order to self-provide their own signal distribution”.
“It is upon this policy directive and in view of our commitment to meet universal access goals and the potential of ICTs to be the effective empowerment tools for the poor, that the Authority will, on considering the applications, pay special attention to the needs of the poorest sections of our population.”
The ITA is open only to licensees entitled to participate in licence conversion (i.e. not new licensees) and licensees that “had temporary permit, authority or licence or were granted a private broadcasting licence by the Authority for broadcasting services and wish to self provide their signal distribution services using satellite technology.”
The deadline for responses is 21 May 2009. There is a non-refundable application fee of R50 000.
In completing the application details will have to be provided as to how the applicant intends:
- to ensure that electronic communications network services are provided to persons or groups of persons from poorest communities in South Africa also ensuring within those communities diverse views are accommodated; and
-to promote the empowerment of historically disadvantaged persons including women and the youth and people with disabilities, in accordance with the requirements of the ICT Charter; and
- to meet universal access goals;and
- to serve and empower the poor when the licence is issued; and
- to ensure that the poor are their primary target customers.
ellipsis comment: it is sometimes very hard not to be overwhelmed by cynicism … .
DOC proposes Guidelines for Rapid Deployment of electronic communications facilitiesThe DoC does it again with another badly-drafted policy attempt which has united industry in opposition. The draft was released on 27 February 2008 and was roundly panned, with a group of larger operators making a joint submission to Parliament in an attempt to have the policy document replaced or rewritten.
The document relates primarily to the rights of licensees to land submarine cables on South Africa’s shores.
Update 20090202: Nothing further has been heard about this document and, with luck, it has simply gone away.
Download Minister’s Proposed Guidelines for the Rapid Deployment of Electronic Communications Facilities.
Minister’s Proposed Guidelines for the Rapid Deployment of Electronic Communications Facilities
(Yet another) VANS licence conversion deadline – 6 January 2009 (updated)*sigh*
Here at ellipsis the champagne has been placed back on ice and leave plans cancelled as ICASA issue a further call for information from VANS licensees. The notice, published on the 19th December 2008 but only available from the 23rd, is largely a repeat of the previous call for information and we are not entirely sure why it has been issued … .
ICASA have
- clarified that VANS are entitled to their choice of licences (both ECS and ECNS)
- replaced the requirement for a technical plan with a new obligation to the effect that the licensee will file a comprehensive roll-out plan two months before the commence of network roll-out so as to enable the Authority’s monitoring efforts
- retained the obligation to commence with the roll-out of network within 12 months being issued but made this subject to the relevant standard terms and conditions.
No reference is made to the previous conversion notice (!) and it is not clear at this stage whether those who responded to the previous deadline are also required to respond to this one.
Download ICASA’s latest Notice calling for information in connection with the conversion of VANS licences.
Update
Informally ICASA have advised that those who have already submitted, do not have to resend, provided they call Ashwald Nchabeleng or Barbara Paxinos (011 566 3000 for both) to confirm receipt of their information. This should ideally be done on 5 or 6 January 2009.
The Minister of Communications has decided to drop her appeal against the Altech decision & the question as to whether VANS can self-provide is answered: Yes They Can.
The irony is of course that they will have about a month to enjoy this victory as VANS licencees as, barring any major mishaps, licence conversion will be completed before 19 January 2009. So, in a sense, the story is for many one of lost opportunity – stories abound of ISPs who went to great expense procuring equipment and expertise before 1 February 2005 only to have their plans thrown into disarray by the infamous Ministerial press release. Three and a half years later the press release has been exposed for what it was – a smokescreen which by and large served its intended purpose.
It should also be noted that there are some VANS who went ahead and carved out a market niche based on the self-provision of wireless networks operating in the licence exempt frequency bands. Almost universally criticised and demonised by ICASA and competitors (many of them envious), the last laugh is theirs.
Anyway, yesterday’s uncertainty gives way to some fundamental certainties about the conversion of VANS licences. Simply put: they are entitled to electronic communications network service licensing, whether individual or class, as well as electronic communications licences, at no cost.
Nobody should be under any illusions that this result, right as it may feel, was ever intended. Rather “big bang liberalisation” comes down to a monumental exercise of incompetence wholly appropriate to the last few years of DoC management.
Full statement from the Minister
For me two particular issues stand out and define the political mismanagement which has held back a country: the breathtaking inability to implement the 50% discount to schools (the e-rate) and the great self-provision debacle.
VANS licence conversion update – 3 November 2008There is a rumour doing the rounds that VANS licences may, one day, be converted into new licences deemed to have been issued under the Electronic Communications Act of 2006. Get an understandable update on the state of play as at 3 November 2008 after the High Court refused the Minister of Communications’ appeal against the Altech decision.
ellipsis update on VANS licence conversion 20081103
Round Number 2 to Altech as Court throws out Minister’s appealIt doesn’t get more dynamic than this in the usually staid world of law and regulation! Acting Judge Norman Davis of the Transvaal Provincial Division has taken a brave stand in refusing to allow the Minister of Communications to appeal against his judgement against her in the Altech matter, thereby putting a number of VANS licencees back on track to be converted into individual electronic communication network service (IECNS) licences.
Download a copy of the Judgement
The Minister’s application for leave to appeal was heard on Thursday 30 October 2008 and the significance of the outcome is that the Judge does not believe that there is a reasonable prospect of any other court coming to a different decision. Put differently: he believes that the matter is straightforward and relatively simple to dispose of.
Nevertheless it is a brave decision given that Judge Davis is appearing in an acting capacity (i.e. he is a senior advocate who has been requested to fill a gap on the Bench on a temporary basis) and that the Minister had attempted to muddy the waters by arguing that the court has impinged on her policy prerogative. The refusal is a resounding rejection of the vague references made to the so-called policy of managed liberalisation, which, if things stay as they are, is now, thankfully, an historical policy failure rather than a continuing one.
I cannot, however, be struck with a sense of deja vu and would advise keeping the champagne on ice until the Minister has confirmed that she will not seek to petition the Supreme Court of Appeal for leave to appeal. Only then will the fat lady have sung the correct tune and ICASA can get on with the business of conveting licences in accordance with the law.
Minister sues Regulator to prevent competitionThings go from the ridiculous to the utterly insane as the Minister of Communications launches an urgent application against ICASA and Altech Autopage to prevent ICASA from issuing IECNS and IECS licences to Altech.
The gloves are most definitely off.
Download
Minister’s Application – Notice of Motion 20081018
Minister’s Application – Founding Affidavit
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