The Panel considered whether an Open Internet policy should be based on a wait-and-see approach, or not. Having considered all of the implications, the Panel notes that:

The focus of the Open Internet is on upholding the principle of non-discrimination in terms of Internet traffic.
An Open Internet policy does not preclude reasonable network management, but must prevent anti-competitive behaviour where dominant players use networks to discriminate by prioritising selected data traffic and access to specific services and applications.
In an environment dominated by ongoing convergence of infrastructure and services, regulatory interventions should as far as possible be technologically neutral in order to stimulate innovation and facilitate the development of innovative new product and service offerings.
The Internet as a collection of networking technologies was born However the evolution of networking technology has impacted on the nature of Internet traffic, which lends itself to the application of prioritisation protocols.
Policy recommendations which have a medium to long term vision must be framed considering possible future challenges and opportunities so that the public interest is protected.

The Panel therefore recommends that:

a) An open Internet policy, which ensconces the broad tenets of net neutrality, is adopted. In this regard an assessment must be made of the frameworks adopted in other countries and their applicability. Principles to consider include:
Transparency regarding the network management practices, performance, and commercial terms of broadband Internet access services to enable consumers to make informed choices regarding use of such services.
No blocking of lawful websites, content, applications, services, or non-harmful devices, subject to reasonable network management.

iii. No unreasonable Discrimination.

b) The regulator be mandated to assess the extent to which regulatory intervention is required to uphold the public interest and the principles of an open In so doing the regulator shall consider whether a broad guideline for the industry shall suffice or whether a national industry code and associated co-regulation/regulation will be required.

R4. NET NEUTRALITY LIMITATIONS

The Panel considered whether limitations should be set in a South African net neutrality policy.

Approaches which were considered included:

Full neutrality
Specialised services
Reasonable traffic management or Fair Discrimination
Paid-prioritisation of bandwidth

It is recommended that:

a) Limitations are a regulatory issue, and as such must be dealt with by the regulator.
b) The considerations of any limitations shall not detract from the broad policy principles of an Open Internet.

R5. BROADBAND INTERNET INFRASTRUCTURE AS AN ESSENTIAL FACILITY

The Panel considered whether the broadband Internet should be declared as an essential facility.

The Panel noted that South African laws currently set out provisions for a common carrier for broadcasting transmission for rules for essential services. In an era of convergence, current provisions of essential facilities are not broad enough.

The Panel recommends that:

a) It is necessary to broaden provisions and to declare that broadband Internet infrastructure is an essential facility.
b) The support of an essential facility status is in support of the United Nations Human Rights Council, which has declared that:

Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States.

Each State should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant Government ministries, to make the Internet widely available, accessible and affordable to all segments of population.

CONVERGENCE

R15. POLICY OBJECTIVES UNDERPINNING CONVERGENCE

The Panel notes that policy needs to evolve to respond to real-world changes associated with convergence, rather than being a barrier to the benefits of those changes. The Panel therefore recommends that

a) The realities of a converged market must be entrenched in policy.
b) A regulatory approach must be pursued such that an incremental adaptation of rules and regulations to the various converging segments is taken.
c) This requires a careful and ongoing assessment of market dominance and the effects of convergence on such dominance, fair competition, users’ right to a choice of service and the emergence of new services.

R56. IP BASED TECHNOLOGIES

The Panel notes

The shift to IP-based technologies presents a major challenge to the current regulatory framework that still to some extent distinguishes between electronic communications network operators based on the kind of platform they operate on.
In theory, electronic communications licensees could offer any type of service and data, but the current legislation requires the holding of a broadcasting licence to offer broadcasting services.
The current provisions do not fully take into account the inherent capabilities of the IP-based network to transmit any kind of data to any device that can receive it.
The effects of IP based technologies include:
- Service providers offering equivalent voice and data services which are not regulated;
- A growing user demand and sophistication exerts growing pressure on spectrum;
- An increasing pressure for networks and services to become more interoperable, with users expecting to transfer seamlessly between networks;
- Increased pressure on regulation to keep up with the market changes;
- The need for regulators to ensure an even and competitive landscape for services for all players, which by implication is a requirement to level the playing field via policy.

The Panel therefore recommends:

a) That the already adopted principle of technology neutrality be further reinforced and that government conduct regular reviews to ensure that legislation and/or approaches do not inadvertently mitigate against this.
b) All existing laws and approaches should be reviewed to ensure they are in line with this principle.

R57. OVER-THE-TOP (OTT) SERVICES

The Panel notes:

The implications of OTT services in economic terms, is that OTT players which rely on IP based networks to reach their customers do not make any direct contribution towards the cost of rolling out infrastructure/the network. Some network service providers have argued this causes them harm.
There were differing views on whether or not OTT services should be regulated.
The following points about OTT services, which have been put forward by the ITU:
- Proliferation of content and applications services is to be welcomed – they add utility for
- Change is inevitable. As network operators migrate to next generation networks, voice services will become software applications riding over the During this transition, policy-makers are finding different paths to balancing innovation, investment and competition.
- Regulators cannot hold back the tides of change to maintain the status quo.
- These changes are disruptive and inconvenient for those with a stake in existing arrangements, but the benefits of change outweigh the costs.
- Regulators generally support innovation. They prevent fixed and mobile operators from blocking or degrading competing services.

Having considered all of the submissions, and taken note of the debate regarding OTT both in South Africa and elsewhere, the Panel recommends that:

a) For now a wait-and-see approach is taken so as not to stifle innovation.
b) The impact of OTT services though should be continually monitored and regulatory intervention introduced if it is deemed necessary.

R72. POLICY FOR CLOUD COMPUTING

The Panel is of the view that:

South Africa needs to ensure its policies facilitate cloud computing as a platform for innovation and job creation, promoting the development of new services and products.
This should be balanced with the need to protect privacy and the security of information, data and systems.
Cloud computing can also support government IT development, e-government and
development services and priorities. The Panel is of the view that the implications of cloud computing are important for economic growth across a number of spheres, including the business of government.

The Panel therefore recommends that a South African cloud computing policy be developed, and that:

a) Internationally accepted guides (such as OECD guidelines) be considered in finalising such a policy.
b) The policy includes rules and guidelines on government use of cloud services, including the need to ensure interoperability when selecting providers. Other issues it is recommended be included include provisions on ownership of stored data, transmission of data and requirements on the protection of data. Government should consider if there is a need to develop specific rules relating to any of these provisions to ensure they are enforceable.
c) Policy should further put in place enforceable minimum standards to ensure security of databases and big data, so as to minimise cybercrime.
d) In addition, South Africa should consider whether or not there are opportunities for the country to position itself as a destination for preferred hosting of cloud services. If so, policy provisions to promote this should be considered.

COMPETITION ISSUES

R16. ANNUAL SECTOR PERFORMANCE

a) The Panel recommends that policy and legislation specify that the regulator must regularly publish an overview annually of sector performance.
b) That a regular publication of sector performance, including prices, accessibility to services, and sector operators’ contribution to infrastructure and network upgrade be provided by the regulator. This publication shall serve as a regular overview of market performance.
c) The regulator is therefore required to develop a set of indicators for which licensees must be required to provide annual data, where such data allows for an evaluation of market performance.

R17. MARKET REVIEWS

a) The Panel recognises that the resources and capability to undertake market reviews are intensive. However, the Panel reiterates the importance of market determination, and segmentation of markets as the basis of all regulatory interventions.
b) In addition it is recommended that the regulator undertake market review analysis, across all identified markets. Policy would set the timeline for the completion of the initial market reviews and these could be updated systematically on an incremental basis prioritising the markets with the most significant impact on consumer pricing, among others. In this regard, it is important that the definition of relevant markets is continuously updated to reflect the ongoing evolution of products and services and associated demand and supply changes.
c) The Panel therefore recommends that ICASA and the Competition Commission be required to regularly consult with each other, and put in place mechanisms to ensure cooperation so as to achieve their respective mandates with regards to market determination. This should entail the development of a MoU to determine the terms of consultation, and where such a MoU is reviewed every three It is also recommended that the mandates of both regulators be strengthened such that they have stronger powers and the capacity to ensure that timely information is provided by when it is required.

R18. INDICATORS TO ASSESS THE MARKET-GAP

The Panel notes that it is important to continuously measure the extent to which access to affordable universal services has been achieved.

The Panel, having considered all the options, including that of mandates, recommends that

a) It is therefore important to develop a robust set of indicators, to ensure the continuous assessment of the access gap.[1]
b) This must include a clear and granular analysis of the nature and extent of the various levels of market gaps in respect of access to and utilisation of infrastructure, services and content.
c) The policy maker (currently DTPS) must undertake a regular market gap analysis in consultation with the The policy maker is therefore also responsible for the development of the associated set of indicators.
d) The regulator shall be required to provide the necessary information, as per the indicator set, to support the market gap analysis.
e) Policy and legislation must ensure that the regulator has sufficient powers to request relevant information from licensees, and that the privacy of information shall be protected such that it shall only be used in a summary format to inform the gap analysis exercise.
f) The policy-maker will ensure that the requisite information is provided to the regulator to enable the regular declaration of underserviced areas.

R19. EX-ANTE AND EX-POST REGULATION

The Panel notes that:

There are market segments in which there are still market players with significant market power enabling them to distort competition in both the fixed and wireless broadband services.
Competition regulation is adequate to deal with anti-competitive behaviour prevalent in the market. Pro-competition measures which are put in place upfront (ex-ante) discourage the emergence of anti-competitive tendencies.
Ex-ante regulation will support coordination of infrastructure rollout; encourage private sector investment; avoid duplication of efforts; promote general sector efficiencies, protect consumers; and promote universal service and access.
The definition of the markets, as recommended in the previous subsection, is a prerequisite.

The Panel therefore recommends that the status quo prevails, and that in order to strengthen the current policy regime that:

a) The current provisions in the EC Act remain in place.
b) The current framework for competition in relation to ex-post and ex-ante regulation should remain in place to deal with the conduct of operators in the market. In this regard ICASA’s capacity and its resourcing to give effect to this mandate must be strengthened.
c) However, policy should ensure that the Competition Commission and ICASA collaborate more closely and that the regulator draws on the expertise in the competition regulator to ensure effective competition regulation.

R20. MERGERS AND ACQUISITIONS

The Panel notes that

Currently there is no definitive policy on mergers and acquisitions. Each case is treated on its merit. This situation results in uncertainty for both the potential investors as well regulators and policy makers.
In terms of the Competition Act, the Competition Commission has the primary responsibility for all merger approvals.
In terms of the EC Act, ICASA has the primary responsibility for approving changes in ownership control and in transferring licences.
In many instances, joint approvals by the Competition Commission and ICASA are required for mergers to take place.
Mergers and acquisitions should be subjected to regulatory and policy oversight to ensure that competition drivers and government objectives are not compromised.

The Panel therefore recommends that:

a) The current provisions in the Electronic Communications Act (ECA) relating to mergers and acquisitions must remain but further consultation and coordination with the Competition Commission on approval of such mergers must be required in policy and law
b) However, both regulators shall be required to collaborate, in terms of their respective mandates, on the basis of a MoU.

R21. FACILITIES-BASED AND SERVICE-BASED COMPETITION REGULATIONS

The Panel notes that

From a facility-based competition (FBC) perspective regulatory policy promotes multiple sources of facilities-based electronic communications services to the public. FBC would apply to both fixed-line and wireless, unlicensed and licensed providers. FBC may not be feasible in under-serviced areas.
Service-based competition is necessary where it is not economically viable to compete in infrastructure deployment and where it is necessary to share the risks of building infrastructure.

It is therefore recommended that

a) There should not be a blanket approach to either FBC or SBC, and a hybrid approach must be pursued. Policy must therefore promote a combination of facility-based and services-based competition subject to different markets conditions and facilitate a healthy balance of competition between incumbents and new entrants.
b) This combined approach would be intended to stimulate investment and achieve a healthy balance of competition between incumbents and new entrants.

R22. INTERCONNECTION

The Panel notes that:

While interconnection is a critical regulatory competence, one with the potential to level the playing field, ICASA is constrained in its ability to monitor the substantive content of interconnection agreements in the public interest; and to enforce fair pricing without going via the competition provisions of the ECA;
Interconnection regulations should not necessarily require the full implementation of the competition sections of the ECA (Chapter 10).

The Panel therefore recommends that:

a) Policy should ensure that the regulator is more effectively empowered to intervene in the public interest in respect of interconnection in the converged communications environment.
b) In respect of the current limitations:
The regulator must be given greater powers to intervene in the substantive content of interconnection agreements when it is necessary and in the public interest to do so, or to address disputes. However interventions should be balanced with the need to ensure speedy resolution of Agreements.
Regulations in this regards must make it clear as to the conditions under which the regulator may intervene in an interconnection agreement.

iii. An intervention by the regulator is only necessary after an assessment of, for example, affordability issues, and anti-competitive behaviour.

R23. ROLES OF STATE-OWNED COMPANIES (SOCS)

The Panel has considered a number of options with regards to the future role of SOCs. This included

Government selling or reducing its stake in listed entities;
Consolidation of all SOC’s into one national entity;
Consolidate of some public listed entities with some SOC’s.

Having considered all of the arguments, the Panel is of the view that it cannot make a singular recommendation, given the lack of data to support any of the above. The Panel therefore recommends that:

a) In the short term that the status quo prevails, whilst a more detailed review takes place.
b) In this respect, that panel supports the principles of the Presidential Framework for Review of SOCs, to be taken into account, which includes:
The need for clarity on the multiplicity of roles of the state as shareholder, policymaker, regulator and/or operator, among others;
Recognition that SOCs in some cases are critical to the attaining the objectives of the developmental state;

iii. Profit and non-profit objectives of SOCs must be clearly defined;

Government should adopt appropriate funding principles and models 20 ;
Government should ensure consolidation of the SOCs into the following groupings:

Commercial: Able to maintain and replenish market capitalisation autonomously from the state.
Development finance institutions: Able to maintain and replenish market capitalisation autonomously from the state.
Statutory corporations: Provide basic and essential services
Non-commercial SOCs: Dependent on state funding.

c) A mandatory periodic review of SOCs must be catered for in policy.

COMMUNICATIONS INFRASTRUCTURE

R24. UNDERSEA CABLES

The Panel notes that:

Despite the growing demand for Internet bandwidth, there is currently considerable capacity available to meet envisaged future needs.
Given that effective undersea cable competition has been established, the focus should be on interventions to extend the connections between South Africa and the SADC region in order to develop South Africa into a hub of broadband activity in the region.

R25. SATELLITE

The Panel notes that:

Currently there are no locally based satellite operators, and as such there is little control over the costs of satellite connectivity.
If South Africa is to become a leading force in ICT communications, it must invest in all components of communication technologies, including satellite.

The Panel therefore recommends that:

a) South Africa must consider in the medium to long term investing in its own satellite so as to provide an alternative connectivity solution for areas that are currently underserved or un-served and which are not suitable for terrestrial connectivity.
b) This would require securing of an orbital slot for South Africa.
c) Models of investing in this satellite should be considered. This includes collaboration with other sectors to have different payloads on the satellite which could be used for different services, i.e. military, civilian, etc.
d) This would require a consideration of a multi-stakeholder approach
e) The pursuance of this option must take place jointly with the South African National Space Agency. Government must also consider the resourcing of universities with current satellite expertise, such that there is further investment to develop local research and innovation expertise, including that of nano-satellite expertise.

R26. MUNICIPAL POINTS OF PRESENCE (PoPS)

The Panel notes that:

The majority of the current backbone networks are not available on an open access basis.
Points of Presence (PoPs) should be considered as part of a broader attempt to achieve Universal Access to broadband.
During the policy review, consideration was given as to whether to impose PoPs on licensees as part of universal service and access obligations or if government should invest in the rollout of PoPs through public entities such as municipalities and state owned companies.

The Panel recommends that:

a) A hybrid approach should be pursued.
b) The regulator must ensure coordination and optimisation of Universal Service Obligations in larger municipalities such that there is limited duplication between license conditions.
c) Government must intervene to ensure the deployment of POPs, in line with proposed State-Aid rules, based on the access gap assessment conducted.
d) In these areas it is proposed that a mix of approaches could be considered, including government investment and universal service obligations (where applicable) requiring a shared build between operators based on public-private partnership principles.

R27. PROMOTING BACKBONE CONNECTIVITY

The Panel notes that in the current era market forces have been unable to provide backbone infrastructure to the extent that it meets South Africa’s needs. We also accept that the private sector will be a participant in extending the national backbone network. We further accept that the state has to invest in the network as well.

Thus, having considered various detailed submissions on the matter, the Panel recommends an approach which requires both private sector participation, and state investment. This would entail:

a) Effective regulatory tools and mechanisms should be put in place to extend the network to reach all South Africans and address gaps and bottlenecks in the rollout of broadband;
b) A more proactive regulator capable of regulating all aspects of the market to vigorously develop and enforce competition regulations such that it addresses market domination and abuse, and where necessary taking into account new open access market regulatory demands;
c) The market would be involved in the roll-out of broadband services with public resources plugging the gaps in areas where the market cannot offer services profitably.
d) The market should be restructured into an open access regime in which all players with significant market power (SMP) are required to offer services in line with open access principles and to interconnect with other networks.
e) Policy should reinforce the continued role of the National Broadband Council in facilitating the co-ordination and integration of current and future broadband infrastructure into an interconnected open access national broadband network.

R28. METRO INFRASTRUCTURE AGGREGATION

The Panel notes that:

There have been challenges in the practices of municipalities with regards to the provision of way leaves and other approvals critical to create an enabling environment for the deployment of broadband.
There is therefore a need to coordinate, harmonise and expedite the rollout of broadband at the levels of local government.
Policy must ensure that metro networks are linked to the national broadband network for seamless provision of broadband services.

The Panel therefore recommends the following strategies be pursued:

a) Development of rapid deployment policy :
In line with the EC Amendment Act (2014), the policy must support the development of rapid deployment guidelines which encompass the activities of various national, provincial and local authorities in dealing with the various permissions that are required to roll-out infrastructure.
This policy would facilitate access to rights of way and way-leaves in order to allow for rapid deployment of infrastructure.

iii. It will further make provision for streamlining of local planning permissions, particularly in harmonising current legislation with the bylaws of municipalities for rapid deployment.

b) Use of government facilities as sites:
Public sites, such as police stations, schools, clinics and government sites must serve as anchor tenants, thus reducing the required funding from government.
The aggregated demand of the public sites would promote the business case for networks, especially in rural areas.

iii. This option is consistent with SA Connect’s proposal to have Government as an anchor-tenant to aggregate public sector demand. Consideration in pursuance of this recommendation must be given to the constitutionally-defined areas of responsibility of national, provincial and municipal government.

c) Public investments:
In areas that are not commercially viable for the private sector, government would fund the entire network construction and own the infrastructure, on an open access basis. An example of such a model is the City of Cape Town, which has deployed its own fibre network, initially for the purpose of connecting municipal offices but with excess capacity being made available to the market.

MINORITY RECOMMENDATION: Government does not have the resources, capacity or expertise to construct and/or manage such networks. This is clearly a case for a least-subsidy competitive tender process under a universal service fund or through the budgets of municipalities.

R29. ACHIEVING 100% LAST MILE CONNECTIVITY

Four options were considered by the Panel.

The status quo prevails, and ICASA’s Regulatory Impact Assessment continues;
Advance LLU and make the local loop accessible as an essential facility on non-discriminatory and reasonable terms and with a price control;
Mandate open access on all access platforms including fixed, wireless and fibre;
The unbundling of the local loop should include bit stream access and other associated IP protocols presently largely controlled by incumbents.

Having considered all of the debates and submissions the Panel recommends:

a) Open access on all platforms including fixed, wireless and fibre must be mandated through policy to achieve full last mile connectivity.
b) Policy in this regards must be developed which provides for fair pricing and quality of service.

MINORITY RECOMMENDATION: Policy on open access should specify that it will only be required following a forward looking RIA and should set out the circumstances when this will apply. For example, open access could apply to the assignment of 700/800 MHz spectrum and/or to government funded networks.

R30. GOVERNMENT’S ROLE IN THE MAPPING OF FIBRE INSTALLATIONS

With regards to Government’s role in the mapping of fibre installations, the Panel recommends that:

a) The DTPS must take responsibility for fibre mapping, as this is aligned with its role function as the SIP 15 coordinator.
b) The highest level of security is required during the mapping exercise to protect private and commercial interest, and to ensure protection of the communication network;
c) Information regarding fibre mapping may be shared with relevant stakeholders, but only after the detailed data has been summarised, to the extent that it is relevant for planning purposes and public consumption. It must be noted in this regard that the objective is to share as much information as possible, but keeping in mind limitations due to commercial interests and that of security of essential infrastructure.
d) Policy must be developed to frame levels of accessibility to fibre mapping information.

R31. MEASURES TO FAST TRACK RAPID DEPLOYMENT OF INFRASTRUCTURE

The Panel has noted that:

There is an urgent need to fast-track guidelines for rapid deployment of infrastructure, and for the use of innovative application processes.
Municipalities struggle on several levels with the rollout of broadband networks, and in facilitating applications from operators for the deployment of infrastructure.
A recent court ruling on the “rights of way” issue between ECNS and local authorities directs that licensees do not necessarily need permissions from the local authorities to rollout broadband networks. However the Panel is of the view, that the issue may continue to be tested by Municipalities, and therefore has retained recommendations regarding processes in respect of “rights of way” in this recommendation. A final determination in respect of this recommendation, must therefore be made by Government, after due consideration of the court ruling.

The Panel therefore recommends the following, which will synergistically promote investment in infrastructure:

a) A national coordination centre, working together with the SIP 15 infrastructure team should be established to support rapid deployment and interface with local municipalities to fast track rights of way and way-leave approvals.
b) Measures to fast track Rapid Deployment, through policy, should be introduced including:
Standardisation of application and approval processes for rights of way, way-leaves and servitudes to local municipalities;
Digitisation and automation of the application process to expedite applications, avoid bureaucratic red tape and enable transparency using on-line tracking mechanisms which should be supported by the development of a national GIS system making it easier to identify available sites;

iii. Transparency of data in terms of the provision of publicly available fibre maps and relevant information on usage of fibre. Currently, information on where fibre is laid in the ground is not openly available to the public or local government and there is no legal requirement on those entities that have this data to share it. To ensure a sustainable, open and citizen-oriented implementation of the network roll-out of broadband development plans, the fibre maps and relevant information on usage of fibre needs to be made available to local government, and policy provisions be developed to enable this.

Development of a clear set of guidelines and requirements governing open access to trenching works and ducts, as well as the fibre itself.

There are also alternative avenues for government to speed up the implementation of infrastructure and to provide indirect investment which may be viewed as a form of co-funding. Measures which are proposed in this regard are:

a) Funding trench digging via the Public Works Fund to assist with fibre laying;
b) Making government high sites available for broadband equipment installation.
c) Skilling local government officials through short courses and workshops:
The Local Government Sector Education & Training Authority (LGSETA) and the Media, Information and Communication Technologies SETA (MICT SETA) must jointly assess the skills gap at local government and plan training interventions to capacitate officials to effectively deal with applications relating to infrastructure investment.
The private sector must be called on to assist with both the gap assessment and the content of training courses.

iii. In the short term, short workshops should be considered to bridge the gap but over the longer term short courses must ensure a bigger pool of skilled persons to deal with infrastructure issues at the local level.

R32. OPEN ACCESS SYSTEM

It is noted that:

The National Broadband Policy (SA Connect) posits that access to critical and essential infrastructure will determine the failure or success of achieving published broadband targets.
There are many bottlenecks still prevalent in the South African ICT market that frustrate effective competition and render the South African market more expensive than peer countries.
Modest results have been achieved to date through the use of the competition clauses of the EC Act. One of the major bottlenecks identified relates to that of access to critical and essential infrastructure.

The Panel therefore recommends that

a) The following policy objectives must be pursued in promoting an open access regime:
Creating a clear access regime that is enforceable and supports the reduction of the universal access gap.
Creating a uniform access regime that takes into consideration all technologies and services.

iii. Ensuring a fair return on investment.

b) The following principles should be adopted, and that the regulator is mandated to develop and implement regulations, which are informed by and which are consistent with the same.

An open access network, is a network which satisfies all of the following:

Offers effective access to the infrastructure: Effective access will be defined as attainable access easily accessed in reasonable locations using standardised interfaces. The service must be unbundled to a sufficient degree so the access seeker does not have to purchase services it does not need. The quality of service should be suitable to the access seeker’s needs and requests for variants of a service should be accommodated where technically feasible.
Offers transparent services: The service pricing, terms and conditions of access to the network must be available to interested parties and the regulator. The billing for services should be transparent and clear. The timeline and processes for procurement, fulfilment, assurance and billing should also be transparent and clear.

There should be no cross-subsidisation and operational and financial information should be available to access seekers to demonstrate that services are rendered in a cost effective manner.

iii. Offers access in a non-discriminatory manner: The access provider will be required to provide services on a non-discriminatory manner and will not favour services affiliated with its company. This will involve ensuring equivalence of inputs and outputs, the safe guarding of confidential information, the separation of systems and processes and prevention of conflicts of interest among staff.

R33. INFRASTRUCTURE SHARING

The Panel notes that:

Legislation currently deals with infrastructure sharing in a fragmented manner.
In cases where networks are available for sharing through regulation, dominant operators impose high costs for leasing such facilities.
New players therefore are often therefore forced to resort to building their own networks instead of relying on third party infrastructure, which in certain cases is unaffordable.
This leads to unnecessary duplication of infrastructure and hinders competition particularly in the services segment of the market which necessitates policy to encourage competitive infrastructure sharing.
Infrastructure sharing will promote the objective of the NDP to ensure affordable access to an array of ICT services.

The Panel therefore recommends that:

a) Infrastructure sharing must be regulated at all levels of the network
A thorough market analysis into the behaviour of dominant operators would be essential to determine appropriate policy and regulatory interventions.
Infrastructure sharing would be regulated at the specific levels of the network as required.

iii. This would include the infrastructure layer of the network, through enabling sharing of passive infrastructure such as masts and ducts, and the transmission media layer, through enabling the sharing of copper (LLU) and fibre infrastructure.

b) Active network sharing is encouraged
Sharing of the active electronic elements of the network or national roaming based on market competition analysis must be facilitated.
An appropriate legal and regulatory framework must be developed to ensure smooth roaming arrangements between operators without any uncertainty.

iii. This thus requires the creation of policy promoting competition in the active infrastructure segment of the market. Regulation of active infrastructure sharing also needs to safeguard against anti-competitive conduct.

UNIVERSAL SERVICE AND ACCESS

R34. UNIVERSAL SERVICE AND ACCESS DEFINITIONS

The Panel notes that

Universal access and service has conventionally been framed on three critical pillars of availability, affordability and accessibility;
Together these pillars have, to date, provided guidance for policy formulation and regulatory and programmatic intervention aimed at achieving universal access and service.
However, international experience indicates that these are not sufficient to achieve the concomitant goals of adoption and effective use of ICTs, which is a requisite for social and economic development outcomes.

The Panel therefore recommends that:

a) The current definitions must be expanded beyond the constructs of availability, affordability and accessibility.
b) In particular, the definitions should be extended such that they align with the additional pillars of UAS which the ITU has identified.
c) The definitions must thus be evolved such that the following pillars are encompassed:
Availability – network coverage of the inhabited geographic territory;
Affordability – ability of users to pay for access to infrastructure and services, including access to devices and networks, cost of service and consumption (e.g. calls, data, content), with targets often set as a percentage of family income;

iii. Accessibility – ability of all inhabitants to use the service concerned (regardless of location, gender; race, disability).

Awareness – citizens need to be properly informed of the existence of available infrastructure and services, and of their potential benefits;
Ability – users need to possess the necessary skills to take advantage of the infrastructure and services, such as literacy, language fluency, and ability to use a computer and navigate the Internet.
d) This definition set must also include additional definitions for Persons with Disabilities (Recommendation R.35).

R35. RESPONSIBILITIES FOR DEVELOPING AND REVIEWING UAS DEFINITIONS

The Panel notes that:

In the current dispensation, the EC Act splits responsibilities for definitions between USAASA, the Minister and ICASA;
It has been argued that splitting of responsibilities has had the effect of non-synchronisation;
Although definitions of Universal Service and Access and Underserviced areas were gazetted in 2010, definitions of needy persons have not yet been published;
UAS definitions have not been subjected to regular review.

The Panel thus recommends that:

a) The responsibilities for developing all UAS related definitions be consolidated and government as the policy maker (currently DTPS) take responsibility for These definitions should be regularly reviewed by Government and policy should determine the periods between such reviews.
b) The regulator will be responsible for implementing policy in line with the definitions and will conduct regular reviews to determine which areas/communities continue to be under-served. Policy and law should determine how often such reviews should take place.
c) The maximum period between review of definitions and the maximum period between the publishing of under-served areas must be defined in policy.

MINORITY RECOMMENDATION: UAS should be defined by the entity that will be responsible for enforcing them, viz. ICASA, in order to ensure regulatory consistency. This would need to be done via a consultative process that will include the policymaker along with all other stakeholders.

R36. DEFINITIONS REGARDING “NEEDY PERSONS” AND PERSONS WITH DISABILITIES

The Panel notes that:

Section 88(1) of the EC Act provides that money in the USAF may be used for the payment of subsidies, for, amongst other things, “the assistance of needy persons towards the cost of the provision to, or the use by, them of broadcasting and electronic communications services”.
The term “Needy persons” is outdated, and has caused a degree of consternation amongst various organisations and individuals;
While the current definitions for universal service and access refer to “all persons”, it is implied that persons with disability are encompassed.
The definition for universal service for broadcasting, however, does specify persons with disabilities as indicated above.

It is therefore recommended that:

a) With regards to persons with disabilities:
Uniform definitions for persons with disabilities must be incorporated within all UAS definitions across government;
The definition for “persons with disabilities” in the UN Convention on the Rights of Persons with Disabilities should be used as a basis for the South Africa definition i.e.

“those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.

b) With regards to the current use of the term “needy persons”:
The term “needy persons” to be removed from all law and policy and replaced with “fund beneficiaries”.
Policy must define categories of fund beneficiaries and that categories must be regularly reviewed.

R37. UNIVERSAL SERVICE OBLIGATIONS (USOS)

The Panel notes that

The SA Connect broadband policy underscores the problem with the state of USOs in South Africa, commenting on the “failure to enforce USOs” and reflecting the considerable public debate on their effectiveness, appropriateness and continued relevance.
The Panel agrees that the USO framework in South Africa has been weak, and that the enforcement thereof has not resulted in the desired outcomes.

The Panel therefore recommends that:

a) An improved USO framework must be developed so that obligations are clearly defined, robust, proportionate to market share, capable of satisfaction and enforceable.
b) A revised policy would include provisions specific to, inter-alia:
The alignment with determinations on universal access, universal service, underserviced areas and other relevant definitions to be kept relevant through periodic review.
Achieving UAS in respect of broadband.

iii. A “pay or play” principle to be introduced which includes explicit criteria for the translation of obligations into an equivalent monetary contribution (i.e. equitable contributions).

A requirement for a dedicated periodic consultation process with stakeholders to consider issues, including appropriate target levels of service or access, a timeline for reaching such targets, the level of service to be provided, mechanisms for monitoring and enforcement.
Periodic reporting requirements for operators in respect of targets achieved and compliance on the part of licensees with their USOs.
c) A revised USO framework shall incorporate provisions for making broadband Internet access available at public venues through the use of wireless technologies such as Wi-Fi, with a focus on under-served and rural The obligations in this regard shall be aligned to the policy provisions in the SA Connect national broadband policy.

R38. ESTABLISHMENT OF THE ICT DEVELOPMENT FUND (ICT-DF)

The Panel notes that:

The USAF has been the subject of controversy, and has been widely criticised for failing to disburse funds on any significant scale.
The USAF has been subject to a wide-ranging critique, including the effectiveness of its application, and that of governance;
There is currently wide support from stakeholders for the continuation of a fund;
The National Broadband Policy, SA Connect, highlights that there is a significant funding gap in relation to broadband infrastructure which will require support from government and the private sector if it is to be addressed. It states

“What is required are new innovative ways that blend private and government funding sources to fund not only infrastructure rollout, but also critical content development and the provision of public services online. Funding models that share investment risk between the public and private sector are emerging across the globe as the burden for funding cannot be carried by government or private sector alone.”

The Panel recommends that

a) The mandate and sources of funding of the Fund be reviewed.
b) The USAF evolves into an ICT Development Fund (ICT-DF) providing support for both infrastructure and demand stimulation projects, in line with proposed definitions for UAS. It should be funded through private sector levies, donor funding and new incremental state funding.
c) It may no longer be feasible to host a fund with just a single source of income from compulsory contributions from licensed operators.
d) Properly designed and implemented, and with sufficient internal resources and expert capacity, an evolved universal service fund model has the potential to serve as a central “clearing house” for a variety of funding sources and development projects, to reduce inefficiencies and improve coordination across the spectrum of ICT development and financing initiatives.
e) An evolved fund must be used as a mechanism also to host income from the private sector, donors, and the state. This fund must expand its focus on, for example:
Development of infrastructure in underserved areas which remain out of market reach;
Ensuring access to a range of converged ICT applications and services to those who cannot afford;

iii. Promoting programmes to facilitate the effective use of ICTs, in especially rural areas, and amongst economically poor youth;

Providing e-literacy skills to those who cannot afford it;
Promote the development of local content and applications;
Funding to assist public sector adoption of ICT and applications and content for government services, including e-health and e-education.

vii. Funding to support small and medium-sized enterprises to use ICT to improve productivity and competitiveness.

viii. Funding small but important players within the ICT value chain.

The Panel therefore proposes:

f) That an ICT Development Fund (ICT-DF) be established
A new funding model for ICT infrastructure and demand stimulation projects would be developed. The creation of an ICT-DF would allow for the aggregation of new incremental state funding with private sector funding and donor funding.
This vehicle would allow for the joint investment by the state, the private sector and donors on a scale far beyond that done previously. This fund could be a key instrument to help fund new infrastructure investment.

iii. In addition, the ICT-DF would be used to stimulate demand including local content and applications development, ICT entrepreneurship and research and development.

The terms of the USAF must be amended so that it evolves into an ICT-DF, and provide a foundational funding source for aggregation of all funding sources.
g) That the fund abide by the following principles
Alignment with the NDP which states that “In future, the State’s role in the ICT sector will be to facilitate competition and private investment and to ensure effective regulation where market failure is apparent. Direct involvement will be limited to interventions needed to ensure universal access, such as the introduction of “smart subsidies” and to help marginalised communities develop the capacity to use ICTs effectively” (NDP: 171).
There is a need thus to ensure that public funds do not simply replace private investment. Public funds must be directed, in the main, to the promotion of universal access and service in underserved areas.

iii. A company or industry sector which receives government support shall not gain an unfair advantage over its competitors. Thus in terms of State Aid the use of the fund shall conform to the generally accepted norms and principles as espoused in international treaties.

Where the fund is used for infrastructure development, an open access regime must be made compulsory, so that the new infrastructure can be used by all service providers on fair and equal terms.
Prioritisation of public funding must in the first instance be committed to improvement of e-Government services, improving government business process; schools connectivity of health sites of service; connectivity to improve policing (including community policing) and the delivery of justice.
In instances where the private sector jointly invests with government, a negotiated agreement is required upfront in terms of the rules of application, such that the fund operates on an open, transparent and fair basis.
h) The establishment of the fund should be subject to further investigation, research and due diligence, so that explicit terms of reference is developed which encompasses clear guidelines for the governance, disbursement and utilisation of the fund.
i) The terms of the fund shall provide for its independence from the national account.

R39. INSTITUTIONAL ARRANGEMENTS FOR THE ICT DEVELOPMENT FUND

The Panel considered various options regarding the management of the proposed ICT-DF. This included a split of responsibilities between the regulator, and an independent Fund Managing entity; management entirely by the Regulator; and management entirely by an independent entity.

The Panel recommends that:

a) Management and control of the ICT Development Fund must be assigned to an independent entity. This would entail evolving the USAF to become a component of a larger ICT-Development Fund. This requires an amendment to current institutional arrangements.

….

d) Dissolution processes of the current functions of USAASA must be implemented, and the Agency must evolve into an independent ICT-DF management entity as follows:
The Agency as it currently exists should be dissolved and existing functions transferred to ICASA (regulatory functions) and to the DTPS (policy-making functions);
All non-policy and non-regulatory functions relating to Fund management shall be retained in the new entity.
e) Governance and Accountability will be paramount. The new entity would be required to publish separate annual audited statements and an annual report, and to commission independent research into the impact of the fund in achieving UAS targets.
f) The DTPS, in consultation with other stakeholders within and outside of Government, to determine the model of Governance of the ICT-DF, including whether it should be governed by an independent board appointed by the Minister on the recommendation of Parliament and accountable through Parliament to the public.
g) The new entity will develop, publish, and maintain guidelines on the use and disbursements of the ICT-DF. Clear and unambiguous guidelines would be published providing guidance on the scope of the fund and the procedures to be followed to access the fund. In addition, the guidelines must incorporate specific provisions on transparency so that contributors to the fund have visibility as to how the funds are utilised would be The guidelines must be aligned with the UAS definitions at all times, so as to ensure proper monitoring and enforcement.

R40. ICT DEVELOPMENT FUND CONTRIBUTIONS

The Panel, in noting the expanded scope of the proposed ICT-DF, as well as the substantive Universal access gap which prevails, recommends the following:

a) There shall be increased discretion in the disbursement of funding. The current relatively stringent legislative circumscription of the disbursement of funds from the USAF would be removed. The new entity managing the ICT-DF would be required to develop criteria and an annual plan for the deployment of monies in the ICT Development fund, preferably through a public stakeholder consultative process, and subject to third party approval by Parliament, or the Minister or ICASA.
b) The proposed scope of the ICT-DF should include funding for broadband deployment and uptake, and thus support infrastructure and services and the creation of demand must be taken into account.
c) Regarding contributions to the fund from Licensees (As per Section 89 of the EC Act), the regulator should continue to set contributions to the Fund, in consultation with the governance structures of the new The regulator has the information needed to invoice for the monies and also can insure that there is a balance between the Fund contributions and the USOs imposed on operators. In addition, the regulator must balance the Fund levy against any other sector specific taxes and fees that it may administer.
d) Government must conduct a study to ascertain the quantum of funding that will be required given that an expanded definition of universal access will have an impact on the areas where funding will be required.
e) Once this is established, the regulator must be directed to commence with an immediate review of fund contributions from licensees, taking in to account the quantum of funding required, with a view to ascertain why the current contributions should not be increased up to the one per cent of turnover currently provided for in the EC Act (Section 89 (a)).
f) As with the MDDA, policy and legislation should ensure that funds collected are deposited directly in to the account of the independent fund management body.

R170. DISSOLUTION OF USAASA AND ESTABLISHING A FUND MANAGER

Note: The recommendation presented in this section, must be read together with the recommendations regarding the establishment of the ICT-Development Fund in the Infrastructure and Services Chapter of this report.

The Panel did not divorce the issues concerning the USAF, and that of the Agency. The nature of inputs to the Panel on institutional arrangements was inevitably linked to issues concerning the USAF. The Panel took into consideration that:

There is a broad consensus among stakeholders that USAASA had been ineffective in achieving its mandate, as outlined in Chapter 14 of the EC Act.
There is a lack of clarity and overlapping roles between the USAASA, ICASA and the Minister/Department and that these should be resolved.
There is broad agreement that it is still necessary to have a fund to address universal service and access.

It is therefore recommended that:

a) The Agency as it currently exists should be dissolved and existing functions transferred to ICASA (regulatory functions) or to the DTPS (policy-making functions).
b) All non-policy and non-regulatory functions relating to Fund management shall be retained by the new entity which will manage the ICT-Development Fund.
c) The remaining components of the Agency must evolve into an independent ICT-DF management entity.
d) That the DTPS undertake a detailed institutional review and establish transformative measures that are required to ensure that the functions being transferred to the new fund management entity has the requisite capacity to manage the proposed ICT-Development Fund.

R41. e-RATE

The Panel notes that:

There has been a range of criticisms since the introduction of the e-rate under a 2001 amendment to the then Telecommunications The 2014 amendments to the EC Act sought to address some of the criticism by ensuring the e-rate is applicable at both wholesale and retail levels.
During the policy review process, there were calls for a comprehensive review of the e-rate, its application and its This included arguments that the e-rate be extended to additional beneficiaries.

The Panel recommends that

a) The current e-rate provisions should be reviewed against objectives set and in relation to best practice.
b) The review must include an assessment of the funding arrangement for the e-Rate.
c) The review must focus on developing stronger provisions to address the loopholes which have hampered implementation of e-rate to date. These include challenges in relation to the fair application of e-rate regulations on service and internet providers and ensuring that all licensees contribute towards subsidising related costs, the difficulty of ring-fencing expenses qualifying for the e-rate at schools and clarity on funding of the remaining 50% by schools that cannot afford even the reduced rate.
d) With regards to the scope of the e-rate, there is agreement that in the interim it continues to be applied as per current scope. However the recommended review must also consider the extent that it is feasible to expand the e-rate scope to include rural clinics, and a range of other public institutions which require broadband services for their core function such as public libraries, clinics, hospitals, correctional facilities and police stations.

CONSUMER PROTECTION

R42. CONSUMER PROTECTION AND QUALITY OF SERVICE

The Panel notes that

Policy in respect of consumer protection and quality of services is necessary to ensure:
- The rights of consumers in the ICT sector are adequately protected;
- Quality of service standards are appropriate, clearly specified and adequately enforced;
- There is proper transparency and publicity on the monitoring, reporting and enforcement of consumer protection and quality of service; and
Concurrent jurisdiction between ICASA and the National Consumer Commission (NCC) is effectively managed in the best interests of consumers.
Co-regulatory/self-regulatory codes of conduct have been established by both ISPA and WASPA to deal with the handling, adjudication, enforcement and publication of consumer complaints in their respective spheres.
Particular problems which have been highlighted include the following:
- ICASA conducts its own quality of service testing and publishes the results from time to time. Such reports are frequently criticised by the operators.
- The EC Act requires ICASA to establish a Consumer Advisory Panel. ICASA established this Panel in 2010, but suspended it the following year.

The Panel therefore recommends

a) A review must be undertaken to ascertain how to ensure that ICASA can more effectively fulfil its responsibilities to regulate, monitor, enforce and publicise consumer protection and quality of service codes and standards.
b) That the regulator takes steps to establish a Consumer Advisory Panel, which must include representation from the National Consumer Commission (NCC) and from organisations representing persons with disability.
c) Further that the role and powers of the Panel in relation to the Council/ICASA be explicitly outlined in policy and law so as to ensure that there is no confusion in relation to this. This should include a focus on consumer protection and the obligation to broadly advise ICASA on consumer issues, engage the regulator on emerging or current consumer related matters of concern and give input on pending regulations in the interest of consumers.
d) This should include clarity on whether or not the Panel has decision-making powers and in what instances, what its primary purpose is and how it should be resourced to fulfil its functions. These powers and functions should be determined considering the objectives for establishing such a panel.
e) That a Memorandum of Understanding is developed between ICASA and the NCC requiring collaboration on matters relating to consumer protection in the ICT sector. Policy and law should also require that the MoU be regularly reviewed.
f) ICASA takes steps to improve public awareness of consumer rights and how to complain about alleged breaches of these. This must include a clarification of the mandates of both ICASA and the NCC and their respective roles in dealing with consumer complaints.
g) The requirements on the regulator to publish annually information on the state of consumer satisfaction and complaints handling in South Africa should be strengthened.

TYPE APPROVAL

R43. TYPE APPROVALS

The Panel notes that:

ICASA issued new Type Approval Regulations and Labelling Regulations in 2013, aimed at streamlining the type approval framework, setting fees for type approval and clarify labelling requirements for all type approved equipment.

During the policy review process, companies involved in electronics manufacturing and distribution pointed out that the process of applying for type approvals and labelling was still often inefficient and beset by delays, resulting in loss of earnings.

The Panel therefore recommends

a) Policy should ensure that mechanisms are put in place to ensure the type approval process is handled efficiently and effectively.
b) Policy must also facilitate international and regional type approval harmonisation and cooperation in type approval processes to reduce bureaucracy where possible and eliminate barriers to entry into other markets.
c) Policy must ensure that there are clear and distinct roles and responsibilities between ICASA and the South African Bureau of Standards (SABS) on type approval matters, in particular radio frequency related tests.

SPECTRUM

R44. OBJECTIVES OF SPECTRUM POLICY

The Panel strongly endorses the principle that spectrum is a valuable national public resource, and as such must be focused on delivering public value. The Panel further notes that

The 2010 Radio Frequency Spectrum Policy for South Africa sets out eleven policy objectives that should be met.
There have been calls in the policy review process for a clarification of the underlying objectives to guide spectrum management and the principles underpinning these to ensure effective and efficient management of radio frequency spectrum to ensure agility, flexibility and adaptability in spectrum administration.

The Panel therefore recommends that a review of the current policy be undertaken so that:

a) Policy objectives and rules are clear, concise and aligned with ITU guidelines. The new policy should focus on ensuring effective and efficient management of spectrum to ensure agility, flexibility and adaptability in spectrum administration.
b) Policy objectives should be, unambiguous, measurable, achievable, realistic and time dependent. Current objectives should be reviewed to ensure this.
c) The policy objectives must be stated in accordance with a set of broad principles for an effective spectrum policy and management regime that serves to achieve economic and social benefits for South Africans.
d) Policy objectives should be aligned with the SA Connect national broadband policy especially with regards to universal access and service in rural areas.
e) The review should take into account convergence, technology trends, and access issues.
f) The review must ascertain which objectives are to be incorporated into legislation.

The Panel further notes in respect of this recommendation, the recent re-arrangements by government (splitting of Departments into the DTPS and DoC). In this regard the Panel reiterates that government’s approach to spectrum policy be holistic. The Panel thus urges that spectrum and any related policy interventions must take place via active consultation and engagement by the two Ministers and their departments. In addition the Panel wishes to draw attention to several submissions which have underscored that spectrum policy must be informed by the needs of the entire industry including those of broadcasters.

R45. PRINCIPLES OF SPECTRUM MANAGEMENT

The Panel recommends that the review of spectrum policy proposed in the preceding section, take into account the following suggested principles:

a) Recognition that allocation and management of spectrum takes place on a global platform: South Africa, together with international partners must influence global policies such as those at the ITU, to ensure that these do not, even inadvertently, negatively impact on the developmental objectives of the country.
b) Managing unused licensed spectrum: The hoarding of spectrum by users is not conducive to efficient spectrum usage and this practice should be discouraged at all Spectrum management policy should strictly apply “use it or lose it” principles to all spectrum licensees. Passive science services, due to the nature of their operation, will be exempt from this provision.
c) Priority of access to spectrum related to safety of life (currently a policy objective): The international spectrum regulatory framework has as one of its founding principles the availability and protection from harmful interference of frequencies provided for distress and safety purposes. A safety service is any radio-communication service used permanently or temporarily for the safeguarding of human life and property. It is recognised that safety services require special measures to ensure protection from harmful interference and this must be taken into account in the assignment and use of frequencies. Priority of access to spectrum must be given to safety of life services including public safety and security communications.
d) Allocation of spectrum for research, development and innovation (currently a policy objective): The radio spectrum facilitates a range of scientific applications used for research purposes. Currently, radio frequency spectrum for trial and testing is assigned on a case-by-case A proposed research and development spectrum allocation will encourage a research and development mind-set. In addition scientific applications should not compete for spectrum with commercial applications. It is in the national interest that the needs of active and passive scientific research are taken into account when allocating spectrum. In addition, spectrum policy must be crafted to spur entrepreneurial activity and innovations among local companies to grow the electronics manufacturing and software development sector.
e) Spectrum for wireless technologies: Wireless technologies are more appropriate for the provision of electronic communication services in rural areas due to the population distribution, lack of infrastructure, terrain etc. Spectrum usage should therefore be used to promote the goals of universal access and service especially in rural areas.
f) Contiguous frequency assignment: The adoption of contiguous frequency assignments to promote spectrum sharing, as this is the most spectrum efficient and feasible means to encourage this.
g) Holistic approach to spectrum planning to accommodate additional multiplexes: Spectrum plans must adopt a holistic approach accommodating the creation of additional multiplexes and catering for future spectrum needs for broadband, Digital Terrestrial Television (DTT), digital radio as well as possible future technologies to ensure capacity for new audio-visual and content services.
h) Regular spectrum audits are necessary to weed out any ‘ghost’ services.

R46. SPECTRUM PLANNING AND MANAGEMENT

The Panel recommends that the following approaches/issues in respect of spectrum management be considered and reinforced in the revised spectrum policy:

a) Flexible use of spectrum be permitted to the extent possible;
b) Harmonisation of spectrum use with international allocations and standards be endorsed, except where national interests warrant a different determination;
c) The need to make spectrum available for use in a timely fashion;
d) The facilitation of secondary markets for spectrum authorisations;
e) The need to impose clearly defined obligations and privileges associated with spectrum authorisations;
f) The need to ensure that appropriate interference protection measures are in place;
g) Mechanisms to be strengthened to reallocate spectrum where appropriate while taking into account the impact on existing services and users;
h) Ensuring timely and effective enforcement of rules and requirements and that penalties are commensurate with the risks posed by non-compliance.

R47. SPECTRUM ALLOCATION

The Panel notes that:

Spectrum policy should be driven by the objective of efficient spectrum usage and that the policy must provide overarching guidance for the utilisation of spectrum in the broad public interest.

Spectrum management and allocation must take place within a coordinated and harmonised national approach to spectrum usage, with set conditions for the availability and efficient use of radio spectrum by various services to support specific national objectives and to provide greater predictability and certainty to current and future use.

Policy certainty with respect to spectrum is seen as crucial to the development of a favourable investment climate.

The Panel therefore recommends that policy regarding spectrum allocation be reviewed to ensure alignment with the following:

a) There should be spectrum provision for an open access network: An open access model is advocated in the SA Connect broadband policy to facilitate competition and ensure universal service and access is achieved. High demand spectrum should thus be set aside for an open network that will sell wholesale access to new and established operators.
b) Must-carry obligations must be enforced for high demand spectrum recipients: All operators given access to the so-called “high demand spectrum” must be subjected to minimum obligations to allow other service providers to access their The regulator is thus required to specify the bands which constitute “High demand spectrum”, and should revise this categorisation periodically.
c) Spectrum band harmonisation: Spectrum policy must provide for spectrum band harmonisation including the adoption of contiguous band assignments to promote sharing of spectrum.
d) Competitive bidding: In terms of spectrum pricing, it is important for the price charged to reflect the true value of spectrum as a scarce resource. For this to take place, a competitive bidding process needs to be accommodated in the spectrum assignment model.
e) The need for more multiplexes to accommodate future terrestrial broadcasting and services: In order to accommodate future television technologies like High Definition, Ultra High Definition and 3D more multiplexes should be catered for during the digital migration phase.
f) Licence exempt spectrum bands must be determined, by the regulator.

R48. ROLE OF THE MINISTER IN SPECTRUM ALLOCATION

The Panel noted that there have been calls in the course of the policy review for a reassessment of the roles and functions of the Minister and regulation in relation to spectrum allocation.

The Panel recommends that the policy review being proposed (see Spectrum planning and management above) include in its purview an assessment of the Minister’s role in spectrum allocation.

R49. SPECTRUM ASSIGNMENT AND LICENSING

The Panel notes that

Spectrum auctions can give government the best revenue but could favour stakeholders with substantial resources and therefore not necessarily result in the greatest Auctions should thus be considered with discretion.
This implies reservation of some spectrum for smaller or new players and the setting of spectrum caps for others.

Having considered the range of options, and submissions, the Panel recommends that

a) A hybrid assignment model which combines elements of the current regime and market-based and spectrum commons approaches be pursued.

R50. SPECTRUM PRICING

The Panel notes that:

Spectrum fees reduce the rationale for “hoarding” spectrum.

Spectrum is not “owned” by a licensee.

The Panel therefore recommends that

a) The fees to be paid for the usage of the radio frequency spectrum should be based on factors that take into account the inherent properties of the radio frequency spectrum, such as the frequency band, congestion in the particular band, and other factors such as bandwidth, coverage, degree of loading, spectrum efficiency of the equipment used, economic factors and geographical area of operation.

R51. SPECTRUM PRICING: COMMERCIAL AND NON-COMMERCIAL USES

The Panel recommends that:

a) The spectrum pricing model be reviewed to recognise the difference between non-commercial and not-for-profit use of spectrum, within the administered incentive pricing (AIP) model.
b) That spectrum pricing must be in line with the spectrum policy which has been recommended for review.
c) ALL spectrum holders (regardless of commercial, non-commercial, or non-profit status) and regardless of use, must be audited to ensure efficient utilisation such that use it or lose it principle is applied without discretion.

R52. SPECTRUM PRICING FOR GOVERNMENT SERVICES

The Panel notes that:

Government departments in their submissions to the Panel have lamented the high costs of accessing the spectrum to deliver public services.
Questions have been raised as to whether government should use public funds in the delivery of public services to pay for the use of a public resource.
There are concerns that public entities are required to pay the same fees as commercial entities.
There are concerns that if government does not pay for services that could result in spectrum hoarding and / or ineffective use of spectrum.

The Panel therefore recommends

a) That the spectrum pricing model be adjusted to ensure that there are no fees payable for spectrum which is used for necessary and essential government and public services. Policy should clearly define what is meant by government and public “services” to ensure that the term clearly applies to public interest services and not This may include, for example, safety and security, national defence, aeronautical, maritime, education, and health services.
b) ICASA must decide on the processes to be applied to satisfy itself that exemption is only granted to such public interest services.
c) Government users in this category will have to file regular reports on utilisation and the use it or lose it principle should be strictly applied.

MINORITY RECOMMENDATION: The policy maker in reaching a decision on this should note that such a policy has the potential to:

Contradict the key AIP objective of setting spectrum fees reflective of the market value of spectrum.
Stifle technological innovation as there is no incentive to optimise spectrum utilisation.
Promote spectrum hoarding and the inefficient use of this scarce resource.
Negatively impact on broadband roll-out as key IMT frequency bands may be hoarded by a particular department/sector.
Negatively impact the Authority’s ability to recover spectrum management costs.

If a “no fee” policy is applied to public services, legislation and policy should ensure that the term is narrowly defined and so its application is limited.

R53. COMPENSATION FOR THE COSTS OF MIGRATION

a) The Panel recommends that the following approaches all be recognised in policy, and that a decision on which is applicable to be decided on a case by case basis by the Minister:
Incoming licensee compensates the outgoing licensee for the cost of migrating.
The licensee that is required to migrate covers its own costs.

iii. Migration preferably occurs at the end-of-life of equipment when costs are minimal.

A portion of proceeds from the sale of spectrum (e.g. the digital dividend) would be used to fund migration.
b) Further, decisions regarding migration shall take into account International agreements between the South Africa and the ITU.

R54. SPECTRUM TRADING

The Panel notes that

The EC Act currently provides for trading.
There is no clear value proposition in respect of trading given that trading of a public resource does not necessarily automatically result in public value.

The Panel therefore recommends

a) Government review the current provisions for trading, taking into account the concerns noted above.

MINORITY RECOMMENDATION: The status quo in respect of spectrum trading prevails – i.e. it be allowed, subject to regulation by ICASA.

R55. SPECTRUM SHARING

a) The Panel recommends that policy must provide for spectrum sharing.
b) However, each instance of spectrum sharing shall require rigorous oversight from the regulator so that the principle of fair competition in the market is maintained.
c) The Panel therefore recommends that Hybrid Hierarchical Access Model be pursued, built upon a hierarchical access structure with primary and secondary users, such that it is a hybrid of:
Dynamic Exclusive Use Model: The basic structure of the current spectrum regulation policy would be maintained and spectrum bands licensed to services for exclusive use. Flexibility would, however, be introduced to improve spectrum efficiency. Two approaches which may be considered include that of Spectrum property rights and Dynamic spectrum allocation.
Open Sharing Model (spectrum commons): This model uses open sharing among peer users as the basis for managing a spectral region. Advocates of this model draw support from the success of wireless services operating in the unlicensed ISM band (e.g. Wi-Fi). Centralised and distributed spectrum sharing strategies have been initially investigated to address technological challenges under this spectrum management model.

R163. SPECTRUM MANAGEMENT AGENCY

With regards to spectrum management, the Panel canvassed inputs as to whether

The status quo be retained, but with measures to strengthen the regulator’s capacity to undertake spectrum management;
A separate entity should be established within ICASA to ensure that there is a greater focus on spectrum management; or
If a separate agency be established.

The Panel considered a wide number of viewpoints on this matter. The Panel is of the view that there isn’t sufficient information available from the policy review process to make a firm recommendation. It is thus recommended that:

a) The recommended policy review on spectrum (refer to recommendations in the Infrastructure and Services Chapter) be expanded to ascertain which of the above listed options is feasible and most efficient and effective in meeting objectives and assigning spectrum. This would require a collaborative approach between the DTPS and DoC.

ROLE OF GOVERNMENT

R152. APPLICATION OF STATE-AID RULES

The Panel has considered best practice such as in the European Union where State Aid Rules focus on ensuring that state aid does not inhibit fair competition. The Panel recommends that the following in respect of State-Aid is adopted in undertaking institutional reform:

a) The term “State-Aid” is broadly defined to include grants and other advantages. Principles governing state-aid must thus be considered not only in relation to fiscal allocations but also in allocating additional spectrum or determining reserved markets.
b) That State-Aid rules apply such that state aid to a company or sector is not permitted unless it is a legitimate response to market failure or a necessary response to concerns about equity or wider social and political objectives.
c) That any company which receives state support does not gain an unfair advantage over competitors.
d) Exemptions to the foregoing may be granted in order to ensure a well-functioning and equitable economy. These exemptions shall apply to services of general economic interest (SGEI) which may be defined as “economic activities that public authorities identify as being of particular importance to citizens and that would not be supplied (or would be supplied under different conditions) if there were no public intervention”.

The Panel further recommends that State-Aid is only considered under the following circumstances:

e) State aid should “not lead to undue market distortions”.
f) Intervention is only warranted if it’s expected that the expected benefit, in terms of improving market outcomes, outweighs the expected cost of intervention and therefore if it is the best feasible remedy.
g) That the following cumulative conditions are considered in determining whether or not public service compensation constitutes aid:
The recipient must have clearly defined public service obligations.
The parameters for calculating the compensation must be objective, transparent and established in advance.

iii. The compensation provided must not exceed what is necessary to cover all or part of the costs of fulfilling the mandate, taking into account the relevant receipts and a reasonable profit.

The level of compensation must be determined on the basis of an analysis of the costs of a typical well-run company.
h) All entities who receive State-Aid are to have separate accounts so that these can be analysed in the case of complaints and by operators in their markets.

R153. STRENGTHENING THE ROLE OF GOVERNMENT

The Panel notes the following in respect of role-functions:

National Government
- National policy-making is the prerogative of national government, with the executive bearing particular responsibility for this. The executive also bears overall responsibility for implementation of laws though public institutions and other government agencies have some responsibility in relation to implementing their own legislation.
- The Executive is responsible for drafting Bills to implement policy prerogatives for Parliament’s consideration. A particular Department or Minister’s powers in relation to policy-making and the drafting of laws for consideration of Parliament is curtailed only with regards to any Bill that appropriates money or imposes or relaxes any national taxes, levies, duties or surcharges, taxes, levies etc. Such issues have to be raised in a Money Bill introduced by the Minister of Finance.
- The Electronic Communications Act, no 36 of 2005 (“the EC Act”) in line with this empowers the Minister to make policies on “matters of national policy applicable to the ICT sector, consistent with the objects of this Act and of the related legislation” in relation to a number of strategic areas.
Infrastructure coordination
- The Presidential Infrastructure Coordinating Commission (PICC) project which focuses on ICT infrastructure development (Strategic Integrated Project 15) coordinates infrastructure roll-out in the sector. It is chaired by the Minister for Telecommunications and Postal Services and focuses on:
  - The roll-out of national broadband infrastructure;
  - Digital television terrestrial transmitter roll-out.
- Local government
  - There have been several instances in which infrastructure implementation is impeded at local government level, given that there are capacity challenges at many municipalities.
  - The roles and responsibilities of local government, as set out in the Constitution provide a framework to understand the extent of local government with regards to ICT policy implementation.
  - Lack of overarching guidelines co-ordination of ICT spend leads to fragmentation of spend, duplication of network and further marginalisation of disadvantaged consumers as ICT resources are focused predominantly on urban areas.

The Panel considered how Government’s role could be strengthened during policy implementation and recommends the following:

a) Government must review the mechanisms, or lack thereof, to facilitate of optimal synergies and cooperation between institutions. We recommend that both governmental and multi-stakeholder coordination must be considered, and that this may consist of one or more coordinating structures.
b) The roles and responsibilities between national and local government must be clarified so as to overcome impediments to implementation.
c) All entities (including ICASA) must be bound by any rapid deployment policy.
d) Mechanisms must be established to consult with local and provincial government when developing laws, policies and implementation plans.
e) Local government should be invited to sit on advisory and/or consultative committees (such as the National Broadband Council) to ensure their challenges are addressed.
f) SIP 15 must continue undertaking responsibility for infrastructure coordination. However there are other issues requiring co-ordination. We therefore recommend that further coordination is necessary across government to achieve This must include, amongst others coordination in undertaking gap analysis; gap closing strategies; deployment of services across the three tiers of government; and cyber-security.
g) The Panel notes the CSIR’s role in infrastructure implementation and recommends that the DTPS must ensure it is consulted in this regard.

R154. BALANCING SHAREHOLDER AND POLICY-MAKING FUNCTIONS

With regards to the separation between government’s responsibilities as a shareholder and its policy-making functions, the Panel notes that:

The entities owned by the state are instruments of Thus the existence of these institutions serves to realise public interest policy objectives, rather than profitability.
Recommendations presented in this report regarding the strengthening of independent regulation, regular reporting thereof to parliament, the above identified key questions to be asked in reforming institutions as well as the proposed state aid rules and principles together provide the necessary mechanisms to ensure that SOEs are not adversely affecting competition.

The Panel therefore recommends that:

A review of SOE’s must be undertaken to consider whether current institutions are fulfilling policy objectives.
Regular assessments of SOE and public entities should furthermore be scheduled in policy and the above principles for institutional reform (including the key questions suggested) should be used to assess the ongoing relevance of such institutions.
All SOEs and public entities should be specifically required to report annually to government/parliament on performance against their mandates and not confine themselves to only reporting on aspects of these included in annual operational/performance plans.

MINORITY RECOMMENDATION: Shareholding and policy making functions must be maintained in separate Ministries.

R155. OVERSIGHT AND ACCOUNTABILITY

With regards to oversight and accountability, the Panel notes that

Parliament has the overall responsibility on behalf of the public for holding the Executive and all public institutions to account and scrutinising their plans and activities.
The PFMA and Treasury Regulations have also included mechanisms to enhance oversight and accountability by, for example, requiring that all public entities are not only subject to independent financial audits but also undergo performance audits.

The Panel therefore recommends:

a) The development of clear mandates and clarity on the specific functions of the different public entities.
b) Regular reviews by Government and/or Parliament of the ongoing relevance of specific institutions and/or policy plans against clear criteria and questions.
c) The incorporation into reviews specific tools such as a form of peer review (360 degree review) including assessment of plans and institutions by stakeholders, including beneficiaries.
d) That specific powers or functions are built into policy and legislation to ensure that Parliament’s activities in relation to oversight and accountability are evidence based.

ICASA

R156. PERCEPTIONS OF NON-COMPLIANCE BY THE REGULATOR

The Panel notes that:

During the policy review process, there was a widespread view concerning the perceived ineffectiveness of ICASA.

The Panel noted concerns regarding adequate resourcing of ICASA, non-compliance by the regulator with regards to national policy objectives and legislative provisions, poor administration, the capacity to enforce compliance with legislation, regulations and licence conditions, and whether ICASA is sufficiently capacitated to fulfil its responsibilities as a regulator.

Given the foregoing, the Panel considered how policy and/or legislation could address perceptions of non-compliance by the regulator with the objectives of law and with national policy, while still ensuring its autonomy.

The Panel therefore recommends:

a) The principle of independence of the regulator must be balanced with appropriate mechanisms to ensure accountability.
b) Parliamentary oversight of the regulator, as an essential mechanism of accountability, must be strengthened to ensure independence from political and other powerful stakeholder influence.
c) Accountability to parliament thus far has focused on annual performance rather than an assessment of the impact of regulation and the extent to which the regulator is achieving policy objectives. Policy and law must be revised to require ICASA to account to parliament on its achievements and impact in relation to the objectives set for the sector by government and its mandate.
d) Within the context of parliamentary oversight, ICASA must report specifically on the implementation of national policy objectives and directions and provide to parliament reasons for any deviation.
e) There must be transparent decision making as far as it is This must reinforce requirements on the publication of reasons for decisions and ensure that appropriate action is taken if such requirements are not implemented.
f) Stakeholders must be given an opportunity to make representations to Parliament on ICASA performance (i.e. 360 degree performance assessments)
g) The regulator must be required to conduct and publish regular research to ascertain public needs and views and align its plans to findings.

R157. INDEPENDENCE OF THE REGULATOR

The need to reinforce formal and de facto independence of ICASA in relation to licensing, rule-making and monitoring and enforcement, while balancing accountability and oversight to ensure it efficiently and effectively fulfils national policy objectives was a core consideration of the Panel.

With regards to how to ensure the regulator acts independently but in line with National policy objectives, the Panel recommends that:

a) Any deviation from policy must be reported to Parliament and the policymaker by the regulator. The regulator should continue to be allowed to use its discretion in relation to implementing any policies and/or policy directions, but in such instance it must be required to justify and explain such deviations.
b) Policy and law must furthermore clearly distinguish between policies and policy directions, and the requisite actions of the regulator with regards to the latter. The principle of “apply or justify” must be specified to ensure that the instances where the regulator does not implement policy directions, it justifies its decisions in this regard to Parliament.
c) General duties of the regulator must be included in law, including promoting competition across networks and services, equal treatment of technologies, reviewing regulatory burdens, regular impact assessments, increasing the ease of doing business in the sector, publishing decisions promptly and adhering to timeframes, and conducting appropriate and relevant international benchmarking.

R158. AVERTING REGULATORY CAPTURE

The Panel also considered how regulatory capture could be averted. It recommends in this regard that:

a) Measures to strengthen oversight and accountability as recommended in the preceding section be enforced.

R159. MECHANISMS TO ENHANCE PUBLIC INVOLVEMENT IN THE REGULATOR

With regards to mechanisms to enhance public involvement in the regulator and ensure public needs are considered and addressed, the Panel recommends that:

a) Stakeholders be given an opportunity to make representations to the National Assembly regarding ICASA’s discharge of its mandate (refer to recommendations at the outset of this sub-section)
b) In addition to public inquiries, ICASA should conduct regular research in the ICT sector to determine public needs and views.
c) Provisions provided for in law must be enforced, such as those requiring that the minutes of meetings of the ICASA Council should be made public within a reasonable time, subject to appropriate safeguards to protect confidential information.

R160. REPORTING REQUIREMENTS OF ICASA TO PARLIAMENT

The Panel assessed whether policy should introduce additional reporting requirements for ICASA to enable Parliament to proper fulfil its responsibility to hold the regulator to account in terms of its mandate. In this regards the Panel recommends that:

a) Revisions to policy and law are required as stipulated above to facilitate proper oversight. Clarity on what issues ICASA should report on will facilitate transparency and assist the regulator in preparing reports.
b) Parliament must further strengthen its capacity to hold the regulator and government to account.
c) The principle of “apply or justify” provisions in law, policy and policy directions must apply with the regulator being accountable to Parliament and required to report to Parliament how it has implemented policy or justify, in line with legislative provisions, variations or non-implementation of policies.
d) When the regulator deviates in any way from legislation, policy or policy directions, its justification should include: The reasons why it varied from such policy/legislative provisions, what impact, if any, the deviation will have on the envisaged policy outcomes and how its intends to still ensure the realisation of such intentions. Parliament should have the power to intervene if it is not convinced by the regulator’s response in a manner that does not compromise ICASA’s right to independent decision-making.

R161. PERFORMANCE MANAGEMENT PROVISIONS FOR ICASA

With regards to the current performance management provisions for ICASA, the Panel notes the lack of a performance management system for the Council. The Panel therefore recommends that:

a) A performance management system for the regulator must be developed as a matter of priority and that Parliament must be responsible for performance management and for determining what mechanisms should be put in place to implement this.
b) Given that there are several guidelines in other legislation such as the PFMA, these must be drawn upon to develop an effective performance management guideline. It must be noted that the implementation of a more robust performance management system does not impede independence.
c) Performance management must be dealt with at the level of the entity, rather than that of individuals. Individual performance is a matter of organisational policy which must be enforced through performance Broad recommendations emanating from internal performance management must be a component of parliamentary reporting.

R162. PUBLISHING OF INFORMATION AND REGULATORY IMPACT ASSESSMENTS

The Panel notes the concerns raised as to whether ICASA has sufficient powers to require licensees to submit the information necessary to conduct regular market reviews. The Panel also notes that there are suggestions that Chapter 10 of the Act (regarding competition matters) could be interpreted as limiting the regulator’s ability to publish information on markets it regulates without conducting a full market inquiry.

The Panel therefore recommends that:

a) ICASA be required to publish regular reports on a range of issues, based on information it collects regularly. Such reporting should be meaningful and must be targeted at informing the public of its activities and of the state of the sector it regulates.
b) With regards to regulatory impact assessments (RIAs), the Panel is in support that such assessments be conducted where necessary. However the cost of a RIA must be weighed against the potential value-added potential of its outcomes and Thus only significant regulatory issues should require a RIA. It is also noted that the regulator could determine criteria to trigger different types of RIAs – noting that not all regulatory interventions would require the same depth of impact assessment.
c) A framework for the conduct of a RIA must be developed by the regulator, and it should specify the processes involved for lighter and more detailed impact assessments. The Panel recommends that ICASA must first thoroughly canvass the issues which might trigger an RIA, then publish a discussion document, after which it must conduct hearings, and thereafter apply regulatory principles to publish a position paper.
d) The Panel further notes that the publication of discussion papers and position papers along with regulations allows for a more thorough regulatory process and that policy and law should encourage this practice.

R164. COMPLAINTS AND COMPLIANCE

The Panel notes that

There is a backlog of complaints before the CCC.
The Committee is made up of external and therefore part-time members and the seven members are required to deal with complaints about licensees in all regulated sectors.
The 2013 draft amendments to the ICASA Act proposed that the CCC be restructured as a separate Commission, appointed by the Minister rather than the Council and its ambit be extended to general non-compliance with the Act rather than only allegations of breaches by licensees. This amendment was deferred pending finalisation of the policy review process.

The Panel recommends that:

a) The status quo must remain but provisions introduced to strengthen ICASA’s enforcement capacity.
b) The relationship between the Council and the CCC must be reviewed. As a minimum, the Panel recommends that the CCC should be given greater decision making power.

R165. REVIEWING OF ICASA DECISIONS AND THE ROLE OF ALTERNATE DISPUTE RESOLUTION MECHANISMS

The Panel recommends that:

a) The status quo must remain i.e. only a court can review ICASA decisions.
b) However, the lack of a sufficient alternate dispute resolution (ADR) mechanism must be addressed. The Panel has noted concerns that a lack of an effective ADR mechanism results in delays through court processes to resolve disputes. It is therefore recommended that that a review be undertaken with a view to assess international best practice, the effectiveness of current provisions for ADR so as to establish what additional or alternative ADR processes are needed. The policy maker should be responsible for such a review.
c) The models of the Competition Tribunal and Competition Commission may be used as a basis to review this issue.

R166. STRUCTURE OF THE ICASA COUNCIL

The Panel notes that the structure of the Council is an important consideration to ensure efficient and effective decision-making. The roles and responsibilities of Council and the executive is also a component of this.

The Panel considered a range of inputs on ICASA’s structure. Inputs from stakeholders included the splitting of the responsibilities of the council, the need for clearer delegation to management of ICASA, and whether councillors should serve in full time or part time capacities, the ideal number of councillors. Concern was raised that the current structure has resulted in some of the sectors regulated being neglected.

Having considered a range of submissions, the Panel recommends that:

a) There should be an integrated board. The board must include executive and non-executive members (full-time and part-time).
b) There must be a clear directive on how the board is structured to deal with all aspects of its mandate equally.
c) The board structure must include standing committees which have oversight for the different focus areas (currently four, viz. broadcasting, telecommunications, postal services and e-commerce transactions) and that this must be provided for in law.
d) Each standing committee should be led by a vice-chairperson, and include a sufficient number of members (both executive and non-executive as relevant).
e) The number of Council/board members, both full-time and part-time, must be determined after conducting further benchmarking and in consideration of the regulator’s mandate.
f) The roles and functions of executive and non-executive members must be specified such that they are appropriately differentiated.
g) There must be clear guidelines which provide for the oversight of management by non-executive members of the board as per King III and associated principles of good corporate governance. This includes a provision that an explicit delegation be given to ICASA management by the board.

R167. STRENGTHENING ICASA APPOINTMENT PROCESS

The Panel notes that the current appointment process provides that:

Following on a public nominations process, Parliament draws up a short list of suitable candidates for In so doing, the National Assembly may constitute a panel of technical experts to assist it in the selection, evaluation and appointments process.
The National Assembly submits a list of preferred candidates to the Minister who recommends the people from the list that she or he proposes to The National Assembly may request the Minister to review his or her recommendation.
Once the National Assembly has approved the Minister’s proposed candidates, they are appointed by the Minister by notice in the Government Gazette.

Having considered the range of submissions on this issue during the review process, the Panel recommends that the status quo must be strengthened:

a) Legislation is strengthened to the extent that descriptors of the required expertise are explicit. Particular attention must be paid to the formulation of the descriptors of expertise, taking into account the range of ICASA’s mandate.
b) Appointments to the ICASA council are made strictly according to the published descriptors of expertise.
c) It be made mandatory that Parliament appoint a panel of experts to assist with the short-listing and interviewing process.
d) That the process of appointments incorporates an independent verification of qualifications and candidates’ background prior to appointment. It is essential in this regard that thorough checks are done on candidates before appointment, including, for example, screening to ensure the candidate and his or her family have no interests in any entities that could be perceived as conflicts of interest, credit checks, and confirmation of past work experience cited .

R168. ICASA FUNDING MODEL

The Panel notes

Funding is seen as a key component of independence both from government and from operators.
The concern among stakeholders regarding the adequacy of and mechanisms for funding ICASA.
The need to strengthen the capacity of the regulator to accurately cost its activities and budget appropriately.
The concern that ICASA has stated that it may not have adequate resources to ensure it can implement policies and laws effectively and independently, although in recent years ICASA has not spent its entire budget.
That it is imperative for the sound operation of the Authority that it be able to quantify the projected operational spend; and in doing so be able to motivate for the proposed budget.
Concerns related to the perceived inappropriate prioritisation of expenditure by ICASA.

The Panel therefore proposes

a) That a hybrid model for the funding of ICASA be implemented. In this model, ICASA would retain some of the fees collected on a cost-recovery basis so that the sectors regulated cover the costs of regulation. The determination of these fees would have to be transparent and proportionate. In addition certain of ICASA’s mandates would be funded by government if there is no matching revenue stream.
b) That the hybrid model be phased in to ensure that the regulator has the capacity to cost all its activities so that fees are cost-based.
c) That the introduction of the hybrid model should reinforce accountability by the regulator to the public.
d) That policy and law should specifically consider which mandates would still require support by This includes key public interest objectives such as inquiries into fair competition.

….

f) The implementation of the hybrid model must be subject to a more detailed assessment of which elements are to be funded and which should be self- funded.

PRIVACY

R171. ALIGNMENT WITH POPI ACT

The Panel notes that

There is a need for the Information Protection Regulator and ICASA to cooperate and work together to ensure the privacy of data and individuals.

A framework for inter-institutional cooperation and coordination is necessary so as to overcome overlaps and duplication.

In the ICT sector, the issue of privacy has specific implications which relate to, for example, communications interference and tapping of telephones.

The Panel therefore recommends that:

a) Policy and law in the ICT sector reviewed to ensure alignment with the POPI Act and cooperation with the new information regulator.
b) Policy and legislative amendments are required to align ICASA’s responsibilities are with the POPI Act.
c) ICASA should be required to enter into a MoU with the new Information Regulator once established. This should clearly outline responsibilities, and allow for cooperation on determining if any licence conditions or other rules could assist in protecting privacy in line with the Constitution.
d) Policy should emphasise the provisions of the Constitution in relation to privacy and the limitations on this right.

INTERNET GOVERNANCE

R73. ICANN AND SOUTH AFRICAN INTERNET GOVERNANCE POLICY

The Panel supports the view that:

Weaknesses in the current ICANN multi-stakeholder model must be addressed.

South Africa needs a firm position on Internet governance and should play a leading role in addressing weaknesses.

The Panel therefore recommends that:

a) South Africa develops a clear policy on Internet governance that will allow the country to defend its interests, its constitutional values and more actively influence global governance outcomes. The Net Mundial principles 42 should be assessed as in a possible point of departure for the policy.
b) South Africa continues to engage actively on international Internet governance forums to ensure the transformation of the ICANN multi-stakeholder model such that it enjoys meaningful participation; that multi-stakeholders are globally distributed; that robust accountability mechanisms for the ICANN Board are instituted; and that it ensures adequate representation by developing countries, and civic society.

R74. LICENSING AND ACCREDITATION

The Panel notes that retaining registrar accreditation empowers ZADNA to implement different measures to promote diversity in the local registrar community and to ensure the participation of previously disadvantaged individuals through enterprise development programmes.

The Panel having considered the issue of licensing and accreditation and recommends that South Africa’s authority in domain names only applies to the names registered in .ZA, and zaDNA is the entity entrusted with this authority. Domain names registered in other namespaces do not fall under its jurisdiction and generic top level domains (gTLDs) such as .com, .net and .org fall under the jurisdiction of the US government simply because gTLDs account to ICANN, which is a California-registered entity.

R75. ZADNA MANDATE

The Panel recognises that zaDNA’s current mandate focuses on increasing public awareness on the economic and commercial benefits of domain name registration. It further notes that zaDNA has made submissions to the Panel and government proposing that its mandate be extended to include:

a) Broader Internet user awareness (including domain names, hosting, spam, privacy, Internet rights, security and Internet governance)
b) Implementation of strategies to increase South Africa’s online presence.
c) Provision of Internet and DNS capacity building in collaboration with universities, FETs and other parties with a view of building a local pool of Internet practitioners that can, amongst other things, contribute to the development of Internet standards in such global bodies such as the Internet Engineering Task Force (www.ietf.org).
d) Internet research and information dissemination.
e) Internet policy and governance.
f) Internet advisory service to the government and the public.

The Panel further recommends that

g) Government should consider zaDNA’s submissions in line with country needs and international best practice and make a decision on this in its policy position (the White Paper).
h) The assessment of the expanded zaDNA’s mandate must entail an assessment of the funding implications.
i) The domain name function of an extended zaDNA should remain funded from the domain name revenue.

R76. DNSSEC DEPLOYMENT

The Panel notes that ZADNA has already identified DNSSec as a value-adding security measure for the .ZA namespace, and that it has committed to a gradual DNSSec deployment.

The Panel endorses this approach.

R77. STRENGTHENING DISPUTE RESOLUTION

a) The Panel recommends that zaDNA’s powers regarding dispute resolution be strengthened and that related processes be made more efficient in that zaDNA is given the right to act without restriction in most regards, subject to an annual review by the Minister.

Furthermore, the Panel recommends that the following issues be considered to facilitate strengthening of dispute resolution:

b) The introduction of a mediation service: Experience in other domain jurisdictions has shown that the introduction of mediation prior to adjudication helps resolve many disputes before they can reach adjudication. Dependent on resources, this could be for free by zaDNA.

c) Undertaking of ADR administrative process: zaDNA must assume the administration of the ADR process and system and thus SAIIPL’s role be limited only to the task of allocating an adjudicator. This will ensure administrative synergy between mediation and adjudication.
d) Reduction of ADR fees: The possibility of reducing the ADR fee should be explored to make it easy for the public to lodge ADR disputes, especially if mediation is not introduced.
e) Enhanced list of factors of abusive registration: Extend the list of factors which may be evidence that a domain name is an abusive registration. Regulations could further clarify the term abusive registration to avoid too rigid application.

R78. STRENGTHENING THE CYBERSECURITY REVIEW PROCESS

The Panel notes that:

Government has acknowledged the need to benchmark cybersecurity related frameworks, policies and laws in terms of international best practice, taking into consideration the need to promote security while protecting rights encapsulated in the Bill of Rights.
A cross-ministerial Cluster is taking responsibility for the latter.

The Panel supports the current process. It strongly recommends that submissions made by stakeholders on this issue during the different phases of the policy review should be forwarded to the Cluster for consideration. It further recommends that the following issues are taken into consideration in the current legislation and policy review:

a) The process should include a multi-sectoral forum including the private sector.
b) Strategies to ensure awareness of cybersecurity by non-technical audiences must be improved and awareness raising campaigns must be put in place so that the focus is not just on punitive measures.
c) The need for programmes to train justice, police, and prosecuting officials on cybersecurity issues so that enforcement is improved.
d) As much of the cybersecurity framework as possible should be made public to broaden awareness and participation in addressing cybersecurity.
e) Penalties must be increased and provisions related to sanctions removed from the ECTA to appropriate criminal prosecution laws/cybercrime legislation.
f) Other relevant provisions should also be moved to a cybercrime bill or other appropriate laws.

R79. STRENGTHENING THE CYBERSECURITY HUB

The Panel notes that the DTPS has established the Cybersecurity Hub in line with the National Framework.

The following are proposed to strengthen the role, and functioning of the Cybersecurity Hub:

a) The Panel supports that the Hub’s mandate is upheld, and underscores the need for collaborative programmes to ensure the vision of the Hub is realised and strengthened.
b) Provisions should emphasise the need for strong public-private partnerships and it is recommended that government review whether or not an enforceable code of conduct and legal rules should be developed to incentivise implementation across government and society of good cybersecurity practices and address liability for cyber breaches such as identity theft and cyber financial theft.
c) Strategies must be developed to ensure the core mandates of the Cybersecurity Hub in terms of promoting awareness of risks and vulnerabilities are upheld.
d) Reporting requirements must be clear and simple and government must ensure that there is no duplication with other entities.

In addition, in respect of how policy and legislation addresses the issue of liability for cyber breaches, the Panel recommends that:

e) The cybersecurity framework must be made public to facilitate public response.
f) The national CSIRT must be established with cross-industry role players.
g) The Cybercrime Bill must should consider international best practice on issues of liability, take into account other relevant South African law, including provisions in the ECT Act, POPI Act and the King III Code.
h) Cybersecurity laws must encourage ISPs to work with the Hub and law enforcement agencies to combat crime.
i) Collaboration and incentives must be promoted to reward good practice, as with the EU approach.

R80. CRITICAL INFORMATION INFRASTRUCTURE

The Panel considered two issues, namely ministerial responsibility and the ambit of what constitutes critical information. The Panel recommends as follows:

a) In terms of responsibility, the Panel recommends that the JCPS cluster has the appropriate authority to decide which Minister would remain responsible for setting rules and overseeing the management of critical information infrastructure.
b) In terms of the ambit of critical infrastructure definitions the Panel notes that it is difficult to isolate state-owned and private information infrastructure due to the connectivity of networks. It further notes that the issue of protecting infrastructure is not about government versus private sector, but about ensuring the safety and security of South Africa. The Panel therefore recommends that there needs to be a holistic approach to protecting critical information infrastructure.
c) The Panel further notes that the ECT Act does not set out any clear definitions for critical information infrastructure but gives the Minister complete discretion to declare any infrastructure as The term therefore needs to be more clearly defined and criteria included that would guide such a determination by the Minister, ensure certainty and where necessary circumscribe powers.

R81. CYBERCRIME POLICY

The Panel notes that the following concerns regarding cybercrime were raised during the policy review:

Current provisions in the ECT Act are inadequate.
Issues relating to cybercrime be dealt with by the Justice and related Ministries (including the police) to ensure proper deterrents, and provide for investigation, prosecution and enforcement of provisions.
Law enforcement is ill-equipped, prosecutors do not understand the law and presiding officers in legal proceedings do not have sufficient background or experience in ICT issues to enforce the law.

The Panel recommends that:

a) The above concerns must be addressed in a Cybercrime Policy and submissions made through the policy review process should be formally forwarded to the relevant Cluster for their consideration.
b) The ECT Act must be amended to ensure alignment, and eliminate duplications once the policy and relevant cybercrime legislation is finalised.

R82. CYBER INSPECTORS

The Panel notes that opinions from stakeholders on the need for the cyber inspectorate differed widely. While many submissions said that this should be located within law enforcement institutions, others noted that there is limited capacity and that such an inspectorate could assist police by investigating instances and playing a proactive role in addressing cybercrime.

The Panel recommends that:

a) The above submissions, as well as current policy positions of the DTPS with regards to the roles and responsibilities of cyber inspectors must be shared with the JCPS Cluster and considered in finalising related policies.
b) Furthermore that the ECT Act, in respect of a cyber inspectorate must be amended in line with a new Cybercrime Policy once it is finalised.

R83. DATA PROTECTION AND PRIVACY

The Panel notes that:

In the emerging era of a Digital Society, innovations such as cloud computing, big data and the Internet of things promote and rely on cross-border data flows.
If South Africa is to become more competitive, to encourage technology, business models and service innovation in a Digital Society, it must not be at the expense of rights such as privacy or other goals including the promotion of SMMEs.

The Panel therefore recommends the following to strengthen data protection and privacy in the online environment:

a) Alignment of ECT Act and POPI Act
The Panel recommends that the ECT Act provisions on privacy and data protection must be amended to bring these in line with the POPI Act. It is also necessary to ensure alignment and coordination between ICASA and the Information Protection Regulator established under the POPI Act.
The Panel notes that in addition to the broad review of the ECT Act in relation to the POPI Act, there is a need to consider whether or not current legislation (including these two laws) sufficiently addresses the following privacy and data protection issues outlined in (b) and (c) below.
b) The right to be forgotten: The Panel recommends that the European Commission’s Data Protection Regulation which includes specific provision on the right to be forgotten be considered in revising South African law. Government should decide which law will be best suited to incorporate provisions for the right to be forgotten.
c) Data trails: Given that all Internet users leave digital trails through their Internet activities allowing for local and international entities to track and collect data about their friendship and business networks, hobbies, interests and shopping patterns, privacy concerns relating to the compiling of information on a user’s long-term browsing history (tracking) requires new regulation. The Panel therefore recommends that the DTPS develops a framework and associated policy amendment to improve data protection regulation to protect Internet users from clandestine tracking and unauthorised personal data storage. Further that rules should limit who can access such information, define what a data trail is and stipulate how and when metadata can be accessed and used.

R85. INTERNET INTERMEDIARY LIABILITY

The Panel notes the following views expressed by stakeholders that:

The limitation on liability should be general and not reliant on membership of an accredited body.

The memorandum on the ECT Amendment Bill and provisions in current law be reviewed to ensure fairness and constitutionality.

Limited liability be extended to other service providers including those that operate platforms.

Additional mechanisms are required to ensure the integrity of complainers in line with international best practice. This may include requiring that take down notices should be pursuant to a court order, affidavits from complainers to ensure these are in good faith and that the complainer has authority and requirements that information be specifically identified so that it can be easily found.

That a Cybercrime Bill developed by the Department of Justice, will deal with this issue to some extent.

The Panel recommends that:

a) Current provisions should remain in place but be extended to ensure they cover all technologies and platforms and that the process of accrediting self-regulatory entities is strengthened.

R86. INTELLECTUAL PROPERTY PROTECTION AND COPYRIGHT

The Panel considered what measures and mechanisms could be put in place to strengthen online intellectual property protection. The Panel notes the following submissions in this regard:

Clarity is sought on which is the primary law relating to Intellectual Property Protection and copyright from an e-services perspective.
The need to focus on those that benefit financially rather than intermediaries or users
The removal of duplicating clauses in different laws
The adoption of creative commons licensing processes

The Panel recommends that the DTPS refers all of the above proposals to the Minister of Trade and Industry, given that DTI as the custodian of intellectual property law is currently implementing a review.

R87. CONSUMER PROTECTION

The Panel notes that:

The recommendations in the Institutional Frameworks Chapter of this report deal in more depth with the relationship between the National Consumer Commission and ICASA, and this in turn addresses many of the concerns around this matter.
The current framework for consumer protection is disjointed resulting in consumer confusion as they have to refer to three different laws and work out which of three regulators they should complain to resulting in unnecessary jurisdictional battles.

The Panel however records its endorsement of submissions in this regard during the policy review process, and recommends that:

a) Government should focus on measures to address the resourcing of regulatory bodies such as the National Consumer Commission to effectively address matters affecting consumers in the e-commerce environment.
b) Government ensure that simple and citizen centric consumer protection measures are put in place to ensure consumer awareness about their rights and information on how to complain about alleged breaches.

R112. PROTECTION OF CHILDREN

It must be noted that some aspects of protection have been dealt with in the Institutional Frameworks Chapter. In addition to those, the Panel proposes that the following issues be considered in the future White Paper.

a) Should on-demand providers be regulated by the FPB as currently, or does the extension of the definition of those that are regulated mean that they fall under ICASA and/or any approved co-regulatory structure.
b) Consideration must be given to which body (FPB or ICASA’s CCC/the BCCSA) should be responsible for complaints about online content provided by broadcasters on their web-pages.
c) How must similar criteria be applied by all statutory regulators in approving co-regulatory and self-regulatory mechanisms and institutions; and whether ICASA must be required to consult the FPB and ensure any criteria it sets are in line with FPB approaches?
d) Policy must ensure that complaints procedures are streamlined so that audiences and end-users can easily complain and do not have to first research which regulatory body deals with content it is concerned about. Consideration should be given to whether the FPB and ICASA should be required to set up a portal/complaints office together with other regulatory bodies (statutory, self-regulatory and co-regulatory) to establish a one-stop-shop complaints mechanism.
e) The means to protect children and provide adequate audience advisories will depend on the medium and platform. Consideration must thus be given to whether there is a need to put in place explicit requirements and develop uniform approaches to, for example, classification and Policy must guide as to whether the FPB and/or ICASA be charged with developing these, together with co-regulatory and self-regulatory bodies.
f) Consumer education will become increasingly important to ensure citizens are aware of mechanisms in place to protect children, avoid content and complain about alleged breaches of ICASA requires broadcasters to provide regular information about the code of ethics and how to complain if they believe standards have been breached. Policy must thus guide whether the regulator must require all relevant licensees to provide similar information about these issues.
g) Policy must guide whether ICASA be specifically charged with promoting media literacy, and whether specific provisions and powers in relation to this be added to their mandate.
h) Policy must consider if it is necessary for the regulator to require providers to warn audiences if they are moving from a managed platform that adheres to such standards to an unmanaged platform (e.g. the Internet) given that audiences might not necessarily be aware of this when they shift programmes.

R113. EDITORIAL INTEGRITY

The Panel recommends that the following challenges be addressed through policy

a) Convergence is likely to have an effect on the future of commercial communications. There must therefore be policy guidelines on the way the regulator ensures editorial integrity.
b) There is a likely need, given fragmentation of advertising and audiences and the increased demand for content, to balance protection of editorial integrity, innovation and investment in content. Policy must therefore direct that all paid for content (including advertiser funded programmes) must be clearly identified as such. The regulator must be required to enforce this provision.

R114. COOPERATION ON PIRACY MATTERS

The Panel notes that in terms of recent reconfigurations in government that broadcasters report to the Department of Communications and issues relating to signal piracy and online piracy fall under DTPS.

The Panel therefore recommends that:

a) Both government departments must cooperate to ensure that piracy is tightened up on all platforms.
b) Mechanisms to strengthen protection against signal piracy must be incorporated into policy:
The signal-based approach to piracy adopted by WIPO in its Treaty for the Protection of Broadcasting Organisations must be reinforced.
Statutory prohibitions on piracy must be introduced in law.

AUDIO AND AUDIO-VISUAL CONTENT SERVICES

R88. AMENDMENT OF DEFINITIONS

The Panel recommends that:

a) The current definitions should be amended to cover both linear (traditional broadcasting) and non-linear (on-demand) broadcast-like content, regardless of the distribution platform used.
b) However that the revised definitions exclude data or text services and those where the provision of audio-visual or audio material is incidental to the provision of that service.
c) The ambit of the revised definitions should focus on services under the editorial control of an operator providing programming content to the public.

R89. LINEAR AND NON-LINEAR PROVIDERS

With regards to the approach to linear and non-linear providers it is recommended that:

a) Both the nature of the service (linear versus non-linear) and the influence of services should determine the extent of regulation of audio and audio-visual content.
b) Furthermore, that while non-linear services will generally have lighter touch regulation than traditional broadcasters, those broadcasters with more influence will have increased obligations e.g. to air increased amounts of South African content.
c) Thresholds of influence must be set by the regulator using set criteria g. South African audiences and advertising revenue.

R90. EXTERNAL INTERNET CONTENT PROVIDERS

The Panel is of the view that

Streaming of content by providers external to the Republic is a fair competition issue.
Thus such providers need to be regulated in the same way as local providers if they specifically target South African audiences and/or revenue and reach the minimum thresholds of influence set by the regulator.

The Panel therefore recommends that:

a) Policy measures must be developed such that external content providers, using the Internet as a medium, are subject to South African regulations if they have significant influence in the South African market.
b) The regulation of such providers be guided by UN protocol.
c) Mechanisms are developed to ensure taxation is applied and further to uphold locally regulated matters such as cybercrime, protection of minors from harmful content.

R91. AUDIO-VISUAL AND CONTENT REGULATION FOCUS

The Panel recommends that:

a) The approach in current policy and law that all broadcasters, to varying degrees, contribute towards meeting public interest goals is still a core principle.
b) All broadcasters (both linear and non-linear) must thus continue to contribute towards the broad objectives set for the content sector.

R92. SPECTRUM LICENCES FOR MUX OPERATORS/ECNS LICENSEES

The Panel notes that

This issue has been a subject of lengthy debate – with broadcasters and signal distributors adopting different positions.
Broadcasters have expressed concern that if they do not have licences that specify the frequencies used, they could be more easily moved off these frequencies which would have consequences for viewers.
Broadcasters have recommended that the current regime should continue, where they still have spectrum licensed to them.

The Panel therefore recommends that:

a) In the emerging converged environment, broadcasters should not be required to hold individual spectrum licences but the policy and legislation must address concerns raised regarding the need to ensure security of access to spectrum by licensees and the needs of audiences.
b) The relationship with spectrum frequencies is through MUX operators/ECNS licences rather than individual Therefore spectrum licences must thus be reserved for MUX operators/ECNS licensees who will have obligations to carry licensed services and, for example, ensure that their coverage obligations as set out in licence conditions are met.
c) The development of policy in this regard shall ensure that the current rights of broadcasters associated with spectrum licences are not negatively affected by the removal of such spectrum licences.

MINORITY RECOMMENDATION: The status quo should remain and broadcasters still be required to hold spectrum licences.

R93. INQUIRY INTO NEW CATEGORIES OF LICENCES

The Panel notes that:

The evolving environment requires a rethink of the current licensing regime.

There isn’t sufficient evidence to make a determination of what new categories of licensing are required.

The Panel therefore recommends that:

a) The current class and individual licensing approach be retained in the short-term, but adapted to accommodate new categories. This may entail, for example, the development of a specific content services class licence category which recognises the distinctive nature of broadcasting/content services.
b) The regulator is tasked to undertake an inquiry as soon as possible to assess the need for new categories of licences considering the new value chain and assessing whether or not there is a need for licences for the different components of this In this regard government shall provide the terms of the inquiry to ICASA, and the findings therefore are presented to government for enactment in law.
c) Further that the ICASA inquiry must include an assessment of whether or not a separate multiplex operator licence will be necessary to ensure, for example, fair treatment of all content providers on a MUX.

R94.

The Panel notes that:

For each category of service, including those which may still be determined, policy should define the process to apply for and renew the licence.
Policy would also need to stipulate the scope of regulation for each category i.e. what sorts of obligations should apply to on-demand services.

The Panel recommends that:

a) A review of the different licence categories should include an assessment and recommendations to government on the evolving audio and audio-visual environment, with respect to the following issues:
Which categories of licence would have to wait for an invitation to apply and what obligations would apply to these?
What considerations would guide the granting of individual licences?

iii. Which services/categories of licence could apply at any time and/or be registered and the processes involved?

Whether there are instances when co-regulation could assist and, if so, what criteria should be considered in adopting this approach?
b) Such review further assess whether it is necessary for the regulator to perform a public value test and/or regulatory impact assessment before inviting applications for significant licences (e.g. new major commercial radio or television services), including an assessment of the market impact of a new service and an analysis of what, if any, specific obligations would be set to ensure specific policy objectives such as diversity.

INSTITUTIONAL ARRANGEMENTS

R172. COOPERATION BETWEEN REGULATORY AUTHORITIES TO ENSURE PROTECTION

The Panel notes that

In view of convergence there are challenges in relation to ensuring common approaches to protection of children and setting of content standards across all platforms
There is a need for organisations such as the FPB, the BCCSA and ICASA to review the way they work collaboratively.
Concurrent jurisdiction issues need to be resolved.

The Panel therefore recommends that

a) The DTPS together with the DOC must facilitate cooperation between regulatory authorities (such as ICASA, the ASA, FPB, BCCSA and the press ombudsman) to ensure coordination and to address protection issues in an era of convergence.
b) Consideration be given to the development and formalisation of co-regulation mechanisms to encourage such practices while protecting the public As stated previously, government should consider developing common criteria for approval of co-regulatory structures across all spheres.
c) Policy should recognise that co-regulation has worked relatedly well to date in relation to broadcasting and consider how this model could be extended.

R169. PROVISIONS FOR SELF- REGULATION AND CO-REGULATION

The Panel notes

The general concurrence that self-regulation should be encouraged where appropriate.
The principle of self- and co- regulation in policy has an important role in addressing consumer complaints.

The Panel therefore recommends

a) That a model be developed and applied to support, where appropriate, co-regulation, and to encourage self-regulation.
b) Co-regulation be instituted where necessary, to promote and enforce public interest objectives.
c) The co-regulation framework must entail the development of consensus-based and enforceable set of standards approved by the regulator. Such codes of conduct must include proportionate compliance and enforcement mechanisms, with compliance and enforcement for non-signatories at the hands of the CCC.
d) Such a model must comprise a clear framework for the accreditation of co-regulatory mechanisms.
e) That the model provides for cross-sector co-regulation.
f) In addition, there should be a common approach across government and public entities on the criteria to be used to accredit such bodies.

R173. REVIEW OF INSTITUTIONS REPORTING TO THE DTPS

The Panel notes that:

The DTPS is conducting a micro study on areas of duplication and possibilities for rationalisation and has established a committee to specifically focus on this.

The DTPS also has shareholding in some ECNS licensees such as Telkom and Vodacom.

The study will be informed by the macro study of the Presidential Review Committee on State-owned Entities.

It does not intend to duplicate the work of these committees and entities.

The Panel therefore recommends that all the proposals concerning institutional arrangements in this Chapter, and elsewhere in the Recommendations Report, be considered by the relevant committees which are currently undertaking the review of institutions. This includes suggestions on key questions to be considered in reviewing such entities and enterprises and the proposed introduction of state aid rules.

[1] Suggestions include indicators for measurement in the following categories: Network, Product, Consumer,

Affordability, and Economic

Final ICT Policy Review Recommendations

OPEN INTERNET AND NET NEUTRALITY

R3. OPEN INTERNET POLICY

R4. NET NEUTRALITY LIMITATIONS

R5. BROADBAND INTERNET INFRASTRUCTURE AS AN ESSENTIAL FACILITY

CONVERGENCE

R15. POLICY OBJECTIVES UNDERPINNING CONVERGENCE

R56. IP BASED TECHNOLOGIES

R57. OVER-THE-TOP (OTT) SERVICES

R72. POLICY FOR CLOUD COMPUTING

COMPETITION ISSUES

R16. ANNUAL SECTOR PERFORMANCE

R17. MARKET REVIEWS

R18. INDICATORS TO ASSESS THE MARKET-GAP

R19. EX-ANTE AND EX-POST REGULATION

R20. MERGERS AND ACQUISITIONS

R21. FACILITIES-BASED AND SERVICE-BASED COMPETITION REGULATIONS

R22. INTERCONNECTION

R23. ROLES OF STATE-OWNED COMPANIES (SOCS)

COMMUNICATIONS INFRASTRUCTURE

R24. UNDERSEA CABLES

R25. SATELLITE

R26. MUNICIPAL POINTS OF PRESENCE (PoPS)

R27. PROMOTING BACKBONE CONNECTIVITY

R28. METRO INFRASTRUCTURE AGGREGATION

R29. ACHIEVING 100% LAST MILE CONNECTIVITY

R30. GOVERNMENT’S ROLE IN THE MAPPING OF FIBRE INSTALLATIONS

R31. MEASURES TO FAST TRACK RAPID DEPLOYMENT OF INFRASTRUCTURE

R32. OPEN ACCESS SYSTEM

R33. INFRASTRUCTURE SHARING

UNIVERSAL SERVICE AND ACCESS

R34. UNIVERSAL SERVICE AND ACCESS DEFINITIONS

R35. RESPONSIBILITIES FOR DEVELOPING AND REVIEWING UAS DEFINITIONS

R36. DEFINITIONS REGARDING “NEEDY PERSONS” AND PERSONS WITH DISABILITIES

R37. UNIVERSAL SERVICE OBLIGATIONS (USOS)

R38. ESTABLISHMENT OF THE ICT DEVELOPMENT FUND (ICT-DF)

R39. INSTITUTIONAL ARRANGEMENTS FOR THE ICT DEVELOPMENT FUND

R40. ICT DEVELOPMENT FUND CONTRIBUTIONS

R170. DISSOLUTION OF USAASA AND ESTABLISHING A FUND MANAGER

R41. e-RATE

CONSUMER PROTECTION

R42. CONSUMER PROTECTION AND QUALITY OF SERVICE

TYPE APPROVAL

R43. TYPE APPROVALS

SPECTRUM

R44. OBJECTIVES OF SPECTRUM POLICY

R45. PRINCIPLES OF SPECTRUM MANAGEMENT

R46. SPECTRUM PLANNING AND MANAGEMENT

R47. SPECTRUM ALLOCATION

R48. ROLE OF THE MINISTER IN SPECTRUM ALLOCATION

R49. SPECTRUM ASSIGNMENT AND LICENSING

R50. SPECTRUM PRICING

R51. SPECTRUM PRICING: COMMERCIAL AND NON-COMMERCIAL USES

R52. SPECTRUM PRICING FOR GOVERNMENT SERVICES

R53. COMPENSATION FOR THE COSTS OF MIGRATION

R54. SPECTRUM TRADING

R55. SPECTRUM SHARING

R163. SPECTRUM MANAGEMENT AGENCY

ROLE OF GOVERNMENT

R152. APPLICATION OF STATE-AID RULES

R153. STRENGTHENING THE ROLE OF GOVERNMENT

R154. BALANCING SHAREHOLDER AND POLICY-MAKING FUNCTIONS

R155. OVERSIGHT AND ACCOUNTABILITY

ICASA

R156. PERCEPTIONS OF NON-COMPLIANCE BY THE REGULATOR

R157. INDEPENDENCE OF THE REGULATOR

R158. AVERTING REGULATORY CAPTURE

R159. MECHANISMS TO ENHANCE PUBLIC INVOLVEMENT IN THE REGULATOR

R160. REPORTING REQUIREMENTS OF ICASA TO PARLIAMENT

R161. PERFORMANCE MANAGEMENT PROVISIONS FOR ICASA

R162. PUBLISHING OF INFORMATION AND REGULATORY IMPACT ASSESSMENTS

R164. COMPLAINTS AND COMPLIANCE

R165. REVIEWING OF ICASA DECISIONS AND THE ROLE OF ALTERNATE DISPUTE RESOLUTION MECHANISMS

R166. STRUCTURE OF THE ICASA COUNCIL

R167. STRENGTHENING ICASA APPOINTMENT PROCESS

R168. ICASA FUNDING MODEL

PRIVACY

R171. ALIGNMENT WITH POPI ACT

INTERNET GOVERNANCE

R73. ICANN AND SOUTH AFRICAN INTERNET GOVERNANCE POLICY