[13 October 2013] ICASA has issued out a notice in the Government Gazette in an attempt to clarify the ongoing confusion around the extent to which a third party may exercise the rights and undertake the obligations afforded to a licensee. The full text of the notice is set out below.
We have reservations about the utility of this document and whether it is of any assistance whatsoever. It would be useful if ICASA could provide a little more precision as to what exactly constitutes “leasing”. If clarity is sought then the notice should also deal with the terms and conditions printed on the licence documents which purport to provide rights of use to third parties such as wholly-owned subsidiaries and third parties such as agents and contractors.
At the end of the day it remains the case that after more than seven years we still do not have a clear, shared understanding of the ECA licensing framework. Given that this framework constitutes the foundations for all regulation pertaining to service licensing, it is critical that this is sorted out as soon as possible.
THE LEASING OF ECS/ECNS LICENCES IN THE PROVISION OF ELECTRONIC COMMUNICATIONS SERVICES
1. In terms of section 4(3)(b) of the Independent Communications Authority of South Africa Act 13 of 2000 (“ICASA Act”), as amended, the Authority is empowered to “monitor the electronic communications sector to ensure compliance with the ICASA Act and the underlying statutes/’ It has come to the attention of the Authority that there is a widespread practice amongst holders of ECS/ECNS Licences in which they lease their ECS/ECNS licences.
2. The Authority considers the leasing of licences as a contravention of section 5 (12) of the Electronic Communications Act 35 of 2005 (“the EC Act”) which stipulates that “a licence confers on the holder the privileges and subjects him or her to the obligations provided for in this Act and as specified in the licence”.
3. The Authority hereby notifies all holders ECS/ECNS licences that the practice of leasing ECS/ECNS licences is prohibited in terms of the Act. Any licensee found to be in contravention of its licence terms and conditions will be referred to the Complaints and Compliance Committee (the “CCC”). For any queries please contact the following:
Godfree Maufana: Manager: ECS/ECNS
Tel: 011 566 3215.
Block D, Pinmill Farm, 164 Katherine Street