Monitoring Service Report: May 2018 #1

Draft Electronic Communications Amendment Bill

We have been informed that the CSIR’s “high-level” report, apparently into the spectrum requirements of the proposed Wireless Open Access Network (WOAN), has been finalised and submitted to the Minister. It is not clear whether it will be released to the public. The Free Market Foundation managed to reach a new low by issuing the hollowest of threats to launch unprecedented legal action to interdict a draft bill….

In Woan debate, spectrum is a red herring | Foundation may interdict department over telecoms bill

End-user and Subscriber Service Charter Regulations

ICASA’s process to amend these regulations as part of its programme to reduce the cost to communicate has ended with more of a whimper than the promised bang. The final regulations were published on ICASA’s website on 27 April 2018 and will come into force 30 days after publication in the Government Gazette (which has not occurred yet). We will prepare a detailed note on the amendments, but the key obligations introduced are:

• Usage notifications – all licensees are required to send usage depletion notifications to consumers when their usage is at 50%, 80% and 100% depletion levels. This will enable consumers to monitor their usage and control spend on communication services.
• Rollover of data – all licensees are required to provide an option to consumers to rollover unused data. This is to ensure that consumers do not lose unused data as is the current practice.
• Transfer of data – all licensees are required to provide an option to consumers to transfer data to other users on the same network.
• Out-of-bundle billing – all licensees are no longer allowed to charge consumers out-of-bundle rates for data when their data has run out without the consumers’ specific prior consent. This will ensure that consumers are not defaulted to out-of-bundle data charges which are significantly higher than in-bundle charges.

USAASA

The Telecommunications and Postal Services Portfolio Committee rejected USAASA’s presentation on its annual performance and strategic plans for 2018/19 as being full of errors and ambiguities, with the document labelled “very problematic” and “not be used as a point of reference for discussion”. USAASA were given further time to rectify the errors and resubmit its presentation. It also emerged during this engagement that USAASA has placed its CEO on “precautionary suspension”, continuing what is a predictable cycle of maladministration at the agency which administers the Universal Service and Access Fund (USAF) and has a pivotal role in the disbursement of funds for set-top boxes. One of the proposals in the National ICT Policy White Paper is for USAASA’s functions to be absorbed into ICASA / a new regulator and the Department.

USAASA 2018-2019 Annual Performance Plan Presentation (as rejected) | Usaasa CEO suspended after breakdown with board

ICASA

The Minister of Communications has issued public nominations for persons to serve as members of the Evaluation Panel for the ICASA Council. The evaluation panel is to consist of seven (7) members – a retired High Court Judge; a representative from the office of the Auditor-General; at least two representatives from organised consumer groups (civil society); independent consultants/experts in the electronic communications, broadcasting or postal sector. The Panel will issue reports to the National Assembly evaluating the performance of ICASA’s chairperson and councillors. Meanwhile the National Assembly has referred the matter of the dismissal of the chairperson of ICASA’s council back to the Portfolio Committee for Communications “for further processing as well as allowing further consultations between Mr Mohlaloga’s legal representatives, Office of the Speaker and the committee”. Apparently, this relates to the fact that sentencing has not occurred in the criminal matter and there is an indication that there will be an appeal, leading to an argument that the Parliamentary process was premature. The chairperson will remain in his position until this is finalised.

Public nominations for persons to serve as members of the Evaluation Panel for the ICASA Council | Terms of Reference ICASA Evaluation Panel | Parliament stalls on ICASA chairperson’s dismissal.

Municipal networks

The Saldanha Bay Municipality has launched its “Baobab proof-of-concept project”, which aims to make fibre a utility in the area. The project is a joint initiative with Stellenbosch University and the private sector to create a “municipal-centric model that creates a future-enabled, open, equitable, and transparent shared open access infrastructure”. The municipality stated that it was reclaiming its legal and regulatory rights to own fibre infrastructure as a utility, and that fibre would be leveraged as a new municipal revenue stream.

Saldanha Bay municipality’s fibre network will be a basic utility for residents

Protection of Personal Information Act

The Information Regulator formed under POPI presented in Parliament on its activities since the last report in October 2017.

The regulations required to give some substance to POPI have been submitted to the Office of the State Law Advisors for the constitutional compliance vetting process. These were redrafted after more than 200 submissions were received in response to the draft published in 2017. After completion of the vetting process the draft regulations will be submitted to Parliament as is required under section 113(5) of POPI which requires the IR or the Minister to table draft regulations in Parliament within 30 days of them being published in final form in the Government Gazette.

• The Budget for the IR for the medium-term is:
  • 2017/18: R23 402 000
  • 2018/19: R24 712 000
  • 2019/20: R25 095 000
  • 2020/21: R27 531 000
• Of this approximately 80% goes to compensation of employees.
• The finalisation of the organisational structure of the IR and its classification under the PFMA is ongoing although there are indications of lengthy delays as legal technicalities are ironed out. Only once consultations with the Minister of Finance and the organisational structure are completed can the IR proceed to advertise for applications for key executive permissions.
• The IR has been engaging widely on stakeholder training as required by section 40 of POPI, including discussions relating to the payment of social grants, various data breaches and unsolicited communications targeting the King of the Zulu Nation. [As an aside the Zulu Royal Household budget allocation for 2017/18 is approximately four times that of the Information Regulator at ZAR68million.]
• Notwithstanding a lack of powers to enforce and settle complaints – the relevant sections are not yet in force – the more than 108 complaints received to date are being proactively dealt with (and details provided support this).

The opinion of senior counsel is being sought to determine whether unsolicited direct marketing by political parties falls within the definition of direct marketing in sections 1 and 69 of the Act.

Progress is being made but it is painfully slow. Budgetary constraints dictate that the Information Regulator’s impact will be limited.

Information Regulator Status Report 24 April 2018 | South Africans’ personal information still not properly protected.