ICASA AMENDMENT BILL COMMENTS

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ICASA AMENDMENT BILL COMMENTS
Presented by Karabo Motlana 24 October 2005
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INTRODUCTION

• Cell C is grateful for the opportunity to submit
  its comments to Parliament on the ICASA Amendment
  Bill.
• We note that the Amendment Bills significance
  lies in the fact that it sets out a major
  revision to the framework in accordance with
  which regulation of the communications sector
  takes place.
• This is of particular importance at this time, as
  the Convergence Bill is about to be finalised and
  will undoubtedly result in an increased role and
  responsibilities for ICASA .

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OUTLINE OF MAJOR ISSUES

• Part I INSTITUTIONAL FRAMEWORK
• Financial Autonomy (Section 17, insertion of
  section 15(1)A of ICASA Act)
• Functions of the Authority (Section 4)
• Part II PROCEDURES (TRANSPARENCY
  NON-DISCRIMINATION)
• Register of Information
• Conduct of Enquiries (Section 7, insertion of
  sections 4B and 4C of ICASA Act)
• Establishment of Complaints and Compliance
  Committee (Section 20, insertion of section 17A
  17H)

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INSTITUTIONAL FRAMEWORK
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Financial Autonomy (15(1)A)

• Cell C welcomes the expansion of the sources from
  which ICASA can obtain additional financing
• Cell C is however concerned that section 15(1)A,
  as drafted, is vague in that it does not address
  or outline the potential sources of such
  financing.
• It would therefore be advisable to provide a
  transparent framework for the terms on which
  additional or alternative funding can be provided
  (as done for NER, Civil Aviation Authority,
  Competition Commission).
• all or any part of the license fees,
  administration charges, levies or other charges
  imposed by or payable to ICASA.
• The fact that ICASA can receive funding from
  alternate sources, does not negates the need for
  accountability. In line with the current proposal
  in the Bill a request for such monies must be
  justified and motivated to the relevant Minister/s

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Functions of the Authority (Section 4)

• Cell C welcomes the inclusion of a thorough list
  of functions for the Authority and Chairperson in
  the Amendment Bill as it is imperative that a
  creature of statute has a clear mandate.
• Regulatory certainty has a positive effect on
  investment and uncertainty negatively impacts on
  efficient planning and resource utilisation. It
  is therefore proposed that an amendment be made
  requiring that ICASA publish an annual plan to
  guide the Authority, government and the industry,
  and that this requirement be added to the list of
  stated functions in section 6 of the Amendment
  Bill.
• Cell C also proposes that the Authority be
  mandated to not only monitor compliance as set
  out in section 4(3)(b), but also to investigate
  and evaluate alleged contraventions of the
  Amendment Act and underlying statutes.
• Cell C proposes that ICASA should aim to always
  seek the least intrusive regulatory mechanisms to
  achieve its policy objectives.
• Sound research is the basis for good regulatory
  policy. Cell C submits that ICASA must be
  required to conduct research on all matters
  affecting the postal and communications sectors
  in order to exercise and perform its duties in an
  informed manner. It is therefore proposed that
  subsection (h) be amended to direct ICASA to
  conduct research.

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Functions of the Authority (Section 4) 2

• Of extreme importance to Cell C is that ICASA
  must act at all times within the parameters of
  administrative justice. It is proposed that a
  provision be added to the functions of the
  Authority that requires the Authority to consult
  affected stakeholders in performing any function
  in terms of this Act.
• Cell C also believes that ICASA should be
  sufficiently empowered to investigate and
  evaluate communication network providers,
  communication service providers and broadcasters
  to ensure compliance to licenses and regulations,
  and to endorse and enforce findings of the
  Complaints Compliance Committee. The ability to
  endorse and enforce the CCCs findings should be
  set out in ICASAs functions for the sake of
  clarity.
• The Authority should furthermore be able to
  impose penalties and other sanctions in line with
  section 17E of the Amendment Bill and the
  relevant provisions of the Convergence Bill.
• Lastly, consideration should be given to
  instances where jurisdiction is shared between
  ICASA and other regulatory authorities. It is
  therefore proposed that the level of overlap of
  functions should be managed by agreements to be
  concluded between the regulators that share
  jurisdiction.

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PROCEDURES
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Register of Licenses/Documents

• Cell C welcomes the addition of a provision to
  register licences, particularly in light of
  ICASAs increased licensing role under the
  Convergence Bill.
• However, Cell C proposes that in the interests of
  transparency and proper access to information by
  participants in the sector, ICASA should not
  only have to register licences, but the Amendment
  Bill should go one step further and ICASA should
  be required to register all documents and set out
  a framework for accessing them. ICASA should,
  like the Competition Commission, have a Registry
  Office
• It is therefore proposed that ICASA keep a
  register of all
• notifications
• licences
• spectrum assignments and
• complaints
• which should be available at all times for
  public inspection may use its library for such
  purposes. ICASA should furthermore make
  regulations setting out the procedure for
  delivering, issuing and accessing documents.

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Enquiries by Authority (Section 4C)

• ICASA should not be allowed to conduct an enquiry
  regarding any specific alleged contravention by
  regulated parties this function should be
  reserved for the Complaints and Compliance
  Committee and /or Communications Tribunal.
• Section 4B(1)(d) which allows for ICASA to
  conduct an enquiry into licence-related
  compliance matters is problematic and Cell C
  proposes that it should be deleted.
• Cell C believes that ICASA should have two broad
  options after conducting a public enquiry
• It should publish its findings and, based on its
  findings, draft regulations, should the inquiry
  indicate such a need. This is currently provided
  for in terms of section 27 of the
  Telecommunications Act.
• Should the inquiry have been instituted to
  clarify and /or provide guidance on the
  application of existing regulations, ICASAs
  findings will be binding to the extent to which
  they, clarify or provide such guidance.
• Currently, in the telecommunications regulatory
  framework, this is not possible. ICASA cannot
  enforce a finding or clarify an aspect of the
  regulatory framework except through regulation.

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Complaints Compliance Committee (s17)

• The precedent for the establishment of the
  Committee is clearly the Broadcasting Monitoring
  and Complaints Committee (BMCC), but the
  converged communications sector will be vastly
  more complicated
• There are competing sometimes irreconcilable
  interests
• The capital investment and revenue generated by
  the communications sector and the impact of
  non-compliance with license provisions and
  underlying legislation requires a far more robust
  adjudication body and adjudication procedures.
• Such adjudication body and procedures should
  result in the adjudication investigation and
  enforcement powers of the various bodies being
  clearly separated and the assertion of the
  adjudicating bodys independence. An appeal
  mechanism is also key.

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Complaints Compliance Committee (s17) 2

• Ideally, in Cell Cs opinion, a Tribunal should
  be established and appointed by a third party,
  namely the President, based on recommendations
  made by the Minister.
• The complaint process should unfold in the
  following manner
• The Authority receives a complaint and/or
  allegation of non-compliance with license
  provisions or underlying legislation.
• The Inspectors, appointed by the Authority,
  should assess and if necessary investigate the
  complaint or allegation of non-compliance and
  present their findings in person before the
  Committee.
• The Committee should be a sub-committee of ICASA
  with a judicial head and constituted by industry
  experts. The Committee should hear complaints
  and matters of non-compliance and refer its
  findings to the Authority which should take
  administrative action based on such findings.
• The independent Tribunal should consider appeals
  lodged by parties in response to the Authoritys
  decisions.

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Complaints Compliance Committee Proposal in
the Bill
Appoint Committee
Complaint
Complaints and Compliance Committee
Authority (Council)
Make Decision permitted by Act or underlying
statutes
Hold hearing into complaint
Refer Complaint
Make findings and recommendations to Authority
Appoint Investigators
Refer Complaint after investigating
ALL WITHIN THE POWER AND INFLUENCE OF THE
AUTHORITY
Investigators
Complaint
Appear before Committee
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Separation of Powers Complaints and Compliance
Committee
Appoint Committee
Complaint
Authority (Council)
Complaints and Compliance Committee
Make limited Decisions provided for in Act
Hold hearing into complaint
Refer Complaint
Make findings and forward to Authority
Appoint Investigators
May Initiate Complaint
Investigators
Appear before Committee
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Communication Tribunal
President
President
Complaint
Appoint Tribunal
Appoint Authority
Communication Tribunal
Authority (Council)
Hold hearing into complaint
Refer Complaint on Appeal
Appoint Investigators Commitee
Make a Decision provided for in Act
SEPERATION OF POWERS BETWEEN AUTHORITY AND
TRIBUNAL
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Complaints Compliance Committee (s17) 3

• It is important to ensure that the members of the
  CCC are not involved in any matter wherein there
  may be a conflict of interest. It is therefore
  proposed that a provision to that effect be added
  as section 17A(A).
• It is also noted that there is no specific
  provision dealing with the remuneration of
  members of the CCC and Cell C therefore proposes
  the addition of this in section 17A(B)
• There is no procedure provided for interested
  persons to participate in a hearing. Cell C
  therefore proposes the addition of section
  17C(B). To alleviate Cell Cs concern that there
  should, throughout the Amendment Bill, be due
  process and transparent procedures, we have in
  our submission proposed the inclusion of a clause
  which makes provision for a public process, where
  required.

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Conclusion

• The Amendment Bill is key to ensuring that the
  regulatory framework is built on a solid
  foundation, and that the regulator is well
  equipped to facilitate the growth of the
  communications sector, which in turn is critical
  to socio-economic development in South Africa.
• The Amendment Bill, and the provisions in it
  relating to the establishment of the regulator
  and the regulatory framework, are key to
  providing both international and local investors,
  with the necessary confidence in the stability,
  predictability and of impartial treatment in the
  South African environment.

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• THANK YOU