The Department of Communications has introduced into Parliament the new Electronic Communications Amendment Bill 2013, in order to address some of the deficiencies of the Electronic Communications Act 26 of 2005, in particular those aspects which are difficult to implement or are ineffective when implemented, or in some cases so vague as to hinder effective regulation. Hand in hand with this goes an amended ICASA Act to ensure consistency across legislation applicable to the sector.
In his summary of the new bill, Dominic Cull of Ellipsis Regulatory Solutions has welcomed certain provisions, for example one that reiterates that the letting, sub-letting, ceding, sharing or transferring of radio frequency spectrum licences (or so-called spectrum trading) is permissible, subject to any conditions that ICASA may determine to be appropriate in the course of approving assignment, cession or transfer of spectrum.
“It follows that ICASA will be required to draft appropriate regulations governing the terms and conditions applicable to letting/sub-letting/transfer of spectrum licences, including an application form,” he posited.
“Our view is that ICASA is already in a position to draft the required regulations, but it has previously shied away from doing so. Hopefully the proposed amendment will provide a spur to this happening: introducing secondary trading in spectrum is probably one of the most critical short-term interventions that can be made to introduce greater efficiencies into the use of spectrum in South Africa.”
The bill also aims to speed up turnaround times by proposing that ICASA must notify an applicant for spectrum licences of its decision in respect of such application within 60 business days.
On the hotly debated topic of broadband provision, Cull says “A new section 72A to be inserted into the ECA (Electronic Communications Act) empowers the Minister of Communications to establish a National Broadband Council (NBC) which will have the role of advising the Minister on broadband policy and its implementation. Members of the NBC are to be drawn from both the public and the private sectors.”
Of course, not all of the new bill’s proposals are welcome or without controversy. A case in point is the proposed requirement that ICASA, instead of simply notifying the Minister of its intention to publish final regulations on a specific subject, must now provide a draft of such regulations to the Minister not less than 30 calendar days prior to their publication.
“On the face of it this appears to be a step back towards the position under the Telecommunications Act of 1996, in terms of which the Minister was required to approve regulations prior to their finalisation,” explains Cull. “The bill also proposes a new section 79B which would empower the Minister to access information held by ICASA or USAASA (Universal Service and Access Agency of South Africa) or any other person where this information is required by the Minister for the performance of his or her functions.”
Cull concludes his overview by saying he welcomes the majority of the proposed amendments and the intentions behind them, but with the following caveat: “It seems unlikely... that the Bill will be finalised during 2013, particularly given the looming 2014 elections.”
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