The sustained independence of SA's communications regulator may be in jeopardy, if the body does not get its act together, with the Department of Communications (DOC) waiting in the wings to seize power, as it seeks to have first call on the critical allocation of spectrum.
This is according to Democratic Alliance (DA) shadow communications minister Marian Shinn, and follows the Independent Communications Authority of SA's (ICASA's) recent report to Parliament revealing that more than R480 million in licence fees is outstanding - coupled with the long-standing deficit of capacity and resources, inherent since the body's inception in 2000.
While the auditor-general and the Parliamentary Portfolio Committee on Communications have put pressure on ICASA to get its billing system and enforcement approach in order, the authority is faced with defiant licensees and an unsympathetic treasury.
Shinn says ICASA's council needs to operate with vigour and political will to ensure all spectrum users pay their dues and stop exploiting the inefficiencies of the regulator. "This is critical if ICASA is to be financially sound and to operate as an independent entity. Any further faltering of the regulator is likely to lead to it losing its Chapter Nine status and becoming a government-owned entity."
ICASA's independence is guaranteed by Chapter Nine of SA's Constitution.
While mounting pressure has set ICASA in motion to a degree, Shinn says the body needs to action tangible progress. "ICASA is in the process of acquiring and installing new computer systems that will help in the collection of fees, but [the authority] has not been able to commit to any timelines. It is all good and well to get the software, but it needs to be implemented. [The DA] will continue to chase up the issue."
ICASA did not respond to questions around what measures are being taken to recover unpaid fees or push compliance. Spokesperson Paseka Maleka merely says the authority "continues to engage with licensees to ensure compliance".
Edging in
Shinn says provisions in the ICASA Amendment Bill and the Electronic Communication Amendment Bill - both published last year under communications minister Dina Pule's leadership - indicate the DOC is edging in on ICASA's territory.
"In the ICASA Amendment Bill, there is a strong move to emasculate ICASA - or make it a government entity."
The Electronic Communication Amendment Bill, she points out, indicates the DOC wants to set an agency to manage spectrum, "but that is ICASA's job".
The Electronic Communications Amendment Bill document proposes, among other things, "...[the introduction of] a Spectrum Management Agency and [clarity on] the responsibilities of the Agency and the Authority in respect of frequency spectrum management...".
Shinn adds that statements made by a DOC representative at a recent meeting between government and ICASA hinted at a desire on the department's part to acquire certain of ICASA's powers.
"[The representative] said that the hassle of mismanagement of mandate, fees and resourcing has worried the department for some time and that 'has to be corrected'. I assumed he was saying 'we are going to take more power'.
"The department seems to want to have first call on who gets spectrum."
Kathleen Rice, director of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr says if the DOC has an issue with ICASA's ability to collect licence fees and award licences, the solution is not to deprive it of its constitutionally protected powers. "ICASA needs to be strengthened not weakened if it is to discharge its mandate."
Spectrum stay
Meanwhile, the wait for spectrum allocation continues due to perpetual dithering by the DOC and ICASA.
Allocating more spectrum in the 2.6GHz and 3.5GHz ranges has been on the cards since 2006, but invitations to apply for frequency in the bands were withdrawn in June 2010. Since then, there has been little movement towards auctioning the spectrum.
At the end of 2011, ICASA decided to allocate space in the coveted 2.6GHz and 900MHz ranges, and ditched the idea of awarding spectrum in the 3.5GHz band. However, this was soon abandoned.
At the time, ICASA said this was to make sure Pule's policy direction on high-demand spectrum was "taken into consideration". Pule subsequently said she would provide ICASA with policy direction for the assignment of high-demand spectrum about a year ago, but this did not come to pass.
Pule said at the end of last year that the department was busy finalising the policy directive, which will allow ICASA to move ahead with allocations. Pule's technical advisor, Roy Kruger, said in November that there would be an announcement about allocations in 2.6GHz "soon".
The DOC did not comment at the time of publication.
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