A new version of the Independent Communications Authority of SA (ICASA) Amendment Bill has been introduced into Parliament, addressing a concern that had been raised by industry over the regulator's independence.
Last December, government gazetted the amendment Bill, which sought to replace the Complaints and Compliance Committee with a Complaints and Compliance Commission (CCC). It also aimed to confirm the use of electronic communications networks and services for the purpose of electronic transactions, as well as introduce mechanisms to ensure the accountability of committees, ICASA and its councillors.
However, concerns were raised that because the mooted CCC would be chosen by the communications minister, the Bill stripped ICASA's authority as the commission would have the power to tell ICASA what to do when it comes to licences.
The state has also sent the Electronic Communications Amendment Bill to Parliament, which has been hailed as an improvement on the previous version, which sought to split ICASA's spectrum-allocation role into two.
About-turn
Kathleen Rice, director of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr, says the latest versions are a "remarkable improvement on the earlier drafts, and address what was possibly the most pressing concern, namely, the limitation of ICASA's independence".
Rice says no mention of a new commission is made in the new ICASA Bill, and the provision, which was a clear threat to ICASA's independence, has been removed.
Currently, the CCC makes recommendations to ICASA, which the authority has discretion to implement. It is an independent committee that is required to investigate and hear, if appropriate, and make a finding on all matters referred to it by ICASA, complaints received by the committee, and allegations of non-compliance with the ICASA Act or underlying statutes.
It may make any recommendation to ICASA if necessary, or incidental to, ICASA's performance in terms of the ICASA Act, as well as achieving the law's objectives. It comprises seven people and its chairman must either have been a High Court judge, an advocate or attorney with 10 years' experience, or a magistrate with at least 10 years' service.
The 2012 version would have deprived ICASA of discretionary power when deciding whether to implement policy and policy directions, because it would have had to follow these, says Rice. However, the new Bill states that ICASA, in exercising its powers and performing its duties, must consider policy and policy directions, she explains.
On hold
The new Electronic Communications Amendment Bill has deferred the issue of a Spectrum Management Agency, until after the conclusion of ICT Policy Review process, says Rice. The previous version mooted the concept of a spectrum management agency that would be responsible for long-term spectrum planning, including the development of a national radio frequency plan and allocating spectrum ranges for government and non-government use.
This provision would essentially split ICASA's role into two as the new agency would have taken over the planning function that is currently carried out by ICASA, Livia Dyer, a partner in Bowman Gilfillan's corporate department, explained at the time.
Rice says the new Bill has left out this provision, which was a cause for "great" concern as it would have restricted ICASA's ability to deal with the assignment of frequency in an independent manner.
Share