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Draft Convergence Bill 'better, but still flawed`

Paul Vecchiatto
By Paul Vecchiatto, ITWeb Cape Town correspondent
Cape Town, 04 Mar 2005

The second Draft Convergence Bill is a serious effort to rectify the mistakes of the original, but it still has some flaws that need to be ironed out, an ICT lawyer says.

The latest draft, released this month, will go before the Parliamentary Communications Portfolio Committee for public hearings and commentary at a date still to be set.

The ICT industry and legal fraternity criticised the original draft released about a year ago, saying it had a "poor structure", confusing definitions and only replaced part of the Telecommunications Act.

Dominic Cull, an associate at Nicci Fergusson Attorneys, says the primary concern in the new draft remains the new licence category of "application service providers".

He says this is "extremely broadly defined" and, as it stands, it would mean that a large number of people and entities would need to apply for licences.

"These application service developers could include Web developers, those exercising editorial control over content, those creating and providing content to customers, and those operating Web servers and e-mail servers."

"Logic dictates that there will be a pragmatic implementation, and I do not believe there is any need to be hysterical at this stage. But the broad definition continues a worrying trend from the Department of Communications.

"There are, for example, some fundamental definitional difficulties in the Electronic Communications and Transactions Act and Regulation of Interception of Communications Act (RICA), especially with regard to the definition of Internet service providers. Essentially it means that certain provisions will be vulnerable to legal and/or constitutional attack," Cull says.

He also says there seem to be some differences between the printed version of the Draft Convergence Bill and the electronic version.

"In the electronic version, the former VANS (value added network services) are classified as an application service, while in the printed version they are more correctly classified as a communications service," he says.

Replaces Telecommunications Act

Cull says some of the more positive issues on the new Convergence Bill draft are that it will now replace the Telecommunications Act in its entirety, rather than just certain sections, which eliminates the "potential for massive confusion".

He says the Convergence Bill in general comes across as being easier to understand and less wordy than the Telecoms Act and the previous draft. "It appears some effort has gone into simplification, which is to be welcomed."

The new draft deals with consumer issues requiring the Independent Communications Authority of SA (ICASA) to release consumer codes of conduct for the various licences as well as customer service charters.

Cull says this chapter seems to have been significantly strengthened since the initial draft.

Transitional provisions

The transitional provisions have been fleshed out and strengthened, says Cull. Existing licences will remain valid until converted by ICASA within 12 months of the commencement date of the Convergence Act.

Holders of existing licences will be required to submit a written notice to ICASA offering to surrender the existing licence upon conversion and to be granted one or more new licences.

This written notice must be submitted within 90 days of the commencement of the Convergence Act. There is detailed provision for ICASA to undertake conversions and guidance as to how existing licence categories will translate into the new ones.

Cull says the chapters on interconnection and facilities leasing look reasonable. "Bear in mind that ICASA has proposed facilities leasing regulations out for comment until 16 March," he says.

Levelling the playing fields

Cull notes that the new Convergence Bill draft stipulates licence terms and conditions and sets out certain extra restrictions which ICASA may impose on dominant market players as defined.

These additional discretionary terms include controls on wholesale and retail prices; prohibition on discrimination with regard to interconnections and facilities leasing; and requirements for the transparency and publication of information.

"There is a real opportunity for ICASA to take steps towards levelling the playing fields and much of this seems to stem from the various Competition Tribunal complaints against Telkom by VANS operators and others," Cull says.

A copy of the Draft Convergence Bill can be obtained from the Government Printer as published in the Government Gazette No. 27292 of 16 February 2005, or here.

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