Infraco's licensing should be done in accordance with the Electronic Communications Act (ECA), or it could open the door for legal challenges and so delay the company's rollout, says Independent Communications Authority of SA (ICASA) chairman Paris Mashile.
Mashile was addressing a joint sitting of the Parliamentary Committee of Public Enterprises and Communications on the second day of public hearings into the Broadband Infraco Bill - the proposed law that will govern the state enterprise.
In his presentation, Mashile said the most legally sound manner for the licensing to proceed in the current framework, in accordance with the ECA, is for the communications minister to issue a policy direction which states: "In consideration of the implementation of the managed liberalisation policies, the authority may only accept and consider applications for individual electronic communications network services, licenses in terms of the policy direction issued by the minister in terms of section 3 (of the ECA)."
Mashile said that the policy directive was to address a section of the sector, rather than directed at a single licence fee.
Yunnis Carrim, Public Enterprises Committee chairman, said that, in terms of the Infraco Bill, two issues had to be addressed: first, is there a conflict between the Infraco Bill and the ECA, and second, if so, is there a way out without undermining the sprit of the ECA?
Godfrey Oliphant, Communications Committee chairman, said: "The licensing of Infraco is do-able, but it must be done correctly and using the Infraco Bill to change licensing conditions in the ECA would be problematic."
The main issue for the members of Parliament on both committees is to ensure the speedy rollout of competition in the telecommunications sector. However, they all agreed that it must be done in such a way that it is legal and will not be challenged in a court of law.
The Departments of Public Enterprises' legal director general, Sandra Coetzee, stated that the deemed licensing of Infraco was not unusual in SA as in the past Telkom and Sentech had similar licences. "We decided on the deemed licencee approach because we felt this would help speed up the implementation of Infraco," the legal advisor said.
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