Licensing issues may dog Convergence Bill

Johannesburg, 04 Dec 2003

While the ICT industry has mostly welcomed the draft Convergence Bill, opened to public scrutiny yesterday, there are portions of the bill that may yet cause problems in the industry.

The bill was made available at a press briefing yesterday, at which minister Ivy Matsepe-Casaburri was supposed to discuss the bill with industry players and the press, although she was unavailable at the allotted time.

The draft bill follows on from the convergence colloquium, which was held in July and involved relevant stakeholders, as well as the Department of Communications and the Independent Communications Authority of SA (ICASA).

The aim of the bill is to promote the convergence of telecommunications, broadcasting and signal distribution, promote the growth and diversity of content services and encourage the interworking and interoperability of systems and services.

The bill has good intentions, namely the concept of moving from a licensing system based on specific technologies - such as mobile - to a horizontal one, whereby it is the services, rather than the technology that is licensed. However, one issue that is not satisfactorily explained is that of the issuing of a licence for a communications content service.

The definition provided by the bill for the term "content" includes sound, text or pictures, effectively meaning that taken to its logical extreme, anyone providing content in the public domain - from a news service like ITWeb to a private individual with a personal Web site - would, in theory, need a licence.

According to the Internet Service Providers` Association (ISPA), it will all depend on how the government chooses to implement such a licensing arrangement.

"Ultimately, no one can stop someone from making content available on the Net without doing what North Korea has done, and completely blocking access to the Web," says Ant Brooks, co-chairman of ISPA`s regulatory subcommittee.

"I can see some potentially useful issues arising out of this type of legislation, provided the Department of Communications makes the licensing issue broad enough and generic enough to avoid being onerous, in much the same way as Malaysia has set out its convergence legislation, which I believe, was used as the model for our own bill."

He is nonetheless concerned about this issue, particularly as there has been something of a trend in government towards tight regulation recently, but adds that the proof will be in the implementation of the Act.

"I would certainly not say that I am not nervous, but I do believe that the constitution would protect us from anything that was too strict or too silly, and since it appears to be government`s intention with this bill to introduce more competition, more quickly, I would prefer to take an optimistic view of the bill for now."

Vague terminology

In a similar vein, industry players who attended yesterday`s briefing congratulated the Department of Communications on the draft bill, but criticised the use of terminology like "as soon as reasonably possible" within the Act.

"While I agree that such terminology does not necessarily inspire confidence, with legislation such as this you cannot always be too prescriptive, because sometimes having an issue set in stone within legislation can cause other problems," says Andile Ngcaba, the department`s director-general.

"There will always be some disagreements over issues, and as this bill has been crafted in consultation with the industry, there have been differing views throughout its drafting, but a robust process is always good."

One key issue that was revealed yesterday is that in terms of the bill, ICASA will now be financed from monies derived from licence, administration, spectrum and numbering fees, with the regulator allowed to retain up to a maximum of 50% of such monies received.

Parties interested in commenting on the draft legislation have until 3 February 2004 to submit their comments or representations to the department.