The Department of Communications' (DOC's) proposed amendments to the Electronic Communications Act (ECA) will trim the regulator's ability to act in the best interests of citizens.
The department last week said it had published the draft Bill, which it wants to table in Parliament next year. It said the amendments aim to “give clarity and to strengthen the powers, role and functions” of the minister and the Independent Communications Authority of SA (ICASA).
However, the Bill has been slammed, because it moves too much power into the hands of the minister, currently Dina Pule, and takes away some of ICASA's independence, which trims its ability to act in the public interest.
In addition, the changes create a conflict of interest as they pave the way for the minister to favour entities in which government has a stake when valuable spectrum is allocated.
Kate Skinner, coordinator of the SOS: Support Public Broadcasting campaign, says the Bill removes a significant amount of power from ICASA. She explains that, for example when managing spectrum, the regulator is now obliged to follow the minister's policy directives.
Previously, says Skinner, ICASA only had to take the policy directives into account when allocating spectrum. She believes these changes weaken the authority's ability to act independently of both government and the corporate sector. “The public will lose out.”
Spectrum has recently been a hotly contested issue as operators have been waiting for years for space in the 2.6GHz and 3.5GHz ranges to be allocated. Telecoms operators argue they cannot roll out newer technology without more frequency.
In addition, as SA moves to digital television, more spectrum will be made available. The move, set to be completed by the end of 2013, has seen much debate between broadcasters and telecoms operators over where the spectrum should be allocated.
Worried
While this clause goes beyond spectrum allocation, it creates concern that the minister may favour organisations in which the state has a stake, such as Telkom, Sentech and Broadband Infraco, when allocating valuable spectrum, says Rice.
Although in a “worst case scenario”, the risk is that consumers could end up with limited choice when it comes to service providers, says Rice. “What the minister says goes.”
Rice points out that this could also limit freedom of expression if government interfered in the means of communication, both at broadcasting and a telecoms level.
On the face of it, the aim of the amendment is to speed up allocations of scarce spectrum, notes Rice. She says there may be a “healthy” reason for the proposed amendments.
The department says the Bill “intends to improve the turnaround times for consultation processes; to make provision for policy on ownership and control; and to revise the role of the minister and the authority regarding frequency spectrum management”.
In addition, the legislation also seeks to refine licensing issues, improve the “competition provisions”, and remove regulatory challenges and “any other issues around the matter”.
However, Rice says the proposed Bill, in its current form, is unconstitutional and she has “major difficulties” with its attempts to trim ICASA's power as an independent regulator. She explains that the body is, according to the ICASA Act, meant to be independent and free from political and government interference.
Going backwards
Paul Jacobson, of Jacobson's Attorneys, says the Bill weakens ICASA even further. “If the DOC was serious about an independent and potent regulator, it should do more to address ICASA's inefficiencies and give it greater resources to carry out its mandate more effectively.”
ICASA has previously been accused of being toothless, as it has not always been able to carry out its mandate and ensure telcos and other licensees comply with the law. It has also been criticised for not managing spectrum efficiently.
Jacobson says the move to give the minister the authority to manage spectrum, broadband policy and “whatever else the DOC wishes to move away from ICASA in the future” undermines the regulator.
“This move also takes us away from a legal framework that places the public interest first as spectrum allocation, for example, potentially becomes a political matter, rather than a public interest matter.”
Jacobson adds a stronger regulator would be better placed to protect the public interest. However, the proposed amendments “strengthen political influence over the process, not to mention commercial interests, while the South African public comes a distant second or third”.
The Bill is available on the department's Web site, and the public has until 5 December to comment on its contents. The DOC indicated it would respond to concerns over the proposed changes, but did not immediately do so.
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