Most of South Africa's telecoms operators have welcomed the withdrawal of the Electronic Communications Amendment (ECA) Bill from Parliament by communications minister Stella Ndabeni-Abrahams.
The Bill was tabled before Parliament in October 2018 but Ndabeni-Abrahams said Parliament was unlikely to finalise the Bill during the remainder of the current term.
The minister on Monday informed the Portfolio Committee on Telecommunications and Postal Services that she had decided to withdraw it "to enable further consultations and align it with the drive towards the fourth industrial revolution". She said "we need a holistic, forward-looking approach instead of ad hoc amendments to the existing legislation".
Most mobile operators reacted positively to the news.
"We welcome the Bill's withdrawal as we think this is an opportunity for government to engage with the sector and agree on a set of priorities to inspire investments that will promote growth and effective competition," Telkom told ITWeb.
Vodacom CEO Shameel Joosub also welcomed the decision. "Vodacom is of the view that government's objectives for the sector - in terms of increasing the affordability and reach of broadband, and accelerating economic transformation - can be achieved within the current legislative framework. In particular, we are encouraged that the ministry holds the view that the private sector must play a greater role in the development of the telecommunications industry.
"Key to ensuring SA doesn't get left behind in participating in the fourth industrial revolution is being at the forefront of new technologies such as 5G and the licensing thereof."
Joosub had last year already said the ECA Bill should not be rushed through Parliament in its current form.
MTN was less enthusiastic and executive for corporate affairs, Jacqui O'Sullivan, told ITWeb that MTN "notes" the minister's decision to withdraw the Bill and "awaits further clarity on the matter".
"Cell C is quite surprised that the Bill has been withdrawn. The minister has indicated that she will consult with stakeholders and we look forward to being invited to participate in that engagement," Cell C told ITWeb.
The Democratic Alliance (DA) also welcomed the withdrawal of the Bill, which it calls "unconstitutional". DA shadow minister of telecommunications and postal services, Marian Shinn, said in a statement that the Bill has "for three years pitted the ICT sector against the Department of Telecommunications and Postal Services (DTPS)".
According to Shinn, the portfolio committee was opposed to rushing the Bill through Parliament and was due to recommend at its meeting that the Bill be withdrawn anyway.
Last January, telecoms operators and industry players submitted written comments on the Bill, and in March 2018, stakeholders participated in a consultation workshop on the proposed legislation.
The Cabinet-approved Bill looks to give effect to the policy objectives set out in the National Integrated ICT Policy White Paper, published in late 2016. It contains provisions such as spectrum allocation, the wholesale open access network (WOAN) and rapid deployment policy, but it garnered widespread criticism from some stakeholders in the sector.
"The withdrawal of the Bill is a defeat for former department officials who played a key role in crafting the ICT policy white paper, starting in 2013, and its subsequent conversion into the Bill, and who lobbied the portfolio committee during the public hearings for its acceptance," Shinn says.
"The DA looks forward to a more dynamic, investor-friendly regulatory environment that promotes innovation and competition in both wholesale and retail ICT sectors to support the economic and social development needs of South Africa," she adds.
Good news
Dobek Pater, director of business development at Africa Analysis, says the withdrawal is probably a good thing as the Bill "has been quite contentious from the beginning".
"Over time, it morphed as the DTPS (now DOC) changed its stance on it and accepted some industry inputs to modify the Bill. The fact that it had undergone a few revisions and was still challenged by the DA in Parliament meant it would have been an unwieldy and still contested document to work with."
Pater believes it would not have been passed by Parliament and signed into law before SA's general elections in May anyway.
"The Bill carries some sound proposals to make the market more competitive and fair, but also some pathetic proposals. It was initially developed under [former president Jacob] Zuma and the then minister of the DTPS, Siyabonga Cwele, who did not endear himself to the industry when, after a lengthy 'consultative process' charade, he unilaterally ignored all the industry inputs and tried to steamroll a flawed Bill through the Cabinet and Parliament," Pater says.
"It is better to go back to the drawing board and redevelop the document from the ground up, with a proper consultative process with stakeholders (especially the telecoms/ICT industry) in place. More investigation may also need to be done to identify the best models globally (especially in developing markets more advanced, and progressive, than SA) which can be turned into acceptable and relevant solutions to build the future ICT industry in the country."
Pater believes this is an opportunity to fix the flaws in the Bill and work more closely with the industry.
"This is an opportunity for the ANC to be seen as doing something 'good' for the country and the ICT industry post the elections. The new 'face' of the ANC. Hopefully, the government wants to focus on a convergence of the telecoms and broadcasting industries again (beyond merely merging departments) and wants to rework this Bill extensively to address the broader ICT landscape."
Spectrum slow-dance
Vodacom's CEO also once again brought up the issue of spectrum, mentioning president Cyril Ramaphosa's comments during last week's State of the Nation Address, where he said the communications minister would shortly issue policy direction to the Independent Communications Authority of South Africa (ICASA) for the licensing of the high-demand radio frequency spectrum.
"The release of this available spectrum will be instrumental in reducing the cost of carrying a megabyte of data and ultimately in accelerating the decline in effective data prices in South Africa. We remain hopeful that the highly anticipated spectrum auction will take place soon," Joosub said.
The Bill carries some sound proposals to make the market more competitive and fair, but also some pathetic proposals.
Dobek Pater, director of business development at Africa Analysis.
Pater says the process of allocating the high-demand spectrum to various operators "needs to proceed irrespective of the Bill being suspended".
Mobile operators have been waiting for many years for 4G spectrum to be assigned and ICASA last year confirmed plans to license high-demand spectrum by the end of March 2019.
The Bill's proposal for a WOAN was also contentious and Pater says the WOAN "or rather lack of clarity around it" needs to be rethought or clarified before the Bill can be considered again.
Issues upon issues
The Bill caused controversy from the start and a lot of people found different issues with its contents.
Research ICT Africa's previous submission on the Bill raised concerns that it gives too much power to the minister and erodes ICASA's power. Pater tends to agree, saying it shifts more decision-making and regulatory power to the department and away from "independent" regulatory institutions.
"Essentially, moving further away from decentralisation of the power centre, proper checks and balances, and transparency."
Shinn said the portfolio committee questioned the constitutionality of the Bill and was concerned about "the vast chasm caused by the DTPS's attempts at 'radically' transforming the sector through emasculation of the Chapter Nine independence of ICASA".
Pater says it also had "some illogical suggestions such as location of data centres in more remote areas to create jobs in areas of high unemployment".
He adds that a key issue was also the fact that this was a "telecommunications" Bill but the broadcasting Bill counterpart "has not yet been published (probably does not exist) even though it was to appear soon thereafter".
"What needs to be tabled is a Bill that encompasses both telecoms and broadcasting (and other aspects of ICT) and builds the foundation for growing convergence of these two areas, not set them further apart," Pater believes.
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