The Electronic Communications Amendment Bill (ECA Bill) gives too much power to the minister of telecommunications and postal services and erodes the power of the Independent Communications Authority of SA (ICASA).
This is according to a written submission by Research ICT Africa (RIA) commenting on the Bill.
"The Bill grants extensive powers to the minister, not only in overseeing the sector, developing policies and representing the country at international fora, but also in the management of scarce resources such as spectrum.
"This, we believe, erodes the powers of independent entities (such as ICASA), that have the necessary technical expertise and grasp of the dynamics and trends within the broad ICT sector to implement national policy independently of government and industry," RIA says in its submission.
RIA is a think tank which conducts research on ICT policy across Africa and in the global South. It believes the Bill, approved by Cabinet in November, undermines the independence of ICASA and expands the minister's power in a way that undermines the functional separation of policy, regulatory and operational power.
"There is an undercurrent throughout the Bill that asserts the role of the department/minister over that of ICASA, and downgrades the independence of the latter. In our view, this may render the Bill unconstitutional. It also reflects a lack of appreciation of the centrality of effective regulation in an effectively functioning ICT ecosystem."
The Bill seeks to implement and give effect to the policy objectives set out in the National Integrated ICT Policy White Paper, published in late 2016. The ECA Bill contains provisions such as spectrum allocation, the proposed wireless open access network (WOAN) and rapid deployment policy, which have garnered widespread criticism from some stakeholders in the sector.
The deadline for comments on the Bill was 31 January and government plans to host public hearings in early March.
Withdraw the Bill
RIA believes the Bill is an important document that may have a significant impact on SA's telecommunications sector. However, the think tank's 19-page submission to the DTPS focuses on numerous problematic issues and ultimately calls for it to be withdrawn in its current format.
It points out that the ECA Bill is one of a number of expected Bills arising out of the ICT White Paper, including the Digital Development Fund Bill, ICT Sector Commission and Tribunal Bill, and Electronic Communications and Transactions Amendment Bill.
However, of the four, only the ECA Bill is currently on the table for public comment. RIA believes the Bill cannot be considered in isolation and should be withdrawn "until such time as all four Bills are ready for public comment".
"The remaining Bills have substantial, even fundamental, implications for the Electronic Communications Act (ECA). It is likely they will affect the powers, competencies and independence of the ICT sector regulator (currently ICASA), as well as the future existence and scope of the Universal Service and Access Agency of South Africa and the Universal Service and Access Fund . Each of them appears to require a further set of amendments to the ECA," RIA adds.
Spectrum saga
RIA says it is deeply concerned by the degree to which ICASA's independence in respect of spectrum is undermined in the Bill.
The group says the SA Constitution requires broadcasting to be regulated by an "independent" regulator and that control over spectrum matters pertaining to broadcasting by a member of the executive, such as the minister, "undermines the independence of regulatory functions".
"The various and manifold provisions of the Bill that undercut ICASA's independence in all matters of spectrum are, in our view, unconstitutional and should be withdrawn."
RIA notes the Bill proposes the minister take over from ICASA the assignment of frequencies to the various services, and the development of a National Radio Frequency Plan, which "creates an immediate conflict of interest for the ministry".
The Bill also specifies it is the minister who must determine which unassigned high-demand spectrum must be assigned to the WOAN.
"RIA believes this provision will undermine the existing rights of current spectrum licensees and the high levels of investment in the sector. Not only that, its asymmetrical application will serve to disadvantage other applicants for spectrum, making it anti-competitive."
Despite DTPS minister Siyabonga Cwele promising last year that operators would not be forced to surrender their existing high-demand spectrum, RIA says the ECA Bill still mandates the expropriation of any "exclusively/individually assigned high-demand spectrum" not assigned to the WOAN. It also proposes that any new assignment of spectrum be conditional on the WOAN being "functional".
"Making access to 'high-demand' spectrum conditional to the successful deployment and operation of the WOAN is risky and will further delay the urgent release of 4G spectrum on which SA is now lagging many other African countries.
"This consequently forces operators to continue using other spectrum bands. This innovative but nevertheless sub-optimal use of spectrum contributes to the high data prices witnessed in South Africa," RIA says.
WOAN worries
RIA has never been keen on the idea of a WOAN being established in SA and is still not convinced it's a viable option. RIA is concerned by the assumption that openness inevitably produces positive outcomes, saying "there is considerable evidence that openness can reduce investment, perpetuate dominance".
The group researched the open access initiatives that accompanied the broadband plans of Nigeria, Kenya and SA, and also examined the case of Rwanda.
"There has been no successful implementation of the various initiatives undertaken in realisation of these policies," it says.
RIA also did an intensive study of the Mexican model, which the DTPS aspired to, but says the delays and associated opportunity costs raised red flags there.
RIA adds that a study commissioned by the DOC and Treasury on the viability of the open access network, by Analysis Mason, indicated there "was not a case to be made for the introduction of an open access wireless network" and that the only cases that were being trialled at the time suggested caution.
"Some operators have argued, along with RIA, that a single wireless open access network favoured by the DTPS is a high risk intervention that SA cannot afford ? the proposal of it in the Bill creates an uncertain investment environment. Other ways of enabling entry into the market, more efficient use of spectrum, and preservation and extension of the commons need to be implemented for social and economic inclusion," RIA adds.
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