Last-ditch efforts slam Telecoms Bill

The Telecommunications Amendment Bill currently before Parliament has come under fire from various parties and could be delayed, despite the fact that the planned public listing of Telkom before February 2002 depends on it being in place.

The Parliamentary Portfolio Committee on Communications is currently hearing public submissions on the proposed amendments, and most of the affected parties are calling for substantial changes in the legislation.

SAVA, the SA Value-Added Network Services Association, has warned the committee in a written submission that the Bill, if passed unchanged, could see the government challenged before both the World Trade Organisation (WTO) and the Constitutional Court.

SAVA has long been a vocal supporter of broad deregulation of the local telecoms market, specifically lobbying for the legalisation of voice over Internet protocol (VOIP) services.

But in its submission, the body highlighted a threat "which effectively destroys the competitive VANS industry in SA".

SAVA says the proposed amendment broadens the definition of operators such as Telkom while redefining value-added network services as "electronic transaction services", removing the rights to many currently offered services.

Another major concern is what SAVA describes as the legislative reversal of a ruling by ICASA, the Independent Communications Authority of SA, that virtual private networks (VPNs) are not private telecommunications networks (PTNs) and may be provided over shared facilities. "This will be disastrous for the industry and for SA," the body says.

The association says the Bill, instead of increasing the value of the planned Telkom listing, "results in the devaluation of the industry as a whole, while at the same time returning SA to the authoritarian ways of the apartheid regimes". It also explains in detail why it believes a Constitutional Court challenge to the Bill is likely to succeed.

Regulator ICASA, which is making a verbal submission to the Portfolio Committee this morning, has expressed grave concern at other sections of the Bill, which it believes could turn it into a rubber stamp for decisions by the Minister of Communications.

"Several of the suggested amendments to both the Telecommunications Act and the ICASA Act change the current relationship between the roles of the minister [of communications], ICASA and Parliament," the authority says in its written submission. "These provisions strengthen the minister`s role and appear in some instances to limit the regulator`s power to that of an advisory body to the minister."

Among its concerns are proposed clauses which could see the minister remove ICASA councillors at will and changes in the way councillors are appointed. It highlights how various provisions would see the minister become involved in disputes and determine the conditions for telecoms licences, both currently the realm of the regulator.

The authority is also urging Parliament to reject the final timeframe put in place by minister Ivy Matsepe-Casaburri and bring forward the introduction of pro-competitive tools such as carrier pre-select and number portability.

A general concern for SAVA, ICASA and bodies such as the Internet Service Providers Association (ISPA) and the Cape Telecommunications Users` Forum (CTUF) is the "multimedia licence" government intends to issue to State-owned signal distributor Sentech.

The proposed licence for Sentech gives it the right to offer services such as "Internet through television", "electronic transactions (including e-commerce)", "animation", "audio" and "visual content".

The concern is that any entity providing any of these services will need a licence similar to that issued to Sentech, despite there being no provision for any similar licences to be issued to any entity at any point in the future.

"This creates dangerous uncertainty around the definitions of multimedia and of broadcasting, that may create a loophole for Sentech to claim that all forms of multimedia, including many thousands of existing Web sites, fall within the exclusivity created by its licence," says the CTUF.

ICASA agrees that such a danger exists and is also concerned with the blurring of the line between content and the media carrying it.

"Since the proposed scheme may impact on vested rights and grants exclusivity with regard to a form of content provision, it raises concerns of its constitutionality," it says.

Most parties that have made submission on the Bill say there are substantial parts of it which were never raised as policy directions or at the many forums in which changes to the current legislation were discussed.

This, combined with the claimed unconstitutionality of the amendments, has made many call for a delay in the implementation of the Bill.

However, the Bill must be in place to enable the government to list its stake in Telkom, as it plans to do before the end of the fiscal year in February 2002.

Presentations to the Parliamentary committee continue this week.

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