Government`s proposed Convergence Bill has been described as a positive step by an industry expert, although certain aspects of the process, as well as the Bill itself, are seen as problematic.
Werksmans Attorneys director Amanda Armstrong told industry representatives yesterday that the Department of Communications should be commended for its efforts to address the numerous challenges faced by the telecommunications sector. However, she warned that there were concerns about the processing of the Bill and its framework.
Armstrong pointed out that the proposed Bill was not preceded by Green and White Papers, leading to a lack of clarity about government`s policy for the communications sector.
"It`s, therefore, difficult to assess the Bill," she said, adding that, given the complex issues and what was at stake, government`s proposed finalisation date - the end of August - appeared to be unrealistic.
In terms of the rearrangement of legislation, as proposed by the Convergence Bill, Armstrong argued that the poor detailed drafting of the Bill will make this difficult, while it also failed to address several issues that were dealt with in current legislation.
"A further problem is that the ICASA [Independent Communications Authority of SA] Amendment Bill is part of this process, but has not yet been tabled - it`s therefore difficult to comment in the absence of complete oversight of the legislative framework," she said.
Licensing framework
Referring to the licensing framework, she stated that the Bill provided licensing and regulation of communications network services, including facilities, applications services, broadcasting services and the use of frequency spectrum, but is not clear on content services. It also provides for individual and class licences and exemption from licensing.
"In principle, the approach is appropriate - it provides for greater flexibility in regulating the sector, and enables ICASA to deal with convergence. However, the devil is in the detail," Armstrong commented.
This, she said, was partly due to concerns about the definitions in the proposed Bill - critical to its interpretation and implementation - which were currently too wide and unclear.
"This makes it difficult to assess which services or business activities require a licence and the nature and extent of regulation of services and business activities, causing huge problems for the sector and regulator. These difficulties, unless resolved, will undermine compliance and result in litigation."
Armstrong argued that the licensing framework ought to be streamlined, as there seemed to be consensus within the sector as to which service should require a licence and which should not.
"As currently drafted, the framework is too rigid. There is industry consensus that within each of the key services ICASA ought to decide which categories of services require an individual or class licence and which may be exempt from licensing. This approach will create the flexibility to deal with a constantly changing sector and convergence," she said.
She also highlighted concerns about the powers of the minister, due process and competition matters raised by the proposed Bill.
"These concerns need to be addressed in order to provide certainty, stability and encourage investment in the communications sector."
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