Proposed amendments to the draft Convergence Bill seem to be positive and industry input appears to have been taken into account, says Dominic Cull, an associate of ICT law firm Nicci Fergusson.
Cull did a brief analysis of the Bill after been shown the latest draft following the public hearings and deliberations by the Parliamentary Portfolio Committee on Communications, which is now in recess.
Parliament will rejoin in mid-October, when the committee is expected to begin hearings on the related draft ICASA (Independent Communications Authority of SA - the regulator) Amendment Bill.
Cull says the controversial "application service" licence provisions have been removed from the Convergence Bill in their entirety along with references to "applications".
"Given the scope for confusion and the impossibility of performance which this licence category presented, this is to be welcomed," he says.
Cull praises the references to "content services" and the definition of content have been deleted in their entirety. This was predictable despite the controversy stirred up within the marketplace that the Bill would seek to regulate content, he says.
"Hopefully these arguments will now be put to bed and the Bill will be properly constructed to deal with the means of conveyance of content and not the content itself," he says.
Licences substantially amended
Aside from the deletion of the application service licence category, it appears the remaining licence categories have been substantially amended.
"The dichotomy between class and individual licences has been retained and the policy of 'managed liberalisation` is reinforced in that ICASA may only consider applications for individual communications network services licences after the issuing of a policy determination by the minister (previously a date to be fixed by the minister in the Gazette)," Cull says.
Competition issues have been amended and this brings the Convergence Bill closer to existing competition legislation.
"For example, definitions of the terms 'market power` and 'dominant` have been inserted to clarify that these terms shall have the same meaning as they are accorded under the Competition Act. This appears to be in line with the submissions of the competition authorities in response to the release of the Bill earlier this year," Cull says.
Interconnection broadened
He says the definition of "interconnection" has been substantially broadened and this is to be welcomed.
"Whereas interconnection was previously mooted as meaning interconnection between the communications networks of two communications network service licensees, it is now defined as meaning the 'physical or logical linking of two or more communications networks [of] communications services, broadcasting services, services provided pursuant to a licence exemption or any combination thereof`," Cull says.
As regards the division of competencies between the ministry and ICASA, there does not appear to have been any substantial reworking other for the fact that the minister`s power to issue policy directions is now discretionary. However, it is now mandatory for her to consult ICASA before issuing the direction.
"While there is still no requirement for ministerial approval of regulations issued by ICASA, the latter is now obliged to inform the minister that it intends to make regulations at least 30 days prior to doing so," Cull says.
Cull says it is worthwhile noting the Democratic Alliance proposal that restricts the communication minister`s ability to make policy or issue policy directions where this will interfere with ICASA`s independence, or otherwise affect its powers and duties.
"Given the history of the relationship between the ministry and the regulator, this would be welcomed."
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