(FXI/IFEX) – The following is a 12 August 2005 FXI statement: FXI expresses concerns on the South African Convergence Bill The FXI is deeply disturbed by a number of provisions in South Africa’s new Convergence Bill, which is supposed to replace existing broadcasting and telecommunications legislation, and is also concerned about the process that has […]
(FXI/IFEX) – The following is a 12 August 2005 FXI statement:
FXI expresses concerns on the South African Convergence Bill
The FXI is deeply disturbed by a number of provisions in South Africa’s new Convergence Bill, which is supposed to replace existing broadcasting and telecommunications legislation, and is also concerned about the process that has led up to the development of the Bill. The FXI presented a number of these concerns to the Parliamentary Portfolio Committee on Communications earlier today. A number of provisions threaten the freedom of expression and independence of the communications sector, and the FXI fears that the Bill will not necessarily address the growing divide between the communications ‘haves’ and ‘have-nots’ in South Africa.
The Bill was gazetted for public comment on 16 February 2005, with the closing date for submissions to the Portfolio Committee set at 15 April 2005. This meant that the public was given only two months to comment on a Bill whose nature is very complex and whose consequences are far-reaching. Over and above this problem, and more importantly, there was no Green and/or White Paper process before the Bill was produced. A Green and/or White Paper would have outlined the policy assumptions that underlie the Convergence Bill.
The FXI argued at the Committee hearing that, largely, the objective conditions for convergence do not exist in the country, except for all but the wealthiest users of communications services. Broadcast and telecommunications rollout to the poorest sections of the population leaves a lot to be desired. There are still whole villages and townships in the country where there is no single fixed telephone line. In some cases, and in some areas, all the telephone lines installed under the mandate given to Telkom have been disconnected as a result of non-payment because people could simply not afford the costs. Cell phones have penetrated barely half of the population, and poor consumers are being made to bear excessively high pre-paid costs. Given the fact that an affordable protocol has yet to be developed for accessing data through cell phones, fixed line rollout remains key to addressing the digital divide. There are also still areas where broadcast services are not reaching people. In short, universal access, let alone universal service, is still a dream for the majority in the country. Unless the basics are addressed through this process, the Bill risks dividing the country into information haves and information have-nots, with the gap between the former and the latter becoming even more difficult to address. In short, the Bill risks replacing the analogue divide with the digital divide.
The FXI has therefore embarked on a process of consulting with users in underserved areas and communities to ensure that they have a say in the Convergence Bill process, and seeks to encourage the formation of user groups in these communities, that will be represented in key decision-making forums. Only once the voice of underserved users is heard, will this voice be taken seriously.
The Bill also fails to present the country with a continuation of a transformation agenda. In fact, a dangerous assumption emerges in the Bill, which seems to suggest that the communications sector is transformed and therefore transformation goals do not need to be set. The Bill ignores important objectives of the Broadcasting Act, which sets out clear goals for the broadcasting sector.
There are a number of disturbing clauses in the Bill that threaten the independence of the communications regulator, the Independent Communications Authority of South Africa (Icasa). For instance, the Bill states that in issuing policy directives, the minister of communications MAY consult with Icasa. Instead, at all times the minister MUST consult with Icasa with regards to policy directives. Also, policy directives should be put through a parliamentary hearing, with at least 30 days for comment. The qualifications in the Broadcasting Act around policy directives not applying to licencing and programming have been removed, and need to be reintroduced. The clause ensuring that policy directives do not interfere with the independence of Icasa also need to be reinserted. Another disturbing provision gives the final say over infrastructure licences, which entrenches the conflict of interest that has existed for some time, whereby the minister is both a player and referee. In addition, the minister should not be involved in the development of guidelines for the rapid deployment of communications facilities – a role that should be left up to Icasa.
However, the Convergence Bill is an advance on the Telecommunications Act with respect to the independence of Icasa and evens out the situation between the telecommunications sector, where the minister had the final say over regulations, and the broadcasting sector, where Icasa had the final say.
Possibly the most disturbing provision involves the minister approving all individual licences. This will mean all broadcasting licences – which must be treated as individual licences – must be approved by the minister, which strips Icasa of the powers to grant these licences independently. This clause is dangerous as it threatens to erode the hard won independence of the whole broadcasting sector, and will make a mockery of the constitutionally-guaranteed independence of Icasa.
The FXI noted that it did not support the provision in the Bill that requires spectrum licencees to co-ordinate their respective frequency usage themselves, as it may ensure the necessary oversight into fair usage is missing. Rather, Icasa should play this role. Also, the FXI argued that it did not believe that the minister should play a role in approving the radio frequency plan. Again this entrenches the player/referee problem, whereby the minister may tilt the playing field in favour of ‘her’ portfolio organizations to enhance profitability. Icasa alone should develop and approve the plan.
With respect to interconnection, the FXI argued that there should be a provision obliging Icasa to develop an access list of facilities and services that are subject to the access regime, and access agreements MUST be registered with Icasa to improve transparency around this area. There is a great deal of suspicion that Telkom and the cell phone operators are making super-profits at the expense of poor users (especially pre-paid users), so the Convergence Bill must seek to ensure maximum transparency with respect to interconnection and access. In addition, even non-dominant players, not just those with significant market power, should be obliged to interconnect.
With respect to consumer issues, the FXI argued that the Bill needed a clause forming a consumer forum, and that Icasa should be required by law to conscientise the public about its role, the existence of the code, what consumers can do to access Icasa in the event of a violation. Icasa also needs to publish a regular review of the code. In addition, there is no provision for public participation in the development of the code, and an obligation should be placed on licencees to inform all customers about the existence of the code, and the mechanisms of redress in the event of code violations.
The FXI also argued that the institution set up to promote the achievement of universal service and access, namely the Universal Service Agency (USA), should be made independent of government. Its powers to advocate for particular positions need to be beefed up, otherwise it will remain a mere implementing body under the thumb of the minister, with no ability to stand up and critique the state of universality in the country. To this end, the FXI argued that the minister should not appoint the USA’s Board; rather the Board should be set up through a public process, similar to the Board of the Media Development and Diversity Agency. Recommendations about finalizing the outstanding definitions should be made to Icasa, and not the minister, and a deadline should be set for the completion of these definitions. In addition, the USA’s head should be appointed by the Board, not by the minister. The Bill should also contain a clause requiring public involvement in determining how the monies of the Universal Service Fund (USF) are spent. In addition, contributions to the USF should be determined by Icasa, and not the minister, as the minister may be tempted to make decisions that favour the profitability of the incumbent fixed line operator, Telkom.
