Lobby groups say the communications bill is unconstitutional
Media Monitoring Africa and the SOS Coalition say the changes give too much power to the minister and undermine Icasa's independence
Lobby groups have called on parliament to withdraw a proposed law meant to regulate infrastructure sharing and boost competition in the telecommunications sector, saying certain aspects of the bill are unconstitutional.
One of the contentious proposals in the Electronic Communications Amendment Bill is the establishment of a wireless open-access network (Woan), which the government says is aimed at driving down communications costs by facilitating entry of more players.
The government says the bill is also intended to improve competition, regulation and infrastructure sharing in the sector amid a spectrum crunch.
The bill further proposes that a service provider with “significant market power”, or at least 25% of SA’s network infrastructure, has to share its infrastructure with competitors.
According to the bill, which is being considered by parliament’s telecommunications and postal services portfolio committee, the Independent Communications Authority of SA (Icasa) will prescribe the “cost-oriented” rates that service providers can charge their rivals.
In a joint written submission to the committee, lobby groups Media Monitoring Africa (MMA) and the SOS Coalition: Support Our Public Broadcaster said that by and large the bill gives the minister of communications too much power. The groups said they were deeply concerned by the extent to which the bill proposes to undermine the role of Icasa in respect of the management of spectrum in SA and to arrogate overall control of spectrum into the hands of the minister.
“In the view of the SOS and MMA, the assumption of control over the management and regulation of spectrum by the minister serves to undermine the independence of the regulator, would amount to a clawing back of powers vested exclusively in Icasa, and is therefore unconstitutional,” the groups said.
“It is hard to see what such a major realignment of policy and regulatory competencies and authority in this area would achieve in the absence of regulatory failure.
“Indeed, where Icasa has been hamstrung over spectrum, this has been while it was waiting for government policy directions that never came or responding to government litigation when they acted ahead of or in the absence of policy and policy directives.”
The undermining of Icasa’s constitutionally enshrined regulatory independence and the assumption under ministerial control of functions hitherto and more correctly placed under the control of the regulator is an undercurrent that runs through many of the provisions of the bill, SOS and MMA said.
The groups added that the arrogation of so many functions in respect of spectrum into the hands of the minister constitutes a fundamental abrogation of the independence of Icasa.
“Those provisions of the bill are therefore unconstitutional and should be withdrawn. We have in fact argued for a constitutional amendment to ensure Icasa plays its role as a fully fledged chapter 9 institution whose independence is constitutionally protected.
“We believe that this is what is required to ensure effective regulation of the broadcasting and electronic communications sectors. In the light of all of the above submissions, SOS and MMA accordingly call for the withdrawal of the entire bill, notwithstanding the fact that certain proposed amendments might have been beneficial, particularly in respect of competition matters,” the groups said.
Mobile giants Vodacom and MTN have previously voiced concern about the proposal to reserve most of the high demand for Woan and the suggestions that the government would take away spectrum already assigned to operators. The operators are scheduled to table their submissions on Thursday and Friday.