Fights are not unexpected as the government tries to balance state involvement in the sector with the pressure to privatise
Jubie Matlou
The furore surrounding telecommunications policy and law is far from over a series of constitutional challenges may be in the pipeline as the country prepares complementary legislation on digital technology.
An ominous sign of looming battles was apparent in the submissions made by several telecommunications operators during the Independent Communication Authority of South Africa’s (Icasa’s) hearings into the proposed multimedia and international telephony gateway licence for Sentech.
One operator submits that the Telecommunications Act of 1996 as amended is not competent to deal with issues of multimedia services or technological convergence as the Constitution still regards broadcasting and telecommunications as separate activities.
The Digital Advisory Council a statutory agency set up to advise the Ministry of Communications on the introduction of digital technology and the convergence of telecommunications, broadcasting and computing technologies still has to finalise its mandate and table its recommendations.
It is not clear what will happen to other multimedia service providers once Sentech is licensed or what conditions would inform the provision of these services on a shared basis.
These questions come in the wake of the pending legal wrangle between Icasa and Telkom over the latter’s recent tariff hikes, implemented without Icasa’s approval. At face value it appears that Telkom’s actions arose out of a perceived regulatory loophole.
The Act requires that Icasa must prescribe tariff increases, which in turn must be approved by the minister. The tariff rates that previously applied to Telkom came into force on May 1 1997 and were to remain in force for three years thereafter. However, new increases were not prescribed by the expiry of the three-year period. (which ended on May 1 2000).
Telkom announced on November 14 last year that it would increase its tariffs with effect from January 1 2002. Telkom did not obtain prior approval from the regulator to do this. Icasa unsuccessfully attempted to interdict the increases in the High Court. The matter has since been taken on appeal to the Supreme Court of Appeals, and the court is expected to hear the case on Tuesday.
Some of the reasons touted for the Telkom price hike furore include Icasa’s lack of sufficient human and financial resources to execute its numerous broadcasting and telecommunications regulatory tasks.
For the past three years the regulator has had more than it can chew on its plate including licensing e.tv, Cell C, 100 or so community radio stations, developing a frequency spectrum plan and establishing a single regulator through a merger of the Independent Broadcasting Authority and the South African Telecommunications Regulatory Authority. Perhaps the solution lies in Parliament appropriating funds to Icasa and the latter accounting to the minister for its expenditure.
Problems plaguing the telecommunications sector are many and varied, and include turf battles between government departments as illustrated in the confusion over whether to issue one or two licences for the provision of a public telephony service. Such fights for turf are not unexpected and are likely to resurface as the government tries to balance state involvement in the sector with the pressure to privatise.
Similar concerns have emerged in relation to the links between portfolio organisations in the transport sector. Transnet and Portnet are portfolio organisations of the Department of Public Enterprises, whereas policy development for the sector takes place in the Department of Transport. This contrasts with the communications sector where portfolio organisations (such as SABC, Telkom and Sentech) fall under the Department of Communications where policy formulation for the sector takes place.
Competition between parastatals is beginning to emerge with Telkom and Sentech seeking to outdo each other in a changing multimedia environment. The earlier the Digital Advisory Council submits its recommendations for a policy and regulatory regime that governs the convergence of technologies the better. A series of legislative amendments leading to a comprehensive law for the information and communications sector could be in the pipeline in a year’s time.