With less than two weeks to go before the closing date for comments on the Convergence Bill, a hoo-ha has erupted. Signalled by, among others, The Citizen on its front page (January 17), the claim is that the current draft law, if promulgated, will ”require all website owners or publishers to have a content applications service licence to operate”.
Well, it depends.
In terms of the Bill, it depends on the Independent Communications Authority of South Africa (Icasa) — which is why the public should take careful note of how the regulatory authority responds to the furore around the SABC’s recent live broadcast of President Thabo Mbeki’s speech at the African National Congress manifesto launch.
It may be, however, that Parliament also amends the Bill. So whether The Citizen is right also depends in part on your comments.
To understand all the fuss, it’s worth rewinding a bit. The Convergence Bill arises from a colloquium convened last July by the Department of Communications. At the time, the department’s Director General, Andile Ngcaba, set out the rationale as follows:
- Convergence, being ”the integration of IT, computing, broadcasting and telecommunications”, challenged existing laws and regulations;
- A ”convergence policy” was needed in the context of globalisation and the advent of the internet, and in order to promote development, black economic empowerment and investment.
What was not spelled out by Ngcaba was whether convergence referred to technologies or industries, and at what levels. And despite the references to the need for a new policy, Ngcaba put his practical emphasis on leapfrogging ahead to a new law that he wanted to be tabled in Parliament within a month. The missing elements have a legacy in the current Bill’s flaws.
The aim of the colloquium, according to the department’s report on the event, was the ”need for policy makers to respond to ensure that old regulations and policies do not hinder the development of cross-sector applications, services and business”.
Hence, the publication in early December of the Convergence Bill. It is expressly aimed at updating old legislation and promoting competition and growth in the communications sector.
Attending the Department of Communications colloquium in July were the broadcasting, telecommunications and internet industries. The meeting heard various definitions of convergence, but never adopted one itself. This lacuna has also led to weaknesses in the Bill.
At the heart of the problem is the colloquium’s mantra of ”technology-neutral” regulation. By this is meant that licences should be (mainly) issued for untethered ”services” — on the basis that these could be distributed through a range of technologies, some not yet even invented.
Although not elaborated, this formulation suggests, for example, that Telkom would be able seek a licence to sell audiovisual content down its telephone lines or through spectrum frequencies. Similarly, internet service providers (ISPs) like M-Web would in principle be allowed to offer telephony services to their subscribers.
What has not been made very clear in all this is that in cases where the service technology uses radio-spectrum frequencies, public interest requires that regulation kicks in because of the scarcity of this airwaves resource. ”Technology-neutral” licensing is therefore something of an overstatement.
To understand the limits of the concept, distinctions need to be made between:
- Application services (such as telephony, audiovisual signal distribution and internet connectivity) that are not tied to a particular technology;
- Specific infrastructural or network distribution methods (wire/wireless, mobile/fixed) that are technologically tied; and
- Digital content that is not intrinsically linked to any particular application or a particular distribution technology.
There may well be content convergence, indeed even conflation, in terms of digitalisation, between voice, text and images. They all become data. But there remains a range of divergent and ”technologically partisan” distribution channels (which combine application services and infrastructure/networks). No neutrality here. Transmission that relies on technologies using scarce-frequency spectrum is different to transmission based on wires and cables.
What confounds the current Convergence Bill is the way this lack of clarity impacts on how content providers relate to channels and, correspondingly, what makes licensing sense.
Consider the following scenario. The SABC is licensed as a content provider via broadcast signals. It does not need a licence for SABCnews.com, even if it puts the same audio or audiovisual content on the website. Now, what if others set up a webtv or webradio content operation and streams similar stuff through the internet — do they need to be licensed?
You probably would answer no. But what if their feed is accessed by wireless internet, and their content then travels through radio spectrum — the same spectrum, ultimately, that the SABC uses? Or does it make a difference that the SABC’s broadcasting continuously pushes its content across the frequencies, while web content only takes up bandwidth when it is requested by consumers? Is that sufficient justification to require a licence for one, but not the other?
So it is a complex question. Some means are needed to assess frequency allocations in a convergence context, and licensing users is part of this.
Traditionally, broadcasters as content providers using spectrum are subject to Icasa’s licensing and regulations (such as on local content, watershed periods and electoral obligations). Other content providers (such as newspapers and websites) are unlicensed even if still regulated in various ways outside of Icasa — such as by the Film and Publications Board, copyright laws, the press ombudsman and others.
The Citizen‘s outcry is based on the belief that the Convergence Bill now seeks to bring websites into the ambit of Icasa (whether accessing these sites is by wireless or not). To assess this belief, it is important to track the most recent background to the draft law.
Following the colloquium, the Department of Communications appointed a joint industry-government group, the convergence policy committee — ironically not to draft policy, but to come up with draft legislative proposals. The group’s final document (dated September 15) is by its own admission ”an incomplete end-product” — due, it said, to the time pressure put on it by the department.
As with the colloquium, this proposal document has a poor understanding of technology neutrality. Likewise, it lacks a definition of convergence. So too with the subsequent Bill. And policy in the proposal document is present only in fragmented form, embedded within draft legal provisions.
While much that is problematic in this document has been echoed in the Bill, there are some important differences.
First, what’s different is that four categories of licences for services are set out in the Bill (the proposal document left this unresolved):
- Infrastructure
- Network
- Communications content applications
- Other communications applications (which add value to communications)
Second, and departing from the proposal document, the content licence is defined in the Bill as covering ”traditional broadcast services, online publishing and information services”.
It is this new reference to online publishing in relation to content licensing that has given rise to current concerns.
To untangle its substance requires a short detour into what the Bill specifies as different licence types:
- Situation one: Only ”individual licences” can be issued for infrastructure and network provision.
- Situation two: Only ”class licences” can be issued to content providers.
- Situation three: Either ”individual” or ”class” licences can be allocated for other kinds of applications (examples given are directory services and customer billing — though it is not clear why these should require licences).
The key issue is where ”traditional broadcast services”, ”broadcasting” and ”online publishing” would fit in to these licence-type categories? The answer depends on whether you define them primarily as content services or as application services.
The draft law makes reference to a ”broadcasting licence” that it says can be individual or class in character, suggesting therefore that it is regarded as an application service as in situation three above. Presumably the same intent goes for ”online publishing” and ”information services” (like SMS).
Significantly, ”broadcasting” in the Bill (as distinct from ”traditional broadcast services”) is not defined in terms of using radio frequencies, but as covering all electronic transmissions except those where visual or sound materials are incidental to the service. (Again, so much for ”technology neutrality” — this concept applies to the channel issue here, but not to the form of the content.)
The main question is, where does content come into these definitions of electronic transmissions? It doesn’t. A broadcasting licence is not the same thing as ”traditional broadcast services”. Instead, as can be deduced from the categories, electronic transmission of various forms of content (an application licence) is one game; whether you provide specific content to that content is another!
In other words, a company may be licensed to provide connectivity and to host websites; the question of the content on these sites is a different matter.
You would need two licences to cover both activities if your business combines the application and the content, or just one if you specialise in only one aspect. This situation reflects the colloquium’s vision of moving away from a ”vertical licensing regime” where one single licence covers a host of permissions, and towards a ”horizontal” system that entails different licences for distinct activities — and thereby allows for greater competition and a more focused division of labour.
In the light of these points, it can be concluded that the alarmists are probably conflating the Bill’s reference to licensing of online publishing with the licensing of content provision.
This observation, however, does not completely defuse the issue:
- Why should ISPs have to get an applications licence merely for the business of hosting websites? And then with what obligations to or responsibilities for the content of such online publishing?
- Even more to the point, there remains the fact that the Bill does allow for the licensing of content providers (that is, beyond the ISP licence). Is that scary? Will this provision be applied to the people creating websites?
My answer on this content licence question is: I doubt we will see this kind of regulation. The Bill says Icasa may ”prescribe the type of communications service that may be provided without a licence”. In the definitions section, ”licence exemption” is defined as an exemption granted by Icasa from the requirement to hold a ”class licence”.
Bearing in mind that ”class licences”, as discussed earlier, are envisaged as being only for content providers, this provision opens the door for Icasa to exempt website content creators from licensing.
What it does make possible, however, is for the regulator to impose conditions on those content providers who use spectrum-hogging applications — like traditional broadcasting. This activity would therefore still incur local content and other obligations.
There is no similar rationale for regulating website content given that its potential impact on spectrum use is comparatively very minor. Most users still access sites via fixed line, rather than the airwaves, and even then content only travels when requested by the user.
It is informative to note here that there are a variety of modes in which communications policy can take effect — ranging from pre-licensing with conditions attached (as with the SABC having a high percentage of local content) to a laissez-faire approach where no licence is required (such as the current right of anyone to put out newspapers or create websites).
Unless Icasa makes a decision that is wrong in principle, and probably impossible to implement in practice, the regulator should opt for the laissez-fair model regarding websites. This is not in contradiction to the same body regulating the push-transmission users of frequency (such as SABC, commercial and community radio). (Those enterprises dealing in infrastructure, networks and certain applications — such as Sentech, Telkom and Orbicom — will continue to need licences to conduct their business.)
But quite how Icasa will interpret licensing any old (electronically communicated) content is of course still open to question. In this regard, while the regulator should be demonstrably independent, there is an unfortunate feature in the Convergence Bill.
Thus, while the convergence policy committee originally proposed that the minister ”shall” publish the text of any policy directions given by the government to Icasa, and also get comment on such from Parliament, the Bill substitutes this with saying that the minister ”may” do so. This threat to transparency is something to get worked up about.
The fundamental problem with the whole Bill is the lack of an explicit policy on convergence that would inform both the minister and Icasa in regard to making and issuing directives, and to interpreting the law’s licensing powers.
Suppose for a minute there was such a policy, and that it specified, among other things, that convergence should be underpinned by a value of promoting the free flow of content. In turn, it would follow that legislation like the Convergence Bill would not leave the door open to licensing content that has no significant bearing on spectrum.
The current flaws come from the drafting of a law without a clear policy and sans explicit definitions of the central concepts of convergence and technology neutrality. The point is that while spectrum remains a scarce resource, requiring licences, a regulatory regime can never be 100% technology neutral.
We need to get the legislative methodology right if we are to clarify — rather than confuse — the convergence landscape.
E-mail Guy Berger directly if you have a question about this article.
Guy Berger is head of Journalism and Media Studies at Rhodes University and deputy chair of the South African National Editors Forum (Sanef). He was recently nominated for the World Technology Awards.