”Uh oh, here we go again.” That is one thought that crosses your mind as you wade through the complexities of the revised Convergence Bill. ”Whew, at least there is some progress” is another sentiment that surfaces.
The second of these feelings reflects the substantial improvements on last year’s much-flawed original Bill. The first feeling arises because there are still very sizeable problems that need to be ironed out.
Problems of fuzziness in the law are probably endemic to legislating for future technology. In our case, this is compounded by two original fumbles that remain unremedied.
First, the law still stands without any explicit policy backdrop. There was no Green or White Paper setting out the whats and whys. There was an industry consultation following by extensive lobbying, but there are still no agreed policy guidelines that could inform the law and its interpretation.
Second, the core concept has still not been defined. It’s expressly termed the ”Convergence” Bill, and yet the process this purports to expedite is never explicated. Part of the confusion is evident in the preamble and subsequent section listing the ”object” of the draft law.
The preamble states that the law intends to promote convergence in ”broadcasting, broadcasting signal distribution and telecommunications sectors”. The object leaves out the first of these: ”broadcasting”.
In fact, the gist of the Bill is that ”broadcasting” remains pretty much as is. In effect, it says that audio or audiovisual content that is disseminated as a service through new platforms no longer counts as broadcasting.
Conditionalities such as a code of conduct, no political bias and terms for party advertisements, remain for broadcasting ”as we know it”. But the same will not necessarily apply to ”radio” or ”TV” content sent or received, for example, through phone lines or fixed wireless connections.
It seems that e.tv, to take one case, will still be made to observe watershed hour restrictions on its soft-porn shows as regards its existing broadcasts — but the same will not apply if this content goes out through other means.
In short, convergence does not change traditional broadcasting services; rather it opens up possibilities for unfettered, multiplatform publishing. If you don’t like porn before dinner time, at least it won’t be in your face.
Thus, excluded from the Bill’s definition of broadcasting are services that ”make programmes available on demand on a point-to-point basis”.
Subscription services are still cited as forbidden from exclusive rights to national sports events, and are required to observe local content obligations. This could change if, for example, DStv viewers in the next year or so shift to a pay-as-you-go model.
In this scenario, the viewers then pull down particular programmes on an individual basis as their fancy takes them, and so the broadcast subscriber conditionalities would not apply. The communication process would then be point-to-point and on demand, even though it comes from a broadcaster and looks like broadcast content.
The moral is that as technology stampedes ahead, what we are accustomed to treat as broadcast content will not count as such from the Convergence Bill’s point of view — provided we access it any way other than we do at present.
In terms of the Bill, those still playing in the traditional broadcast business will need a couple of licences to do their thing. One will be to have signal distribution access. But there is a bit of conceptual confusion that needs straightening out when Parliament scrutinises the Bill in coming months.
The schedule to the draft, which deals with amendments to prior laws, describes a ”broadcasting signal distribution licence” as being a type of ”communications service licence”. But Section 85 of the main body clearly says that broadcasting signal distribution is a ”communications network service”.
As you may gather from this, the Bill distinguishes between licences for ”communications services” and ”communications network services” — the latter referring to infrastructural services (pipes, transmitters and so forth).
The confusion needs clearing up. Either way, besides access to signal distribution, the traditional broadcasters will also need to have — or be carried by someone who has — yet another kind of licence: a ”radio frequency spectrum licence”.
That’s fair enough — spectrum is limited. At the very least, some frequency management is needed to avoid chaos. In this regard, one can sigh with relief that the new Bill has discarded the jargon of ”technology neutral” and the misleading implication that regulation can ignore whether communication uses valuable airwaves to pump out content on a continuous basis.
Another advance in the current Bill is that it dispenses with the need for electronic content producers to seek licences. This perceived possibility in the original version led to a widespread outcry last year. There is mention of ”content services” in the new document, described as including online publishers, for example, but thankfully there is no mention of licences being needed for this.
On the other hand, and ”here we go again”, there is a bit of ambiguity in a fourth category of licences set out in the Bill. This line item is dubbed the ”application services” licence.
The three other licence categories — communications services (such as voice telephony), communications network services (such as signal distribution) and frequency usage — all expressly exclude content services from their ambit.
But, like the ”broadcasting services” category, ”application services” certainly does have content implications.
Its wording says that it covers any service that adds value to a network by manipulating, storing, retrieving, distributing, creating or combining ”content, format or protocol for the purpose of making such content, format or protocol available to customers”.
Sounds ominous? Maybe. But many websites would escape falling in this category because they are published not for ”customers”, but rather for the public — citizens or general consumers, not specific customers.
More relevantly, however, an application is also defined in the Bill as ”any technological intervention”. It would be a very long legal stretch to define content dissemination — much as it may add value to a network or even in cases be a service to customers — as a ”technological intervention”.
Wouldn’t it be great, though, if the new law could come out clearly and explicitly keep content out of the regulatory mix (except insofar as traditional broadcasting goes)?
Likewise, it would be helpful if the Bill could tell internet service providers whether they are to be treated as application or communication services, and with what implications.
What would be further cause to celebrate would be added qualifications of ministerial powers in the whole palaver. Commendably, the Bill has reversed its earlier bid to tone down the previous legislative requirement for the minister of communications to consult publicly before issuing policy determinations. That’s a ”whew” factor.
But it’s not enough. According to the Bill, it is for the minister to decide if and when anyone can apply for a network services (that is, infrastructure) licence. Without a policy framework, there is no clear logic for this.
Worse, the document also lays down that the minister’s approval is needed for granting licences for broadcast, communications services and communications network services.
The inclusion of broadcast in this list means the extension of the old South African Telecommunications Regulatory Authority model into constitutionally sanctioned Independent Broadcasting Authority territory. Accordingly, this provision is unlikely to get through parliamentary scrutiny.
But even putting the other two licence categories under ministerial nod is cause for concern — the measure undermines the Independent Communication Authority of South Africa and heralds a future of continuous court cases, as has been the case with telephony licensing.
Despite the problems, where the Bill marks major progress is in its provisions for interconnection, facilities leasing and wholesale rates. The same goes for its reference to the need for interventions against monopolistic practices. This is not just ”whew”, it’s ”whoopee”.
These provisions could open up the entire ”vertical” communications sector to a torrent of ”horizontal” competition — including, ultimately, allowing companies to provide their own infrastructure. That can only be good for the country’s communications.
Taken together, the Bill in its current form represents two steps forwards, one step back. Parliament is likely to improve it further — especially if the public send in representations by the closing date of April 8.
Whether the outcome amounts to promoting ”convergence” is a question for another day. Perhaps even another law.