More haste … and snail-mail speed. That’s the story of the government’s attempt to rush a law for the fast-happening integration of online media, broadcasting and telephony.
Twenty-six months of public representations and parliamentary deliberations have finally concluded a Convergence Bill that is now almost ready for adoption in the House of Assembly. But the Bill is also being held up by a new, and equally controversial, draft law that seeks to change the regulatory body that allocates telecoms, broadcast and other licences.
Like the Convergence Bill, this new draft law — aiming to amend the Independent Communications Authority of South Africa (Icasa) — is also a rush resulting from a flawed process.
This year, more than 40 critiques reached Parliament in response to the Convergence Bill. Almost 30 direct representations were made to the parliamentary committee dealing with the law. Yet, these were responses to the Bill’s second — and supposedly improved — version!
The first draft in 2004 also attracted similar flak in the form of 65 critical submissions and much adverse media coverage. The second version has now had so many amendments, it has effectively become a third edition.
Those actors moved to make submissions in the second round of the Bill included the country’s cellphone companies, tech firms such as Alcatel, manufacturers Motorola and Vodafone, and service groups such as Autopage Cellular and the Internet Service Providers’ Association. There were also presentations by the Law Society, and NGOs such as the Freedom of Expression Institute and the National Alliance of Independent School Associations.
There were voices from the Wireless Application Service Providers Association and Aware — a campaign by a grouping of ”value-added network services”. The Square Kilometre Array — a futuristic telescope in the Northern Cape — also gave its views.
Further characters in the chorus were the Media Diversity and Development Agency, the South African Post Office and the Universal Service Agency. From the media, strong points were made by the print and broadcast industries’ associations, as well as e.tv, MultiChoice, the South African Broadcasting Corporation (SABC), the National Community Radio Forum and Primedia.
Definitions and categories
Many among this host of lobbies pointed out that Bill, despite being in its second reincarnation, continued to lack a definition of convergence, and had ill-defined licence categories. They also hammered the government for a lack of policy that would have informed the law.
For example, e.tv declared that many of the concerns expressed could have been avoided ”had this Bill been preceded by a national convergence policy process”. Likewise, MTN, the National Association of Broadcasters, the Institute of Electrical Engineers and others repeated the refrain that there ought to have been a policy process entailing Green and White papers.
But rather than deciding to ”kill Bill”, as they should have done at the start, and send the whole thing back to the policy stage, Parliament chose to soldier on with what became a salvage job. The point is that the whole experience compelled legislators to formulate policy while trying to make law.
What also happened was that in the absence of participatory input into policy, the legislative process in effect ended up serving a similar purpose. This unhappy mixing of roles and phases entailed trudging a long and complex path that is still not complete and whose outcomes are still somewhat problematic.
In sum, by short-circuiting policy issues and racing into legislation, the government ended up with a time frame that dragged on as clauses were debated and redrafted.
The result is an overly long gestation of a classic ”camel” — whose design committee now has to contemplate a contentious second hump and whose plan was tabled only last week.
It may be that the Department of Communications saw itself as smartly leapfrogging over policy directly into law. Early on, it argued that opportunity costs were being lost while the country’s legal framework remained archaic.
As it turned out, that impatience led to such slow law-making that, earlier this year and under pressure from the president, the minister of communications had to make interim policy announcements in regard to internet telephony, rather than wait on the convergence law.
‘Managed liberalisation’
So why did the department not foresee that problems would arise from bypassing a proper policy process? The answer emerged in the debates during the representations to Parliament over the past two months. It is this: the department thinks that it already has a policy.
It calls it ”managed liberalisation”. The phrase means a planned move to deregulate much of the communications sector while keeping control over the pace and scope.
However, ”managed liberalisation” is not a policy, only a strategic orientation. It certainly does not equate to a policy on convergence as such — that is, one that would at least include definitions of key terms.
Not only is ”managed liberalisation” not a substitute for policy per se. In particular, it is also not an alternative to a participatory-based policy process.
The strength of post-apartheid South Africa is not just the democratic principle of shared governance in policymaking (while acknowledging that the government has the final say). It also vests in the aggregation of interests and wisdoms that makes for a far better final product.
This is shown, perversely, in the number of changes between the first Bill and the de facto third. It was the logic of many submissions that convinced the drafters to drop several points once the problematic aspects had been highlighted.
That ”managed liberalisation” on its own cannot inform a convergence law is evident from the fact that the approach gives no clear guidance about where there is to be ”management” (that is, control) and where the ”liberalisation”.
All it does is set parameters that South Africa will have neither ”big bang” deregulation nor a statist regime. Yet between these two extremes, there is a vast range of possibilities. A proper policy would set out the criteria for why it makes sense to control some things and not others in a context of convergence.
The remit of ministerial power vis-à-vis Icasa is just such a policy issue in the Convergence Bill that shows up the limits of the ”managed liberalisation” mantra. There are four instances of controversy here:
- Intense dispute around the Convergence Bill saw the status quo being retained as regards the minister’s attempt to dilute her legal obligation to consult with Icasa.
- To the chagrin of many in the industry, only the minister can initiate (or not) licence applications for setting up communications infrastructure.
- After protests about unconstitutionality, the department withdrew the clause in the Convergence Bill that would have given the minister power to approve licences granted by Icasa.
- In the new Icasa Bill to change the regulator’s status, the minister wants her office, rather than Parliament, to control the appointment of members of this independent body.
In all these examples, it looks as if the department is being either capricious or beating a control-freak path. Why? Because there is no policy spelling out the whys and wherefores of ministerial power.
Another example of a problematic policy point, belatedly bashed into shape in the legislative stage, concerns future regulation of the big guys.
The Convergence Bill (second version) proposed to control those with ”significant market power”. Much time and energy was spent on how this would be assessed, and on how the concept relates to that of the Competition Commission and its jurisdiction in relation to Icasa’s.
The whole business would have been eased had there been policy debate on competition long before the Bill’s drafting and redrafting. Even now, it is unclear whether ”significant market power” considerations could eventually lead to stricter regulation of MTN and Vodacom than of Cell C, or even of the SABC in relation to e.tv.
Finally, the same general point about the importance of background policy applies to interpreting the law — for instance, when television ”broadcasting” remains traditional broadcasting and subject to (some) regulation, and when identical video content escapes regulation because it goes out over the internet (even wireless internet).
Because policy had to be thrashed out in passing, in the midst of law-making, much unnecessary hot air was spent. Thus, the contested issues of what constitutes an ”applications service” and whether online publishing requires a licence have now reportedly been dropped from the latest version of the Bill.
Good policy would have meant they were absent right at the outset.
The Icasa amendment Bill, to be considered in October, says that its aim, to give the minister the power to decide who becomes a councillor, is intended to ”provide for a new, faster and more focused procedure”.
The department’s search for speed has seriously compromised the Convergence Bill. Sadly, little has been learnt from this experience.