Parliament’s portfolio committee is debating the future of the country’s broadcasting regulator, the Independent Communications Authority of South Africa (Icasa).
At stake is who, henceforth, will have the power to give — or revoke — licence permissions for telecoms and broadcasting, and what conditions will be attached to these: the minister of communications, or Icasa?
To date, Icasa has set the pace for broadcast licences, while the government’s role has been limited to broad policy. On telecoms, however, the minister calls all the shots — decreeing what phone licences should be given, when, to whom and with what conditions.
This duality is no longer sustainable. Under the imminent Convergence Act, there will be no meaningful distinction between telephony and broadcasting. Instead, it will all be about generic ”data” travelling via radio spectrum.
So, if Vodacom in future decides to sell audiovisual content through its licensed cellular network, or if Sentech seeks to offer voice-over-internet-protocol telephony services over its wireless broadband, that will be entirely up to them.
This shift annuls Icasa’s current dual-regulation regimes for telecoms and broadcasting. That being the case, the question arises of which of the two systems will prevail in a world of unified regulation.
There’s no surprise that if the government has its way, a ”converged” Icasa will operate on the telecoms model. Resisting this are the South African National Editors’ Forum, the Freedom of Expression Institute, the Media Monitoring Project and the National Community Radio Forum.
The controversy is playing out in terms of the government’s desire to change Icasa’s appointments, financing and accountability systems. Thus, the ”Icasa Amendment Bill” being decided in Parliament this week proposes that the minister of communications chooses the regulator’s councillors, manages them and controls the purse strings.
The government claims these changes will depoliticise appointments, draw industry expertise into the selection process and generate the ”best” candidates for the job.
Civil-society groups want to keep Parliament at the heart of the appointment process and Icasa to self-fund through its licence fees. They reject the idea of Icasa councillors coming under performance management by the department of communications.
There are other positions between these two extremes — and other controversies around the Bill.
The second national operator (SNO), due to start competing with Telkom next year, calls the Bill an unconstitutional ”intrusion of the executive into the realm of regulation”, and it recommends an independent budget for the regulator.
But the SNO also suggests that Icasa’s accountability should be to a state department other than the line ministry setting communications policy. This could reduce conflicts of interest, such as where the communications ministry’s job includes promoting the government’s stake in Telkom (the major rival to the SNO).
Other phone companies don’t seem to care if, instead of Icasa being upgraded to the independence associated with broadcasting, the whole entity is levelled down to the dependent telecoms position. They’ve raised not a peep in objection.
What they are worked up about, however, is that the Bill allows public enquiries into licence compliance. Vodacom claims this could effectively constitute a ”trial by the media” or ”prosecution by public opinion”. Telkom, too, is less than enamoured of this provision.
Sentech is also bothered about public enquiries, saying the powers given to Icasa are draconian. It highlights clauses whereby the regulator can effectively subpoena individuals to testify and hand over evidence. The company has no objection to the government’s desired change to the appointments procedure.
It’s strange that these three groups worry about administrative power, and not the governance issues. But, in contrast, signal distributor Orbicom argues strongly that: ”Icasa, being required to regulate in the public interest, should be accountable to the public, and this can only be achieved if Icasa is accountable to Parliament and if councillors are appointed by the president, on the recommendation of Parliament.”
For this company, the appointment changes would compromise the personal and functional independence of authority because councillors would curry favour with the minister in order to secure their tenure of office.
Another industry player, Internet Solutions, takes a similar stand.
”In order for a regulatory authority to be viewed as being independent, it has to at least enjoy independence in terms of finance, structure and decision making from the operators it regulates and from the relevant government ministry [with] which it has to cooperate,” it says.
The National Association of Broadcasters (NAB) has a mixed view. It argues that the new appointments process would unconstitutionally convert Icasa into an arm of the government. It also notes that all other institutions in Chapter 9 (such as the South African Human Rights Commission) involve Parliament in the appointment of their governing bodies.
In addition, the NAB points to three pan-African documents that underline the importance of an independent regulator. But then the organisation goes on to say that it has ”no problem with the minister representing the executive branch of the government in making the formal appointments, provided that this follows a nomination, interviewing and short-listing process conducted by Parliament.
It’s likely that Parliament will choose a mixed position like the NAB’s, rather than upgrade the regulator to the independence of broadcast dispensation.
The result? Icasa will keep its name, but its independence will be with a lower-case ”i”.
That’s not as bad as the telecom regulatory tradition coming up tops. But averaging out the previous regimes in this way will produce a regulator that’s weak on autonomy and wobbly on credibility. It’s not what South Africa needs.