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PRESENTATION TO PARLIAMENTARY PORTFOLIO COMMITTEE ON THE ICASA BILL BY SENTECH LIMITED 24 th October 2005
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PRESENTATIONTO
PARLIAMENTARY PORTFOLIO COMMITTEE
ON THE ICASA BILL
BYSENTECH LIMITED
24th October 2005
2
SENTECH TEAM
• Chief Operating Officer: Mr Gladwin Marumo
• Executive: Regulatory &Government Mr Dingane Dube
• Specialist: Government Mr Matime Nchabeleng Relations
3
EXECUTIVE OVERVIEW
• Additional powers and functions of ICASA
• Inquiries undertaken by ICASA
• Complaints and Compliance Committee
• Constitution and Appointment of Councillors
• Delegation
• Confidentiality
• General
4
ADDITIONAL POWERS AND FUNCTIONS
• ICASA’s powers to be widened to make it the regulator of –
• All communications services• Postal services• Electronic communications and transactions
services
• Powers will be derived from –
• Electronic Communications Bill• Broadcasting Act• Postal Services Act• Electronic Communications and Transactions Act
(“ECT Act”)• ICASA Act
5
ADDITIONAL POWERS AND FUNCTIONS
• ICASA currently has vested powers under the Telecommunications Act, Independent Broadcasting Act and Broadcasting Act to regulate broadcasting and telecommunications
• Powers to regulate broadcasting and communications will continue under the Electronic Communications Bill
• ICASA currently has no authority to act as regulator for postal services or electronic transactions and communications
6
ADDITIONAL POWERS AND FUNCTIONS
• The ECT Act and Postal Services Act will have to be amended to vest ICASA with the powers to regulate postal services and electronic communications and transactions
• The Postal Services Act and the ECT Act will have to be amended to clearly show which powers will be transferred to ICASA and which will be retained by the Minister, Director-General or Domain Name Authority
• The required amendments must be done prior to or simultaneously with the promulgation of the ICASA Act
7
ICASA INQUIRIES
• Existing powers of ICASA to conduct inquiries under the Telecommunications Act and the IBA Act must not be lost and ICASA must be able to conduct inquiries into –
• the performance of its functions
• issues which affect consumers
• The procedure for inquiries should be detailed in the ICASA Act or in regulations and should not be subject to the discretion of the presiding officer
8
ICASA INQUIRIES
• The rights given to ICASA under section 4C(2) are inappropriate to the extent that they may compel participation and attendance at public hearings on proposed regulations and other inquiries into sector activities
• There is a danger that section 4C(2) will discourage open discussion and debate and may even result in animosity towards ICASA and amongst operators
• Section 4C(2) should be limited in application and confined to the investigation of licence or statutory contraventions
• There must be a requirement to only hold in camera inquiries under exceptional circumstances
9
COMPLAINTS AND COMPLIANCE COMMITTEE
• Qualified independent persons from the communications industry should be appointed to the Complaints and Compliance Committee
• Complaints and Compliance Committee to consist of permanent and temporary members
• Grounds for disqualifications should be the same as those in section 6(1)(a) to (l) of the Bill
10
COMPLAINTS AND COMPLIANCE COMMITTEE
• Minimum time periods for the investigation of complaints should be imposed on the Complaints and Compliance Committee
• Investigation and reporting of all complaints should be done within 60 days
• Limited time period for the lodgement of complaints should be extended to 90 days
11
COMPLAINTS AND COMPLIANCE COMMITTEE
• Complaints and Compliance Committee must be empowered to investigate and adjudicate consumer complaints
• Procedural rules for the investigation and hearing of complaints should be detailed in the ICASA Act or in regulations
• Procedures for the bringing of urgent interim relief applications should be included
• The sanctions which ICASA is authorised to impose must be specified
12
CONSTITUTION ANDAPPOINTMENT OF COUNCILLORS
• Not clear whether the term “Councillor” is inclusive of the chairperson
• ICASA Bill must be amended to reflect that all provisions applicable to Councillors will be applicable to the chairperson otherwise there will be no provisions dealing with –
• the basis upon which the chairperson is entitled to resign
• the suspension or removal from office of the chairperson
13
CONSTITUTION ANDAPPOINTMENT OF COUNCILLORS
• The ICASA Bill does not contain any procedures in respect of the right to remove Councillors and this must be addressed
• A right to suspend Councillors pending their removal from office should also be included in the ICASA Bill
14
DELEGATION
• Council’s right to delegate its powers and functions should be limited as follows –
• the power to make regulations should not be subject to any form of delegation
• the power to grant, renew, amend or transfer any individual licence should only be capable of being delegated to a Councillor or to a Committee of Council
• Where powers, functions or duties are delegated to the CEO that power, function or duty should be capable of being performed by any other staff member authorised by the CEO
15
CONFIDENTIALITY
• The confidentiality obligations imposed on ICASA must be widened to include information pertaining to business activities, intellectual property, strategic objectives, market positioning and commercial agreements subject to confidentiality undertakings
• Non-disclosure obligations should be extended to material which becomes lawfully part of the public domain
• All Councillors, employees, consultants and experts should be required to adhere to confidentiality obligations
16
GENERAL
• The register of licences kept by ICASA should include all approvals and certifications as well as a list of all formal documents maintained by licensees (i.e. spectrum assignments and ownership and control reports)
• The ICASA Bill should be amended to allow for appointed inspectors to investigate licence and statutory contraventions
• Appointed inspectors should also be allowed to investigate the illegal or unlicensed provision of broadcasting or communication services
17
Thank you
PRESENTATIONTO
PARLIAMENTARY PORTFOLIO COMMITTEE
ON THE ICASA BILL
BYSENTECH LIMITED
24th October 2005
19
SENTECH TEAM
• Chief Operating Officer: Mr Gladwin Marumo
• Executive: Regulatory &Government Mr Dingane Dube
• Specialist: Government Mr Matime Nchabeleng Relations
20
EXECUTIVE OVERVIEW
• Additional powers and functions of ICASA
• Inquiries undertaken by ICASA
• Complaints and Compliance Committee
• Constitution and Appointment of Councillors
• Delegation
• Confidentiality
• General
21
ADDITIONAL POWERS AND FUNCTIONS
• ICASA’s powers to be widened to make it the regulator of –
• All communications services• Postal services• Electronic communications and transactions
services
• Powers will be derived from –
• Electronic Communications Bill• Broadcasting Act• Postal Services Act• Electronic Communications and Transactions Act
(“ECT Act”)• ICASA Act
22
ADDITIONAL POWERS AND FUNCTIONS
• ICASA currently has vested powers under the Telecommunications Act, Independent Broadcasting Act and Broadcasting Act to regulate broadcasting and telecommunications
• Powers to regulate broadcasting and communications will continue under the Electronic Communications Bill
• ICASA currently has no authority to act as regulator for postal services or electronic transactions and communications
23
ADDITIONAL POWERS AND FUNCTIONS
• The ECT Act and Postal Services Act will have to be amended to vest ICASA with the powers to regulate postal services and electronic communications and transactions
• The Postal Services Act and the ECT Act will have to be amended to clearly show which powers will be transferred to ICASA and which will be retained by the Minister, Director-General or Domain Name Authority
• The required amendments must be done prior to or simultaneously with the promulgation of the ICASA Act
24
ICASA INQUIRIES
• Existing powers of ICASA to conduct inquiries under the Telecommunications Act and the IBA Act must not be lost and ICASA must be able to conduct inquiries into –
• the performance of its functions
• issues which affect consumers
• The procedure for inquiries should be detailed in the ICASA Act or in regulations and should not be subject to the discretion of the presiding officer
25
ICASA INQUIRIES
• The rights given to ICASA under section 4C(2) are inappropriate to the extent that they may compel participation and attendance at public hearings on proposed regulations and other inquiries into sector activities
• There is a danger that section 4C(2) will discourage open discussion and debate and may even result in animosity towards ICASA and amongst operators
• Section 4C(2) should be limited in application and confined to the investigation of licence or statutory contraventions
• There must be a requirement to only hold in camera inquiries under exceptional circumstances
26
COMPLAINTS AND COMPLIANCE COMMITTEE
• Qualified independent persons from the communications industry should be appointed to the Complaints and Compliance Committee
• Complaints and Compliance Committee to consist of permanent and temporary members
• Grounds for disqualifications should be the same as those in section 6(1)(a) to (l) of the Bill
27
COMPLAINTS AND COMPLIANCE COMMITTEE
• Minimum time periods for the investigation of complaints should be imposed on the Complaints and Compliance Committee
• Investigation and reporting of all complaints should be done within 60 days
• Limited time period for the lodgement of complaints should be extended to 90 days
28
COMPLAINTS AND COMPLIANCE COMMITTEE
• Complaints and Compliance Committee must be empowered to investigate and adjudicate consumer complaints
• Procedural rules for the investigation and hearing of complaints should be detailed in the ICASA Act or in regulations
• Procedures for the bringing of urgent interim relief applications should be included
• The sanctions which ICASA is authorised to impose must be specified
29
CONSTITUTION ANDAPPOINTMENT OF COUNCILLORS
• Not clear whether the term “Councillor” is inclusive of the chairperson
• ICASA Bill must be amended to reflect that all provisions applicable to Councillors will be applicable to the chairperson otherwise there will be no provisions dealing with –
• the basis upon which the chairperson is entitled to resign
• the suspension or removal from office of the chairperson
30
CONSTITUTION ANDAPPOINTMENT OF COUNCILLORS
• The ICASA Bill does not contain any procedures in respect of the right to remove Councillors and this must be addressed
• A right to suspend Councillors pending their removal from office should also be included in the ICASA Bill
31
DELEGATION
• Council’s right to delegate its powers and functions should be limited as follows –
• the power to make regulations should not be subject to any form of delegation
• the power to grant, renew, amend or transfer any individual licence should only be capable of being delegated to a Councillor or to a Committee of Council
• Where powers, functions or duties are delegated to the CEO that power, function or duty should be capable of being performed by any other staff member authorised by the CEO
32
CONFIDENTIALITY
• The confidentiality obligations imposed on ICASA must be widened to include information pertaining to business activities, intellectual property, strategic objectives, market positioning and commercial agreements subject to confidentiality undertakings
• Non-disclosure obligations should be extended to material which becomes lawfully part of the public domain
• All Councillors, employees, consultants and experts should be required to adhere to confidentiality obligations
33
GENERAL
• The register of licences kept by ICASA should include all approvals and certifications as well as a list of all formal documents maintained by licensees (i.e. spectrum assignments and ownership and control reports)
• The ICASA Bill should be amended to allow for appointed inspectors to investigate licence and statutory contraventions
• Appointed inspectors should also be allowed to investigate the illegal or unlicensed provision of broadcasting or communication services
34
Thank you
35
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Thank you
