Regulation of the ICT sector

Provided by Kerron Edmunson Inc

By Kerron Edmunson

Topics Competition & Antitrust Law | Government, Politics & Policy | Media, Communications & Entertainment Law

12 Aug 2020

The primary regulatory authority of telecoms, broadcasting and postal services in South Africa is the Independent Communications Authority of South Africa (”ICASA”). ICASA is a statutory organisation, created under the ICASA Act, with additional powers and duties given to it under the Electronic Communications Act(“ECA”), Broadcasting and Postal Services Acts.

However, the sector is also regulated by the Competition Commission, which has concurrent jurisdiction over the The Information Communication Technology (“ICT”) sector by virtue of its national oversight over competition in the Republic.

The areas of jurisdiction of each tend to depend on whether a matter constitutes a merger of regulated entities, the acquisition of control, and anti-competitive conduct by licensees.

Even in this regard ICASA maintains an interest, but it is primarily a forward-looking regulator, with ex ante jurisdiction.

Objects to be considered by ICASA under sector law

These are numerous (26 in all) and include the promotion of diversity in broadcasting, the promotion of competition in the sector generally, convergence, encouraging investment, promoting open access and non-discrimination in the provision of both services and sharing facilities, promoting ownership of licences by black people, ownership of broadcasting services by South Africans, and ensuring choice and reasonable prices for consumers.

ICASA is required, as an administrator, to undertake regulatory impact assessments prior to implementing regulatory reforms. Public consultations on draft documents are considered by ICASA to address this requirement, however the impact assessment should ideally precede the drafting of any document. Negative financial and operational consequences for licensees are unfortunately all too common as a result.

The ambit of regulation

ICASA regulates technical matters such as type approval, spectrum (administration and licensing) and the allocation of numbers. ICASA is also responsible for licensing, compliance, monitoring, complaints, sanctions, and making regulations.

The Minister has a significant role in representing the Republic in international matters, approving the national frequency spectrum plan, and determining if a new individual network service licence may be granted by ICASA. The Minister determines policy for the sector and may give policy directions to ICASA on any matter.

The Competition Commission may recommend various remedies or regulatory interventions to ICASA, and may itself implement sanctions such as requiring retail and wholesale businesses to be split.

The sector has unfortunately been characterised by almost annual changes in the post of Minister, and a general lack of co-ordination, consistency, reliability, precedent and best practise at both the departmental and ICASA level.

National policy

The Minister published the National Integrated ICT Policy White Paper in 2016. Since that time, very little has changed in the market or in regulation, despite whole chapters being devoted to future restructuring of the market and the regulatory framework.

Other policy statements have been made including on the award of high demand spectrum and the reservation of spectrum for a new licensee in a category known as ‘wholesale open access’. The award process will take the form of a beauty contest for potential new entrants who want to assume this role.

A broadband policy was published in 2013 but the targets set in that policy have not been enforced or implemented in any way. Speed, coverage, price and availability of broadband services remain largely unregulated. The Competition Commission managed to extract some commitments from licensees in early 2020 in relation to the reduction of data prices (mostly below the 1GB bundle level) and the zero-rating of access to websites of public benefit organisations.