Convergence Bill - 01/03/2005

[dominic]

see http://www.mybroadband.co.za/vb/showthread.php?t=17954

the latest version of the Convergence Bill has been released and on a quick glance it appears to be significantly different from the original release (for a copy of the first Draft Convergence Bill visit www.internet.org.za)

i have put a copy of the new Bill at http://www.ictlaw.co.za/med/data/upfiles/20050301-DraftConvergenceBill.pdf (479 KB)

take the time to at least look through the index (below) and see what affects you

CHAPTER 1
INTRODUCTORY PROVISIONS
1. Definitions
2. Object of Act

CHAPTER 2
POLICY AND REGULATIONS
3. Ministerial Policies and Policy Directions
4. Regulations by Authority

CHAPTER 3
LICENSING FRAMEWORK
5. Licensing
6. Licence exemption
7. Prohibition of provision of service without licence
8. Terms and Conditions for Licences
9. Application and granting of individual licences
10. Amendment of individual licence
11. Renewal of individual licence
12. Surrender of individual licence
13. Transfer of individual licence or change of ownership
14. Suspension or cancellation of individual licence
15. Effect of suspension, cancellation, surrender or expiry of individual licence
16. Class Licences
17. Application for Registration of Class Licences
18. Refusal of Application for Class Licenses
19. Advanced notification to Authority

CHAPTER 4
COMMUNICATIONS NETWORKS AND COMMUNICATIONS FACILITIES
20. Application
21. Guidelines for Rapid Deployment of Communications Facilities
22. Entry upon and construction of lines across lands and waterways
23. Underground pipes for purposes of communications network service
24. Pipes under streets
25. Removal of communications network facilities
26. Fences
27. Trees obstructing communications network facilities
28. Height or depth of communications network facilities
29. Electrical works

CHAPTER 5
RADIO FREQUENCY SPECTRUM
30. Control of radio frequency spectrum
31. Radio frequency spectrum and radio spectrum licences
32. Control of possession of radio apparatus
33. Frequency coordination
34. Radio frequency plan

CHAPTER 6
TECHNICAL EQUIPMENT AND STANDARDS
35. Type approval
36. Technical standards for equipment and communication facilities

CHAPTER 7
INTERCONNECTION
37. Obligation to interconnect
38. Interconnection Regulations
39. Filing of interconnection agreements
40. Notification of interconnection disputes
41. Interconnection pricing principles

CHAPTER 8
COMMUNICATIONS FACILITIES LEASING
42. Obligation to lease communications facilities
43. Facilities Leasing Regulations
44. Filing of communications facilities leasing agreements
45. Notification of Communications facilities leasing disputes
46. Communications Facilities leasing rates
47. Rules regarding wholesale rates

CHAPTER 9
BROADCASTING SERVICES
48. Application
49. Prohibition on granting of broadcasting services licences to party political
entities
50. Record of programmes broadcast by broadcasting services licensees
51. Code of conduct for broadcasting services
52. Control over advertisements
Prohibition on broadcasting of party election broadcasts and political
advertisements except in certain circumstances
54. Broadcasting of party election on public broadcasting services
55. Political advertising on broadcasting services
56. Equitable treatment of political parties by broadcasting services licensees
during election period
57. Restriction on subscription broadcast services
58. Broadcast services objectives
59. Application of Act

CHAPTER 10
CONSUMER ISSUES
60. Code of Conduct and Customer Service Charter
61. Retail and Wholesale tariffs

CHAPTER 11
GENERAL
62. Information Communication Technology for government and other related
services
63. Competition matters
64. Offences and penalties
65. Numbering plans and number portability
66. Directory services
67. Carrier pre-selection
68. Establishment of Emergency Centres
69. Functions of 112 Emergency Centres
70. Public emergency number
71. Standards capabilities and operating procedures of 112 Emergency Centres
72. Licences granted in terms of IBA Act and Broadcasting Act

CHAPTER 12
UNIVERSAL SERVICE AGENCY
73. Establishment of Universal Service Agency
74. Functions of Agency
75. Head and staff of Agency
76. Financing of Agency
77. Banking account
78. Annual and other reports
79. Establishment and control of Universal Service Fund
80. Application of money in Universal Service Fund
81. Contributions to Universal Service Fund
82. Competitive tender for universal service projects
83. Accounts of Universal Service Fund

CHAPTER 13
TRANSITIONAL PROVISIONS
84. Existing licences
85. Licence conversion
86. Conflicts
87. Existing regulations
88. Repeal and amendment of laws
89. Short title and Commencement

 

[hArTh]

Dominic ... Do you think this will result in real liberalisation?

 

[dominic]

Dominic ... Do you think this will result in real liberalisation?

i need to get to grips with it but already it appears that the Act vests far more authority in the minister & it seems to create a licencing requirement for people who provide content through an "application"

‘‘applications’’ means any technological intervention by which value is added to
a communication network service which includes the—
(a) manipulation;
(b) storage;
(c) retrieval;
(d) distribution;
(e) creation; and
(f) combination,
of content, format or protocol, for the purpose of making such content, format or
protocol available to customers;
‘‘applications services’’ means a communications service provided by means of
applications;
‘‘application service licensee’’ means a person licensed to provide applications
services;

this is crazy! i have a very real fear that the Bill as it stands will do anything but liberate...that is why it is so important for everyone to get involved

 

[stoke]

Object of Act:
(f) promote an environment of open, fair and non-discriminatory access to
communication networks;
(g) promote the empowerment of historically disadvantaged persons;

Contradiction?

(r) promote the development of public, commercial and community broadcasting
services which are responsive to the needs of the public;

Good - we need to be able to setup our own networks on a public channel. There must be a section in the rest of the document to facilitate this. I'll see if I can find it.

(v) ensure that commercial and community broadcasting licences, viewed
collectively, are controlled by persons or groups of persons from a diverse
range of communities in the Republic;

Rodent is the most diverse person in the Republic, therefore Rodent must have a broadcast licence and the governmint must pay for it. LOL.

Anyway - the objectives must be met, otherwise the draft cannot be approved. This is our angle of attack.
Takes out magnifying glass, reheats the cold coffee and begins the understanding processs...

 

[stoke]

Looking for:
- Something to stop Teklom/SNO from "stealing" services provided by SMME's.
- Something to ensure that some services may not be provided by Teklom/SNO.
- If we have to use their infrastructure, and only their infrastructure, then they have to provide that infrastructure when we require it.
- If they cannot provide the infrastructure, then we may setup our own infrastructure.
- If we need infrastructure, and cannot afford their infrastructure, then we may setup our own infrastructure.

 

[mystic]

One of the key paragraphs seems to be 5.(4):

(4) The Authority may only accept and consider applications for communications
network services licences as from a date to be fixed by the Minister by notice it the
Gazette.

This obviously means that VANS won't be able to self-provide their own network infrastructure until the minister decides so. Also no TNO, FNO etc before such a date.

At least they now changed the bill so that just having a web site doesn't require a license as was the case in the previous draft:

‘‘communications service’’ means any service provided in terms of this Act or
related legislation which is normally provided for remuneration to—
(a) the public;
(b) sections of the public; or
(c) the subscribers to such service,
and consists wholly or mainly of the conveyance of communications over
communications networks, including transmissions over communications networks
used for broadcasting, but <<excluding content services>>;

 

[stoke]

Removal of communications network facilities
25. (1) If a communications networks services licensee finds it necessary to move any
communications facility, pipes, tunnels or tubes constructed upon, in, over, along, across or under any land, railway, street, road, footpath or waterway, owing to any alteration of alignment or level or any other work on the part of any public authority or person, the cost of the alteration or removal must be borne by that local authority or person.

Bull !!! Why must my municipality/me pay 100% of the costs to move one of their lines. Howz about 50/50 ? Also, who pays for the loss of profit while the move happens? This is potentially a HUGE stumbling block in advancement / development in a community.

.
.
.

(6) If, in the opinion of the communications network services licensee the deviation or alteration is justified, the licensee may bear the whole or any part of the said cost.

Not strict enough. Too many "may and could and should"'s. Surely a communications cable on my land that is preventing me from expanding my house must definately be removed by the owner of the cable. It's my land.

 

[dominic]

At least they now changed the bill so that just having a web site doesn't require a license as was the case in the previous draft:

‘‘communications service’’ means any service provided in terms of this Act or
related legislation which is normally provided for remuneration to—
(a) the public;
(b) sections of the public; or
(c) the subscribers to such service,
and consists wholly or mainly of the conveyance of communications over
communications networks, including transmissions over communications networks
used for broadcasting, but <<excluding content services>>;

..i think communications service licencees will replace the current VANS licencees...have a look at the definitions of applications, application services together with those for content and content services...these form the basis of a new category of "application service providers" who will also need to be licensed

i need to spend time with the Bill to get a complete understanding, but i do not like that

 

[stoke]

Restriction on subscription broadcast services
57. (1) Subscription broadcasting services may not acquire exclusive rights for the
broadcast of national sporting events, as identified in the public interest from time to
time by the Authority in consultation with the Minister of Sport and in accordance with
the regulations prescribed by the Authority.

He He He. Take that DSTV.
Pity it's only national though. Sigh.

 

[stoke]

62.(1) The Director-General must establish and manage a museum that depicts the
evolution and the history of the communications and ICT sectors in South Africa.
...
(3) The content of the museum housed in the Telkom Museum on Telecommunication
History must be transferred to the museum established in terms of subsection (1).

Great - another couple of millions on a muzeum. If the Teklom museum belongs to teklom, then they are going to have to buy the contents from teklom. LOL.

 

[stoke]

Competition matters
63.(5) It is considered an anti-competitive practice for any licensee to prohibit, lock,
block or otherwise prevent any end user equipment from being used with any licensed
communications service.

This clause should include the effects of shaping on a service. e.g. SNO/Teklom shaping VOIP so that only 2 or 3 calls can be made is still classified as blocking the service.

 

[stoke]

Offences and penalties
64. (1) Any natural person who contravenes or fails to comply with a provision of this
Act or of the related legislation is guilty of an offence and is liable on conviction to a fine
not exceeding R500 000,00 or imprisonment for a period not exceeding one year or to
both such fine or such imprisonment.
(2) Any juristic person or licensee who contravenes or fails to comply with a
provision of this Act or of the related legislation is guilty of an offence and is liable on
conviction to a fine not exceeding the greater of R1 000 000,00 or 10% of the juristic
person’s or licensee’s annual turnover for every day or part thereof during which the
offence is continued.

I can approach a life-sentence'd prizner, and get that person to setup a broadband company that breaks all the rules, but runs at zero profit.

 

[dominic]

62.(1) The Director-General must establish and manage a museum that depicts the evolution and the history of the communications and ICT sectors in South Africa.

evolution? small room under the stairs should do it

 

[hArTh]

this is crazy! i have a very real fear that the Bill as it stands will do anything but liberate...that is why it is so important for everyone to get involved

*lots of filthy swear words*

*wipes a tear away*

[anguish]How the can the government do this to us???[/anguish]

 

[dominic]

8(3) The Authority may prescribe additional terms and conditions that may be applied to one or more licensees within a category of individual or class licences or across individual or class categories, where the Authority finds that a particular licensee within such categories, in the market or market segments applicable to the particular category
of licence—
(a) has significant market power;
(b) has control of essential facilities;
(c) should have a universal access and service obligation imposed; or
(d) is vertically integrated and the Authority determines such vertical integration
could harm competition in the market or market segments applicable to the
particular category of licence.

(4) A licensee is considered to have significant market power in relation to a market
or sub market if the licensee enjoys a position within such market or market segments
which amounts to or is equivalent to dominance of the market or market segments.

(5) A licensee is considered to be dominant in a market or sub market if that
licensee—
(a) has a market share equal to or in excess of 35%; or
(b) individually or in combination with other licensees, by reason of its or, their,
position in a closely related market, allows the market power held in the
closely related market to be used in a way that adversely affects or influences
the first market or market segments.

(6) The additional terms and conditions contemplated in subsection (3) may
include—
(a) an obligation to act fairly and reasonably in the way in which the licensee
responds to requests or interconnection and facilities leasing;
(b) a requirement that the obligations contained in the licence terms and
conditions must be complied with within the periods and at the times required
by or under such terms and conditions, failing which a penalty may be
imposed;
(c) a prohibition against discriminating in relation to matters connected with
interconnection and facilities leasing or with the provision of communications
network services and communications services;
(d) an obligation requiring the licensee to publish, in such manner as the
Authority may direct, all such information for the purpose of ensuring
transparency in relation to—
(i) interconnection and facilities leasing; or
(ii) the provision of communications network services and communications
services;
(e) an obligation to publish, in such manner as the Authority may direct, the terms
and conditions for—
(i) interconnection and facilities leasing; or
(ii) the provision of communications network services and communications
services which may take the form of a reference offer;
(f) an obligation to maintain a separation for accounting purposes between
different matters relating to—
(i) interconnection;
(ii) facilities leasing; and
(iii) the provision of communications network services and communications
services;
(g) a requirement relating to the accounting methods to be used in maintaining the
separation of accounts referred to in paragraph (f);
(h) such price controls, including requirements relating to the provision of
wholesale and retail prices in relation to matters connected with the provision
of—
(i) interconnection and facilities leasing; or
(ii) communications network services or communications services;
(i) matters relating to the recovery of costs and cost orientation; and
(j) with regard to broadcasting services, the appropriate amount of South African
programming, including—
(i) music content;
(ii) news and information programmes; and
(iii) where appropriate, programming of local or regional significance.
(7) In prescribing the terms and conditions for each type of individual or class licence,
the Authority must have regard to the need to create and maintain a competitive
environment in the communications sector.

there is definite potential here - telkom's licences (PSTN and VANS) are going to have to be reissued and then we will have to see to what extent ICASA has the will to impose some of the above conditions in the new licence...(h) price controls????

 

[kaspaas]

''applications'' means any technological intervention by which value is added to
a communication network service which includes the-
(a) manipulation;
(b) storage;
(c) retrieval;
(d) distribution;
(e) creation; and
(f) combination,
of content, format or protocol, for the purpose of making such content, format or
protocol available to customers;
''applications services'' means a communications service provided by means of
applications;
''application service licensee'' means a person licensed to provide applications
services;

This is a description of what a web server does. As well as an e-mail server. As well as...

 

[reech]

''applications'' means any technological intervention by which value is added to
a communication network service which includes the-
(a) manipulation;
(b) storage;
(c) retrieval;
(d) distribution;
(e) creation; and
(f) combination,
of content, format or protocol, for the purpose of making such content, format or
protocol available to customers;
''applications services'' means a communications service provided by means of
applications;
''application service licensee'' means a person licensed to provide applications
services;
This is a description of what a web server does. As well as an e-mail server. As well as...

- indeed this seems to be a very broad definition - and a very worrying attempt to legislate/regulate *everything* done over the internet in ZA - and is wholly contrary to the notion of 'deregulation'.

 

[dominic]

and you will need apply (money) for a licence in order to run that web server etc etc & if you are a developer and if you are just an ordinary person running your own blog (?)...best to see how this is going to pan out as there is no way they can actually intend to try and do this...too many unintended consequences

surely surely not

 

[mystic]

Found this near the end of the document: par 85 (3) (h)

(h) Value-added network services are applications services under this Act.

So VANS will have to apply to become applications service licensees.

 

[qdada]

This wont work.

So basically this would make it illegal to enable apache or iis on your broadband connection ?