R4tt3xx said:
only have a print version
some more comments - my take on a very quick read through
[all premature given that it is still a work in progress but just for general info at this stage]
1. The amendments appear to be substantial. On an extremely quick viewing it appears that the effect of the proposed amendments is positive and that a great deal of the input received from industry has been taken into account.
2. The controversial “application service” licence provisions have been removed from the Bill in their entirety along with references to “applications”. Given the scope for confusion and the impossibility of performance which this licence category presented this is to be welcomed.
3. The references to “content services” and the definition of content have been deleted in their entirety. This was predictable despite the controversy stirred up within the market place that the Bill would seek to regulate content. Hopefully these arguments will now be put to bed and the Bill will be properly constructed to deal with the means of conveyance of content and not the content itself.
4. Aside from the deletion of the application service licence category it appears that the remaining licence categories have been substantially amended. Detailed analysis of the amendments and the effect thereof will be required. The dichotomy between class and individual licences has been retained and the policy of “managed liberalisation” is reinforced in that the Authority may only consider applications for individual communications network services licences after the issuing of a policy determination by the Minister (previously a date to be fixed by the Minister in the Gazette).
5. It appears that competition issues insofar as they are dealt with by the Bill have been amended so as to create consistency between the Bill and the competition legislation. For example definitions of the terms “market power” and “dominant” have been inserted to clarify that these terms shall have the same meaning as they are accorded under the Competition Act. This appears to be in line with the submissions of the Competition Authorities in response to the release of the Bill earlier this year.
The chapter on competition matters has been completely redrafted to included clauses suggested by the Competition Commission.
6. The definition of “interconnection” has been substantially broadened. Whereas interconnection was previously mooted as meaning interconnection between the communications networks of two communications network service licencees it is now defined as meaning the “physical or logical linking of two or more communications networks [of] communications services, broadcasting services, services provided pursuant to a licence exemption or any combination thereof”. This is to be welcomed.
7. As regards the division of competencies between the Ministry and ICASA there does not appear to have been any substantial reworking other for the fact that the power of the Minister to issue policy directions is now discretionary BUT it is now mandatory for her to consult ICASA before issuing the direction. While there is still no requirement for ministerial approval of regulations issued by ICASA the latter is now obliged to inform the Minister that it intends to make regulations at least 30 days prior to doing so.
It is worthwhile noting the DA proposal that restricts the Minister’s ability to make policy or issue policy directions where this will interfere with the independence of ICASA or otherwise affect its powers and duties. Given the history of the relationship between the Ministry and the Regulator this would be welcomed.
