Remastered telecoms freedom
The communications department had probably landed itself in enough trouble with the higher reaches of government by the time work commenced on the Convergence Bill, to be receptive to radical reconceptualisation.
The effect of high connectivity costs on the economy are now common cause, while the effects on the provision of communication services for social purposes are less known but quite as bad.
The result could be close to telecoms “liberation”, as one tired MP called liberalisation close to midnight one night. We can look forward to a licensing and regulatory framework so much freer than the current regime. The sector is still adjusting to the mind shift.
There is pent-up capacity and entrepreneurship that could quickly achieve the broadband roll-out we need for social purposes, and which government has failed to provide. The City of Tshwane has been rolling out a backbone of fibreoptic and microwave links said to have huge amounts of spare capacity.
Supplemented with last-mile radio links, this could give schools in the metro broadband connectivity. Small-scale private telecommunications networks (PTN) such as the Ulwazi Project, operating from St Alban’s College under an experimental licence, are already practising virtual interactive and collaborative e-learning with schools in Mamelodi.
Johannesburg has identified broadband connectivity as a key determinant of development and taken the first steps towards being a digital city. In Western Cape, the local government information and telecommunications technology forum has pleaded that cities be allowed to connect their own communities by creating municipality-wide networks.
Under the new law, PTNs, such as the ones outlined above, will be licenceexempt, subject only to generally applicable terms and conditions where capacity is resold, and communications services provided by resellers will be exempt. Traditional licensing will apply only in the case of individual licences for any of the three new categories: electronic networks, electronic communications services and broadcasting services.
An individual licence is required only in certain cases such as commercial networks of national or provincial scope, and broadcasters operating on a national or regional footprint, for example. The rest are class licences, subject only to registration and generally prescribed terms and conditions relating to matters like interoperability and open access.
Value-added network services and internet businesses can finally build infrastructure and interconnect. They are a communications service such as any other. This is a huge breakthrough. The Electronic Communications Bill creates a vision of open access, interoperability and interconnection, making seamless communications possible.
There is a general obligation to interconnect and to lease facilities, including local loops and international facilities. This will occur on commercially negotiated terms, but because of the unequal conditions under which true competition must start, the regulator will be able to impose procompetitive measures including price controls on operators who have significant market power.
In other words, the promotion of competition in this field requires conduct regulation and remedies not provided by competition regulation. The tabled bill, to its credit, imported the concept of significant market power.
But remedies can only be imposed after the definition of markets, followed by analysis to establish significant market power. We asked the sector regulator and the competition regulator to come to an agreement: the result is a set of provisions that will ensure rigorous economic analysis before procompetitive steps are taken, and which also allow regulatory forbearance to avoid unnecessary intrusion on emerging markets.
All of this requires a shrewd, competent and independent regulator that enjoys the confidence of the sector. This is the case, especially where government remains a 38% shareholder of Telkom and a 30% shareholder of the second national operator; has retained the right in the new bill to determine when applications for major networks may be entertained; and moreover holds the view that the public broadcaster must give expression to government policy.
And that is where problems look set to arise: the twin bill without which the Electronic Communications Bill cannot be taken through its final stages is yet to be published. It is, however, an open secret that it will place the selection of the Independent Communications Authority of SA councillors in the hands of the executive instead of Parliament.
This is not only problematic, it raises — in respect of broadcasting — the same constitutional question, which has seen pitched battles between parliamentarians themselves in 1999, 2000 and 2002.
One justification will be that telecoms and broadcasting have converged — but this is not so. Broadcasting regulation has been brought into the new law, all but verbatim from old: the Independent Broadcasting Authority Act and those portions of the Broadcasting Act that do not govern the SABC.
We will not begin migrating to digital broadcasting until 2007, and the process will take at least a decade. Only at that point can the scarcity doctrine be taken under review. It is because of the scarcity of frequency that the licensing of broadcasters and diversity requirements are constitutionally justified. The broadcast regulator’s independence is enshrined in chapter nine because it is the guardian of free speech over the airwaves.
This is the moment when we should follow the African Union (AU) and place the independent guardianship and regulation of telecommunications alongside broadcasting: your access to telecoms determines your right to receive and impart information as part of your freedom of expression. As has been said of our continent, dictatorship or autocratic rule cannot survive the introduction of cellphone networks.
The AU Declaration of Principles on Freedom of Expression in Africa says the appointment process for a public authority that exercises powers in the areas of broadcast or telecommunications shall not be controlled by any particular political party. Why are we going in the opposite direction?
Business Day/Inet-Bridge
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