ICASA hamstrung by legal black hole

On 31 March 2011, the Independent Communications Authority of South Africa (ICASA) published the new Radio Frequency Spectrum Regulations in the Government Gazette. The ink had hardly dried on the document when ICASA received a flurry of complaints about mistakes and inaccuracies. Now a year later the corrections still have to be published in the Government Gazette. Apparently this is being held up by the legal department.

It is a reason frequently given by many ICASA officials as to why projects are being delayed. “It is with legal”. One gets the feeling that the legal department runs ICASA and not the council, the chairperson or the CEO. One of ICASA’s employees said recently in total frustration that once you send something to “legal” it is never seen again!

Take the Radio Frequency Spectrum Regulations. These have been years in coming. Outside consultants were appointed to assist with the document and finally the first draft was published for comment in the Government Gazette on 29 September 2010. Public hearings were held on 1 and 2 December 2010 at which many companies and institutions presented their views and suggested changes supported by extensive documentation. At the time ICASA had planned to release a second draft but this decision was later reversed and it went ahead and published the final regulations.

One can’t but wonder – where did things go wrong? Several clauses which were not disputed at the public hearings were arbitrarily changed, making ICASA seem incompetent. Even the experts in ICASA who spent years on the draft were utterly dismayed. They had not been consulted. The changes were made by the legal department. Is it an exaggeration to say that this department is holding the regulatory body – and for that matter, the industry – to ransom?

One of the more absurd examples of this are the errors in the table of frequency allocations for amateur radio. The table was correct in the draft regulations and met the requirements as laid down in the national table of frequency allocations, which is aligned with the ITU table of frequency allocations. No one in ICASA seems to know where the errors were made.

Over the past year many of the corrections were agreed upon and were ready for publication in the Government Gazette. But no, the legal department decreed that all the corrections had to be published at the same time in one Government Gazette.

How long this will take no one knows. One of the regulations concerning fees is being disputed by a mobile operator and is being contested in court. Again, it is anyone’s guess how long this may take.

There are many issues in industry such as frequency allocations for international mobile telecommunications services that just seem to drag on forever. One can’t help but wonder if the legal department is also holding this up.

Talking to some of the experts at ICASA (yes there are experts) one can sense their utter frustration at not being able to get on with what they know is the right way of dealing with issues.

It is high time for both the council and chairperson of ICASA to take action and set strict, non-negotiable timelines for the legal department to adhere to.

The industry and country cannot be held to ransom any longer.

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ICASA hamstrung by legal black hole