December 2011 was a remarkably busy end to the year for telecommunications and broadcasting in 2011. It has been an equally busy start to 2012.

Both the Minister of Communications and the Independent Communications Authority of South Africa (ICASA) have gazetted a number of notices in recent months. Proposed amendments to legislation and invitations to apply for new licences have the potential to change the industry landscape.

High Demand Spectrum

Most noteworthy of the notices published are those published by both the Minister and ICASA on high demand radio frequency spectrum. ICASA published a notice in December 2011 calling for representations on its draft spectrum assignment plan for the combined licensing of the 800MHz and 2.6 GHz bands. Comments were due on 29 February 2012.

Prior to making submissions on ICASA’s draft spectrum assignment plan, many operators questioned the need to respond to ICASA’s notice as the Minister was still consulting on high demand spectrum having published a further consultation document on the matter on 1 February 2012.

ICASA did not acquiesce to calls from the industry to postpone its consultation process on high demand spectrum and 20 operators filed substantial representations on the proposed band plan. Most of these representations, particularly those from the major mobile cellular operators, were harshly critical of ICASA’s band plan, which is seen by the operators as being arbitrary and a recipe for failure.
Much to the frustration and ire of the industry, ICASA, on 5 March 2011, announced that it was postponing licensing until "further notice" to ensure that the Minister’s policy direction on high-demand spectrum, once finalised, could be taken into consideration. Operators had until last Wednesday to file submissions on ICASA's proposed frequency allocation and allocation plan.

Budget 2012: estimates of national expenditure

According to the Budget 2012, the Minister has now set March 2013 as a deadline for the tabling of another Electronic Communications Act Amendment Bill. Apparently the proposed amendments will clarify the role and strengthen the powers of ICASA, improve turn-around times, deal with policy on ownership and control, revise the role of the Minister and ICASA in respect of spectrum management, refine licensing issues and improve competition provisions. The Bill is to be released for public comment during the first quarter of 2012.
Also to be tabled in parliament by March 2013 are amendments to the Independent Communications Authority of South Africa Act and the Post and Telecommunications-Related Matters Amendment Bill.

Like the Electronic Communications Act Amendment Bill introduced in November 2011 and withdrawn shortly thereafter, the 2010 Independent Communications Authority of South Africa Amendment Bill suffered from a number of proposed provisions that would constrain the independence of the regulator. Hopefully the new Bills will not seek to infringe on ICASA’s constitutionally protected independence.
The 2012 budget documents have also set March 2012 as the deadline by which a draft broadcasting policy should be available for public comment.

End User Subscriber Service Charter Reporting Format

In order to give context to the reporting requirements under the Minimum Standards for End-User and Subscriber Service Charters Regulations published in 2009, ICASA has now prescribed the format to be used when reporting.
All compliance reports due after 30 January 2012 must now be submitted in the new format. Compliance reports are due every six months calculated from the first month after financial year end.

Numbering Regulations

The current Numbering Plan Regulations were prescribed in 2005 in terms of the Telecommunications Act shortly before the Electronic Communications Act came into effect. Consequently, the regulations which refer to licensing categories that no longer exist, are at odds with the Electronic Communications Act.

In 2010, ICASA published a draft numbering plan and public hearings were held in August of 2010. Since then no progress has been made with the numbering plan. Now it seems that moves are afoot to finalise the numbering plan.
On 2 March 2011, ICASA published additional clauses to be included in the proposed new Numbering Plan Regulations which provide that within two years of the regulations coming into force all numbers used for machine related services must be migrated to machine related numbers in defined dedicated number ranges.
Comments are due on 18 April 2012.

A Review of the Broadcasting Regulatory Framework

The switch-over of broadcasting from analogue to digital terrestrial television is presently scheduled to take place in 2013. As a signatory to the International Telecommunication Union, South Africa has agreed to migrate all terrestrial television services to digital multiplexes in time for the analogue switch-off date of 1 June 2015. After this date, countries’ television signals will not be protected against interference.

ICASA has identified the need to review the current analogue technology-based broadcasting regulatory framework and has therefore published an Issues Paper on the review of the broadcasting regulatory framework. The review and its outcome will affect all licensed broadcasting services in South Africa. The aim of the Issues Paper is to answer identified questions and ensure the introduction of a new regulatory framework that supports the development of broadcasting services in the digital area.
The Issues Paper is open to public comment until 16 March 2012.

Invitations to apply for Broadcasting service licences

ICASA has invited applications for a number of broadcasting licences:

• Applications for commercial free to air sound broadcasting licences the geographical markets of the Eastern Cape, Northern Cape and Free State Provinces (secondary markets) close 27 June 2012.
• Applications for the provision of individual commercial free to air sound broadcasting service licences for the geographic markets of Gauteng and the metropolitan areas of Cape Town and Durban (primary markets) close on 4 July 2012.
• Applications for individual commercial subscription broadcasting licences. The invitation to apply does not specify how many licences are to be awarded. Applications close on 11 July 2012.

Written by Kathleen Rice, Director, and Kellie-Kirsty Hennessy, Candidate Attorney, Technology, Media and Telecommunications practice, Cliffe Dekker Hofmeyr