OVERVIEW OF THE ICT POLICY WHITE PAPER, 2016
Chapter 13 of the White Paper, perhaps aptly so, sets out various high-minded principles and objectives for “institutional frameworks” related to or involved in the sector. It notes three in particular:
The Minister then proceeds to list out a number of interventions aimed at addressing some “identified challenges while considering the new policy approaches identified throughout this White Paper”. The “challenges” enumerated in this chapter are said to be “the lack of co-ordination of different public entities, duplication of resources and inefficient and ineffective regulation”. In other chapters the Minister points out other deficiencies in various administrative bodies and also proposes some solutions.
Here is a summary:
Although these issues are been addressed in earlier chapters of the Policy in detail, a short analysis is included here as follows:
The unnamed sector regulator, will be responsible for implementing “pay or play” obligations for licensees – in consultation with the Minister. The sector regulator will also have to “implement” the open access policy in line with the Policy and monitor performance against objectives set. Continuing to discuss this in section 13.4.2, the Minister seems to have simply duplicated the existing arrangements for USAASA and changed the name of the fund and suggested physically merging it with USAASA, calling both the Digital-DF. In essence the arrangements are otherwise as they appear in Chapter 14 of the ECA other than at some stage in the future the Minister of Finance’s advice will be sought on how to structure the governance of the Digital-DF. After all the years of consultation on this aspect, this is nothing special. In point of fact, it was not Chapter 14 of the ECA which deals with USAASA that didn’t work, nor the USAF, but the implementation of that Chapter that appears to have been flawed. This may be a classic case of throwing the baby out with the bath water.
In a new section of the Policy the Minister identifies gaps in governance, duplication of roles and overlaps in addition to insufficient governance in relation to the internet as problematic. Within the same section the Policy seeks to distinguish between regulation needed for (i) infrastructure and networks, equality to access of services, fair competition, consumer protection and administrative justice, and (ii) broadcasting by reason of the Constitutional differences between the two. What is meant is no doubt that the Constitution only deals with broadcasting by name, but of course regulation is still required even in broadcasting, of networks, access, consumers and administrative justice is just as applicable.
The Policy moves on to talk about the need to consolidate regulation across the “internet and ICT value chain”. Apparently this is going to be integrated within one regulator, whilst broadcasting content regulation (but not broadcasting) will be dealt with in some other unspecified way when some more consideration has taken place, including about Constitutional rights of freedom of expression. So convergence, about which much is made in the Policy, would seem not to extend to regulation.
This new integrated (but not for broadcasting) regulator will also take over the .zaDNA responsibilities and all of USAASA’s regulatory roles (USAASA has no such roles), and as an afterthought, postal services. The regulator will need to “protect the Open Internet including ensuring net neutrality”.
The new regulator has quite a few new responsibilities which include accreditation of internet authentication providers and cryptography providers – previously a role of the Minister under the Electronic Communications and Transactions Act, 2002, also noticeable only because of the absence of any mention of it.
At no point does the Policy say there will be no more ICASA but it seems obvious that this is the intention.
Despite the very obvious intention for government to claw back for itself more control over the sector and regulation, section 126.96.36.199 doffs its hat at independence in relation to administration and regulation of ICTs, and apparently in line with international best practise, this regulator will be “solely responsible for fulfilling its licensing and regulatory responsibilities within the policy framework set by Government”. But the Policy also states that “the regulator must apply the policy framework set by Government”.
Law will apparently deal with policy directions which, as is currently the case, will not be concerned with licensing. This flies in the face of the directions to ICASA to license a WOAN under the ECA, because the ECA precludes the Minister from issuing policy directions on licensing. The Policy goes further to state, in a manner that could give great cause for concern, that “the regulator will be required to timeously act on such directions unless it can legally justify deviating from these. In such event, it will be required to publish written reasons for why it varied from the policy/legislative provisions or directions…”.
Policy is by its very nature, somewhat vague because it is intended to set out a vision for the sector. Even policy directions are not specific but general statements about the outcome that is desired but not the process that must be followed to get there. International best practise offers up countless examples of the sort of interaction between a Minister (or equivalent representative, perhaps a Secretary of State), and a regulatory authority. Issuing direct orders is not congruent with issuing policy directions. Requiring the regulator to explain why it doesn’t want to comply is just peculiar.
Whilst in the context of the South African administrative justice system it is appropriate to give reasons for your decision if you are an administrator, constantly having to explain why you – as a regulator, more in touch with industry than Government – don’t believe it’s appropriate to follow a policy direction calls into question whether the policy direction can ever be specific enough to be implemented anyway, and whether or not reasons by a regulator would suffice to allow it to proceed on its own course. For example, the Policy states at section 9.1.6 that “the regulator is hereby directed to follow a public process in licensing Wireless OAN… The regulator should also evaluate and be satisfied with the proposed consortium’s technical plan, financial viability, ability to commence rollout…. prior to issuing it a license. In addition the regulator should have due regard to the network’s [sic] universal access strategy…to achieve full population coverage in a reasonable space of time and importantly [sic] the required capacity.” Leaving aside the contradiction and illegality of the direction in relation to a licensing activity under the ECA, it is appropriate for the direction to offer up general criteria, but what if the regulator declines to license anyone because it does not consider any of them to meet its criteria? Would the Minister be able to quibble about the criteria?
The same section also states “The Wireless OAN will be a public-private sector-owned and managed consortium, and will consist of entities that are interested in participating….No amendments to existing legislation are envisaged to support the wireless open access framework and the Wireless OAN should be licensed as soon as possible after the coming into force of this policy.” If I were a regulator I would question this as a direction in several other respects too – it simply will not be possible to license any entity of this kind without first offering a licence of some sort, then waiting for bidders to arrange themselves, assuming they want the licence, into some sort of commercial entity with rights, shares, investment obligations and an agreement on a business plan. The Policy has not taken commercial realities into account.
But when in doubt, create another committee, and that is what the Minister then proceeds to do again in section 13.4.4. The new National ICT Stakeholders Forum will apparently ensure that citizens can participate in the sector by implementing (and fast-tracking!) ICT-related policies and plans, even though it seems to simply be another chat shop for academics and other people. This is not and cannot be a regulatory body and citizens already participate by public consultation on various matters that ICASA is required to publish for comment. Is this Forum really necessary?
The last but by no means the least troubling chapter of this Policy throws up the same sort of muddled thinking as has characterised the other 12. Without a solid legal foundation for many of the conclusions and “directions”, the Policy is not capable of being implemented. Lawmakers will have a tough time trying to translate some of this into new legislation.
 In other articles we have considered the lawfulness of the Minister’s proposing to enter the world of regulation by determining licence terms and conditions for licensees. Until such time as the ECA has been amended extensively or repealed, this will unfortunately not be lawful. See www.kerronedmunson.co.za/resources.
 A review of section 3(2) of the ECA indicates that under the current law, the Minister may do no such thing, and any purported policy directions contained in Chapter 9 on spectrum, will not be lawful and cannot be enforced under the current law.
 In our other articles we consider to what extent net neutrality can be determined by Policy and without specific consultation. Nonetheless this new area is now being bestowed on this new regulator.
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