Department of Communications and Digital Technologies (Gazette 43797)
The broadcasting sector in South Africa has matured considerably since the days of the Triple Inquiry Report and the 1998 White Paper on Broadcasting Policy. Despite the merger of the Independent Broadcasting Authority with the telecommunications regulator, SATRA, in 2000, there has not been any significant broadcasting policy published since 1998; and although the ECA devotes a chapter to broadcasting, this largely duplicates the position under the 1999 Broadcasting Act. This is the first broadcasting-specific policy paper draft in 23 years. The consultation closes on 15 February 2021. This is a summary for your convenience, not legal advice.
POLICY GOALS AND REGULATION
The policy refers often to the National Development Plan 2030 goals, and specifically access by all citizens to ICT services to ensure access to information. It addresses broadcasting, audio and audiovisual content services (“AAVCS”), and video-sharing platform services (“VSPS”). Many provisions which are controversial and always have been (like the restriction on advertising revenue for pay-tv providers, must-carry, and regulation of on-demand services) are simply left to the regulator to make regulations. The ‘regulator’ is sometimes referred to as ICASA, but not always – this begs the question as to whether another regulator might be introduced. Several provisions now follow the wording of the EU’s Audiovisual Media Services Directive, 2010/13/EU as amended by Directive 2018/1808. While South Africa should certainly align itself with international best practice and trends in regulation in this sector, the new law or amendments to the ECA that this policy heralds, will be challenging to prepare.
OWNERSHIP AND CONTROL
The policy looks favourably on the lifting of foreign ownership restrictions to encourage investment and to stimulate growth in ICT. Foreign ownership of linear1 individual audiovisual content services (i.e. tv broadcasting only) can increase to a maximum of 49%. Why this is restricted to tv is not made clear. Persons from countries that are members of the African Union can possibly exceed even the 49% level of control. The policy notes the trend elsewhere to lift the restrictions on ownership of media because of increasing competition from non-linear services or ‘on-demand content services’, referred to as “OCS” (these limitations have been in place for nearly 30 years).
3 categories of licences are envisaged, which will all be regulated the same if they are for the same service, regardless of what platform they use for distribution. These are:
In addition, there will continue to be a distinction between “commercial” broadcasting which are privately-owned services operated for profit, and “public” broadcasting, which must be provided by SABC. Any entity providing linear AAVCS or OCS and wanting an individual licence must have turnover greater than R100m2 in the previous financial year. Some class licensees can be required to apply for an individual licence even if they are below the threshold but have a significant socio-economic impact3. Foreign investors with a local presence will also be subject to the threshold even if their South African operations don’t meet it but their global entities do. Class licences otherwise require an annual turnover of >R50m in the previous financial year, and below this threshold, no licences are needed. OCS providers over the threshold need a class licence even if they offer services “on the public internet” although on-demand audio content services available “on the public internet” will be exempt from licensing.
CONTENT AND LOCAL CONTENT QUOTAS
Regulation of hate speech by ICASA is now proposed, along with protection of minors and ‘related matters’. This suggests the role of the Film and Publications Board (“FPB”) will be diminished or it will cease to operate, but in other sections of the policy, compliance with the FPB regulations is specifically required by OCS licensees. Local content quotas will remain but will be revised because the digital landscape makes it difficult to calculate them as programme percentages (these percentages can continue to apply to analogue services). Measurements across an entire bouquet of channels will be put in place and if licensees can’t meet the requirements they can pay a specified sum of money or minimum percentage of gross revenue into a fund to support the creation of audio and audiovisual South African content. OCS providers will also have local content obligations not to exceed 30% of their total video catalogue.
THE PUBLIC INTEREST AND COMPETITION
In the context of must-carry/must-share, some new rules regarding ‘discoverability’ and ‘findability’ of public interest content will be introduced so that programmes seen to be of particular value for society, democratic, cultural or social reasons (like state funerals) can be found easily and accessed on all platforms, whether they are linear or on-demand (i.e. tv, radio, or other). A similar provision will apply for national sports events.
Sentech’s role is recognized and supported, it will continue to be the ‘common carrier’ for signal distribution for terrestrial and satellite platforms and the only provider of network services (transmission) for SABC on the mux and satellite platforms, which is at odds with the position that SOCs be rationalized (which appears later in the policy) and is also at odds with the goal of promoting competition. The policy states that plurality of voices and diversity of programming in the public interest must be ensured by guiding principles of competition law, content regulation, and licence conditions. The Commission must exercise concurrent jurisdiction with ICASA in addressing market concentration and media plurality, according to the policy. It also seems that several of the provisions are aimed mainly at supporting SABC and Sentech (again, at odds with the proposed rationalization).