PROPOSED AMENDMENTS TO THE TELECOMMUNICATIONS AMENDMENT BILL [B65A - 2001] 11 October 2001
(As discussed by the Parliamentary Committee on Communications)
CLAUSE 1 1. On page 2, in line 9, to omit' Carriers of Carriers' and insert "Carrier's Carriers'
2. On page 2, in line 12, to omit" a Public Switched Telecommunications Service Licensee or Mobile Cellular Telecommunications Service Licensee" and after "of" insert: any licensed entities.
3. On page 3, omit line 1 and 2.
4. On page 3, line 5: omit "service" and insert "operator".
5. On page 3, omit "end office" and insert "local exchange"
6. On page 3, line 30, after "means" insert "a form of connectivity for local access telecoms service whereby the"
7. On page 3, line 32, omit "end office" and insert "local exchange".
8. On page 3, line 34, omit "nothing in this definition shall exempt the provider of the fixed-mobile service from holding a licence under section 13 or section 37" and insert, "that the access shall be restricted to a specified base station cell and shall therefore not permit the end-user to move the terminal connection equipment or make use of call handover between cells."
9. On page 3, line 55, insert before section (h) definition of local access telecommunications service: "means a telecommunications service provided within a defined geographic area, compromising of the conveyance of signals -
a. between any customers of the licensee within that area; and
b. to and from a customer of the licensee and the network of any public service telecommunications licensee with who the licensee is interconnected at a point in that area;
Can include the installation, bringing into service, the maintenance and repair of the telecommunication network which is provided, maintained and operated by the licensee for the purposes of providing the local access telecommunications service as contemplated in section 39."
10. On page 3, line 55, after the definition of local access telecommunications service insert, "local exchange means a facility in the public telecommunications network to which user lines are connected."
11. On page 3, line 60, after "means" to insert (definition of mobile cellular telecommunications licence). 12.On page 4, line 3, to omit "digital broadcasting service" and insert "telecommunications service".
13. On page 4, omit line 16 and 17
14. On page 4, line 18, after "means" insert "a telecommunication service comprising the conveyance of signals between the network of any licensee providing local access telecommunication services in an area, and the network of the same or of another licensee providing such service in another area, and includes the installation, bringing into service, maintenance and repair of the telecommunication network that is provided, maintained and operated by the licensee for the purposes of providing the national long distance telecommunications service as contemplated in section 38."
15. On page 4, line 26, after "network" insert, "means a telecommunications system provided by a person for purposes principally or integrally related to the operations of that person and which is installed onto one or more separate, non-contiguous premises and which is interconnected to the public switched telecommunications network as contemplated in section 41(1 )(a)."
16. On page 4, line 31-32, omit "and fixed-mobile services".
17. On page 4, line 34, omit "subscription basis" and insert "to customers for a fee".
18. On page 4, line 47, omit "selling such" and insert" in order to sell".
19. On page 4, lines 59-62, omit section (n). -On page 5, line 7, after "means" insert, "a telecommunications service(s) provided by a person over a telecommunications facility, which facility has been obtained by that person in accordance with the provision of section 40(2) of the Act, to one or more customers of that person concurrently, during which value is added for the benefit of customer(s). And in respect of which the conveyance of signals is no more than is incidental to, and necessary for, the provision of the service.
20. On pages, omit line 9-11.
CLAUSE 2: 1. On pages, line 19, to insert(s) "Develop the Information, Communication Technologies (ICT) vision and strategy for the Republic, in order to bridge the digital divide."
2. On page 5, line 19, "subsections" insert "5".
3. On page 5, line 30, insert "(5)", and omit "shall" and insert "may".
4. On page 5, line 31, after "hearing" insert ",if any".
CLAUSE 5 1.On page 7, line 29, to insert "Sentech is to be deemed as a holder of a third generation telecommunications radio
frequency spectrum licence to provide multimedia services."
2. On page 7, line 30, after "operator" to insert "Sentech".
3. On page 7, line 38, after "operator" to insert "Sentech".
CLAUSE 6 1. On page 8, line 4, to omit "only".
2. On page 8, to omit line 9-10.
3. On page 8, line 32, to omit "2004" and insert "2003".
4. On page 9, line 22, to insert section 32(b)(5) on servitudes as follows:
"(a) For the purposes of this subsection (5), the word servitude means any servitude, lease, right of use or other real right (whether registered or not) in or over land in favour of Eskom or Transnet, or any other similar rights or relationships pursuant to the Legal Succession to the South African Transport Services Act, No.9 of 1989, that were in existence immediately prior to the enactment of this Act, as the case may be, for purposes of conveyance or provision of electricity, telecommunications, pipelines, railways, transport, electrical substations and any rights of access or rights of way in respect thereof or in connection therewith.
(b) Every servitude is hereby extended to include the additional rights to use the land to which such servitude relates, for purposes of providing a public switched telecommunications service or network by means of telecommunications facilities.
(c) Subject to (a), it shall be lawful for Eskom to allow any subsidiaries in respect of
Eskom servitudes and for Transnet to allow Transtel exclusively in respect of Transnet servitudes and/or the South African Railway Commuter Corporation to allow Transnet in respect of South African Railway Commuter Corporation servitudes to -
(i) Utilise the servitude in respect of such additional rights on terms and conditions agreed upon with Eskom and Transnet and/or the South African Railway Commuter Corporation, as the case may be.
(ii) Allow any third party in which Eskom, Transnet or any of their subsidiaries, have an equity interest to utilize the servitude in respect of those additional rights on such terms and conditions as may be agreed between the parties; or,
(iii) Utilise a servitude in respect of such additional rights in order to provide public switched telecommunications services to any third party on such terms and conditions as may be agreed with such third party.
(d) In respect of any servitude and such additional rights, compensation as contemplated by section 25(3) of the Constitution (Act 108 of 1996), if any, shall be payable by ESl~TEL or Transtel, or a third party in which Eskom and/or Transnet have an equity interest, as the case may be, to the registered land owner concerned, in as much as the servitude with additional rights has become more onerous than the original servitude.
(e) Notice of the exercise or use of such rights as contemplated in subsection (c) shall be given in writing to the registered owner of the land concerned, either by personal service or by pre-paid registered post, and the compensation contemplated in subsection (d) shall be payable and shall be assessed as at the date of such notice.
(f) The provisions of sections 9,10, 11, 12(3)12(5), 14 and 15 of the Expropriation Act (Act 63 of 1975) as amended, shall be mutates mutandis applicable in respect of any compensation claim, compensation offer and the payment and determination of such compensation.
(g) The Registrar of Deeds shall make such entries or endorsements in or on any relevant title deed or other documents in the office of the Registrar or submitted to the Registrar, as the case may be necessary for the purposes of paragraph (c).
(h) No fees or other levies shall be payable in respect of entries or endorsements contemplated in paragraph (g)."
5. On page 9, line 28, insert "and build infrastructure as a carriers carrier" and omit "carrier of carriers".
6. On page 9, line 29, omit "a" and "service" and after "multimedia" to insert "infrastructure".
7. On page 9, line 32, to omit "services" and to insert "infrastructure".
8. On page 9, line 39, to insert subsection "5(a) before 31st December 2003 the Minister shall - (i) determine, by way of a market study, the feasibility of granting a multimedia infrastructure licence in addition to the licences referred to in subsection 1(b); and (ii) by notice in the Gazette, publish the determination.
(b) In conducting the market study contemplated in paragraph (a), the Minister shall consider the Republic's international obligations;
(6) If the Minister determines that any additional multimedia infrastructure licence may be granted, such licence may be granted in terms of section (34).
CLAUSE 8 1. On page 10, line 7, to insert section 35(4) and (5).
2. On page 10, to omit line 14.
3. On page 10, to omit line 36.
CLAUSE 9 1. On page 11, line 3, after "it" to insert "provide compelling reasons".
2. On page 11, line 10, to omit "or" and after "groups" to insert "and".
3. On page 11, line 12, to omit paragraph (i)
4. On page 11, line 43, to omit "marine" and insert "maritime".
CLAUSE 11 4. On page 11, line 45, to insert "fixed-mobile service".
5. On page 12, to omit line 47.
CLAUSE 12 1. On pager 12, line 51, after "mobile" to insert "cellular".
2. On page 12, line 53, to omit "22" after "on" and insert "25".
3. On page 12, line 54, to omit (c).
4. On page 12, line 55, to insert section (4) as follows: "(4)(a) Before 31 December 2001 2003 the Minister shall - (i) determine, by way of a market study, the feasibility of granting a mobile cellular telecommunications licence in addition to the licences referred to in subsection (1) and (2); and (ii) by notice in the Gazette, publish the determination.
(b) In conducting the market study contemplated in paragraph (a), the Minister shall consider - the Republic's international obligations;
5. If the Minister determines that any additional licence may be granted, such licence may be granted in terms of section (34).
CLAUSE 15 1. On page 13, line 19, to omit "electronic transactions service" and insert "value-added network services".
CLAUSE 16 1. On page 13, line 43, to omit "less than 5% of the population" and insert after "where" "there is teledensity of less than 5%".
2. On page 13, line 49, after "provide" to insert "any".
3. On page 13, line 50, to insert "public pay telephones and any other technology".
4. On page 14, line 3, after "service" to insert "and mobile operators" and to omit "licencees".
5. On page 14, line 25, to omit paragraph (b)(ii).
CLAUSE 21 (On page 17, line 21, Consumer protection provisions)
CLAUSE 22 1. On page 17, to omit lines 27 - 55 and insert:
Section 53A. Establishment and constitution of Telecommunications Tribunal Appeals Tribunal -
(1) There is hereby established a body to be known as the Telecommunications Tribunal which -
· has jurisdiction throughout the Republic;
· is a juristic person;
· is a Tribunal of record; and
· must exercise its functions in accordance with this Act.
(2) The Telecommunications Tribunal shall consist of -
i. A chairperson, who shall be Senior Counsel or other senior legal practitioner, and who must have knowledge, experience and expertise in telecommunications law; and
ii. two other members with sufficient knowledge of matters relating to telecommunications licensing, regulations, agreements and cost accounting, who shall be chosen from a panel of not less than 6 but no more than 9 members appointed by the President on a part-time basis, on the Minister's initiative or in response to a call for nominations, which must be published by the Minister in the Gazette
iii. The Minister must appoint a Chairperson from the panel and a Deputy Chairperson who shall perform the functions of the chairperson whenever the former is unable to preside over a hearing.
iv. Subject to subsection (2)(v), the chairperson and each member of the Telecommunications Tribunal shall serve for a term of three years.
v. The Minister may and after giving the member an opportunity to make representations and considering such representations, for good reason terminate the appointment of any member of the Tribunal.
vi. The Minister may, in consultation with the Minister of Finance, determine the remuneration, allowances and other benefits of the chairperson, deputy chairperson and other members of the Telecommunications Tribunal.
(3) Operationof the Telecommunications Tribunal -subject to subsection (2)(i)(ii), the Minister must nominate three members of the Telecommunications Tribunal to hear an appeal and their decision shall constitute a decision of the Tribunal.
i. Administrative support for the Tribunal must be provided by officials of the Department designated by the Director-General, subject to the laws pertaining to the secondment of officers in the Public Service.
ii. The expenditure of the Tribunal must be defrayed out of money appropriated by Parliament for that purpose.
iii. Neither the Tribunal, the chairperson, the deputy chairperson nor any other member is liable for an act or commission committed in good faith while performing a function in terms of this Act.
(4) The Minister must within 6 months of coming into effect of this amendment by notice in Gazette, determine the functions of the Telecommunications Tribunal, and
(a) Prescribe regulations for matters
relating to the functions of the Tribunal
including -
· Time periods for lodging appeals;
· Information and record required;
· Filing fees and costs;
· Access to confidential information;
· Manner and form of participation in the Tribunal procedures; and appeals from decisions of the Tribunal.
· Procedures for hearing and deciding an appeal.
(5) Notwithstanding the provisions of subsection (4), the Tribunal member presiding at a hearing may determine any matter of procedure for that hearing, with due regard to the circumstances of the case.
Or alternatively,
Amendment of section 27(8) to strengthen ICASA's powers by providing tem powers to make declaratory orders pursuant to the findings, recommendations and decisions on any matter placed before them.
NEW CLAUSE 1. Insertion of new section 54(1): "No person shall use, supply, sell, offer for sale or lease or hire, any type of telecommunications equipment or facility, including radio apparatus, in connection with telecommunications unless that type has, subject to subsection (2), been approved by the Authority.
CLAUSE 26 1. On page 18, line 40, after "to" to insert "assist SMME's and cooperatives to" and to omit "used by licensees" and after "provide" to insert "telecommunications".
2. On page 18, line 43, after "services" as a new section to insert "to facilitate provision of multimedia services".
CLAUSE 29 1. On page 19, line 34, to insert "emergency centres shall be exempted from holding a licence to provide telecommunications services in terms of any section of the Act."
2. On page 20, line 6, after "79(1)" to insert", such action shall constitute an offence."
3. On page 20, line 7; to insert new (4): "Any person found guilty of an offence as contemplated in (3) shall, upon conviction, be liable to a fine and/or imprisonment."
CLAUSE 31 1. On page 20, line 41, after "regulations" to insert "carrier preselection"
2. On page 20, line 44, to omit "service" and insert "operator".
3. On page 20, line 46, after "licensees" to insert "and mobile cellular telecommunications licences".
4. On page 20, line 48, to omit "2005" and insert "2002".
CLAUSE 34 1. On page 21, line 38, to insert section 96(B):
"(1) (a) The Minister shall, immediately after the commencement of this paragraph develop and publish an Information, Communication and Technologies (ICT) vision and strategy.
(b) Such a vision and strategy shall be published in a Gazette.
(c) The vision and strategy contemplated in section (1) shall be reviewed every two years.
(2) When developing the vision and strategy the Minister shall give due regard to - (a) the Republic's national objectives; (b) section 2(r) and (s); (c) the Republic's international obligations; and (d) any other relevant factor."
SCHEDULE 1. On page 24, to omit "the repeal of section 15(1), (2), (3) and section 16 of ICASA Act of 2000."