PROPOSED AMENDMENTS TO THE TELECOMMUNICATIONS AMENDMENT BILL
[B 65A-2001] 12 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 to substitute "carrier's carrier'
2. On page 2, in line 12, to omit "a public switched telecommunications service licensee or mobile cellular telecommunications service licensee" and to substitute "any licensed entities".
3. On page 3, from line 1 to omit "but" up to and including "directly" in line 2.
4. On page 3, in line 5: omit "service" and to substitute "operator".
5. On page 3, in line 16, to omit "end-office" and to substitute "local exchange"
6. On page 3, in line 30, after "means" to insert "a form of connectivity for local access telecommunication service whereby the".
7. On page 3, in line 31, to omit "that".
8. On page 3, line 33, to omit "end-office" and to insert "local exchange".
9. On page 3, from line 34, to omit "nothing" up to and including "37" in line 36 and to substitute:
"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'
10. On page 3, in line 46, to omit "definition" and to substitute "definitions"
11. On page 3, after line 55, to insert the following definitions:
"local access telecommunications service" means a telecommunication 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 whom the licensee is interconnected at a point in that area,
and may 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; "local exchange" means a facility in the public telecommunications network to which user lines are connected;
12. On page 3, after line 59, to insert the following definition:
(definition of mobile cellular telecommunications licence).
13. On page 4, in line 3, to omit "digital broadcasting service" and to insert "telecommunications service".
14. On page 4, from line 16, to omit "but" up to and including "services in line 17
15. On page 4, from line 18, to omit the definition of "national long distance telecommunication service" and to substitute:
national long distance telecommunication service" means 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.
16. On page 4, from line 26, to omit the definition of "network" and to substitute:
"network" means a telecommunication 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).
17. On page 4, from line 31 ,to omit "and fixed-mobile services".
18. On page 4, in line 34, omit "to the general public on a subscription basis" and substitute "to customers for a fee".
19. On page 4, in line 47, to omit "selling such" and to substitute "in order to sell".
20. On page 4, from line 59, to omit paragraph (n).
21. On page 5, from line 7, to omit the definition of "value-added network service" and to substitute:
"value-added network service" means a telecommunication service provided by a person over a telecommunication facility, which facility has been obtained by that person in accordance with the provisions 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 the customers, and in respect of which the conveyance of signals is no more than is incidental to, and necessary for, the provision of the service.
21. On page 5, from line 9, to omit the definition of "virtual private network".

CLAUSE 2
1. On pages, after line 19, to insert the following paragraph:
(s) develop the Information and Communication Technologies (ICT) vision and strategy for the Republic, in order to bridge the digital divide.

CLAUSE 4
3. On page 5, line 30, insert "(5)", and omit "shall" and insert "may".

CLAUSE 5
1. On page 7, after line 29, to insert the following paragraph:
(c) Sentech shall be deemed to be a holder of a third generation telecommunication radio frequency spectrum licence to provide multimedia services.
2. On page 7, in line 30, after "operator" to insert", Sentech".
3. On page 7, line 38, after "operator" to insert", Sentech".

CLAUSE 6
1. On page 8, in line 4, to omit "only".
2. On page 8, from line 9, to omit paragraph (c).
3. On page 8, in line 32, to omit "2004" and to substitute "2003".
4. On page 9, after line 22, to add the following subsection:
(5) (a) For the purposes of this subsection, "servitude"
means any servitude, lease, right of use or other real right (whether registered or not) in or over land in favour of Eskom, Transnet, or any similar rights pursuant to the Legal Succession to the South African Transport Services Act, 1998 (Act No. 9 of 1989), which existed immediately prior to the commencement of this Act, for the conveyance or provision of electricity, telecommunications, pipelines, railways, transport or electrical substations.
(b) Every servitude is hereby extended so as to include the additional right to use the land to which such servitude relates for purposes of providing a public switched telecommunication service or network by means of telecommunication facilities.
(c) Eskom may allow any of its subsidiaries in respect of
Eskom servitudes to-
(i) utilise a servitude in respect of the additional right referred to in paragraph (b) on such terms and conditions as may be agreed upon between Eskom and the subsidiary;
(ii) allow any third party in which Eskom has an equity interest to utilize the servitude in respect of that additional right on such terms and conditions as may be agreed upon between the parties; or,
(iii) utilise a servitude in respect of that additional right in order to provide public switched telecommunications services to any third party on such terms and conditions as may be agreed upon between the parties.
(d) Compensation as contemplated in section 25(3) of the Constitution shall be payable by the party exercising the additional right as contemplated in paragraph (b) to the registered land owner concerned, to the extent that servitude become more onerous than the original servitude.
(e) Notice of the exercise or use of the right in terms of paragraph (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 paragraph (d) shall be payable and shall be assessed as at the date of such notice.
(f) Sections 9,10,11,12(3), 12(5), 14 and 15 of the Expropriation Act, 1975 (Act No.63 of 1975), shall with the necessary changes be 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 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)."
(i) Paragraphs (c), (d), (e), (f), (g) and (h) apply with the necessary changes to Transnet and its subsidiaries.
5. On page 9, in line 28, to omit "carrier of carriers" and to substitute 'carrier's carrier and build infrastructure as a carrier's carrier".
6. On page 9, in line 29, to omit paragraph (b) and to substitute:
(b) multimedia infrastructure.
7. On page 9, in line 32, to omit "services" and to insert "infrastructure".
8. On page 9, after line 38, to add the following subsections:
(5) (a) Before 31 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 licence 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, in line 5, to omit "to be used by the Authority" and to substitute "the Authority intends to use".
2. On page 10, in line 7, after "criterion" to insert ", and the application of section
3. On page 10, in line 14, to omit paragraph (c).
4. On page 10, in line 36, to omit paragraph (f).

CLAUSE 9
1. On page 11, in line 3, before "reject" to insert "if there are compelling reasons,".
2. On page 11, in line 10, after "or" to insert "by".

CLAUSE 11
1. On page 11, in line 43, to omit "marine" and to substitute "maritime".
2. On page 11, in line 45, to insert "fixed-mobile service".

CLAUSE 12
1. On page 12, in line 47, to omit paragraph (a).
2. On page 12, in line 51, after "mobile" to insert "cellular".
3. On page 12, in line 53, to omit "22" and to substitute "25".
4. On page 12, in line 54, to omit paragraph (c) and to substitute:
(c) by the addition of the following subsection:
(4) (a) Before 31 December 2003 the Minister shall-
(i) determine, by way of a market study, the feasibility of granting a mobile cellular telecommunication 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, from line 19, to omit "[value-added network] electronic transactions service" and to substitute "value-added network services".

CLAUSE 16
1. On page 13, from line 43, to omit "less" up to and including "facilities" in line 44 and to substitute "there is teledensity of less than 5%".
2. On page 13, in line 49, after "provide" to insert "any".
3. On page 13, in line 50, after "services," to insert "public pay telephones and any other technology".
4. On page 14, in line 3, to omit "licensees" and to substitute 'and mobile operators".

CLAUSE 17
1. On page 14, from line 25, to omit subparagraph (ii).

CLAUSE 21
(On page 17, line 21, Consumer protection provisions)

CLAUSE 22
1. On page 17, from line 27, to omit section 53A and to substitute:

Telecommunication Appeal Tribunal -
53A (1) There is hereby established a body to be known as the Telecommunications Tribunal which-
(a) has jurisdiction throughout the Republic;
(b) is a juristic person
(c) is a tribunal of record; and
(d) must exercise its functions in accordance with this Act.
(2) The Telecommunications Tribunal shall consist of-
(a) a chairperson, who shall be Senior Counsel or other senior legal practitioner, and who must have knowledge, experience and expertise in telecommunications law; and
(b) two other members with sufficient knowledge of matters relating to telecommunications licensing, regulations, agreements and cost accounting,
(3) The members of the Tribunal shall be selected from a shortlist consisting of not less than six and no more than nine nominations compiled by the Minister in response to a call for nominations, which must be published by the Minister in the Gazette, and be appointed by the President.
(4). The President must appoint one of the members as chairperson and another as deputy chairperson who shall perform the functions of the chairperson whenever the former is unable to preside over a hearing.
(5) The members of the Telecommunications Tribunal shall serve for a term of three years.
(6) The Minister may, after consultation with the Minister Justice 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.
(7) The Minister may, with the concurrence of the Minister of Finance, determine the remuneration, allowances and other benefits of the chairperson, deputy chairperson and other members of the Telecommunications Tribunal.
(8) The Telecommunications Tribunal must consider any appeal from any telecommunication operator or licensee who is aggrieved by a decision of the Authority and may for that purpose confirm, set aside or substitute any decision of the Authority.
(9) 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.
(10) The expenditure of the Tribunal must be defrayed out of money appropriated by Parliament for that purpose.
(11) 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.
(12) The Minister may prescribe regulations for matters relating to the
functions of the Tribunal including
(a) time periods for lodging appeals;
(b) information and record required;
(c) filing fees and costs;
(d) access to confidential information;
(e) manner and form of participation in the Tribunal procedures;
(f) procedures for hearing and deciding an appeal.
(5) Notwithstanding the subsection (4), the 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. That the following be a new clause to follow clause 22:

Amendment of section 54 of Act 103 of 1996
23. Section 54 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"No person shall use, supply. sell. offer for sale or lease or hire, any type of telecommunication equipment or facility, including radio apparatus, in connection
with telecommunication unless that type has, subject to subsection (2), been approved by the Authority.".

CLAUSE 26
1.On page 18, in line 40, to omit paragraph (f) and to substitute:
(f) to assist small businesses and cooperatives to acquire and construct infrastructure to provide telecommunication services to areas which are not served or not adequately served by telecommunication services; and
(g) to facilitate provision of multimedia services.

CLAUSE 29
1. On page 19, after line 34, to add the following subsection
(4) 911 Emergency Centres shall be exempted from holding a licence to provide telecommunications services in terms of any section of the Act.
[Offences are being dealt with in clause 34]

CLAUSE 31
1. On page 20, in line 41, after "regulations" to insert "carrier pre-selection". On page 20, in line 44,10 omit "service" and insert "operator".
3. On page 20, in line 47, after "licences" to insert "and mobile cellular telecommunication licences".
4. On page 20, in line 48, to omit "2005" and insert "2002".

CLAUSE 33
1. On page 21, after line 37, to insert the following section:

Information, Communication and Technologies vision and strategy
96B. (1)(a) The Minister shall, as soon as possible after the
commencement of this section develop an Information, Communication and Technologies (ICT) vision and strategy.
(b) The vision and strategy shall be reviewed every two years.
(c) The vision and strategy shall be published in the Gazette when it has been developed or reviewed.
(2) When developing or reviewing 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.

CLAUSE 34
1. On page 21, in line 41, to omit "80(2)" and to substitute "81(2)".

SCHEDULE
1. On page 24, in the third column, to omit items 3 and 4.