Vodacom submission
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Amendment of section 1 of Act 103 of 1996, as amended by section 23 of Act 13 principal Act’’), is hereby amended— |
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(a) by the insertion after the definition of ‘‘broadcasting signal distribution’’ of thefollowing definitions: ‘carrier of carriers’ means a telecommunication service (including any signal conveyed by means of the telecommunication system of that service) which— (a) originates on the telecommunication system of a public switched telecommunication service licensee or mobile cellular telecommu- nication service licensee in the Republic and terminates in a telecommunication system in another country; or (b) originates and terminates in a telecommunication system of an operator licensed in another country to provide international services, but is conveyed via a telecommunication system in the Republic on a wholesale basis, but which specifically excludes the termination of international telecom- munication services to end-users directly; ‘carrier pre-selection’ means any facility by which subscribers to a telecommunications service can access the services of an interconnected national long-distance telecommunications service and international telecommunications operator; Comment: The definition of "carrier of carriers" appears to be based on the definition of "international call" in the Telkom licence and "international telecommunications service" in this Bill. It is unnecessary in subclause (b) to refer to the licensed operation in the other country, as the prevailing national law should deal with that matter. The wholesale nature of the service should be stated at the start, and emphasized at the end, of the definition. See also Vodacom’s comments on clause 32C. Both "carrier selection" (on a per call basis) and "carrier pre-selection" (a registered automatic or ‘default’ setting) are facilities that can be invoked, when needed, to promote competition in a specific market. Carrier selection and pre-selection enable per call or automatic access to another operator’s long-distance or international call services. The Minister’s policy direction on numbering indicates that the invocation of pro-competitive measures should include, but is not limited to, carrier pre-selection. In fact, the new, draft National Numbering Plan provides routing number ranges for per call carrier selection. ICASA should have the flexibility to invoke either option (or both) for mobile operators in 2005. Recommendation: ‘carrier of carriers service’ means a wholesale international telecommunication service (including any signal conveyed by means of the telecommunication system of that service) which— (a) originates telecommunication service licensee or mobile cellular telecommu- nication service licensee in the Republic and terminates in a telecommunication system in another country; or (b) originates and terminates in a telecommunication system operator licensed services Republic munication services to end-users directly; ‘carrier selection and pre-selection’ means any facility by which subscribers to a telecommunications service can access the services of an interconnected national long-distance telecommunications service [ telecommunications service operator; THERE IS NO SUBCLASE (b);THIS NEEDS TO BE CORRECTED (c) by the insertion after the definition ‘Director-General’ of the following definitions: ‘directories’ means a list (which may be made available in separate parts and through different media) of customers of a designated licensee or multiple licensees and their telephone numbers which are generally arranged in alphabetical order and not by reference to a description of the trades, professions or businesses carried on by those customers; ‘directory enquiry service’ means the provision of information contained in directories; ‘end office’ means a location or a place on the public switched telecommunications network where user lines or trunks, or user lines and trunks, are interconnected; ‘ESI-TEL’ means a division of Eskom Enterprises (Pty) Ltd, which is a subsidiary of Eskom); Comment: In the definition of "directories", the meaning of the term "designated licensees" is unclear, as the relevant new proposed section 89B does not use it. The "end office" definition is used to determine where fixed mobile operators will locate and/or connect their base stations to their network. There are large numbers of these sites throughout the country in under-serviced and serviced areas, and this wide scope of the licence should be capable of limitation by ICASA. Recommendation: Proposed changes: ‘directories’ means a list (which may be made available in separate parts and through different media) of customers of or multiple arranged in alphabetical order and not by reference to a description of the trades, professions or businesses carried on by those customers; ‘end office’ means a location or a place, in or near an under-serviced area as prescribed by the Authority, on (d) by the substitution for the definition of ‘‘fixed line operator’’ of the following definition: ‘fixed-line operator’ means [Telkom and] a holder of a licence to provide a public switched telecommunication service or any other person who provides a licensed telecommunication service by means of a telecommunication system consisting mainly of fixed lines, and ‘opera-tor’ shall be construed accordingly; Comment: None. Recommendation: None. (e) by the insertion after the definition of ‘‘fixed-line operator’’ of the following definition: ‘ fixed-mobile service’ means a connection to the public switched telephone network that will be provided by the holder of a public switched telecommunication service licence by means of a wireless connection between such licencee’s end-office and the end-user’s premises, provided that nothing in this definition shall exempt the provider of a fixed mobile service from holding a licence under section 30 or section 37; Comment: The use of "premises" appears to be a passable way to limit the geographical scope of the service and thereby differentiate it from mobile service. However, it has been indicated on a number of occasions that the purpose of this extension to fixed service is to enhance service delivery in under-serviced areas in particular. Vodacom requests that this purpose be statutorily confirmed. Finally, the proviso needs to be reworded. It is obvious that no mobile or other wireless service may be operated without the operator having obtained an appropriate frequency spectrum licence under section 30. Vodacom suggests that the same language as contained definition of "multimedia service" can be used to clearly define the limits of fixed-mobile service. Recommendation: ‘fixed-mobile service’ means a connection to the public switched telephone network that will be provided by the holder of a public switched telecommunication service licence by means of a wireless connection between such licencee’s end-office and the end-user’s premises in an under-serviced area as prescribed by the Authority, (f) by the substitution for the definition of ‘‘interconnect’’ of the following definition: ‘interconnect’ means [to link two] the physical or logical linking of telecommunications systems [so that users of either] in order to enable any user of a system [may] so linked to communicate with [users] any user of, or utilise services provided by means of, [the] another system [or any other telecommunication system] so linked, and ‘interconnection’ has a corresponding meaning; Comment: None. Recommendation: None. (g) by the insertion after the definition of ‘‘ interconnect’’ of the following definition: ‘international telecommunication service’ means a telecommunication service (including any signal conveyed by means of the telecommunica-tion system of such service) which— (a) originates in a telecommunication system in the Republic and terminates in a telecommunication system in another country or vice versa; or (b) originates and terminates in a telecommunication system in another country but is conveyed via a telecommunication system in the Republic; Comment: None. Recommendation: None. (h) by the substitution for the definition of ‘‘ Minister’’ of the following definition: ‘Minister’ means the Minister [for Posts, Telecommunications and Broadcasting] of Communications; Comment: None. Recommendation: None. (i) by the insertion after the definition of ‘‘ Minister’’ of the following definitions: ‘mobile cellular telecommunication services’ means the services referred to in section 37; ‘mobile operators’ means Vodacom (Pty) Ltd, Mobile Telephone Networks (Pty) Ltd and Cell C (Pty) Ltd; ‘multimedia service’ means a digital broadcasting service that combines various forms of media to communicate information or content in an interactive format, including services such as— (a) internet through television; (b) pay-per-view; (c) video on demand; (d) electronic transactions (including e-commerce); (e) text; (f) data; (g) graphics; (h) animation; (i) audio; (j) visual content, but shall not include mobile cellular telecommunication services and public switched telecommunication services; ‘national long-distance telecommunication services’ means the services referred to in section 38; ‘number portability’ means a capability whereby a subscriber to a telecommunication service who so requests can retain his or her telephone number on a fixed or mobile public telecommunication network independently of the licensee providing the service; Comment: Number portability needs correct terminology. Recommendation: ‘number portability’ means a capability whereby a subscriber to a telecommunication service who so requests can retain his or her telephone number on a [ (j) by the insertion after the definition of ‘‘ prescribed’’ of the following definitions: ‘private telecommunication network’ a network contemplated in section 41(1)(a); ‘public switched telecommunication networks’ means the telecommuni-cation systems installed or otherwise provided, maintained and operated by a public switched telecommunication licensee for the purpose of providing public switched telecommunication services and fixed mobile services; ‘public switched telecommunication services’ means the provision of telecommunication services to the general public on a subscription basis referred to in section 36; ‘public switched telecommunication service licence’ means a licence referred to in section 34(2)(a)(i); Comment: A reference to 41(1)(a) private networks would limit the definition to those private networks not requiring a licence, i.e. not connected to a PSTS network. The definition of PSTS can be shortened, as it unnecessarily repeats the language of section 36. Recommendation: Proposed changes: ‘private telecommunication network’ a network contemplated in section 41(1)[ ‘public switched telecommunication services’ means the [ telecommunication referred to in section 36; (k) by the insertion after the definition of ‘‘ radio apparatus’’ of the following definition: ‘radio frequency spectrum licence’ means a licence referred to in section 30; Comment: None. Recommendation: None. (l) by the insertion after the definition of ‘‘ regulation’’ of the following definitions: ‘resale’ means the provision of any public switched telecommunica-tion service by means of telecommunication facilities which are not owned by the public switched telecommunications service licensee selling such services to its customer, and ‘‘ reseller’’ shall be construed accordingly; ‘second national operator’ means the second holder of a public switched telecommunication service licence; ‘Sentech’ means Sentech (Pty) Ltd, a company established pursuant to the Sentech Act, 1996 (Act No. 63 of 1996); Comment: None. Recommendation: None. (m) by the insertion after the definition of ‘‘ signal’’ of the following definition: ‘small business’ (commonly referred to as an ‘SMME’) means a ‘small business’ as defined in section 1 of the National Small Business Act, 1996 (Act No. 102 of 1996); Comment: None. Recommendation: None. (n) by the substitution for the definition of ‘‘ telecommunication facility’’ of the following the definition: ‘telecommunication facility’ includes any wire, cable, antenna, pole, mast, conduit, right of way, co-location space, equipment cabinet, rack or other thing or area which is or may be used for or in connection with telecommunication; Comment: None. Recommendation: None. (o) by the insertion after the definition of ‘‘ Telkom’’ of the following definition: ‘third generation telecommunication frequency licence’ means the radio frequency spectrum licence referred to in section 30B; Comment: None. Recommendation: None. (p) by the insertion after the definition of ‘‘ Transnet’’ of the following definition: ‘Transtel’ means a division of Transnet;’’ ; and Comment: None. Recommendation: None. (q) by the insertion after the definition of ‘‘ Universal Service Fund’’ of the following definitions: ‘value-added network service’ means a service referred to in section 40; ‘virtual private network’ means a private telecommunications network that makes use of the public switched telecommunication network or other telecommunication facility; ‘voice over internet protocol’ means a series of techniques permitting transmission of a voice over the internet or through one or more telecommunication facilities using internet protocol.’’ . Comment: Any public network may create a virtual private network within itself (e.g. in mobile cellular terminology, a closed user group). It may be useful, in the definition of voice over internet protocol, to refer to "live, interactive, real-time voice" Recommendation: ‘virtual private network’ means a private telecommunications network that makes use of the public switched telecommunication network or other telecommunication network or facility; |
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2. Amendment of section 2 of Act 103 of e1996 |
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Section 2 of the principal Act is hereby amended by the addition of the following |
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Amendment of section 3 of Act 103 of 1996 |
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3. The following section is hereby substituted for section 3 of the principal Act"3. This Act shall not apply in relation to broadcasting, broadcasting signal distribution or broadcasting services frequency bands, except as provided in sections [28(3)] 2(r) and 127 to 129 and in relation to multimedia services (if applicable). Comment: None. Recommendation: None. |
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4. Amendment of section 29 in Act 103 of 1996 |
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Section 29 of the principal Act is hereby amended— |
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5. Insertion of sections 30A and 30B in Act 103 of 1996 The following sections are hereby inserted in the principal Act after section 30: |
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‘‘ Radio frequency spectrum access in 1800 MHz frequency band |
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30A. |
30A. (1) (a) Within six months after the date of commencement of thisparagraph or such longer period as the Minister may determine, the mobile operators may apply to the Authority for access to the radio frequency spectrum in the 1800 MHz frequency band to provide mobile cellular telecommunication services and such other services as the mobile operators are, from time-to-time, licensed to provide. (b) Within 30 days of receipt of the application contemplated in paragraph (a) the Authority shall assign to each mobile operator a radio frequency spectrum— (i) against the payment of such once-off fee as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may prescribe. (c) For purposes of paragraph (b)(i), the Minister may specify by notice in the Gazette a single or multiple payment schedule pursuant to which the mobile operators shall make payment, and the terms and conditions of such payment. (d) Prior to the date a radio frequency spectrum is assigned to a mobile operator as contemplated in paragraph (b), the holder of a licence which exists at the commencement of the Telecommunications Amendment Act, 2001, shall, in accordance with radio regulations governing migration and clearing of radio spectrum bands, clear the spectrum to be occupied by such mobile operator. (2) (a) The second national operator and Telkom shall each be deemed to be a holder of a radio frequency spectrum licence in the 1800 MHz frequency band to provide public switched telecommunication services, fixed-mobile services and such other services as the second national operator, from time-to-time, is licensed to provide. (b) Within six months after the date the second national operator is granted a public switched telecommunication service licence, or such longer period as the Minister may determine, Telkom may apply to the Authority for a radio frequency spectrum licence in the 1800 MHz frequency band to provide public switched telecommunication services, fixed-mobile services and such other services as Telkom, from time-to-time, is licensed to provide. (c) The Authority shall issue to the second national operator and Telkom a radio frequency spectrum licence contemplated in paragraph (a) or (b),as the case may be— (i) against the payment of such once-off fee as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may specify in that licence. (d) For purposes of paragraph (c)(i), the Minister may specify by notice in the Gazette a single or multiple payment schedule pursuant to which the second national operator and Telkom, respectively, shall make payment, and the terms and conditions of such payment. (3) (a) Holders of a radio frequency spectrum licence in the 1800 MHz frequency band shall co-ordinate, in good faith, their respective frequency usage with other such licensees to— (i) avoid harmful interference among licensees; (ii) ensure efficient use of the 1800 MHz frequency band; and (iii) allow for the provision of cost-efficient services. (b) The Authority may prescribe regulations governing the co-ordination contemplated in paragraph (a), which may include a process for the speedy resolution of disputes among licensees. (4) In determining the fees contemplated in subsections (1)(b)(i) and (2)(c)(i) the Minister shall take into account— (i) MHz pair per population per licence year; (ii) provision of paired or unpaired spectrum; (iii) technical and administrative cost of spectrum management, including projected costs for Authority involvement in frequency co-ordination contemplated in subsection (3); and (iv) any other matter that is consistent with section 2. Comment: According to the policy directions, the spectrum should be applied for and issued within six months of the publication of the directions, i.e. now five months. Vodacom prefers that Minister determine an annual or other periodic access and usage fee for the 1800MHz spectrum, and that this fee shall not be changed during the validity period of the radio frequency spectrum licence. Vodacom’s mobile cellular telecommunication service licence will need to be amended to allow for GSM operation in the 1800MHz frequency band and any other band duly assigned to it for that purpose. Recommendation: 30A. (1) (a) Within six months after the date of commencement of this paragraph [ operators may apply to the Authority for access to the radio frequency spectrum in the 1800 MHz frequency band to provide mobile cellular telecommunication services and such other services as the mobile operators are, from time-to-time, licensed to provide. (b) Within 30 days of receipt of the application contemplated in paragraph (a) the Authority shall assign in accordance with the frequency band plan and the objectives it serves to each mobile operator a radio frequency spectrum licence— (i) against the payment of such [ (ii) subject to such conditions as the Authority may prescribe. [ in the Gazette a single or multiple payment schedule pursuant to which the mobile operators shall make payment, and the terms and conditions of such payment.] (d) Prior to the date a radio frequency spectrum licence is assigned to a mobile operator as contemplated in paragraph (b), the holder of a licence which exists at the commencement of the Telecommunications Amendment Act, 2001, shall, in accordance with radio regulations governing migration and clearing of radio spectrum bands, clear the spectrum to be occupied by such mobile operator. (e) The Authority shall amend the mobile operators’ telecommunication service licences to allow for the provision of mobile cellular telecommunication services and such other services as the mobile operators are, from time to time, licensed to provide, using GSM technology in any band of spectrum duly assigned to the mobile operator for that purpose. (f) This section shall not prohibit mobile operators from applying for further 1800MHz spectrum in accordance with section 30 in future, provided that the relevant access and usage fee and conditions shall be determined on the same basis as contemplated in subsection (1)(b). Similar changes should be considered for the portions relating to PSTS operators. |
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Third generation telecommunication radio frequency spectrum licence |
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30B |
30B. (1) (a) Within six months after the date of commencement of thisparagraph or such longer period as the Minister may determine, the mobile operators may apply to the Authority for a third generation telecommuni-cation radio frequency spectrum licence to provide mobile cellular telecommunication services and such other services as the mobile operators, from time-to-time, are licensed to provide. (b) The Authority shall issue to each mobile operator a third generation telecommunication radio frequency spectrum licence contemplated in paragraph (a)— (i) against the payment of such once-off fee as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may specify in that licence. (c) For purposes of paragraph (b)(i), the Minister may specify by notice in the Gazette a single or multiple payment schedule pursuant to which the mobile operators shall make payment, and the terms and conditions of such payment. (d) Prior to the date a third generation radio frequency spectrum licence takes effect, the holder of a licence which exists at the commencement of the Telecommunications Amendment Act, 2001, shall, in accordance with radio regulations governing migration and clearing of radio spectrum bands, clear the spectrum to be occupied by such mobile operator. (2) (a) The second national operator and Telkom shall each be deemed to be a holder of a third generation telecommunication radio frequency spectrum licence to provide public switched telecommunications services, fixed-mobile services and such other services as the second national operator and Telkom, from time-to-time, are licensed to provide. (b) Within six months after the date the second national operator is granted a public switched telecommunications service licence, or such longer period as the Minister may determine, Telkom may apply to the Authority for a third generation telecommunication radio frequency spectrum licence to provide public switched telecommunication services, fixed-mobile services and such other services as Telkom, from time-to-time, is licensed to provide. (c) The Authority shall issue to the second national operator and Telkom a third generation telecommunication radio frequency spectrum licence contemplated in paragraph (a) or (b), as the case may be— (i) against the payment of such once-off fee as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may specify in that licence. (d) For purposes of paragraph (c)(i), the Minister may specify by notice in the Gazette a single or multiple payment schedule pursuant to which the second national operator and Telkom, respectively, shall make payment and the terms and conditions of such payment. (3) (a) Holders of a third generation telecommunication radio frequency spectrum licence shall co-ordinate, in good faith, their respective frequency usage with other such licensees to— (i) avoid harmful interference among licensees; (ii) ensure efficient use of any applicable frequency band; and (iii) allow for the provision of cost-efficient services. (b) The Authority may prescribe regulations governing the co-ordination contemplated in paragraph (a), which may include a process for the speedy resolution of disputes among licensees. (4) In determining the fees contemplated in subsections (1)(b)(i) and (2)(c)(i), the Minister shall take into account— (i) MHz pair per population per licence year; (ii) provision of paired or unpaired spectrum; (iii) technical and administrative cost of spectrum management, including projected costs for Authority involvement in frequency co-ordination contemplated in subsection (3); and (iv) any other matter that is consistent with section 2.’’ . Comment: Again, Vodacom prefers that Minister determine an annual or other periodic access and usage fee for the 1800MHz spectrum, and that this fee shall not be changed during the validity period of the radio frequency spectrum licence. Again, Vodacom’s mobile cellular telecommunication service licence will need to be amended to allow for operation with third generation technology in the appropriate bands. Recommendation Subclause (1) should read in pertinent part (b) The Authority shall [issue] assign to each mobile operator in accordance with the frequency band plan and the objectives it serves a third generation telecommunication radio frequency spectrum licence contemplated in paragraph (a)— (i) against the payment of such [ (ii) subject to such conditions as the Authority may specify in that licence. in the Gazette a single or multiple payment schedule pursuant to which the mobile operators shall make payment, and the terms and conditions of such payment. … (e) The Authority shall amend the mobile operators’ telecommunication service licences to allow for the provision of mobile cellular telecommunication services and such other services as the mobile operators are, from time to time, licensed to provide, using third generation technology in any band of spectrum duly assigned to the mobile operator for that purpose. (f) This section shall not prohibit mobile operators from applying for further third generation spectrum in accordance with section 30 in future, provided that the relevant access and usage fee and conditions shall be determined on the same basis as contemplated in subsection (1)(b). Similar changes should be considered for the provisions relating to PSTS operators. |
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6. Insertion of sections 32A, 32B and 32C in Act 103 of 1996 The following sections are hereby inserted in the principal Act after section 32: |
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‘‘ Holders of public switched telecommunication services licences and granting of further licences |
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32A |
32A. (1) (a) From 7 May 2002 until 7 May 2005 Telkom and the secondnational operator shall be the only holders of public switched telecommu-nication service licences. (b) Subject to the feasibility study referred to in subsection (5), one or more additional national operators may be licensed to provide public switched telecommunication services from 7 May 2005. (c) At least one of the additional operators shall be licensed to provide service-based competition. (2) (a) For a period of two years after the date of commencement of the public switched telecommunication service licence the second national operator may use Telkom’s facilities on a resale basis in accordance with agreements concluded between the parties for the purposes of providing public switched telecommunication services. (b) The agreements contemplated in paragraph (a) become effective within 60 days of the issuing of the public switched telecommunication service licence to the second national operator. (3) Where Telkom and the second national operator fail to conclude agreements contemplated in subsection (2), or after the parties have negotiated in good faith and used their reasonable endeavours to resolve disputes relating to such agreements, either party may request the Authority in writing to resolve all outstanding issues. (4) (a) Where the Authority receives a request contemplated in subsection (3), it shall, within 30 days of that request, determine the terms and conditions of the agreement in a manner consistent with this Act. (b) Where the Authority makes a determination in terms of paragraph (a), the determination shall be binding on the parties and shall form part of the agreement between the parties. (c) The agreement contemplated in paragraph (b) shall lapse two years after the date of its conclusion. (5) (a) Before 31 December 2004 the Minister shall— (i) determine, by way of a market study, the feasibility of granting public switched telecommunication service licences in addition to the licences referred to in subsection (1)(a); and (ii) by notice in the Gazette, publish the determination. (b) In conducting the market study contemplated in paragraph (a), the Minister shall consider— (i) the Republic’s international obligations; (ii) national and international market conditions prevailing at the time; (iii) the Republic’s policy objectives; and (iv) and any other relevant factor. (6) (a) If the Minister determines that any additional public switched telecommunication service licence may be granted, such licence— (i) may be granted to provide services-based competition; and (ii) may only come into effect after 7 May 2005. (b) A holder of a licence contemplated in paragraph (a) may— (i) compete as a service-based licensee and may not provide its own facilities until the Minister so determines; and (ii) utilises the facilities of Telkom and the second national operator on a resale basis for a period of two years from the date of commencement of its public switched telecommunication service licence, in accor-dance with agreements concluded between the parties for the purposes of providing public switched telecommunication services. (7) Where the Minister makes the determination contemplated in subsection (5), the Authority may prescribe regulations to ensure equal and non-discriminatory access to facilities among all licensed operators. (8) In any case where telecommunication facilities are made available pursuant to section 44 or the regulations promulgated thereunder to the holder of a license to provide public switched telecommunication services, such licence holder shall have the right of resale. Comment: Paragraphs (1)(c) and (6)(a) and (b) do not seem to fit well together. May or must the third network operator be a facilities-based service provider? While mobile operators are not required by section 44 to provide facilities, if they do, they become subject to section 44 requirements and guidelines. Subclause (8) would result in a situation where, if Vodacom made available a facility to the SNO, the SNO could make it available to MTN or Cell-C without Vodacom’s agreement. Vodacom does not support subclause (8) unless the recommended change is made. Recommendation: At a minimum: (8) In any case where telecommunication facilities are made available by a public switched telecommunication service licensee pursuant to section 44 or the regulations promulgated thereunder to the holder of a license to provide public switched telecommunication services, such licence holder shall have the right of resale. |
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Second national operator application and qualification |
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32B |
32B. (1) The second national operator shall be granted a public switchedtelecommunication service licence on no less favourable terms and conditions than those of the licence held by Telkom. (2) Subject to subsection (3), such percentage of the equity interest of the second national operator shall be set aside for Esi-Tel or Transtel, or Esi-Tel and Transtel, as the Minister, with concurrence of the Minister of Public Enterprises, may determine. (3) The final determination of the equity interest of Esi-Tel or Transtel, or of Esi-Tel and Transtel, in the second national operator shall be calculated with reference to the value of the contribution of Esi-Tel or Transtel, or Esi-Tel and Transtel, as the case may be, in the second national operator. (4) The contribution referred to in subsection (3) may include, among other things— (a) cash; (b) rights of way; (c) immovable property; (d) personal rights; and (e) other assets, including existing infrastructure, facilities and equip-ment. Comment: None. Recommendation: None. |
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Sentech |
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32C |
32C. (1) With effect from 7 May 2002, Sentech Limited referred to insection 4 of the Sentech Act, 1996 (Act No. 63 of 1996), shall be granted a licence to provide— (a) an international telecommunication gateway service enabling it to operate as a carrier of carriers; and (b) a multimedia service. (2) On or before 31 December 2001, the Authority shall publish in the Gazette draft licences, which shall include proposed conditions on which Sentech Limited must provide the services contemplated in subsection (1). (3) Within 30 days of the publication referred to in subsection (2), Sentech Limited and any interested party may submit written comments to the Authority in connection with the proposed conditions to the licence. (4) After due consideration of the comments contemplated in subsection (3), if any, the Authority shall finalise the licences and issue them to Sentech with effect from 7 May 2002.’’ . Comment: Given Vodacom’s comments in the definition section, the type of service referred to in subclause (1)(a) should be a "carrier of carriers service". There is no need to create yet another service type of international telecommunication gateway service under which someone provides a carrier of carrier service. This would be unnecessary duplication. Recommendation: (1) With effect from 7 May 2002, Sentech Limited referred to in section 4 of the Sentech Act, 1996 (Act No. 63 of 1996), shall be granted a licence to provide— (a) operate as (b) a multimedia service. |
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Amendment to section 33 in Act 103 of 1996 |
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33 |
7. Section 33 of the principal Act is hereby amended by the substitution in subsection(1) for paragraph (a) of the following paragraph: ‘(a) as contemplated in sections 32C(1)(b), 34(2)(a)(i) to (iv) and 39 to 41; and’’ . Comment: None. Recommendation: None. |
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Amendment of section 34 of Act 103 of 1996 |
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34 |
8. Section 34 of the principal Act is hereby amended—(a) by the substitution in subsection (2) for paragraphs (b) and (c) of the following paragraphs, respectively: ‘‘ (b) The Minister shall, in an invitation contemplated in paragraph (a), specify— (i) the kind [of service] or kinds of services in respect of which applications are invited; (ii) the form in which applications shall be submitted and the manner in which it is contemplated that the service shall be provided, [or] and the place where and times when [a] any document in that regard may be obtained from the Authority; (iii) the period within and manner in which such applications shall be lodged. (c) Prior to publishing any invitation contemplated in paragraph (a), the Minister shall consult with the Authority to determine the evaluation criteria to be used by the Authority in making its recommendation to the Minister pursuant to section 35(1)(a)(i) and the weighting factor applicable to each evaluation criterion.’’ ; Comment: None. Recommendation: None. (b) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words: ‘‘(3) In the case of an application for a licence to provide a telecommunication service referred to in subsection (2) or any other telecommunication service prescribed for the purposes of this subsection the Authority [shall] may— ’’; Comment: Major licence applications merit public hearings. Recommendation: Subsection (3) should not be changed. (c) by the deletion in subsection (3) of paragraph (c); Comment: Major licence applications merit public hearings. Recommendation: Subsection (3) should not be changed. (d) by the insertion after subsection (3) of the following subsections: ‘‘ (3A) The Authority may require an applicant or an interested party who has lodged written representations in terms of subsection (3) to furnish the Authority, within the period specified by it, with such further information as may be reasonably necessary in order to consider the application. (3B) Subject to subsection (3A), no [ contemplated in subsection (2)(b)(iii).’’ ; Comment: None. Recommendation: None. (e) by the substitution in subsection (4) for paragraph (b) of the following paragraph: ‘‘ (b) (i) The Authority may, at the request of an applicant or person who lodged representations, determine that any document or information [relating to the financial capacity or business plans of any person or to] that is commercially sensitive or any other matter reasonably justifying confidentiality, shall not be open to public inspection, if such document or information can be separated from the application, representations or other documents in question. (ii) For purposes of this paragraph commercially sensitive document or information or other matter reasonably justifying confidentiality shall exclude documents or information that was or becomes, or as a matter of law should be, generally available to the public.’’ ; and Comment: None. Recommendation: None. (f) by the deletion of subsection (5). Comment: Major licence applications merit public hearings. Recommendation: Subsection (5) should not be changed. |
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Substitution of section 35 of Act 103 of 1996 |
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35 |
9. The following section is hereby substituted for section 35 of the principal Act:‘ Decision on applications 35. (1)(a) The Authority shall, after having duly considered any application for a licence made in terms of this Act and any written submissions in relation to the applications that may be called for by the Authority and submitted to the Authority within the period determined by the Authority— (i) notify the applicant of— (aa) in the case of an application for a licence referred to in section 34(2)(a), the Authority’s intended recommendation to the Minis-ter, and the proposed licence conditions; and (bb) in the case of any other licence application, its decision, and the licence conditions; (ii) on request made by the applicant within the prescribed period, furnish him or her with its reasons for such recommendation or decision. (2) The Authority shall, in respect of an application for a licence referred to in section 34(2)(a), and after subsection (1) has been complied with, make its recommendation to the Minister, which shall include proposed licence conditions. (3) The Minister may in respect of a recommendation by the Authority contemplated in subsection (2)— accept it; (b) request further information from the Authority; (c) refer it back to the Authority for further consideration; or (d) reject it. (4) In the consideration of applications in terms of this Act, due regard shall be given to applications— (a) by persons from historically disadvantaged groups; and (b) which promote the empowerment and advancement of women in the telecommunication industry. (5) Without derogating from subsection (4), in the evaluation of equity ownership held by persons from historically disadvantaged groups or women in an application for a licence in terms of this Act, the Authority shall give due preference for up to 30% of such equity ownership or such higher equity ownership percentage as may be prescribed. (6) Subject to section 36(6), a licence shall be granted on conditions appropriate to the licence and consistent with the objects referred to in section 2 and the other provisions of this Act. (7) The Authority shall, where the application has been granted, issue the licence in question to the applicant. (8) Any licence granted in terms of this section, shall become effective on the date specified therein. (9) Nothing in this section derogates from the rights of an applicant to be furnished with reasons for a decision under the Promotion of Administra-tive Justice Act, 2000 (Act No. 3 of 2000).’’ . Comment: There does not seem to be any reason to begin subclause (6) with "subject to section 36(6)". It would also be helpful to clearly indicate that the Minister grants such licences. Recommendation: (6) [ appropriate to the licence and consistent with the objects referred to in section 2 and the other provisions of this Act. |
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Insertion of section 35A in Act 103 of 1996 |
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35A |
10. The following section is hereby inserted in the principal Act after section 35:‘‘ Alternative licensing methods 35A. (1) Notwithstanding sections 34 and 35— (a) in the case of a licence referred to section 34(2), the Minister may in specific instances determine the manner in which applications may be made and the licensing conditions that will apply; and (b) for all other licences, the Authority may in specific instances prescribe the licensing conditions that will apply.’’ . Comment: This clause seems to be too sweeping. Also, it deals in (a) with process for applications and substantive conditions while (b) only deals with the substantive conditions of licences. Recommendation: Without further satisfactory explanation of the purpose of the clause and the discrepancies between (a) and (b), Vodacom cannot support the addition of the clause. |
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Insertion of sections 36A and 36B in Act 103 of 1996 |
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36A |
11. The following sections are hereby inserted in the principal Act after section 36:‘‘ Contents of expression ‘Public switched telecommunication service’ 36A. (1) A ‘Public switched telecommunication service’ shall be a telecommunication service to the general public on a subscription basis, which shall include services such as— (a) national long-distance telecommunication service; (b) international telecommunication service; (c) local access telecommunication service contemplated in section 39; (d) public pay-telephone service; (e) marine telecommunication service; (f) service comprising the provision of telegrams; (g) service comprising supply of telecommunication equipment on the premises of a customer; (h) the installation, bringing into service, maintenance and repair of that part of the public switched telecommunication network that is provided, maintained and operated by the public switched telecom-munication services licensee for the purposes of providing any telecommunication service, such as the provision of telecommunica-tion circuits for— (i) private circuits; (ii) links between sites of the same operator or multiple operators; (iii) telecommunication facilities used for the provision of private telecommunication networks, including virtual private networks; (iv) telecommunication facilities used for the provision of value-added network services; (v) telecommunication facilities used for the provision of telecom-munication services in under-serviced areas contemplated in section 40A; (vi) telecommunication facilities used to provide voice over internet protocol; (vii) third generation telecommunication facilities; (viii) telecommunication facilities to provide fixed-mobile services in the 1800MHz frequency band; and (i) any other service reasonably complementary to the provision of those services (whether provided on a fixed or mobile basis, or a combination thereof) such as the provision, repair and maintenance of equipment located on a customer’s premises and any other telecom-munications apparatus of any kind. (2) Nothing in this section shall exempt the holder of a public switched telecommunication service licence from holding a licence under section 30 or 37. Comment: Vodacom is concerned that the fixed-mobile licence authority be consistently defined and applied throughout the Act. Recommendation: The clause should be amended in pertinent part as follows: (h) the installation, bringing into service, maintenance and repair of that part of the public switched telecommunication network that is provided, maintained and operated by the public switched telecom-munication services licensee for the purposes of providing any telecommunication service, such as the provision of telecommunica-tion circuits for— (i) private circuits; (ii) links between sites of the same operator or multiple operators; (iii) telecommunication facilities used for the provision of private telecommunication networks, including virtual private networks; (iv) telecommunication facilities used for the provision of value-added network services; (v) telecommunication facilities used for the provision of telecom-munication services in under-serviced areas contemplated in section 40A; (vi) telecommunication facilities used to provide voice over internet protocol; (vii) telecommunication facilities to provide fixed-mobile services in the 1800MHz and third generation frequency bands (viii) telecommunication facilities to provide fixed-mobile services in the 1800MHz frequency band (i) any other service reasonably complementary to the provision of those services (whether provided on a fixed or fixed-mobile basis combination thereof equipment located on a customer’s premises and any other telecom-munications apparatus of any kind. (2) telecommunication service licence from holding a licence under section 30 or 37 |
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Contents of expression ‘public switched telecommunication networks’ |
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36B |
36B. (1) ‘public switched telecommunication networks’ shall be thetelecommunication systems which are installed or otherwise provided, maintained and operated by a public switched telecommunication service licensee for the purpose of providing public switched telecommunication services and fixed-mobile services such as— (a) a local access network; (b) a national long-distance network; and (c) an international network; by whatever means such as copper cables, wireless loops, microwave links, optic fibre cables, satellite earth stations, space segments and satellite systems, by means of which signals can be conveyed between all or any of— (i) two or more terminal connection points; (ii) two or more network connection points; (iii) a terminal connection point and a network connection point; (iv) a terminal connection point or a network connection point, as the case may be, and a corresponding point in another country; (v) a public pay-telephone and the terminal connection point, a network connection point or a corresponding point in another country. (2) The systems contemplated in subsection (1) shall not include telecommunication equipment located on the premises of a customer, unless it is meant for public pay-telephones or mobile telecommunications on the premises of a customer.’’ . Comment: Vodacom assumes that the purpose of subclause (2) is to ensure that customer premises equipment (which is deregulated) which currently does not fall within Telkom’s PSTS licence, is not captured here. However, Vodacom is concerned that the fixed-mobile licence authority be consistently defined and applied throughout the Act. Recommendation: Consistent with our proposed definition of fixed-mobile telecommunication service, the clause should be amended in pertinent part as follows: (2) The systems contemplated in subsection (1) shall not include telecommunication equipment located on the premises of a customer, unless it is meant for public pay-telephones or fixed-mobile telecommunications on the premises of a customer |
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Amendment of section 37 of Act 103 of 1996 |
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37 |
12. (1) Section 37 of the principal Act is hereby amended—by the deletion of the proviso to subsection (1); by the substitution for subsection (2) of the following subsection: ‘‘ (2) Cell-C Pty Ltd, a company incorporated in terms of the Companies Act, 1973 (Act No. 61 of 1973), shall be the holder of a licence in terms of this Act to provide a mobile telecommunication service in accordance with the terms and conditions as specified in its licence issued to it by the Authority on 22 June 2001.’’ ; and by the deletion of subsection (3). Comment: Vodacom objects to the deletion of the proviso to subsection (1). Vodacom and MTN applied for the re-issuance of their licences in terms of the proviso, and are in the process of preparing and submitting their comments on a draft licence recently provided to them by the Authority. In short, the matter is now moving forward, and should be concluded in the near future. Deleting the proviso at this stage will not add anything to the validity of the deemed licence granted by the Parliament by the express terms of section 37(1) in 1996. The deletion of the proviso will also raise serious questions as to which clauses in the former National Cellular Telecommunication Licence and Multiparty Agreement are to be incorporated (or not to be incorporated) into the licence. Note, for example, the cross-reference to section 42(3)(a). Vodacom also objects to the deletion of subsection (3). That clause was specifically written into the Act at the request of Vodacom because Vodacom was and is authorized by its licence to provide, and was and is providing, various forms of those types of services (e.g. community services, national calls, international calls, voicemail and value added information services) as a feature of its licensed mobile cellular telecommunication service. Vodacom has no objection to the insertion of the proposed subsection (2), but questions its usefulness. More importantly, Vodacom submits that existing subsection (2)(d) must be preserved, because it made clear that one of the intended steps in the process of sector liberalisation was to allow mobile operators, at a time set by the Minister, to self-provide fixed links. This intention is supported by the language of section 36(4) of the Act. Regulatory predictability is very important. Cellular operators, particularly new entrants, rely on such measures being implemented in due course. Vodacom submits that this step should be taken in the very near future. Recommendation: The proviso to subsection (1) and the whole of subsection (3) should not be deleted. Vodacom proposes the following be inserted to replace (2)(d): ‘‘ (4) Mobile cellular telecommunication service licences shall contain a condition prohibiting the service in question, subject to the provisions of section 44(7), from utilising any fixed lines which may be required for the provision of the service other than fixed lines made available by Telkom or the second national operator, until a date to be fixed by the Minister by notice in the Gazette." |
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38 |
Amendment of section 38 of Act 103 of 1996 subsection (1) of the following subsection: ‘‘ (1) No [person] persons other than Telkom shall be granted a licence to provide national long-distance telecommunication services until after [a date to be fixed by the Minister by notice in the Gazette] 7 May 2002.’’ . Comment: None. Recommendation: None. |
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39 |
Amendment of section 39 of Act 103 of 1996 (a) by the substitution in subsection (1) for paragraph (a) of the following paragraph: ‘‘ (a) No [person] persons other than Telkom shall be granted a licence to provide a local access telecommunication service until after [a date to be fixed by the Minister by notice in the Gazette] 7 May 2002.’’ ; and (b) by the substitution in subsection (2) for paragraph (a) of the following paragraph: ‘‘ (a) No [person] persons other than Telkom shall be granted a licence to provide a public pay-telephone service until after [a date to be fixed by the Minister by notice in the Gazette] 7 May 2002.’’ . Comment: None. Recommendation: None. Amendment of section 40 of Act 103 of 1996 15. Section 40 of the principal Act is hereby amended— (a) by the substitution for subsection (2) of the following subsection: ‘‘ (2) A licence to provide any [value-added network] electronic transaction service, including, but not limited to, electronic data interchange, [E-mail] electronic mail, protocol conversion, access to a database or a managed data network service, shall contain a condition that the service in question [shall] be provided by means of telecommu-nication facilities— (a) provided by Telkom or made available to Telkom as contemplated in section 44 [until a date to be fixed by the Minister by notice in the Gazette, and a different date may be so fixed in respect of national long-distance facilities];or (b) after 7 May 2002, provided by Telkom and the second national operator or any of them.’’ ; and (b) by the addition to subsection (3) of the following paragraph, the existing subsection becoming paragraph (a): ‘‘ (b) Without prejudice to any rights of Telkom under its public switched telecommunication service licence which exist at the com-mencement of the Telecommunications Amendment Act, 2001, the second national operator and the licensees contemplated in section 40A may provide voice over internet protocol after 7 May 2002.’’ . Comment: Vodacom also objects to this retreat from the previous policy decision and legislative sanction that VANs be allowed to provide their own links at some time in the (near) future. Recommendation: The following amendment is proposed: (b) after 7 May 2002, provided by Telkom and the second national operator or any of them, until a date to be fixed by the Minister by notice in the Gazette.’’ ; and |
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40A |
Insertion of section 40A in Act 103 of 1996 section 40: ‘‘ Under-serviced area licence 40A. (1) The Minister shall by notice in the Gazette determine those geographic areas where less than 5% of the population has access to telecommunication services or facilities and in respect of which small businesses may apply to the Authority for under-serviced area licences to provide such services or facilities. (2) The Authority may grant an under-serviced area licence to a small business on application in the prescribed manner. (3) An under-serviced area licensee shall provide telecommunication services, including voice over internet protocol services, in respect of the area to which the licence applies. (4) Under-serviced area licences granted by the Minister shall become effective after 7 May 2002. (5) All under-serviced area licences granted under this section shall be issued on materially the same terms and conditions. (6) Under-serviced area licensees may by agreement obtain interconnec-tion to the networks of public switched telecommunication service licensees if such agreement complies with— (a) section 43 and any regulations prescribed to give effect to that section; and (b) the prescribed terms and conditions, including price, in terms of which under-serviced area licensees may obtain such interconnection.’’ . Comment: Subclauses (2) and (4) are contradictory. The Authority should grant these licences. Recommendation: (4) Under-serviced area licences granted by the [ effective after 7 May 2002. |
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41 |
Amendment of section 41 of Act 103 of 1996 (a) by the substitution in subsection (1) for paragraphs (a) and (b) of the following paragraphs: ‘‘ (a) A person providing a telecommunication network for purposes principally or integrally related to the operations of such person (hereinafter referred to as a private telecommunication network), shall, notwithstanding the provisions of sections 32(1) and 33(1) and regard-less of whether or not such network is utilised by means of telecommu-nication facilities made available by Telkom, or the second national operator, not require a licence except as contemplated in paragraph (b). (b) (i) [A] Notwithstanding subparagraph (ii), a private telecommuni-cation network licence shall, subject to the regulations, be required for the provision of a private telecommunication network, where such network is interconnected to the telecommunication system of Telkom or any other person providing a public switched telecommunication [network] service. (ii) Subject to section 40(3), a holder of a value-added network service licence may operate virtual private networks without first obtaining a private telecommunication network licence.’’ ; (b) by the deletion of subsection (3); and (c) by the addition of the following subsections: ‘‘ (10) (a) The Minister shall, with the concurrence of the Minister of Education, establish an entity to construct and operate an educational network. (b) The entity contemplated in paragraph (a) shall be deemed to have been granted a private telecommunications network licence to link all public schools and public further education and training institutions defined in the South African Schools Act, 1996 (Act No. 84 of 1996), and the Further Education and Training Act, 1998 (Act No. 98 of 1998), respectively, as well as such other education and training institutions as may be determined by the Minister of Education. (11) (a) The Minister shall, with the concurrence of the Minister of Transport, establish an entity to construct and operate a private telecommunications network to fulfil South Africa’s obligations in terms of— (a) the International Convention for the Safety of Life at Sea (SOLAS) 1974/78; (b) Annexure 12 to the Convention on International Civil Aviation, signed by South Africa on 7 December 1944 in Chicago; and (c) the International Convention on Maritime Search and Rescue, 1979. (b) The entity contemplated in paragraph (a) shall— (i) be referred to as ‘‘ Maritime and Aeronautical Radio Services’’ ; and (ii) be deemed to have been granted a private telecommunications network licence.’’ . Comment: None. Recommendation: None. |
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43 |
Amendment of section 43 of Act 103 of 1996 (a) by the substitution for subsection (1) of the following subsection: ‘‘ (1) (a) Any public switched telecommunication service licensee shall, when requested by any other person providing telecommunication services, interconnect its telecommunication systems to the telecommu-nication system of the other person, in accordance with the terms and conditions of an interconnection agreement entered into between the parties, unless such request is unreasonable. (b) For the purposes of paragraph (a), a request is reasonable where the Authority determines that the requested interconnection— (i) is technically feasible; (ii) will promote the efficient use of the public switched telecommuni-cation network; (iii) can be implemental on a reciprocal basis between the parties. (c) An agreement contemplated in paragraph (a) shall be entered into within the prescribed period or such extended period as the Authority may allow in any particular case. (d) The parties concerned shall, unless exempted by regulation— (i) notify the Authority if any request contemplated in paragraph (a) is made; (ii) where the reasonableness of any such request is disputed, refer the dispute to the Authority for its decision; (iii) where the parties are unwilling or unable to negotiate or agree on terms and conditions within the period or extended period contemplated in paragraph (c), submit all outstanding issues to the Authority for resolution.’’ ; (b) by the substitution in subsection (4) for paragraphs (a) and (b) of the following paragraphs, respectively: ‘‘ (a) in the case of a dispute relating to reasonableness as contemplated in subsection (1)(d)(ii), make a determination taking into consider-ation the factors referred to in subsection (1)(b), and any other relevant factor; (b) in the case of unwillingness or inability by the parties to negotiate or agree on the terms and conditions of interconnections, the Authority may— (i) impose terms and conditions in accordance with the guidelines contemplated in subsection (3); or (ii) propose terms and conditions in accordance with the guide-lines contemplated in subsection (3) which, subject to renego-tiations, shall be agreed to by the parties within such period as the Authority may specify. (c) by the insertion after subsection (4) of the following subsection: ‘‘ (4A) If the parties fail to agree as contemplated in subsection (4)(b)(ii), the Minister shall declare that the terms and conditions proposed by the Authority apply between the parties.’’ ; (d) by the substitution in subsection (5) for paragraph (b) of the following paragraph: ‘‘ (b) Where the Authority determines that any terms and conditions are not consistent with the guidelines contemplated in subsection (3), it may direct the parties to [negotiate] renegotiate and agree on new terms and conditions within such period as the Authority may specify, or itself propose terms and conditions consistent with those guidelines and which, subject to renegotiation, shall be agreed by the parties within such period as it may specify, and the provisions of subsection [(1)(e)(iii)] (1)(d)(iii) and (4)(b) shall apply with the necessary changes.’’ ; and (e) by the addition of the following subsection: ‘‘ (10) (a) Five years after the date on which an interconnection agreement is concluded a party to that agreement may request the other party or parties to promptly negotiate in good faith to modify or amend some or all of the terms of such agreement. (b) Subsections (1) to (6) and the regulations promulgated under this section shall apply, with the necessary changes, in relation to any proposed modification or amendment of any term or condition contem-plated in paragraph (a).’’ . Comment: Vodacom does not support the amendments of subsection (4)(b). They allow the Authority to impose terms and conditions before, or irrespective of the opportunity for, renegotiation. Recommendation: Section (4)(b) should not be amended. |
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44 |
Amendment of section 44 of Act 103 of 1996 (a) by the deletion of subsection (1); (b) by the substitution for subsections (2), (3) and (4) of the following subsections, respectively: ‘‘ (2) Telkom and any other provider of a public [fixed] switched telecommunication service shall, when requested by any other person providing a telecommunication service, including a private telecommu-nication network, lease or otherwise make available telecommunication facilities to such other person pursuant to an agreement to be entered into between the parties, unless such request is unreasonable. (3) The provisions of section [43(1)(c), (d) and (e)] 43(1)(b), (c) and (e) shall apply, with the necessary changes, in relation to any request and agreement contemplated in [subsections (1) and] subsection (2). (4) Every agreement for the leasing [or otherwise making available] of telecommunication facilities or resale, including any agreement contemplated in [subsections (1) and] subsection (2), shall, unless exempted by the regulations, be lodged by the parties with the Authority to enable it to determine whether the agreement is consistent with the guidelines contemplated in subsection (5).’’ ; (c) by the addition to subsection (5) of the following paragraph, the existing subsection becoming paragraph (a): ‘‘ (b) The guidelines contemplated in paragraph (a) may relate to— (i) resale, including the basis for determining wholesale and retail tariffs; and (ii) the manner in which telecommunication facilities are made available." ; and (d) by the substitution for subsection (7) of the following subsection: ‘‘ (7) (a) In the application of section [43(1)(e)(iii)] 43(1)(d)(iii) and (4)(b) in relation to making the telecommunication facilities of [Telkom] a public switched telecommunication service licensee available to another person and where the Authority is satisfied that [Telkom] the holder of a public switched telecommunication service licence is unwilling or unable to make suitable facilities available to that person within a reasonable period of time, the Authority may, instead of proposing terms and conditions as contemplated in section 43(4)(b), authorise that person to provide or obtain any necessary telecommuni-cation facilities other than from [Telkom] such holder on conditions determined by the Authority, notwithstanding the provisions of sections [37(2)(c),] 38(2), 40(2) and 41(2)(a) and this section. (b) Subject to section 32A(2) and (4), notwithstanding the guidelines contemplated in subsection (5), no public switched telecommunication service licencee shall be required to unbundle its local loop for the period of two years referred to in section 32A(2)(a) and (4).’’ . Comment: The regulation of retail tariffs is provided for in section 45 of the Act. Recommendation: ‘‘ (b) The guidelines contemplated in paragraph (a) may relate to— (i) resale, including the basis for determining wholesale [ tariffs; and Edit: the cross-reference in subsection (3) to 43(1)(e) should be 43(1)(d). |
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45 |
Amendment of section 45 of Act 103 of 1996 (a) by the substitution for subsection (2) of the following subsection: ‘‘ (2) The manner of determining fees and charges shall be prescribed only in respect of fields where no or insufficient competition exists: Provided that within 12 months after the date of commencement of this Act, the Minister shall determine such fees and charges in respect of Telkom, and such fees and charges shall be in force until the later of— (a) the third anniversary of the date on which the Minister issued a licence to Telkom in accordance with section 36(1)(a); and (b) the date when the Authority prescribes a new determination of fees and charges in respect of Telkom.’’ ; and (b) by the addition of the following subsection: ‘‘ (3) From a date to be determined by the Minister, all public schools as defined in the South African Schools Act, 1996 (Act No. 84 of 1996), and all public further education and training institutions as defined in the Further Education and Training Act, 1998 (Act No. 98 of 1998), shall be entitled to a 50% discount on— (a) all telecommunication calls to an internet service provider; and (b) any connection or similar fees or charges levied by an internet service provider for accessing the internet or transmitting and receiving any signals via the internet or for such access and transmission and reception.’’ . Comment: None. Recommendation: None. |
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53 |
Amendment of section 53 of Act 103 of 1996 subsection, the existing section becoming subsection (1): ‘‘ (2) (a) The Authority may, with regard to the matters referred to in subsection (1), make regulations to ensure efficient protection of consumer interests. (b) The Authority shall report annually to the Minister on the overall status and efficiency of the regulations contemplated in paragraph (a).’’ . Comment: Section 53 was designed to enable the Authority to deal, pro-actively or reactively, with unfair trading (one possible form of uncompetitive behaviour) in the market place. Fair trading is not only a statutory requirement, but also a requirement contained in every major telecommunication service licence. The jurisprudence relating to unfair trading is reasonably well-developed. The Authority need only exercise its authority when it deems fit; there is no need for further regulation at this point in time. The amendments appear to be aimed at enabling the Authority to promulgate regulations on consumer protection, generally. If made for this reason, they should be put into a stand-alone clause, as indicated below. Another approach, however, could be to allow the Authority to exercise some form of concurrent jurisdiction with existing consumer protection institutions for matters affecting the communications sector. This could be made possible by way of appropriate amendments to general consumer protection legislation. Unnecessary institutional duplication could be costly. Recommendation: 53B. Consumer Protection (1) The Authority may after consultation with [consumer protection bodies] make regulations to ensure efficient protection of consumer interests . (2) The Authority shall report annually to the Minister on the overall status and efficiency of the regulations contemplated in subsection (1).’’ . |
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53A |
Insertion of section 53A in Act 103 of 1996 ‘‘ Telecommunications Mediation and Arbitration Committee 53A. (1) The Minister, may at the request of the Authority and any other party to an unresolved dispute, establish a Mediation and Arbitration Committee (in this section referred to as ‘‘ the Committee’’ ), comprising 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 ac-counting. (2) Before the Committee is established, each party to the dispute must agree in writing to be bound by the decision of the Committee. (3) Within 30 days of appointment of the Committee, the Committee shall determine it rules of procedure for the mediation or arbitration, which the Minister must publish by notice in the Gazette. (4) The Committee shall mediate and endeavour to settle any dispute between the Authority and any telecommunication operator or licensee in respect of any licensing agreement, any terms and condition thereof, and any matter arising therefrom. (5) If the dispute remains unresolved, the Committee shall arbitrate the dispute. (6) At the conclusion of the hearing the Committee must determine the terms and conditions of the licensing agreement, and must issue written reasons for its determination. (7) The Committee shall submit a written report to the Minister regarding the mediation or determination contemplated in subsections (4) and (5), within three days after any settlement or determination, as the case may be.’’ . Comment: This clause seems to confuse appeal and arbitration processes. Vodacom prefers judicial review of any unfair or unreasonable actions of the Authority in terms of administrative determinations. It may be useful to have such a facility available in cases where there are disputes in respect of matters where the terms and conditions of our licences require "agreement" with the Authority. Vodacom would support voluntary dispute resolution in disputes with other licensees. Furthermore, these determinations or decisions must be reviewable by a court of law, the same as is the case with section 100 decisions. Recommendation 53A. (1) The Minister[ party to an unresolved dispute (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, of which each party will nominate one, with sufficient knowledge of matters relating to telecommunications licensing, regulations, agreements and cost ac-counting. … (8) Any party or person affected by the determination or decision contemplated in subsection (6) may apply to a competent court to set the determinatio or decision aside. |
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58 |
Amendment of section 58 of Act 103 of 1996 subsection, the existing section becoming subsection (1): ‘‘ (2) The Minister may, by notice in the Gazette, appoint a board of up to seven members to provide oversight of and guidance to the Universal Service Agency.’’ . Comment: Supported, with changes indicated below. See policy direction 2.2. Recommendation: ‘‘ (2) The Minister members to provide oversight of and guidance to the Universal Service Agency, and may determine by notice in the Gazette the rules and procedures the board shall follow in performing its functions.’’ |
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61 |
Amendment of section 61 of Act 103 of 1996 (a) by the substitution for subsection (2) of the following subsection: ‘‘ (2) The [Authority] Agency shall utilise any money contemplated in subsection (1) in accordance with the statement of estimated expenditure referred to in subsection (3).’’ ; and (b) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words: ‘‘ The [Authority] Agency— ’’. Comment: None, on these clauses. Recommendation: Vodacom recommends that section 63(1) be amended to require the submission of the report of the Agency to the Minister by 31 June (within ninety days of financial year end) each year. The terms "as soon as is reasonably practicable" should be deleted. Vodacom recommends that section 63(2) be amended to provide that the annual report shall contain a statement by the oversight board as to its performance of its own functions, and its views on the performance of the Agency during the relevant year. See policy direction 2.3. |
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65 |
Amendment of section 65 of Act 103 of 1996 subsection (4) of the following subsection: ‘‘ (4) The Universal Service Fund shall be administered by the Agency subject to the control and in accordance with the instructions of the [Authority] Minister.’’ . Comment: None. Recommendation: None. |
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66 |
Amendment of section 66 of Act 103 of 1996 (a) by the substitution for subsections (1) and (2) of the following subsections, respectively: ‘‘ (1) The money in the Universal Service Fund shall be utilised exclusively for the payment of subsidies— (a) for the assistance of needy persons towards the cost of the provision to or the use by them of telecommunication services; (b) [subject to subsection (3)] to Telkom and to any other holder of a licence in terms of Chapter V which imposes obligations on the holder relating to the extension of its [public switched] telecom-munication service to areas and communities which are not served or not adequately served by telecommunication services, for the purpose of financing such extension; (c) to public schools and public further education and training institutions referred to section 45(3) for the procurement of internet services and equipment necessary to access the internet; (d) for the establishment of centres where access can be obtained to telecommunication facilities; (e) for the establishment of public information terminals; and (f) to acquire and construct infrastructure used by licensees to provide services to areas which are not served or not adequately served by telecommunication services. (2) The money in the fund shall be apportioned for the separate purposes [of paragraph (a) and paragraph (b) of] referred to in subsection (1) in accordance with [the prescribed] a formula determined by the Minister by notice in the Gazette.’’ ; (c) by the deletion of subsection (3); and (d) by the substitution in subsection (4) for the words preceding paragraph (a) of the following words: ‘‘ The [Authority] Minister may, for the purposes of payments referred to in [subsections] subsection (1)(a) and [(3) prescribe] (b) by notice in the Gazette determine— ’’. Comment: Vodacom suggests that the Minister consult with the oversight board of the Agency in determining the allocation formula for expenditures from the Fund. It seems that the provisions subsection (4) are capable of wider application than paragraphs (a) and (b) of subsection (1). Recommendation: The following changes are recommended: (2) The money in the fund shall be apportioned for the separate purposes [of paragraph (a) and paragraph (b) of] referred to in subsection (1) in accordance with [the prescribed] a formula determined by the Minister, after consultation with the oversight board of the Agency, by notice in the Gazette.’’ In respect of subsection (4) ‘‘ The [Authority] Minister may, for the purposes of payments referred to in [subsections] subsection (1) Gazette determine— ’’. |
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67 |
Amendment of section 67 of Act 103 of 1996 (2) for paragraph (a) of the following paragraph: ‘‘ (a) the basis and manner of determination of such contributions, which shall not exceed 0.5% of a licencee’s annual turnover; and’’. Comment: The terminology is not consistent with existing terminology. Furthermore, it is critical that this section no longer apply to private telecommunication networks; see policy direction 3.2. Recommendation: The following changes should be made: "(1) Every holder of a licence granted or deemed to have been granted in terms of Chapter V . . . with effect from a date fixed by the Minister by notice in the Gazette, provided that such contributions shall not be paid in respect of private telecommunication service licences. ‘‘ (a) the basis and manner of determination of such contributions, which shall not exceed 0.5% of a licencee’s annual turnover derived from the provision of the telecommunications service that it is licensed to provide; and’’. |
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67A |
Insertion of section 67A in Act 103 of 1996 following section: ‘‘ Competitive tender for universal service projects 67A. (1) The Agency may award universal access projects by public competitive bid to the qualified bidder that requests subsidy for such project. (2) The Agency shall in allocating the subsidy take into account, inter alia, the provisions of section 2. (3) The subsidy for universal access projects shall be paid out of the Universal Service Fund. (4) The Agency shall supervise the execution of projects awarded under subsection (1).’’ . Comment: Firstly, there is no definition of "universal access projects" or any express reference to such projects in the exclusive list of approved expenditure items for the Fund in section 66. This needs to be remedied. Secondly, some form of existing tender procedure should be applied, or the Minister will need to determine such a procedure by notice in the Gazette. Recommendation: Amendments as motivated above. |
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78 |
Insertion of new Chapter X in Act 103 of 1996 ‘‘ CHAPTER X EMERGENCY CENTRES Definition 78. In this Chapter, unless the context otherwise indicates, ‘emergency organisation’ means, in respect of any locality, the relevant police, fire, ambulance or traffic authority or coast guard services for that locality and any other similar organisation providing assistance to the public in emergencies. Establishment of 112 Emergency Centres 79. (1) The Minister may by notice in the Gazette establish public emergency communications centres to be known as ‘112 Emergency Centres’ (2) A 112 Emergency Centre is a communications service centre by means of which the user of a public telephone system has the ability to reach an emergency centre by dialling the numerals 112 in order to request an emergency service. (3) 112 Emergency Centres shall be accountable to the Minister. Functions of 112 Emergency Centres 80. (1) 112 Emergency Centres shall transmit any telecommunication request for an emergency service to any emergency organisation. (2) Licensees required to carry calls to 112 Emergency Centres may not levy any charge on the caller for placing calls to 112 Emergency Centres. (3) Licensees transporting any telecommunication from 112 Emergency Centres to any emergency organisation shall be entitled to recover from the relevant emergency organisation the reasonable cost that it incurs in transporting such telecommunication. Public emergency number 81. (1) The number 112 is hereby established as the exclusive national public emergency number. (2) No person may apply for the registration in terms of applicable intellectual property legislation, or any other law, of any mark or domain name containing the numerals 1-1-2 in that sequence. (3) No person may call the national emergency telecommunication number, 112, for any purpose other than a request for an emergency service contemplated in section 79(1). Standards, capabilities and operating procedures of 112 Emergency Centres 82. (1) As far as practicably possible, 112 Emergency Centres shall have voice, data and global positioning systems capability. (2) 112 Emergency Centres shall develop and apply common technical standards and standard operating procedures as directed by the Minister from time to time by notice in the Gazette. (3) Subject to obtaining an appropriate radio frequency licence in accordance with section 30, 112 Emergency Centres may establish their own radio networks, provided such networks are used exclusively to communicate calls to 112 Emergency Centres or emergency organisations. (4) Emergency Centres may display the 112 public emergency number on public roads and other public places without cost.’’ . Comment: It needs to be made clear that the number 112 is the exclusive public, national emergency number. Private, value-added emergency services such as Vodacom’s International SOS 147 and Netcare 082 911 services should be allowed to continue to provide service to those customers who wish to use them, at a fee. Recommendation: The following clause should be added: 81. (4) Nothing in this section shall be interpreted to prohibit the provision by any public switched telecommunication service or mobile cellular telecommunication service provider of access to private, value-added emergency access services at a fee determined by the service provider. |
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89 |
Amendment of section 89 of Act 103 of 1996 (a) by the substitution for subsection (1) of the following subsection: ‘‘ (1) The Authority shall prescribe— (a) a numbering plan for use in respect of telecommunication services; and (b) measures to ensure that number portability shall be introduced in 2005, including— (i) the creation of a national number portability database; and (ii) cost allocation and cost recovery among licensees.’’ ; and (b) by the addition of the following subsections: ‘‘ (4) The numbering plan contemplated in subsection (1)(a) shall be non-discriminatory. (5) The Authority shall maintain and manage a central numbering database system. (6) Every operator shall submit information on all numbers, including numbers of pre-paid subscribers, allocated to subscribers in terms of its licence to the Authority.’’ . Comment: The database will not be ready for submission of information before May 2002 at the earliest. The information submitted here should provide for number plan management. We assume that the requirement to provide identification of customers will be imposed in terms of the Interception and Monitoring Bill, and the regulations envisaged under directory services. Recommendation: Minimum change consistent with policy diretions: (6) From 1 May 2002 or such later date as the Minister, subject to the provisions of subsection (1)(b), may determine by notice in the Gazette, every |
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89A |
Insertion of sections 89A and 89B in Act 103 of 1996 ‘‘ Carrier pre-selection 89A. (1) The Authority shall prescribe regulations— (a) establishing a framework for facilities in terms of which subscribers to a telecommunication service can access the services of an intercon-nected national long-distance telecommunication service and an international telecommunication operator; and (b) requiring all holders of public switched telecommunication services licences to phase in the facilities referred to in paragraph (a) from 2005. (2) The framework contemplated is subsection (1) shall ensure that the implementation and maintenance of the facilities referred to therein are non-discriminatory and give effect to section 2(j). Directory services 89B. (1) The Authority may prescribe, or impose through licence conditions, as the case may be, measures in respect of directories and directory enquiry services, regarding— (a) the protection of personal data; (b) the protection of privacy; (c) language preferences; (d) the prevention of fraud; (e) the prohibition of marketing and unfair trading practices; (f) the provision of assistance to law enforcement or other public safety officials; (g) related charges; (h) the establishment of a national directory information database; and such other related matters as the Authority shall determine.’’ . Comment: Section 89A is a pro-competitive measure that belongs in Chapter V of the Act somewhere near section 53. Vodacom submits that the imposition of both carrier selection (per call) and carrier pre-selection (permanent basis) should be acknowledged in the heading of the clause. Vodacom accepts that public switched telecommunication service operators will be required to provide carrier pre-selection by 2005. The Authority should be authorized to impose carrier selection or carrier pre-selection on mobile operators from 2005 as well, if market conditions so require. The purpose of proposed paragraph (e) in clause 89B is not clear. There is, generally, nothing objectionable about advertising to recover the costs and bring down the prices of directory information services. There does not appear to be any reason for creating a subclause (1) in the drafting of 89B; the paragraphs are sufficient. Recommendation: ‘‘ Carrier selection and pre-selection 53C. (1) The Authority shall prescribe regulations— (a) establishing a framework for facilities in terms of which subscribers to a public switched telecommunication service can access the services of an intercon-nected national long-distance telecommunication service and an international telecommunication operator; and (b) requiring all holders of public switched telecommunication services licences to phase in the facilities referred to in paragraph (a) from 2005. (2) The Authority may prescribe regulations establishing a framework for facilities in terms of which subscribers to a mobile cellular telecommunication service can access the services of an interconnected national long-distance telecommunication service ( implementation and maintenance of the facilities referred to therein are non-discriminatory and give effect to section 2(j). |
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96 |
Amendment of section 96 of Act 103 of 1996 (a) by the substitution for subsection (4) of the following subsection: ‘‘ (4) The Authority shall, not less than [three months] one month before any regulation is made, cause the text of such regulation to be published in the Gazette, together with a notice declaring its intention to make that regulation and inviting interested persons to furnish the Authority with written comments thereon [or representations in regard thereto].’’ . (b) by the addition of the following subsection: ‘‘ (8) When prescribing any regulation, the Authority shall give due regard to section 2(j).’’ . Comment: Vodacom supports the reduction of the time for written comment on draft regulations to one month, but does not support the apparent elimination of oral representations or public hearings. The Authority should be given statutory authority to hold hearings in its discretion. Vodacom does not support the proposed new subsection (8), because it is unnecessary. Whenever the Authority makes regulations it should carefully consider how best to achieve some or all of the listed objects of the Act, to the extent that they are related to or can be effectuated by the draft regulation, and not just the promotion of competition. Recommendation: Add the following: (4A) The Authority may in its discretion invite interested persons to appear before the Authority and make representations with regard to such intended regulations..’’ Proposed subsection (8) should not be added. |
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96A |
Insertion of section 96A in Act 103 of 1996 ‘‘ Telecommunications Museum 96A. (1) The Director-General shall establish and manage a museum that depicts the evolution and the history of the telecommunication sector in South Africa. (2) The museum and its contents shall be a national asset as defined in the National Heritage Resources Act, 1999 (Act No. 25 of 1999). (3) The content of the museum housed in the Telkom Museum on Telecommunication History shall be transferred to the museum established in terms of subsection (1).’’ . Comment: None. Recommendation: None. |
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101 |
Amendment of section 101 of Act 103 of 1996 (b) of the word ‘‘ or’’ and the insertion after that paragraph of the following paragraph: ‘‘ (c) contravenes the provisions of section 80(2) or (3);’’ . Comment: It would appear that this should be a cross-reference to 81(2) and (3). Recommendation: ‘‘ (c) contravenes the provisions of section |
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Repeal and amendment of laws may be, to the extent set out in the third column thereof. Comment: None. Recommendation: None. |
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Withdrawal of regulations control in respect of mobile cellular telecommunication service published in Gazette No. 19828 on 5 March 1999, are hereby withdrawn. Comment: None. Recommendation: If the regulations need to be repealed, it seems that the Authority should do it, in accordance with the provisions of Act. |
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Short title Comment: None. Recommendation: None. |
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