ICASA has made a fifteen page written submission that sets out in detail the Authority’s views on the Broadcasting Amendment Bill.

We assume all Committee members have copies of our submission and so, this morning, we do not want to simply repeat its contents. In order to maximise our time we will highlight the most important issues and also contextualise the Authority’s approach to new legislation.

The Authority’s starting point for any piece of new or amending legislation is to assess how the law corresponds with national policy objectives for the broadcasting and telecommunication sectors.

Insofar as this Bill falls short of this mark, our intention, as the independent communications regulator, is to find solutions to problems in the proposed legislation. The making of policy has implications that cannot always be predicted.

ICASA therefore believes it is important to focus on how policy objectives can be transformed into legislation that is clear and renders it capable of being implemented. The Broadcasting Act is one of four statutes that govern ICASA’s work. We therefore want to focus on how best national policy can be transformed into legislation, whilst at the same time promoting certainty and a clear definition of powers, roles and responsibilities.

This has guided our approach to analysing the Broadcasting Amendment Bill. As a statutory body we have a duty to identify those sections of the Bill that may conflict with our underlying statutes and pose legal problems for the Authority in the performance of its constitutionally protected duties. Our approach has been to propose alternative solutions to particular clauses in the Bill with the hope that these solutions will assist this Committee in its work.

It should be stressed that the Broadcasting Amendment Bill has great significance for ICASA in many respects.

The proposed amendments in Schedule 1 will allow ICASA to prescribe a new Code of Conduct for Broadcasting Services – a code that was developed after a thorough public consultation process.

We would strongly recommend that the Committee approve the amendment to section 56 and Schedule 1 of the IBA Act. This will allow the Authority more flexibility in amending the Code to meet the changing norms and values of society. Ultimately, our Code must be subject to the Constitution and, as this Committee is no doubt aware, the current Code has been found wanting by the Constitutional Court. As soon as reasonably possible after the President signs the Bill into law, the Authority will gazette a new Code of Conduct for Broadcasting Services.

We also support the amendment of our delegation powers, as set out in section 69. The amendments to section 69 will allow the Authority more flexibility in delegating its powers on broadcasting matters. This amendment has become increasingly urgent following the merger of SATRA and the IBA which has had the result of halving the total number of councillors dealing with both broadcasting and telecommunication matters. As such, it has become increasingly difficult, from an operational point of view, to expedite decision-making because a quorum of Council is currently required for the licensing of every broadcaster. This has been the most obvious blockage in the community radio licensing process.

The amendments to section 69 should therefore have a direct bearing on how we expedite our workload and have strong support from the Authority.

The Authority also welcomes those amendments that seek to address deficiencies in the Broadcasting Act, the IBA Act and the ICASA Act. Many of these corrective amendments have been the product of an ongoing consultative process with the Department of Communications during the last three years.

Our problem solving approach also informs our analysis of clauses that have constitutional implications. We understand that nothing is unconstitutional until it has been declared as such by the Constitutional Court, and we have therefore not raised our constitutional concerns lightly.

In this context, the Authority has set out in detail how Parliament sought to legally protect ICASA from any interference by the executive on regulatory matters relating to broadcast licensing and content. This Bill blurs the lines of responsibility for broadcasting regulation. Where possible, ICASA has tried to propose alternative regulatory solutions – solutions that may still achieve the same national policy goal but in a constitutionally safe manner.

We have critically analysed the proposal for two regional television stations. This analysis is located within a policy context and we propose several innovative regulatory solutions.

Without detracting from our detailed written submission, this morning we would like to group our comments under two main headings as follows:

1. The SABC, Editorial Independence and Code of Conduct Issues

2. Regional Television and Language Issues

These are undoubtedly the issues that have received the most attention and the Authority would like deal with them in more detail today.

One of our key objectives, as set out in the IBA Act, is to protect the integrity and viability of public broadcasting. It is in this spirit that we have analysed the clauses dealing with the SABC, particularly those clauses that may compromise the Corporation’s editorial independence.

It is important for us to restate this morning that only the Authority and the Broadcasting Complaints Commission of South Africa (BCCSA) are empowered to adjudicate complaints and enforce remedies regarding broadcasting content.

The Authority enforces a statutory Code of Conduct in terms of section 56(1) and Schedule 1 of the IBA Act. In terms of section 56(2), the Authority’s Code

We believe that the Codes of the Authority and the BCCSA are effective regulatory mechanisms for dealing with programming that offends or breaches certain norms and standards. It is our understanding that broadcasters are subject to the Constitution in all respects.

It is in this context that we approached the proposed amendments to sections 6, 10(3)(c) and 11(2)(c).

With regard to the proposed deletion of section 6(2), the Bill implies that the SABC will no longer enjoy freedom of expression and journalistic, creative and programming independence, notwithstanding the fact that the preamble to Chapter 1 and section 2(3) of the Broadcasting Act still provide that these freedoms are guaranteed by the Constitution. It is noteworthy that the drafters of the Bill have left the preamble and section 2(3) intact.

The Authority recommends that section 6(2) not be deleted as proposed in the Bill. The deletion of section 6(2) would also conflict with the preamble to Chapter 1 and section 2(3) of the Broadcasting Act. It sends the wrong signal to the public broadcaster and the media in general.

ICASA is also concerned that the proposed section 6(4) may be unconstitutional in that it seems to usurp a power exclusively reserved for the Authority.

We submit that the Minister is not empowered to regulate broadcasting content which is the exclusive domain of the Authority (or another body recognised by the Authority in terms of section 56(2) of the IBA Act).

The Authority believes that the proposed section 6(4) introduces the Minister as a player on the terrain of content regulation and therefore has the potential to subvert the provisions of section 56 of the IBA Act.

Section 6(4) implies that the SABC may have to comply with a Ministerial Code on news and current affairs programming. The Bill further implies that the Minister may reject the SABC’s policies on news and current affairs although it is silent on what would happen should this occur.

Should the Minister approve the SABC’s policies it is not clear what remedies or procedures would be available to the Minister if any person complains that the SABC had breached its programming policies.

For these reasons the Authority has recommended that section 6(4) of the Bill be deleted to avoid conflicting with section 56 of the IBA Act and consequently the Constitution.

Should the legislature believe that it is important for the SABC to develop certain polices, the Authority has proposed an alternative formulation as follows:

"The Board must prepare, within three months after the date of conversion, policies that will ensure compliance with the Authority’s Code of Conduct as prescribed in terms of section 56(1) of the IBA Act".

We believe that this solution will advance the aims of the Bill without blurring the roles of the Minister and the regulator. The Authority has made similar proposals with regard to sections 10(3)(c), 10(4) and 11(2)(c) where there is also a blurring of lines between the Minister and the Authority. Where possible, we have proposed alternative formulations that are constitutionally safe.

There has been much debate regarding the management boards of the proposed public and commercial broadcasting entities of the SABC. If amended, section 13A of the Broadcasting Act would make provision for the Minister to nominate six board members for each of the proposed commercial and public broadcasting management board. However, it is not immediately clear as to whom the Minister makes the nominations and who will ultimately make the appointment of the board members.

Board members are appointed in terms of section 13 of the Broadcasting Act by the President upon the advice of the National Assembly, following a public and transparent process.

It is therefore recommended that section 13A be amended to allow for the Chairperson of the SABC Board, in consultation with his Board members, make the appointments to the relevant public broadcasting and commercial broadcasting boards.

The Authority is serious about addressing concerns regarding the marginalisation of indigenous languages. We have followed the public debate on this matter with considerable interest. The policy goal of language equity is at the core of our regulatory system. It can be found in our underlying statutes, the Triple Inquiry Report, the White Paper on Broadcasting and the Policy on Private Television.

The question could be asked: why has the SABC not delivered on its language mandate and what has been the role of the Authority in this regard?

The definition of the SABC’s language mandate is far from clear. In 1995 the IBA recommended in the Triple Inquiry Report that one of the SABC TV channels be privatised. However the SABC effectively convinced this Committee that, in order to meet its language and public service obligations, all three channels be retained. However seven years later, it is the regulator’s view that the SABC may be in effect delivering less in terms of its language diversity.

The SABC’s radio and television broadcasting licences have not been amended since 1995. At that time no language conditions were imposed that were capable of being accurately monitored. In fact ICASA has put on hold the renewal of the SABC’s radio licences until the current legislation brings clarity to the restructuring process.

Let us not forget that the SABC has been in the process of being restructured for the last seven years. The Authority has long anticipated a compact between the SABC and government on the final structure of the Corporation and it was always envisaged that ICASA would have regulatory oversight over this process.

Perhaps we have now arrived at that long overdue point. That is why the Authority has welcomed the amendment to section 22 which will allow ICASA to 're-licence' SABC services and impose new licence conditions. The Authority believes that language imperatives must be considered when finalising the SABC's licence conditions.

Our written submission sets out in some detail the policy background to regional television in South Africa.

Unfortunately, the Authority was not consulted on the insertion of section 32A of the Bill. As a consequence of this omission, the Bill has no regard to the Authority’s own policy and licensing process for private regional television.

The Bill attempts to address the issue of language policy by requiring the licensing of two regional television channels.

Although the question of licensing regional television has a long policy trajectory commencing in August 1995 with the Triple Inquiry, capacity issues and the merger of the IBA and SATRA delayed the somewhat optimistic projections for the introduction of regional television stations. ICASA’s Strategy and Business Plan for the MTEF Period 2003-2006 has incorporated and budgeted for the proposed introduction of regional television services. In the Financial Year 2003-2004 an inquiry and feasibility study on regional television will be conducted. A Position Paper on the policy framework and licensing rules for regional television will be published in May 2004. It is expected that the licensing of regional television will begin during the third quarter of 2004.

The proposed insertion of section 32A introduces a new, mandatory licensing process for two state-owned regional television services which has the potential to jeopardise the Authority’s own policy and licensing process.

The Authority had always envisaged that new regional television services would be privately owned. However, section 32A(4) provides that the state will initially be "the sole shareholder and the Minister may thereafter invite public and private investor participation in the regional television services in compliance with the objectives set out in section 2 and 3".

Subsection (4) does not explain in terms of which powers Parliament may require the licensing of these television services. In addition, the Minister’s role in "inviting public and private investor participation" in a broadcasting licence, seems based on powers set out in the Telecommunications Act.

Section 32A proposes to involve Parliament and the Minister in a licensing process, and consequently provides that the Minister may be involved in a licensing amendment process through the issuing of an ITA to public and private investors.

However it is our understanding that the IBA Act vests full control of the licensing process in ICASA. The section 32A scheme therefore appears to be inconsistent with the underlying statutes and section 192 of the Constitution.

Notwithstanding our constitutional concerns, the Authority has several practical queries that would normally be answered before any licensing process commenced. Because we were not consulted on the section 32A scheme we must place these queries on record this morning

1. Which frequencies will the Authority assign for the proposed regional services?;
2. If these services are to be digital, who will pay for their roll-out so they are accessible to the majority of the population and how will the proposal for regional television services impact on the findings of Digital Broadcasting Advisory Body?;
3. What is the proposed funding model for the regional services?;
4. What is the timeframe for the privatisation of these services?;
5. Which class of licence will be issued to the regional services? If these channels are to be subsidiaries of the SABC, then the Corporation must apply for new public broadcasting licences in terms of section 46(2) of the IBA Act; and
6. What will be the impact on the television broadcasting environment as a whole.?

ICASA would also appreciate receiving a comprehensive business plan and business strategy that informed the proposal for the two channels.

We would also like to know whether the SABC’s failed regional window strategy received any attention when the viability of the new regional services was researched?

The obvious question is: how much will these services cost and who will pay for them?

Language delivery must be part of our national policy objectives. The Authority needs to ensure that certain languages are not further marginalised by becoming 'second' best to national services and only available on regional channels.

A few years ago several parties expressed concern about the creation of regional channels as this could segment the audience and the country and therefore undermine our 'nation building' programme. The proposal was also attacked as contributing to the further marginalisation of African languages by providing separate channels for these languages rather than national exposure.

To avoid the constitutional problems set out in more detail in our written submission, the Authority recommends that the Minister should rather issue a direction in terms of section 13A(2)(b) of the IBA Act. This section provides that:

"the Minister may direct the Authority to determine priorities for the development of broadcasting services".

In terms of section 13A(2)(b) the Minister may, for example, direct the Authority to address the marginalisation of indigenous languages through:

1. the SABC restructuring process;
2. the licensing of private regional television services; and
3. any other regulatory mechanism deemed appropriate by the Authority.

Before issuing such a direction in terms of section 13A(4), the Minister must consult the Authority. By exercising this power in this way, the Minister may make a direction on broadcasting policy without becoming involved in the licensing and control of broadcasters.

In addition to this approach, we recommend that government establish an Indigenous Language Programming Fund that may be utilised by the SABC and indeed other broadcasters and independent producers to produce programming in indigenous languages that have not been adequately covered by South African broadcasters. The Authority believes that this may be a more practical solution for the achievement of government’s policy objectives in this regard. Funds could therefore be allocated to improving the SABC's language delivery and to building the necessary capacity.

Although some of the clauses of this Bill go a long way to addressing the Authority’s concerns, we hope the committee will take on board the other issues we have set out in detail.

One issue which remains a problem is the proposed section 5(3). This section clearly provides that there will be licensing provisions in both the Broadcasting and IBA Acts for the same types of licences. In the Authority’s experience this duplication has created uncertainty in the industry. There are many examples in this Broadcasting Act that perpetuate this uncertainty. Accordingly, the Authority recommends that the legislature clarify that all licence applications for broadcasting licences and broadcasting signal distribution licences be made in terms of the IBA Act, and that the underlying statutes be amended accordingly.

Finally, the Authority welcomes the amendment to section 22 as it places the restructuring of the SABC within a statutory, regulatory context and allows for some public participation. Section 22(2) will also allow the Authority to impose such conditions as it deems fit in issuing the licences to the SABC. This adds further weight to our proposal that licence conditions on language obligations can be imposed on the SABC through the section 22(2) process.

On behalf of the Authority I would like to thank the Committee for this opportunity to present our submission. We are available to answer any questions you may have and our team is available, upon request, to assist the Committee in its work.

Thank you