INTRODUCTION
The National Association of Broadcasters ("the NAB") is the leading representative of South Africa's broadcasting industry. It aims to further the interests of the broadcasting industry in South Africa by contributing to its development. NAB members include:

the three television and nineteen radio stations of the public broadcaster, the South African Broadcasting Corporation ("the SABC");

all licensed private broadcasters in both radio and television;

both the common carrier and the selective and preferential carrier licensed signal distributors; and

over forty community television and radio broadcasters.

On 15 August 2002 the Broadcasting Amendment Bill, 2002 ("the Bill") was published under Notice Number 1426 of 2002 in Government Gazette No. 23745. The NAB wishes to contribute to the process of creating a regulatory environment which is certain, efficient and in the public interest.

The NAB welcomes the opportunity to participate in the legislative process by commenting on the provisions of the Bill. We respectfully request the Parliamentary Portfolio Committee on Communications ("the Portfolio Committee") to consider making further amendments to the Broadcasting Act, 1999 ("the Broadcasting Act") in order to ensure a legislative environment which is in fact able to foster the growth of the broadcasting industry. In 1999, the NAB made submissions to the Independent Broadcasting Authority ("IBA") (as it was then) in response to the IBA's Discussion Paper on Satellite Broadcasting. In its submissions, the NAB detailed a number of concerns it and its members have regarding certain of the provisions of the Broadcasting Act. As you are no doubt aware, the IBA (as it was then) was itself concerned about certain of the provisions of the Broadcasting Act and announced that it was unable to proceed to issue its Position Paper on Satellite Broadcasting and, ergo, with the licensing of satellite operators, until certain amendments to the Broadcasting Act had been made. These amendments have not been made. In 2000, the NAB submitted a memorandum to the Minister of Communications ("the Minister") setting out its concerns regarding various issues in the Broadcasting Act which were hampering the growth and vibrancy of the broadcasting sector.

The NAB's vision for the broadcasting industry is that a vibrant, growing broadcasting sector can assist in national development by creating jobs both in broadcasting and associated sectors such as the recording and film industries. The NAB believes that the social goals set out in the Broadcasting Act, 1999 ("the Broadcasting Act") such as: empowerment, diversity of services, universal access, and growth of local content cannot be achieved without a thriving and growing industry. Unfortunately, both the existing Broadcasting Act and the Bill contain provisions which, in the opinion of the NAB, are likely to impede the growth and development of the broadcasting industry and, consequently, that the social goals set out in the Broadcasting Act will be difficult to achieve.

While the Bill addresses certain of the NAB’s concerns regarding the Broadcasting Act, it neglects to amend a number of provisions in the Broadcasting Act which the NAB believes to be detrimental to the regulatory environment. Consequently the NAB’s submissions deal with issues of concern regarding existing provisions of the Broadcasting Act, which have not been addressed by the Bill, as well as with issues of concern regarding provisions of the Bill which propose to amend or supplement the Broadcasting Act.

Broadly speaking, the NAB is of the opinion that given convergence of telecommunications and broadcasting technologies, it makes sense to have a consolidated Act dealing with both telecommunications and broadcasting. However, until such an Act is passed by Parliament, the NAB is concerned to ensure the effective regulation of broadcasting on its own. In this regard, the NAB suggests that in respect of broadcasting generally, the Broadcasting Act and IBA Act, 1993 ("the IBA Act") be combined into one composite piece of legislation dealing with broadcasting. This could be achieved by including the substantive provisions of the Broadcasting Act which deal with broadcasting, excluding the provisions relating to the SABC, in the Schedule to the Bill so as to effect amendments to the IBA Act. This would leave the substantive provisions of the Broadcasting Act dealing only with the SABC, thus ensuring that, for broadcasters other than the SABC, only one piece of legislation would be applicable to them. The NAB sets out below various comments on different aspects of the Broadcasting Act and of the Bill. These comments should be read within the context of the NAB’s suggestion that the broadcasting environment, other than the SABC, be regulated by one Act.

The submissions do not include comments on procedural issues relating to the conversion of the SABC, as the NAB believes that the SABC is best placed to comment on these.

ISSUES OF CONCERN REGARDING THE BROADCASTING ACT AND THE BILL
Ad section 1(1)(xxix) of the Broadcasting Act
The NAB submits that the use of the word "similar" in the definition of "local content" is confusing. There should be only one definition of local content which ought to be contained in the IBA Act. The NAB submits that the Bill should be amended to reflect same.

Ad section 1(1)(xli) of the Broadcasting Act
The NAB submits that the use of the word "transmitters" in the definition of "satellite broadcasting service" is incorrect and suggests that the International Telecommunications Union’s definition be used instead. The NAB submits that the Bill should be amended to reflect same.

Ad section 2(d) of the Bill
The NAB submits that there should be one definition of "broadcasting licence" and that this definition should refer to licences granted in terms of the IBA Act only. Alternatively, the definition ought to refer also to licences granted in terms of the IBA Act as broadcasting licences would be issued by the Independent Communications Authority of South Africa ("ICASA") in terms of both of these Acts.

Ad section 2(k) of the Bill
The NAB submits that the definitions of "distribution licence" and "distribution service" are superfluous as definitions of both "broadcasting signal distribution licence" and "broadcasting signal distribution" are already provided in the IBA Act.

Ad section 2(l) of the Bill
The NAB submits that the words "and without the use of receiving equipment" appearing at the end of the definition of "free-to-air service" should be deleted as they are confusing.

Ad section 2(o) of the Bill
The NAB submits that the definition of "licensee" currently excludes holders of licences issued in terms of the Broadcasting Act. The NAB suggests that this definition be inserted into the IBA Act and make reference to the IBA Act only, alternatively the definition must make reference to both the Broadcasting and IBA Acts.

Ad sections 2(r) and (s) of the Bill
The NAB queries the reference to the provisions of Chapter 1 of the Constitution of the Republic of South Africa, 1996, ("the Constitution") in the definition of "national interest". Chapter 1 of the Constitution deals with the founding values of the Republic, including universal suffrage, as well as citizenship, the national anthem, the national flag and official languages. The NAB respectfully submits that these provisions give very little guidance as to when a national sporting event will be of national interest. The NAB submits that the proposed definitions of "national interest" and "national sporting event" in the Bill should be deleted, as the insertion of these proposed definitions into the Broadcasting Act is premature, given that ICASA is currently engaged in an inquiry to determine, inter alia, the meaning to be given to "national sports events" and would also undermine ICASA’s inquiry which has not been completed.

Ad section 2(v) of the Bill
The NAB submits that the definition of "radio station" should be deleted or re-worded. It is poorly drafted as it is too broad. An "establishment involved in sound broadcasting" could include a production company that produces drama for radio, surely not what was intended to be defined as a radio station? There is an existing definition of a "sound broadcasting service" in both the Broadcasting and the IBA Acts.

Ad section 2(w) of the Bill
The NAB submits that if Parliament intends to list classes of licences, then a definition of "subscription radio" should be included in the Bill, as it is not inconceivable that this service will be used in the future.

Ad section 2 of the Broadcasting Act
Section 2 sets out the objects of the Broadcasting Act. In many ways, section 2 of the Broadcasting Act mirrors the provisions of section 2 of the IBA Act which sets out the primary objects of that Act. There are however differences in wording and it is unclear which provisions regarding the objects of broadcasting legislation are to be complied with. Both objects clauses ostensibly deal with the regulation of broadcasting or the development of broadcasting policy in the public interest and the differences between the provisions of sections 2 of the two pieces of legislation make it extremely difficult for those working in the industry to know which provisions they are required to comply with. The NAB submits that the Bill should be amended to reflect same.

Ad section 3 of the Broadcasting Act and section 3 of the Bill
Section 3 of the Broadcasting Act appears to set out objectives for the South African broadcasting system which repeat or echo the provisions of sections 2 of the Broadcasting Act and of the IBA Act. Again, the NAB submits that this makes it difficult for people in the industry to know which provisions are required to be complied with. The NAB highlights the following problems with the provisions of section 3 of the Broadcasting Act:

Provisions dealing with programming being required to balance entertainment, education and information are contained in sections 3(4) and 2(d) of the Broadcasting Act and in section 2(a) of the IBA Act. The NAB questions the wisdom of having repetitive provisions in legislation and submits that the Bill should be amended to reflect same.

Section 3(5)(f) of the Broadcasting Act requires programming to comply with the Code of Conduct for broadcasting services as prescribed in Schedule 1 of the IBA Act. This conflicts with the IBA Act which requires compliance with the Code of Conduct set out in Schedule 1 to the IBA Act if the broadcaster in question is not a member of a body which has proved to the satisfaction of the IBA that its members subscribe and adhere to a Code of Conduct enforced by that body by means of its own disciplinary mechanisms, and provided further that such Code of Conduct and disciplinary mechanisms are acceptable to the IBA. Many members of the NAB are members of the Broadcasting Complaints Commission of South Africa ("BCCSA") and adhere to the BCCSA's Code of Conduct which has been approved by the IBA. The provisions of section 3(5)(f) in the Broadcasting Act create contradictory and mutually exclusive provisions regarding the application of the Code of Conduct. Further, given the fact that section 42 of the Broadcasting Act provides that the provisions of the Broadcasting Act take precedence over conflicting provisions in any other broadcasting law, section 3(5)(f) appears to have fundamentally altered the entire regulatory regime regarding compliance with industry Codes of Conduct. As clause 3 of Schedule 1 to the Bill amends section 56 of the IBA Act to provide that the Code of Conduct for Broadcasting Services shall be as prescribed, the NAB submits that section 3 of the Bill be supplemented with a clause which will allow for an amendment of section 3(5)(f) of the Broadcasting Act, so that it reads as follows:

"comply with a code of conduct for broadcasting services as prescribed in the IBA Act."

Ad section 3(2) of the Broadcasting Act
The NAB is concerned that this sub-section provides that it is only the Minister who is ultimately responsible to develop policy that is required from time to time. The NAB's understanding of the respective roles of Parliament, the Minister and ICASA is as follows:

Parliament should bear ultimate responsibility, as the forum where the democratically elected representatives of South Africa's people decide on laws, for the development of macro policy in respect of broadcasting. Issues which would form the basis of macro policy include: empowerment of historically disadvantaged groups within the broadcasting industry, universal access to broadcasting services, ensuring a wide range of broadcasting services in a number of languages, developing skills and ensuring proper training within the broadcasting industry, ensuring that foreign content does not dominate broadcasting services through the dissemination of local ideas and culture and, more broadly, of African ideas and culture in broadcasting content, ensuring that the broadcasting industry, as a whole, is controlled by South Africans, encouraging investment in the broadcasting sector, ensuring fair competition in the broadcasting sector, ensuring that broadcasting services comply with international technical standards and providing for the broad categories of broadcasting and signal distribution licences.

Section 192 of the Constitution clearly mandates that an independent broadcasting authority, such as ICASA, is to regulate broadcasting in the public interest. The NAB submits that ICASA should be responsible for micro policy formulation and implementation within the framework of the macro policy developed by Parliament. Thus ICASA should be responsible for, for example, conducting enquiries as to how best to implement, and making regulations and imposing licence conditions designed to effect, the macro policy goals determined by Parliament.

The NAB is respectful of the important position that the Minister occupies in regard to broadcasting. As the Cabinet member responsible for Communications, she is accountable to government for ensuring the smooth running of the broadcasting industry. The NAB submits that macro policy formulation is an important aspect of the Minister's functions. In this regard, while the Minister will play a leading role in making macro policy proposals in the form of Green and White Papers and in the Bills which are presented to Parliament, the NAB submits that this macro policy formulation must be mediated through Parliament as Parliament will be the body to pass the laws arising from the Minister's suggested macro broadcasting policy. It is important to note that government policy as set out in a White Paper, will as a matter of course, be used by ICASA in formulating micro policy. Thus while the Minister will play a leading role in making such policy proposals and presenting these to Parliament, Parliament will be the body to pass the laws which constitute macro broadcasting policy.

The NAB is also of the opinion that the Minister is entitled to formulate other kinds of policy in respect of broadcasting and to put resources for that purpose. However, given the Constitutionally-enshrined role of ICASA, the Minister cannot be seen to be interfering with ICASA and while there is no doubt that micro policy formulated by the Minister must be taken into account by ICASA, ICASA should remain sufficiently independent to choose a different micro policy should it believe that to be in the public interest.

As set out above, the NAB is of the opinion that the Minister's macro-policy-making role must be mediated through Parliament which should set macro broadcasting policy in applicable legislation. Such policies can then be developed by ICASA which is constitutionally required "to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society" in terms of section 192 of the Constitution. The NAB submits that the Bill be amended to reflect same.

Ad section 4(a) of the Bill
The NAB submits that certain of the amendments made to section 4(2) of the Broadcasting Act, namely, the words "or distribution service", "until a date determined by ICASA in the Gazette or" and ", whichever is the earlier", ought to be deleted. The NAB submits that unlicenced broadcasters are unlicenced only because the currently regulatory environment does not provide a proper framework for the licensing thereof, as ICASA itself has publicly stated. Consequently, the NAB submits that these operators ought to be allowed to continue their operations until such time as ICASA has in fact granted or refused them a licence. The NAB submits that the reference to a "distribution service" ought to be deleted as this is provided for in section 27(b) of the Bill and in any event, is not appropriate in a part headed "Broadcasting licences".

Further, the NAB submits that the reference to the "commencement of this Act" ought to be amended as certain broadcasters have begun operating after the commencement of the Broadcasting Act but have been unable to obtain licences in terms thereof due to the regulatory difficulties posed by the existing provisions of the Broadcasting Act.

Ad section 4(4) of the Broadcasting Act
The NAB is of the opinion that this section is unclear and ought to be clarified. The NAB is concerned that this sub-section could be interpreted to require that conditions to an authorisation or licence be as "prescribed". The NAB suggests that it would be unwise for only such conditions as are prescribed by regulation to be allowed to be incorporated into a licence. This cannot give ICASA sufficient flexibility to regulate individual broadcasters. An alternative reading is that ICASA may incorporate regulations by reference into a licence as licence conditions, which the NAB has no objection to. However, the wording ought to be clarified.

Further, the NAB is concerned that this section is superfluous and will lead to uncertainty as section 43 of the IBA Act deals with entitlements under and conditions pertaining to broadcasting licences.

The NAB submits that the Bill be amended to reflect the suggestions set out in this paragraph.

Ad section 4(5) of the Broadcasting Act
It is unclear why section 4(5) is required to be in the Broadcasting Act as section 39 of the IBA Act contains a similar prohibition against broadcasting without a licence. The NAB submits that the Bill be amended to reflect same.

Ad section 4(c) of the Bill
The NAB submits that proposed section 4(6)(a) of the Broadcasting Act should be deleted. The inclusion of channels in a broadcasting licence would require the licensee to make an application for amendment in terms of section 52 of the IBA Act every time there was a channel change. Provision should be made for an approval process, to enable such changes to be monitored and approved by ICASA without the requirement of a lengthy section 52 process.

Ad section 4(d) of the Bill
The NAB submits that the proposed section 4(8) of the Broadcasting Act confuses signal distribution with broadcasting. These are two different services and ought to be dealt with separately. The NAB submits that this subsection should be re-worded as follows:

"In terms of section 78 of the IBA Act, the Authority must make regulations prescribing procedures for the authorisation of all channels provided by broadcasting services."

Ad section 5(2) of the Broadcasting Act
The NAB agrees with the categories of broadcasting services set out in section 5(1) of the Broadcasting Act, namely, public, commercial and community. However, it is concerned about the classes of broadcasting licences which are set out in section 5(2) of the Broadcasting Act. These classes have not been systematically determined. Certain broadcasting services have been excluded, such as a terrestrial subscription radio service. In any event, the NAB recommends the abolition of the classes of licences provided for in section 5(2) of the Broadcasting Act, which have yet to be used by ICASA.

The NAB has made detailed submissions to the IBA (as it was then) in response to the IBA's Discussion Paper on Satellite Broadcasting regarding its vision of a flexible regulatory environment that can take account of technological convergence and rapid technological innovation in respect of broadcasting without requiring constant legislative amendments which are likely to be formulated and implemented too slowly to keep up with technological developments. The NAB suggests that the Broadcasting Act ought to be amended to establish a flexible and responsive licencing regime as more fully described below:

Broadcasting service licences should be granted in one of the three categories set out in section 5(1) of the Broadcasting Act.

The licence should contain a list of defining characteristics of the broadcasting service such as:

multi or single channel;

free or subscription or a combination thereof;

the technology platform, that is, terrestrial analogue, terrestrial digital, satellite, cable or any other platform and combinations thereof;

the nature of the service, that is, radio or television, or a combination thereof; and

geographic coverage area.

This procedure of defining the characteristics of the service in the licence itself would do away with the need for a list of classes of broadcasting services in the legislation. This is important given the need to allow for technological and other developments in broadcasting.

ICASA should impose licence conditions in accordance with the broadcasting policy set out in applicable legislation. In this regard, provisions regarding local content quotas, cross media control and levels of ownership by foreign persons or persons from historically disadvantaged groups are not social goals in and of themselves but are tools to achieve social goals such as empowerment of historically disadvantaged groups within the broadcasting industry, ensuring that foreign content does not dominate broadcasting services through the dissemination of local ideas and culture and, more broadly, of African ideas and culture in broadcasting content, ensuring that the broadcasting industry, as a whole, is controlled by South Africans and ensuring fair competition in the broadcasting sector.

The NAB envisages that the goals for broadcasting will be set out in the IBA Act (as amended by the Broadcasting Act) and that ICASA will impose effective and appropriate licence conditions designed to meet these social goals in the context of the essential characteristics of the licence eg: free or subscription, geographic coverage, satellite or terrestrial etc.

As is set out above, the NAB suggests that the need for a list of classes of broadcasting services would fall away if the regulator could detail the defining characteristics of a broadcasting service in the licence itself.

Further, while the NAB takes cognisance of the fact that section 5(2)(k) is to be amended by the Bill to allow for any other class of licence to be determined from time to time by ICASA, the NAB is of the opinion that the process of determining additional classes of licences is likely to be slow and unable to keep pace with technological developments.

Ad section 5(a) of the Bill [there is a printing error in the Bill – section 5 is printed as section 8]
The NAB suggests that the classes of broadcasting licences be done away with as is set out above. Alternatively, the NAB suggests that proposed section 5(2) of the Broadcasting Act should include a definition of terrestrial-subscription sound broadcasting.

Ad section 5(b) of the Bill [there is a printing error in the Bill – section 5 is printed as section 8]
The NAB submits that proposed section 5(3) of the Broadcasting Act be deleted as licensing of broadcasters and signal distributors should take place in terms of the IBA Act.

Ad sections 6, 11, 12 and 15 of the Bill
The NAB is extremely concerned about certain of the provisions of the Bill dealing with the SABC. As stated above, we think it appropriate that the SABC responds to the detailed procedural issues raised in the Bill. However, the NAB submits that certain aspects of the Bill dealing with the SABC will impact negatively on the entire broadcasting landscape of the country with far-reaching effects not only for the public broadcaster but for all broadcasters and all broadcast audiences. The NAB shall deal with each of its concerns regarding the SABC in turn.

The NAB questions the deletion of section 6(2) of the Broadcasting Act. The NAB is gravely concerned that the deletion of this section, which currently provides that the SABC will "enjoy freedom of expression and journalistic, creative and programming independence", will undermine the independence and very function of the SABC. Section 16(1) of the Constitution grants everyone the right to freedom of expression. Importantly, these include:

freedom of the press and other media;

freedom to receive or impart information or ideas.

The NAB is concerned that deleting existing section 6(2) of the Broadcasting Act undermines the right of the public broadcaster to enjoy its Constitutionally-protected right of freedom of expression. In this regard, the NAB submits that by specifically deleting a clause in which the SABC’s freedom of expression and journalistic, creative and programming independence is guaranteed, Parliament will be sending a clear message that the public broadcaster is not to enjoy the freedom of the press and the right to impart information, which are foundational to the right of freedom of expression. Given the fact that South Africa has such high illiteracy rates, the public broadcaster’s role in providing all citizens with independent news and commentary, in the public interest, is critical to the development and democratic functioning of the entire society. To endanger this role in any way is a cause for grave concern and the NAB respectfully requests the Portfolio Committee to heed its and others’ grave concerns in this regard.

The NAB’s concerns regarding the threat to the freedom of expression and journalistic independence of the SABC, set out above, are magnified by the provisions of proposed section 6(4) of the Broadcasting Act which requires the Minister’s approval of the SABC’s reporting policies. The NAB respectfully submits that South Africa has a dreadful history of state interference in the affairs of the SABC. In the report by the Truth and Reconciliation Commission ("the TRC") on gross human rights abuses committed during the apartheid era, Chapter 6 of Volume 4 deals with the media. The TRC found that the SABC was "a blatantly pro-government and apartheid institution". The TRC further found that the SABC was a direct servant of the government of the day and that it had "failed to report adequately on gross human rights violations", thereby helping "to sustain and prolong the existence of apartheid". The new Constitutional order, which was driven by the African National Congress, the majority party in Parliament, constituted "a historic bridge" from the old undemocratic apartheid regime. South Africa’s future is founded on "the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans". The preamble to the Constitution sets out certain values that further underpin our society. These include:

establishing a society based on democratic values, social justice and fundamental human rights;

laying the foundations for a democratic and open society; and

improving the quality of life of all citizens.

In order for people to participate in society to ensure development that is responsive to their needs, they must be able to have access to news and information that reflects "a diversity of views broadly representing South African society". The NAB believes it is essential for people to be able to have confidence that the public broadcaster will maintain an independent outlook. The NAB submits that it is imperative for the entire broadcasting environment that the public broadcaster does not become simply a government broadcaster. In this regard, section 2 of the IBA Act gives some content to what is meant by regulating broadcasting activities in the public interest. These include:

promoting the development of public … broadcasting services that are responsive to the needs of the public; and

protecting the integrity and viability of public broadcasting services.

The NAB respectfully submits that the provisions of proposed section 6(4) of the Broadcasting Act are unconstitutional and undermine the integrity of public broadcasting services. In particular, the NAB is concerned that it is not made clear to whom the SABC’s duty to engage in "accountable reporting" is owed. The NAB is concerned that it could be construed that the duty to engage in "accountable reporting" is owed to the Minister. The NAB respectfully suggests that the proposed section 6(4) be deleted, alternatively be replaced with the following:

"The Board must approve, within three months after the date of conversion, policies governing the exercise of accurate and fair reporting in order to advance the public interest."

For the reasons set out above, the NAB submits that the policies referred to in proposed sections 10(3)(c) and 11(2)(c), dealing with, inter alia, news editorial policy, programming policy, local content policy and language policy, should be finalised by the Board of the SABC and should not be required to be submitted to the Minister for approval.

Further, and for the reasons set out above, the NAB respectfully submits that the six non-executive directors of the public service and commercial broadcasting service management boards, respectively, consist of people who are members of the Board of the SABC nominated by the Board of the SABC. These Board members have been approved by the President on the advice of the National Assembly as being people suited to serve on the Board by virtue of their qualifications, expertise, experience, representivity and values. They are clearly more than adequately equipped to determine which of their number would be best placed to serve on the respective management boards. Ministerial involvement, the NAB respectfully submits, would undermine the Board and the integrity of the SABC as a whole. Indeed it would fly in the face of the provisions of proposed section 13(11) of the Broadcasting Act which state that "the Board controls the affairs of the Corporation …".

Ad section 23(b) of the Bill
The NAB submits that proposed section 30(8) of the Bill should be deleted. The meanings of "original programming" and "diversity of broadcast service" in proposed section 30(8) are unclear. In this regard, it is not clear whether "original programming" means that the programming must never have been aired before in any country, or means that subscription television broadcasters may not repeat any broadcasts. Further, the NAB submits that subscription television broadcasters cannot be required to provide, by themselves, "diversity in types of broadcast service".

Ad section 24(a) of the Bill
The NAB submits that section 31(1) of the Broadcasting Act should not be deleted. This section in the Broadcasting Act provides that ICASA must conduct an enquiry into the economic feasibility of the provision of additional subscription television services. As the industry’s representative body, the NAB is extremely dismayed that the process of conducting a feasibility study is to be abandoned as a result of the Bill.

The broadcasting industry in South Africa has not been going from strength to strength. The industry has recently seen the closure of two Punt stations. It is common knowledge that e-TV has faced an economic environment far worse than was generally anticipated at the time its licence was granted. The NAB submits that it is imperative that the licensing of additional satellite and subscription services be done after a thorough investigation into the economic feasibility thereof. Further, the NAB reiterates its general concerns regarding the existing regulatory environment which has prevented ICASA from licensing satellite operators.

The NAB suggests that section 31(1) of the Broadcasting Act be amended as the reference to section 28A of the IBA Act in this sub-section is incorrect. Section 28A deals only with powers and procedures in relation to inquiries or hearings. The NAB submits that the correct reference is to section 28 of the IBA Act which deals substantively with inquiries by the IBA and suggests that the Bill include this proposed amendment.

Ad section 24(b) of the Bill
The NAB submits that proposed section 31(2) should include reference to all satellite and subscription services. Currently it deals only with satellite subscription and terrestrial subscription television services. The NAB suggests that this is too narrow and the economic feasibility study and the licensing process following therefrom should consider all satellite services and all subscription services.

Ad section 24(c) of the Bill
The NAB is not in favour of proposed sections 31(3) and 31(4) of the Broadcasting Act. The NAB submits that proposed sections 31(3) and 31(4) of the Broadcasting Act conflict with the existing provisions of sections 33(2) and 33(3) of the Broadcasting Act. They also conflict with the existing provisions of sections 49(7), 50(4) and 50(5) of the IBA Act. The NAB is concerned that the proposed amendments now seek to give power to the Minister to make a decision as to the applicability of sections 49 and 50 of the IBA Act to multi-channel broadcasting services. In this regard the NAB submits that it is appropriate for Parliament, as the legislative body, to be advised by ICASA on possible amendments that are required to be made to the provisions of broadcasting legislation in general.

Ad sections 32(6) and 32(7) of the Broadcasting Act
It is unclear whether the public inquiry referred to in section 32(6) of the Broadcasting Act and the investigation referred in section 32(7) of the Broadcasting Act are to be conducted in terms of section 28 of the IBA Act. The NAB submits that it would be in the interests of standardising IBA procedures that all inquiries or investigations into issues such as determining priorities for the community radio sector and the viability and impact of community television, be conducted in accordance with the provisions of section 28 of the IBA Act. The NAB respectfully suggests that the Bill be amended to provide for same.

Ad section 26 of the Bill
The NAB is acutely aware of the frustrations that Government, and indeed the majority of South Africans, feel at the lack of broadcasting services in languages other than English and Afrikaans. Section 6(1) of the Constitution provides that there are eleven official languages of the Republic and in terms of section 6(4) all official languages must be treated equitably. The NAB recognises that there is insufficient broadcasting of Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, isiNdebele, isiXhosa and isiZulu. The NAB recognises that the Constitution requires the state, in section 6(2), to take practical and positive measures to advance the use of these languages. Further, section 2(e)(ii) of the IBA Act requires public broadcasting services to ensure that the needs of constituent regions of the Republic are duly taken into account.

However, the NAB is extremely concerned at the manner in which the Bill attempts to address these very real and pressing matters. In this regard, the NAB has the following concerns, each of which stands on its own and ought to be addressed separately:

given the difficult economic climate that broadcasters find themselves in, the addition of two free-to-air regional television services is likely to have an enormous impact on the SABC’s existing services and the services provided by commercial broadcasters. The NAB is extremely concerned that the Bill does not contemplate the undertaking of a feasibility study into the proposed services. In this regard, the NAB suggests that ICASA, as the regulator of broadcasting services in the public interest, is best placed to undertake such a feasibility study and that the Bill should make provision for this to take place in terms of section 28 of the IBA Act;

as currently formulated, the regional television services are to operate outside of the SABC and every aspect thereof, from ownership to programming, including news and current affairs programming, is under the direct control of the Minister. The NAB submits that this is problematic for two separate but related reasons:

it is inappropriate for a Minister to control a broadcasting service, particularly when there is specific legislation setting up the SABC as the public broadcaster. Further, the NAB is concerned that section 26 of the Bill makes provision for the Minister to invite potential public and private investor participation in the proposed service without there being any limits on her discretion in this regard; and

given the importance of maximising the efficient use of state resources, any state broadcasting service, particularly comprehensive regional television services with diverse language requirements, ought to make use of the resources and expertise that have been built up over time at the SABC; and

the regional television services are established by Parliamentary fiat. No provision is made for a licensing process to take place that involves ICASA. The effect of this is that the regulator is totally excluded from the process of licensing the two regional television services, including the process of imposing specific licence conditions necessary in the public interest. This is of grave concern to the NAB. It undermines the entire broadcasting regulatory framework provided in our legislation and renders the role of the regulator vis a vis Government uncertain and diminished. Section 192 of the Constitution requires broadcasting to be regulated by an independent authority. The granting of licences is quintessentially a regulatory function and should not be usurped by Parliament or any other organ of state. In licensing by legislation, the NAB submits that Parliament itself is negating its duty set out in sections 181(3) and (4) to assist and protect state institutions supporting Constitutional democracy, such as the independent broadcasting authority, to ensure the independence, impartiality, dignity and effectiveness of these bodies and to refrain from interfering with the functioning thereof.

The NAB respectfully submits that it recognises and supports Government’s efforts to ensure broadcasting services that are responsive to the needs of people in different regions of the country, particularly in respect of the need for indigenous language programming. The NAB suggests that section 26 of the Bill be amended to provide for the following:

that ICASA be required to undertake an enquiry in terms of section 28 of the IBA Act into how the public’s interest in regional television programming and indigenous language programming could be facilitated. In this regard, ICASA should be specifically enjoined to make recommendations to the Minister and to Parliament as to how the SABC, particularly the public service division, ought to be meeting these challenges; and

that ICASA proceed to licence additional services by the SABC in accordance with such recommendations and in terms of the provision of the IBA Act, if necessary.

Ad section 30(1)(b) of the Broadcasting Act
The NAB is concerned about the requirement that commercial broadcasting services must provide, as a whole, programming in all South African official languages. The NAB is concerned that it is simply not commercially viable to insist that commercial broadcasting services, even if taken as a whole, provide programming on an on-going basis in all eleven official languages, given the current trends within the advertising industry over which commercial broadcasters have little, if any, control. The NAB suggests that the Bill be amended to reflect same.

Ad section 30(3) of the Broadcasting Act
The NAB submits that subsection 30(3) of the Broadcasting Act is unnecessary as sections 43(2) and 43(3) of the IBA Act provide for ICASA's right to impose terms, conditions and obligations in a licence and that such terms, conditions or obligations have the force of law. The NAB suggests that the Bill be amended to reflect same.

Ad section 30(4) of the Broadcasting Act
The NAB is concerned that this sub-section is superfluous as section 53 of the IBA Act already contains detailed provisions regarding television local content requirements. The NAB suggests that the Bill be amended to reflect same.

Ad Section 32(1) of the Broadcasting Act
In line with the concerns raised by the NAB regarding classes of broadcasting licences contained in section 5(2) of the Broadcasting Act as set out above, the NAB is concerned that by mentioning only two classes of community broadcasting service licences, section 32(1) effectively limits the nature of community broadcasting. The NAB suggests that no classes of community broadcasting licences be mentioned in the Broadcasting Act and that the Bill be amended to reflect same.

Ad section 32(2) of the Broadcasting Act
The NAB submits that this sub-section is unnecessary as section 39 of the IBA Act prohibits the provision of a broadcasting service without a broadcasting licence. In any event the NAB submits that the provisions of subsection 32(2) of the Broadcasting Act do not make sense as the requirement that a licence must be held by a licensee is circuitous. The NAB suggests that the Bill be amended to reflect same.

Ad section 37 of the Broadcasting Act
The NAB is concerned that section 37 of the Broadcasting Act does not clearly set out the ambit of the role of the Frequency Spectrum Directorate ("the FSD"). The NAB submits that the FSD's role ought to be confined to policy development in respect of radio frequency spectrum allocations and that assignment issues ought to be in the domain of the regulator. The NAB suggests that sections 37(4) and (5) of the Broadcasting Act be amended to provide that the FSD's policy development role is in respect of allocations of the radio frequency spectrum.

The NAB is concerned to ensure that there is a positive obligation on the FSD to consult with various stake-holders and interested persons before finalising policy in respect of the radio frequency spectrum in terms of section 37(4) of the Broadcasting Act, and the NAB suggests that section 37(6) of the Broadcasting Act be amended to provide for same. In this regard, the NAB is concerned that the current wording of section 37(6) of the Broadcasting Act:

does not clearly mandate that consultation is required to take place before policy in respect of the radio frequency spectrum is finalised;

requires only co-operation with the relevant bodies where applicable. The NAB is concerned that this requirement is vague and does not mandate that bodies such as ICASA and industry representatives such as the NAB must be consulted;

is not consistent with the provisions of the Promotion of Administrative Justice Act, 2000 ("the Administrative Justice Act"). The provisions of section 4 thereof, which deal with administrative action affecting the public, are required to be complied with.

The NAB suggests that clause 37(6) of the Broadcasting Act be replaced with a clause requiring draft policy of the FSD to be the subject of a notice and comment procedure or a public inquiry to ensure that the necessary consultative procedures are in accordance with the provisions of section 4 of the Administrative Justice Act.

The NAB suggests that the Bill be amended to reflect the suggestions set out in this paragraph.

Ad section 27 of the Bill
The NAB submits that certain of the amendments made to section 34(4) of the Broadcasting Act, namely, the words "- (a) a date determined by ICASA in the Gazette; or" and ", whichever is the earliest", ought to be deleted. The NAB submits that broadcasting signal distribution services are unlicenced only because the currently regulatory environment does not provide a proper framework for the licensing thereof, as ICASA itself has publicly stated. Consequently, the NAB submits that these operators ought to be allowed to continue their operations until such time as ICASA has in fact granted or refused them a licence.

Ad section 28 of the Bill
The NAB submits that regulations to be made on television licences, including the setting of fees, should be made by ICASA and not the Minister as ICASA is the regulator of the broadcasting industry.

Ad Schedule 1 to the Bill
In regard to clause 2 of Schedule 1 to the Bill regarding amendments to the IBA Act and clause 1 of Schedule 1 to the Bill regarding amendments to the Independent Communications Authority of South Africa Act, 2000, the NAB questions the deletion of the provisions relating to the Broadcasting Technical Committee.

The NAB recommends that a clause be inserted in Schedule 1 to the Bill to provide for the amendment of section 44(2) of the IBA Act to enable ICASA to prescribe appropriate broadcasting licence renewal forms to ensure that ICASA is in possession of the information it requires in order to apply its mind to the granting of applications for the renewal of broadcasting licences. The NAB submits that section 44(2) be amended to read as follows:

"An application for the renewal of a broadcasting licence shall be in the prescribed form and in all other respects section 41, 42 and 43 shall apply mutatis mutandis in relation to an application for the renewal of a broadcasting licence."

The NAB entered discussions with ICASA in March 2000 to address its concerns that the IBA Act does not enable ICASA to prescribe forms for the renewal of certain types of broadcasting licences. In terms of section 44(4) of the IBA Act, ICASA may refuse a renewal application only if the licensee has failed to comply with its licence conditions or with the provisions of the IBA Act and if ICASA is satisfied that it would not so comply if the licence was renewed. ICASA agreed with the NAB’s argument that ICASA does not need the amount of information required to be submitted in terms of an initial application, as is currently required by section 41(3) of the IBA Act in order for ICASA to make a decision in terms of section 44(4) of the IBA Act.

In respect of clauses 3 and 5 of Schedule 1 to the Bill, the NAB welcomes the fact that the Code of Conduct for Broadcasting Services shall be as prescribed and believes that this amendment is long overdue. The NAB participated in the process of amending the existing Code of Conduct and is of the opinion that the amended Code of Conduct is a far better document and ought to be the standard that broadcasters adhere to. However, the NAB is concerned that the repeal of Schedule 1 to the IBA Act, as provided for in clause 3 and clause 5 of Schedule 1, creates a lacuna as there is no alternative Code of Conduct created for broadcasters who are not members of the Broadcasting Complaints Commission of South Africa until such time as the Code of Conduct for Broadcasting Service is in fact prescribed. Further, note the incorrect numbering and positioning of clause 5 to the Schedule.

Ad section 5 of the Schedule to the Broadcasting Act
Section 5 of the Schedule to the Broadcasting Act substitutes section 13 of the IBA Act which sets out the general powers of ICASA. The amendment effects substantial changes to ICASA's powers given by the original section 13 of the IBA Act. The general powers originally given to ICASA are replaced with much more specific and itemised (and therefore more limited) powers as set out in the new section 13.

The NAB submits that the Bill be amended to ensure that the catch-all general powers which were previously provided for in section 13 of the IBA Act be re-instated in section 13 of the IBA Act to make it clear that the specific powers now contained in section 13 do not constitute a limitation of its general powers.

Ad section 6 of the Schedule to the Broadcasting Act
Section 6 of the Schedule to the Broadcasting Act inserts section 13A into the IBA Act, which section details the general role and powers of the Minister.

The NAB is concerned about the Minister's power to direct ICASA to undertake any special investigation and inquiry on any matter within its jurisdiction and to consider any matter within its jurisdiction placed before it by the Minister for urgent consideration. The NAB is concerned that this could result in ICASA's own work schedule and regulatory agenda being seriously undermined as these provisions effectively grant the Minister the power to determine what broadcasting issues ICASA ought to be focusing on at any one time. The NAB considers this to be a significant departure from the constitutional imperative that an independent authority is to regulate broadcasting in the public interest. The NAB respectfully suggests that the Bill be amended to provide for same.

Ad section 23 of the Schedule to the Broadcasting Act
In respect of paragraph (e) of section 69(1) of the IBA Act, which was inserted by section 23 to the Schedule to the Broadcasting Act, the NAB is concerned that the Minister has the sole power to determine when a common carrier of a broadcasting signal distribution is to provide facilities to be used for emergency sound broadcasting services. The NAB submits that such a determination should be made in consultation with ICASA and that the Bill should be amended to provide for same.

Ad paragraph 1 of the Schedule to the Broadcasting Act
In the first paragraph of the Schedule of Amendments to the IBA Act, it is stated that "private broadcasting service" is to have the meaning assigned to it in section 1 of the Broadcasting Act. In fact, section 1 of the Broadcasting Act does not contain a definition of private broadcasting service and this should be a reference to "commercial broadcasting service". The NAB suggests that the Bill be amended to reflect same.

Ad section 17 of the Schedule to the Broadcasting Act
This section amends sections 48, 49, 50 and 54 of the IBA Act by replacing the word "private" with "commercial". The NAB suggests that this section include a reference to section 46 of the IBA Act as that section currently still refers to "private" broadcasting licences. The NAB suggests that the Bill be amended to reflect same.

Ad section 23 of the Schedule to the Broadcasting Act
This section amends section 69 of the IBA Act by inserting paragraphs (c), (d) and (e) in section 69(1) of the IBA Act. The NAB submits that paragraph (d) requires to be amended as it does not make sense. It appears that the paragraph is supposed to deal with certain delegations to a committee of the council of ICASA but it is unclear what exactly the paragraph is supposed to say. The NAB suggests that the Bill be amended to reflect same.

CONCLUSION
The NAB trusts that the issues raised in this memorandum will be helpful to the members of the Portfolio Committee who will be responsible for reviewing the provisions of the Broadcasting Act and the Bill. The NAB would of course be pleased to discuss any issue raised in this memorandum with members of the Portfolio Committee and with members of the Department of Communications and looks forward to working with the Portfolio Committee and the Department of Communications to ensure a regulatory regime for broadcasting that will assist in developing a vibrant, growing broadcasting sector that meets the needs of the citizens of South Africa.