SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON COMMUNICATIONS ON BROADCASTING AMENDMENT BILL (B34-2002)
SEPTEMBER 2002

Submission on Broadcasting Amendment Bill

Orbicom (Pty) Ltd ("Orbicom") is a licensed broadcasting signal distributor and direct-to-home ("DTH"), redistribution and uplink satellite operator, being the appointed signal distributor for M-Net. Orbicom operates extensive satellite networks, both in South Africa and in the rest of Africa. It is also a member of the Radiocommunication Sector of the International Telecommunication Union ("ITU") and has actively participated in the activities of the ITU, including the ITU-R working groups and the 1995, 1997 and 2000 World Radiocommunication Conferences, as part of the South African delegation.

On 15 August 2002 the Broadcasting Amendment Bill, 2002 ("the Bill") was published under Notice Number 1426 of 2002 in Government Gazette No. 23745. Orbicom makes this submission in an attempt to contribute to the process of creating a regulatory environment that provides stability in the broadcasting industry and is also in the public interest.

Orbicom requests an opportunity to supplement this written submission with an oral representation at the hearings scheduled for 16 – 20 September 2002.

Orbicom respectfully requests the Parliamentary Portfolio Committee on Communications (the Portfolio Committee) to consider making further amendments to the Broadcasting Act, 1999 (the Broadcasting Act).
In 1999, Orbicom, along with all other major broadcasting industry stakeholders, made submissions to the Independent Broadcasting Authority (IBA) in response to the IBA's Discussion Paper on Satellite Broadcasting. As a result of concerns that the IBA had about certain of the provisions of the Broadcasting Act, it subsequently announced that it was unable to proceed to issue its Position Paper on Satellite Broadcasting and with the licensing of satellite operators, until certain amendments to the Broadcasting Act had been made.
These amendments have not yet been made and consequently the satellite broadcasting industry operates in an uncertain regulatory environment.

Orbicom respectfully submits that the Broadcasting Act and IBA Act, 1993 (the IBA Act) should be combined into a single composite piece of legislation dealing with broadcasting policy and regulation. This could be achieved by amending the IBA Act to include the substantive provisions of the Broadcasting Act that deal with broadcasting policy, and excluding the provisions relating to the SABC. Those substantive provisions of the current Broadcasting Act dealing only with the SABC should be contained in a separate Act known as the SABC Act or Public Broadcasting Act.


ISSUES OF CONCERN REGARDING THE BROADCASTING BILL
Definitions
Ad section 2(k)
Orbicom 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 for in the IBA Act.

Ad section 2(l)
Orbicom 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 meaningless.
The definition of free-to-air service in the Bill states that it must be capable of being received on universal receivers.

Ad section 2(n)
Orbicom submits that the definition of "licence" can lead to confusion and should be deleted. Signal distribution and broadcasting licences are 2 totally distinct and separate types of licences and to refer to a "licence" that can either mean a "broadcasting" or a "signal distribution" licence confuses the 2 concepts. At ad section 2(c), the Bill specifically removes the distribution function from the definition of "broadcaster", and this is welcomed.

Ad section 2(o)
Orbicom submits that the definition of "licensee" excludes holders of licences issued in terms of the Broadcasting Act and suggests that the definition must make reference to both the Broadcasting and IBA Acts.

Ad section 2(v)
Orbicom submits that the definition of "radio station" should be re-worded. The Act defines "radio" as:
"radio means an electromagnetic wave propagated in space without artificial guide and having by convention a frequency lower than 3 000 GHz."
This is based on the ITU definition of "radio waves". Orbicom supports the adoption of ITU definitions wherever possible and consequently proposes that the ITU terminology be used and that a "radio station" be more correctly referred to as a "sound broadcasting station" in line with ITU terminology.
There is an existing definition of a "sound broadcasting service" in both the Broadcasting and the IBA Acts.

Broadcasting Licences
Ad section 4(a)
Orbicom submits that the reference to a "distribution service" must be deleted from section 4 as this is provided for in section 27(b) of the Bill. Section 4 of the Act deals only with Broadcasting licences and not with signal distribution licences. Signal distribution licences are currently regulated in terms of Chapter V, Sections 32 – 38 of the IBA Act and Chapter VII, Sections 33 – 36 of the Broadcasting Act.

Ad section 4(c)
Orbicom submits that the reference to distribution services proposed in section 4(6)(a) of the Bill should be deleted for the reasons given above.
Currently, in terms of Section 35(1) of the IBA Act: " Broadcasting signal distribution in a licence area shall be provided only by means of transmitters the nature, number and transmission characteristics of which have been approved by the Authority."

Ad section 4(d)
Orbicom submits that the proposed section 4(8) of the Bill again confuses signal distribution with broadcasting. These are two different services and ought to be dealt with separately. Orbicom 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 carried by broadcasting services."

Classes of licences
(The Bill contains a printing error in this section – what should be section 5 is numbered as section 8)
Ad section 5(a)
Orbicom supports the categories of broadcasting services set out in section 5(1) of the Broadcasting Act, i.e. public, commercial and community. However, Orbicom does not support the classes of broadcasting licences that are set out in section 5(2) of the Act and the amendments thereto proposed in the Bill. These classes have not been systematically determined, neither are they exhaustive. Whilst Orbicom takes cognisance of the fact that section 5(2)(k) will allow for any other class of licence to be determined by ICASA, Orbicom believes that the process of determining additional classes of licences will be unable to keep pace with technological developments.
There is no need for a list of classes of broadcasting services, as the defining characteristics of the broadcasting service should be specified in the licence itself.



For example, the licence will specify if the service to be provided is:
Multi-channel or single channel
Free-to-air or subscription or a combination thereof in a multi-channel environment
Terrestrial analogue, digital terrestrial, satellite
Sound or television broadcasting service
Licence area.
Orbicom recommends the abolition of the classes of licences proposed in section 5 in favour of a flexible regulatory environment that can take account of rapid technological developments without requiring constant legislative amendments which are likely to be implemented too slowly to keep up with these technological developments.

Ad section 5(b)
Orbicom submits that proposed section 5(3) of the Broadcasting Act be deleted as the licensing of broadcasters and signal distributors is already adequately dealt with in terms of the IBA Act. The inclusion of these requirements in the Broadcasting Act represents an unnecessary duplication.

Subscription television service
Ad section 24(a)
Orbicom submits that the inquiry envisaged in section 31(1) of the Broadcasting Act should not be scrapped. As part of its mandate, ICASA must promote the stability of the broadcasting industry and an enquiry into the economic feasibility of the provision of additional subscription television services can only contribute to this.

Ad section 24(c)
Orbicom submits that proposed section 31(3) of the Broadcasting Act should be amended. The inquiry referred to in section 33(1) of the Broadcasting Act relates to licence conditions, obligations and tariff structure for signal distribution, including the regulatory regime for multi-channel distribution services and convergence, and has no bearing on whether ownership restrictions ought to apply to broadcasting services broadcasting on more than one channel. This inquiry into ownership and control and cross-media ownership has no relevance to signal distribution activities at all.
Once more, the Broadcasting Act fails to distinguish between broadcasting and signal distribution services. This is a matter of great concern to Orbicom.

Signal Distribution
Ad section 27
Orbicom submits that the amendments envisaged for section 34(4) of the Broadcasting Act should be deleted. Orbicom respectfully submits that, to the best of its knowledge, there are no broadcasting signal distribution services that are currently unlicensed.

The Memorandum on the objects of the Broadcasting Amendment Bill of 2002, states that the Bill seeks to address the following issues, amongst others:
To close the gap that currently exists by requiring not only broadcasting services, but also all distribution services to hold licenses prior to commencing operations.
To harmonise the licensing processes and procedures relating to broadcasting and distribution services with the provisions of the IBA Act, 1993 (Act No.153 of 1993). The Bill makes a number of sections of the IBA Act applicable to any application for a broadcasting or distribution license.
Existing signal distribution services and multi-channel distribution services must apply to ICASA for a licence to continue with their operations. ICASA is empowered to impose licence conditions.

Orbicom respectfully submits that these amendments are superfluous as they are adequately dealt with in terms of the IBA Act.
Orbicom is licensed to provide broadcasting signal distribution services in South Africa on a selective and preferential basis in terms of a licence issued by the Independent Broadcasting Authority. This licence was originally issued on 27 August 1997. Following an application for an amendment of the licence by Orbicom, the IBA, on 10 February 1999, amended the licence to include Orbicom’s satellite distribution services on PAS 7.
The expiry date of this licence is 30 March 2004.
Orbicom submits that it is the holder of a valid broadcasting signal distribution licence to provide distribution services both terrestrially and via satellite and that it should not be required to apply for a distribution licence in terms of the Broadcasting Act, as amended, until expiry of its existing licence. Further, ICASA should not have the power to impose additional licence conditions during the period of its current licence.
As stated at ad section 24 (c) above, Orbicom is greatly concerned that both the Act and the Bill continually confuse broadcasting and signal distribution licences and operations. In a multi-channel, digital environment, up to 4 entities can be involved in the broadcasting value chain. These are:
Content provider
Content publisher
Multiplex operator
Signal distributor
These entities/functions all form part of a complex integrated value chain and cannot be compartmentalised.
Orbicom believes that the licensing regime for a multi-channel digital environment requires clarification. The confusion in the Bill between broadcasting and signal distribution frustrates the orderly regulatory management of the digital broadcasting value chain.