1 Telkom SA Limited ("Telkom") welcomes the opportunity to comment on Broadcasting Amendment Bill 2002 ('The Bill").

2 The Bill contemplates a number of changes to the way in which the South African broadcasting system is regulated. Telkom has, however, limited its comments to only those issues that impact on telecommunications.

3 Telkom would like to take part in the oral hearings which are scheduled to be conducted at Parliament from 16-20 September 2002, and would require a timeslot for presentation of 30 minutes.

Nature of Telkom's submissions

4 Telkom's submissions relate to four aspects of the Bill. These are:

4.1 the definition of 'free-to-air services' in s1;

4.2 the definition of 'multi-channel distribution services' in s1;

4.3 the reference to satellite and terrestrial transmission in s4(1); and

4.4 the classes of broadcasting licences in s5(2).

5 For ease of reference, all references to section numbers in this submission will be to the amended sections as they will appear in the Broadcasting Act1 once it is amended.

Definition: "free-to-air service" (s1)

6 The Bill defines a 'free-to-air service' to mean "a service which is broadcast and capable of being received on universal receivers without payment by the end user to the broadcaster and without the use of receiving equipment'.

7 It is submitted that this definition is problematic for two reasons, namely because:

7.1 the term 'universal receivers' is not defined in the Bill;

7.2 receiving equipment is an essential component of a radio communication service, and as such it is inappropriate to characterise free-to-air services by reference to a lack of receiving equipment.

Universal receivers

8 This is not a technical term, and as such does not have an established technical meaning.

9 Presumably the drafters of the Bill meant 'universal receivers' to refer to internal receivers built into radio and television sets that do not require the use of additional receiving equipment (such as a set top box, for example) to make the transmitted signal audible or visible to the end user.

1 Act 4 of 1999

10 In the radio broadcasting context 'universal' reception would probably most commonly mean reception on the AM I FM audio frequency bands, and the VHF I UHF frequency bands in the television context. In this sense

'universal receivers' allow users to pick up broadcasting signals in these bands regardless of their location or o~ the nature of the broadcasting service.

11 To the extent that this is the case, then it is clear that the use of the term 'universal receiver' is too restrictive because it excludes free-to-air satellite broadcasting services, which operate in bands that are different from the

'universal' bands, and which may require the use of non-'universal'

reception equipment.

12 To take an example of where such a definition is unworkable in practice, WorldSpace offers both tree-to-air and subscription radio satellite services. However, the WorldSpace receivers are a dedicated system That 45

configured only to receive broadcasting &signals from WorldSpace -regardless of whether the service Is free-to-air or not.

'Without the use of receiving equipment'

13 The final phrase "and without the use of receiving equipment" is incorrect

because receiving equipment is always necessary to pick up radiocommunication signals. Presumably, the legislature meant to refer to the reception of broadcasting services 'without the use of additional receiving equipment".

14 However, to include a requirement in the Bill that free-to-air services be

broadcast without any additional receiving equipment would also be

problematic as "satellite free-to-air television" services cannot be received without the use of a satellite dish. Thus additionaI receiving equipment is currently almost always required to access satellite television services.

The gratis nature of the service is the fundamental component of a free4o-air service

15 Telkom believes the nature of the receiving equipment is not the defining feature of a free-to-air service. Rather the absence of a subscription fee is the fundamental component.

16 Accordingly, the definition of a 'free-to-air' service should be amended in s1 of the Bill to reflect this. One possibility would be to amend the definition along the following lines:

"'free-to-air service' means a service which is broadcast without payment for the service by the end user to the broadcaster, but excludes the payment of television licence fees to the Corporation"

Definition: "multi-channel di5tribution service" (SI)

17 The Bill defines a 'multi-channel distribution service' to mean a "broadcasting signal distribution service that provides broadcasting signal distribution of more than one channel at the same time and on the same signal'.

18 The term 'signal' is not defined anywhere in the Bill and could be misleading. Presumably this definition was meant to refer to the multiplexing (ie combining) of two or more channels onto a single radio frequency.

19 Ii is therefore suggested that the word 'signal' be replaced with the term radio frequency' to make this clear. Thus the amended provision would read:

"'multi-channel distribution service' means a broadcasting signal distribution service that provides broadcasting signal distribution of

more than one channel at the same time and on the same radio frequency"

Licensing of broadcasting services (s4(1))

20 Section 4(1) of the Bill states that: "Any person who intends to provide a broadcasting or signal distribution service, whether by satellite or by terrestrial transmitters, is required to obtain the necessary licence in accordance with the conditions prescribed by the Authority."

21 Terrestrial broadcasting includes both wireless and wired transmission mediums (such as cable, for instance), whereas satellite is a wireless transmission medium. However, the use of the word 'transmitters' seems to refer only to radio (ie wireless transmission), although this is unclear.

22 The problem with specifying the transmission medium in this way is that si9nal distribution does not only consist of wireless transmission and may also include transmission by cable.2

23 Telkom believes that the words "whether by satellite or by terrestrial transmitters" should be deleted from s4(1) in order to ensure that the Bill is technology neutral. Thus the amended s4(1)

would read:

""Any person who intends to provide a broadcasting or signal distribution service is required to obtain the necessary licence in accordance with the conditions prescribed by the Authority."

(2 See comments in paragraphs Error! Reference source not found.to Error! Reference source not found.above in relation to contribution and distribution networks.)

Classes of licences(s5(2))

24 The Bill largely seeks to do away with separate broadcasting licence categories for satellite and terrestrial broadcasting. The Bill seeks rather to define licence categories according to whether they are provided on a subscription or free-to-air basis. However, the Bill does not achieve this completely.

25 At present the Bill currently contemplates the following seven categories of licence:

25.1 free-to-air radio services (inclusive of terrestrial, satellite and cable);

25.2 free-to-air television services (inclusive of terrestrial, satellite and cable);

25.3 sattilite-subscription services (inclusive of both radio and television);

25.4 terrestrial-subscription television services (this excludes potential terrestrial radio subscription services);

25.5 cable television subscription services (this excludes potential cable radio subscription services);

25.6 low power radio services; and

25.7 any other class of licence prescribed by ICASA.

26 In order to maintain consistency in the Bill, and in order to ensure technology neutrality, it is suggested that the three licence categories in paragraphs 25.3 25.4 and 25.5 be collapsed into two licence categories, namely 'subscription radio services' and 'subscription television services'.

27 Thus the amended s5(2) would read:

"Subject to the provisions of this Act, the broadcasting licences are categorised in the following classes:

(a) free-to-air radio service

(b) free-to-air television service;

(c) subscription-radio service;

(d) subscription-television service;

(e) low power radio service; and

(f) any other class of licence as prescribed by the Authority from time to time."