TELKOM’S SUBMISSIONS
NATIONAL PORTS AUTHORITY BILL, 2003
Introduction
- Telkom SA Limited ("Telkom") thanks the Parliamentary Portfolio on Transport for giving it the opportunity to comment on the National Ports Authority Bill, 2003 ("the Bill"). The Bill was published in Government Gazette 24261 on 17 January 2003.
General comments
- The main purpose of the Bill is to constitute the National Ports Authority, which is currently a division of Transnet, as a public company with the South African government as the sole shareholder. (For ease of reference, we will refer to the newly constituted company as "the Authority" and to Transnet’s National Ports Authority Division as "the NPA Division" or "the Division"). The main function of the Authority is to manage, control and administer ports on behalf of the state. The Bill also establishes a regulatory body in the form of the Ports Regulator ("the Regulator").
- Telkom has a number of concerns with the Bill that we wish to raise before the Bill is enacted into law.
- In brief, Telkom’s concerns are as follows:
- Firstly, a number of the definitions in the Bill are defined to include telecommunication services and facilities. The effect of this inclusion is to subject telecommunication services and facilities at ports to a dual regulatory framework – under both the National Ports Authority Bill and the Telecommunications Act 103 of 1996 ("the Telecommunications Act").
- Secondly, the Bill provides for the transfer of the assets and liabilities of the NPA Division from Transnet to the Authority. Transtel, which is the telecommunication division of Transnet, is not specifically excluded from these provisions of the Bill. This may have the unintended effect of requiring telecommunication facilities belonging to the Transtel PTN (private telecommunication network) located at ports to be transferred to the Authority. If this error is not corrected, then the Bill could have the effect of inadvertently undermining the SNO (second national operator) licensing process, as the Transtel PTN is supposed to be transferred to the SNO once it becomes operational.
- Telkom believes that these problems were probably an oversight on the part of the drafters of the legislation. Nevertheless, we are of the view that these issues should be addressed in the Bill so as not to undermine the telecommunications regulatory framework.
Specific comments
- We will now comment on specific provisions within the Bill as set out below. We have compiled a comprehensive audit of all the provisions of the Bill which impact upon Telkom and the SNO in tabular form which we have attached as an annexure to this submission.
Inadvertent inclusion of telecommunication facilities within the ports regulatory framework
- At the root of the problem is that many of the definitions in s1 of the Bill relating to the various types of port facilities and services are defined widely to include telecommunications, either explicitly or by implication. The effect of this is to subject port telecommunication systems to double regulation – by the Authority and the Regulator under the National Ports Authority Bill on the one hand, and by ICASA (the Independent Communications Authority of South Africa) under the Telecommunications Act.
- In this section of the submission we will examine the implications of including telecommunications within the ambit of the ports regulatory framework. We will then examine the specific definitions in the Bill that Telkom considers to be problematic. Lastly we will suggest amendments to the Bill that will rectify this problem.
The effect of including telecommunications within the ports regulatory framework
- The Telecommunications Act grants ICASA very wide powers to regulate telecommunications. ICASA’s powers extend to the regulation of the radiofrequency spectrum, the licensing of telecommunication services and the regulation of access to telecommunication facilities, amongst other things.
- The Bill inadvertently creates a number of overlaps between the Authority, the Regulator and ICASA where port telecommunication services are concerned. Three of the most problematic overlaps that Telkom has identified relate to the granting of licences, the provisioning of port telecommunication facilities and the prescription of tariffs. Although there are others, we will only concentrate on the most important problem areas for the purposes of this submission.
Licensing
- The Bill permits the National Ports Authority to issue licenses and to enter into concession agreements with third parties for the provision of port services and facilities. This could potentially extend to port telecommunication systems, given that the definitions used in the Bill are so wide.
- To the extent that this is the case, then there is a clear conflict with Chapter V of the Telecommunications Act, which requires telecommunication service providers to be licensed by ICASA.
Provisioning of port telecommunication facilities
- The Bill empowers the Authority to plan, provide and maintain port infrastructure, including port telecommunication facilities. This is in direct conflict with the Telecommunications Act which only permits Telkom, the SNO and Sentech to self-provide their own telecommunication facilities.
- The South African government has adopted a policy of "managed liberalisation" for telecommunications, which aims to open up the local telecommunication market on a phased-in basis. Historically, the Telecommunications Act granted Telkom a statutory monopoly to provide telecommunication facilities to customers. This monopoly expired on 7 May 2002. The Telecommunications Act authorises an additional two operators to provide telecommunication facilities in the post-exclusivity period. These are: Sentech, which has been licensed to provide facilities in accordance with its carrier of carriers licence, and the SNO (second national operator), which will be licensed to compete with Telkom in the fixed line market.
- The implications of this are that telecommunication facilities may only be leased from an authorised operator, namely Telkom, the SNO or Sentech in accordance with its carrier of carriers licence.
Fees and tariffs
- The Bill empowers the National Ports Authority to prescribe fees and tariffs for port facilities and services, which again could include telecommunication facilities and services at ports.
- In this regard, there is a clash between the Bill and s45 of the Telecommunications Act which mandates ICASA to prescribe fees and tariffs for telecommunications.
Problematic definitions – s1
- In this section of the submission, we examine in detail the definitions in s1 that Telkom considers to be problematic.
- Two of the definitions explicitly include telecommunications within their ambit – namely the definitions of "port infrastructure" and "terminal infrastructure" – which s1 defines as follows: