BROADCASTING SERVICES

CHAPTER 9

BROADCASTING SERVICES

Application

47. This chapter applies only to broadcasting service licensees.

48. Public Broadcasting service licenses

In considering the grant of a new public broadcasting service license the Authority must, with due regard to the objects and principles enunciated in section 2 inter alia take into account-

(a) the demand for the proposed broadcasting service within the proposed licensed area:

(b) the need for the proposed broadcasting service within such area, having regard for broadcasting services existing therein: and

49. Community broadcasting service licenses

In considering the grant of a new community broadcasting service license the Authority must with due regard to the objects and principles enunciated in section 2 inter alia take into account

(a) Whether the applicant is fully controlled by a non-profit entity and carried on or is to be carried for non-profitable purposes

(b) Whether the applicant intends to serve the interests of the relevant community:

(c) Whether, as regards the provision of the proposed broadcasting service the applicant has the support of the relevant community, which support shall be measured according to such criteria as shall be prescribed:

(d) Whether the applicant intends to encourage members of the relevant community or those associated with or promoting the interests of such community to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service :and

(e) Whether the applicant has ever been convicted of an offense in terms of this Act or related legislation

50. Commercial broadcasting licenses

(1) In considering the grant of a new commercial broadcasting service license the Authority

Must with due regard to the objects and principle enunciated in section 2 inter alia take into account-

(a) The demand for the proposed broadcasting service within the proposed license area

(b) The need for the proposed broadcasting service within such license area having regard to the broadcasting service already existing therein:

(c) The expected technical quality of the proposed broadcasting service having regard for developments in broadcasting technology:

(d) The capability, expertise and experience of the applicant:

(e) The financial means and business record of the applicant

(f) The business record of persons in a position to control the operation of the licensee, either in an individual capacity or directly or indirectly in relation to management or corporate structure

(g)The applicant’s record and the record of those persons referred to subsection (f) in relation to situations requiring trust and can dour:

(h) Whether the applicant is precluded, in terms of section 63 from holding a broadcasting service license;

(I) whether either applicant or persons referred to subsection (f) have ever been convicted of an offense in terms of the Act ore related legislation

51. Prohibition on granting of broadcasting service licenses to party-political entities

No broadcasting service license may be granted to any party, movement, Organisation, body or alliance which is of a party-political nature.

52. Record of programmes broadcast by broadcasting service licensees

(1) A broadcasting service licensee must—

(a) Retain, for a period of not less than 60 days, a recording of every programme Broadcast in the course of his or her broadcasting service;

(b) On demand of the Complaints and Compliance Committee, produce to it any Such recording for examination or reproduction;

(c) On demand of the Complaints and Compliance Committee, produce to it any Script or transcript of a programme after the broadcast thereof.

(2) Nothing in this Act may be construed as requiring or authorising the Authority or the Complaints and Compliance Committee in the performance of its functions to view Programmes prior to their being broadcast.

53. Code of conduct for broadcasting service licensees

(1) The Authority must, as soon as reasonably possible after the coming into effect Of this Act, prescribe regulations setting out a code of conduct for broadcasting service Licensees subject to this Act.

(2) Subject to the provisions of subsection (3), all broadcasting service licensees must Adhere to the code of conduct for broadcasting service licensees as prescribed.

(3) The provisions of subsection (2) do not apply to a broadcasting service licensee Who is a member of a body which has proved to the satisfaction of the Authority that it’s Members subscribe and adhere to a code of conduct enforced by that body by means of Its own disciplinary mechanisms, provided such code of conduct and disciplinary Mechanisms are acceptable to the Authority.

54. Control over advertisements

(1) All broadcasting service licensees must adhere to the Code of Advertising Practice (in this section referred to as the Code) as from time to time determined and Administered by the Advertising Standards Authority of South Africa.

(2) The Complaints and Compliance Committee must adjudicate complaints Concerning alleged breaches of the Code by broadcasting service licensees who are not Members of the Advertising Standards Authority of South Africa, in accordance with The terms of the ICASA Act.

(3) Where a broadcasting licensee, irrespective of whether or not he or she is a Member of the said Advertising Standards Authority, is found to have breached the Code, such broadcasting licensee must be dealt with in accordance with applicable terms ICASA Act

55. Prohibition on broadcasting of party election broadcasts and political advertisements

Except in certain circumstances

Apart election broadcast and a political advertisement must not be broadcast on any broadcasting service except during an election period and then only if, and to the extent authorised by the provisions of sections 53 and 54.

56. Broadcasting of party election broadcasts on public broadcasting services

(1) Subject to the provisions of this section, a public broadcasting service licensee must permit a party election broadcast only during an election period and then only if such a broadcast is produced on behalf of the political party in question at the instance of its duly authorised representative.

(2) The Authority must determine the time to be made available to political parties fort the purposes of subsection (1), including the duration and scheduling of party election broadcasts, taking into account the financial and programming implications for the broadcasting services in question.

(3) The Authority must consult with the relevant public broadcasting service licensee and all the political parties prior to making any determination in terms of subsection (2).

(4) In making any determination in terms of subsection (2), the Authority may impose such conditions on a public broadcasting service licensee with respect to party election broadcasts as it considers necessary, having due regard to the fundamental principle that all political parties are to be treated equitably.

(5)A party election broadcast may not contain any material which may reasonably be anticipated to expose the broadcasting service licensee to legal liability if such material were to be broadcast.

(6) A party election broadcast must conform to a technical quality acceptable to the authority.

(7) No party election broadcast may be broadcast later than 48 hours prior to the commencement of the polling period.

(8) A commercial or community broadcasting service licensee is not required to broadcast party election broadcasts, but if he or she elects to do so, the preceding provision of this section applies, with the necessary changes.

57. Political advertising on broadcasting services

(1) A broadcasting service licensee is not required to broadcast a political advertisement, but if he or she elects to do so, he or she must afford all other political parties, should they so request, a like opportunity.

(2) A broadcasting service licensee may broadcast a political advertisement only during an election period and then only if it has been submitted to such licensee on behalf of a political party by its duly authorised representative.

(3) In making advertising time available to political parties, no broadcasting service licensee may discriminate against any political party or make or give any preference to any political party or subject any political party to any prejudice.

(4) A political advertisement may not contain any material which may reasonably be anticipated to expose the broadcasting service licensee to legal liability if such material were to be broadcast.

(5) A political advertisement must conform to a technical quality acceptable to the authority.

(6) No political advertisement may be broadcast later than 48 hours prior to the commencement of the polling period.

(7) This section is subject to the provisions of any law relating to the expenditure of political parties during an election period.

58. Equitable treatment of political parties by broadcasting service licensees during

Election period

(1) If, during an election period, the coverage of any broadcasting service extends to the field of elections, political parties and issues relevant thereto, the broadcasting services licensee concerned must afford reasonable opportunities for the discussion of conflicting views and must treat all political parties equitably.

(2) In the event of any criticism against a political party being leveled in a particular programme of any broadcasting service—

(a) Without such party having been afforded an opportunity to respond thereto in such programme; or

(b) Without the view of such political party having been reflected therein, the broadcasting services licensee concerned must afford such party a reasonable opportunity to respond to the criticism.

(3) If, within 48 hours before the commencement of the polling period or during the polling period, a broadcasting services licensee intends broadcasting a programme in which a particular political party is criticized, the licensee must ensure that the political party in question is given a reasonable opportunity to—

(a) Respond thereto in the same programme, or

(b) Respond thereto as soon as is reasonably practicable thereafter.

(4) Subsection (3) does not apply in relation to the contents of any party election broadcast in the circumstances contemplated in section 53 and any political advertisement in the circumstances contemplated in section 54.

59. Restriction on subscription broadcasting services

(1) Subscription broadcasting services may not acquire exclusive rights that prevent the free-to-air broadcasting of national sporting events as identified in the public interest from time to time by the Authority after consultation with the Minister and the Minister of Sport and in accordance with

The regulations prescribed by the Authority.

(2) The Authority must prescribe regulations regarding the extent to which subscription broadcast services must carry, subject to commercial negotiable terms, the television programmes provided by a public broadcast service licensees:

(3) Subscription broadcasting services may draw their revenues from subscriptions advertising and sponsorships, however, in no event may advertising or sponsorship, or a combination thereof is the largest source of annual revenue

(4) Subscription broadcasting services must contribute to South African television and music programming as prescribed a subscription broadcasting service must contribute to South African television

And music content in terms of regulations prescribed by the Authority.

60. Preservation of South African programming

(1) The Authority may make regulations regarding the amount of independently produced South African television or music programming to be provided by broadcast service licensees

(2) The Authority may in terms of section 53(1), include in the code of conduct for broadcasting service licensees general guidelines and principles applicable to the solicitation of independently produced South African programming

(3)For the purposes o this section

(a)”local television content” means a television programme (excluding transmission of sporting events and compilations thereof, advertisements, teletext and continuity announcements, which is produced-

(i) By a broadcasting service licensee; or

(ii) By a person who is a citizen of and permanently resident in the Republic; or

(iii) By a juristic person, the majority of the director’s shareholders or members of whom are citizens of and permanently resident in the Republic: or

(iv) in a co-production in which persons referred to in subparagraphs (i), (ii) or (iii) have at least fifty percent financial interest; or

(v)by persons referred to in subparagraphs (i), (ii), (iii) or (iv) in circumstances where the prescribed number of key personnel are involved in the production of the television programme, are citizens of and permanently residents in the Republic; or

(vi) By persons referred to in subparagraphs (i), (ii), (iii) or (iv) in circumstances where the prescribed percentage of the production costs are incurred in the Republic;

(b)”independent television production” means a production of local television content

(i)by a person not directly or indirectly employed by any broadcasting service license; or

(ii)by a person who is not controlled by or is not in control of any broadcasting service licensee; and

(C) A musical work broadcast by a broadcasting service licensee shall qualify as “South African music” if such work complies with at least two of the following criteria namely-

(i) if the lyrics 9if any) were written by a South African citizen;

(ii) If the music was written by a South African Citizen;

(iii) If the music or lyrics was or were principally performed by musicians who are South African citizens

(iv) If the musical work consists of a live performance which is-

(aa) recorded wholly in the Republic, or

(bb) performed wholly in the Republic and broadcast live in the Republic

(4) The Authority may in respect of the television broadcast service impose and specify therein such conditions, as prescribed, regarding local television content and independent television production, which without derogating from the generality of the foregoing may included any condition requiring the broadcasting service licensee-

(a) Annually to expend a specified sum of money subject to reasonable yearly escalation or alternatively a specified minimum percentage of its gross revenue, on programmes which have local television content?

(b) To allocate a specified minimum percentage of its total broadcasting time to television content;

(c)In the case where the broadcasting service licensee has regional or local license area to allocate a specified minimum percentage of broadcasting time to local television programmes which have been produced in the relevant region or locality; and

(d)To allocate a specified minimum portion of the percentage referred to in paragraph (a), (b), (c) or (d), whichever is applicable to a prescribed diversity of television programmes which are independent television productions

(5) The Authority may in relation to the sound broadcasting service prescribe conditions whereby the broadcast service licensee is required to broadcast a specified minimum percentage of musical works which qualify as South African music.

(6)In prescribing any amount or percentage in terms of subsections (4) or (5), the Authority may prescribe the application there of with regard to-

(a) Any of the categories of broadcasting service licenses

(b) Defined viewing and listening times, where applicable;

(d) The period within which the broadcasting service licensee must comply with the provisions of this section

61. Broadcasting service objectives

Where a communications service licensee provides broadcasting signal distribution or multi-channel distribution services, such provider must, subject to the general terms and conditions of its license as determined by the Authority—

(a) Give priority to the carriage of South African broadcasting channels, including local programming where the Authority considers it appropriate;

(b) Provide universal access for all South Africans to broadcasting services;

(c) Provide a diversity of type of broadcasting services and content;

(d) Deliver public services, including educational, commercial and community

Services;

(e) Be open, interoperable and harmonised with the Southern African region, and be able to meet international distribution standards.

62. Self provision by broadcasting service licensees

(1) Broadcasting services licensees may self provide their own communications facilities upon obtaining a communication network services license

(2) Upon the receipt of a communications network services license, broadcasting service licensees may provide any communications network service in terms of this Act. Broadcasting service licensee may also provide any communications service upon obtaining a communications services license.

(3) A broadcasting service licensee may not provide a broadcasting service utilizing any portion of the radio frequency spectrum license in terms of the Act.

63. Limitations on foreign control of commercial broadcasting service

(1) One or more foreign persons shall not, whether directly or indirectly

(a) Exercise control over a commercial broadcasting licensee; or

(b) Have a financial interest or interest either in voting shares or paid up capital in a commercial broadcasting licensee exceeding twenty (20) percent

(2)Not more that twenty (20) percent of the directors of a commercial broadcasting licensee may be foreign persons

64. Limitations on commercial broadcasting services

(1)No person may-

(a) Directly or indirectly exercise control over more than one commercial broadcasting service license in the television broadcasting service or

(b)be a director of a company which is or of two or more companies which between them are in a position to exercise control over more than one commercial broadcasting service license in the television broadcasting service; or

(c) Be in a position to exercise control over a commercial broadcasting service license in the television broadcasting service and be a director of any company which is in a position to exercise control over any other commercial broadcasting service license in the television broadcasting service

(2)No person may-

(a) Be in a position to exercise control over more than two commercial broadcasting service licenses in the FM sound broadcasting service;

(b) Be a director of a company which is, or of two or more companies which between them are in a position to exercise control over more than two commercial broadcasting service licenses in the FM sound broadcasting service

(c) Be in a position to exercise control over two commercial broadcasting service license in the FM sound broadcasting service and be a director of any company which is in a position to exercise control over any other commercial broadcasting license in the FM sound broadcasting service

(3)a person referred to in subsection (20 must not be in a position to control two commercial broadcasting service licenses in the FM sound broadcasting service which either have the same license areas or substantially overlapping license areas,

(4)No persons may—

(a)Be in a position to exercise control over more than two commercial broadcasting service license in the AM sound broadcasting service

(b)be a director of a company which is, or of two or more companies which between them are in a position to exercise control over any other commercial broadcasting service license in the AM sound broadcasting services; or

(c)Be in a position to exercise control over two commercial broadcasting service licenses in the AM sound broadcasting service and be a director of any company which is in a position to exercise control over any other commercial broadcasting service license in the AM sound broadcasting service

(5) No person referred to in subsection 94) must e in a position to control two commercial broadcasting service licenses in the AM sound broadcasting service, which either have the same license areas or substantially overlapping license areas.

(6)On application by any person the Authority may on good cause shown and without departing from the objects and principles enunciated n section 2 exempt such person from adhering to any one f the limitations contemplated in the preceding subsections

(7)The Authority may, whenever deeded necessary in view of the developments in broadcasting technology or for the purposes of advancing the objects and principles enunciated in section 2, institute and conduct a public inquiry and make recommendations to the Minister regarding amendment of any of the preceding subsections of this section.

(8)The recommendations contemplated in subsection (7) must be Tabled in the National Assembly by the minister within 14 days of receipt thereof, if the National Assembly is then in session, or if the National Assembly is not in session, within 14 days after the commencement of its next ensuing session

65. Limitations on cross-media control of commercial broadcasting services

(1)Cross-media control of broadcasting services shall be subject to such limitations as from time to time determined by the National Assembly, acting on the recommendation of Authority after consultation with the Minister, in accordance with the provisions of the Constitution

(2)No person who controls a newspaper may acquire or retain financial control of a commercial broadcasting service license in both the television broadcasting service and sound broadcasting service.

(3)No person who is in a position to control a newspaper may be in a position to control a commercial broadcasting service license, either in the television broadcasting service or sound broadcasting service, in an area where the newspaper has an average ABC circulation of twenty (20%) percent of the total readership in the area if the license area of the commercial broadcasting service license overlaps substantially with the said circulation area of the newspaper.

(4) Substantial overlap shall be interpreted to mean an overlap by fifty (50%) percent or more.

(5) A Twenty (20%) percent shareholding in a commercial broadcasting service license, in either the television broadcasting service or sound broadcasting service shall be deemed to constitute control

(6)The Authority may on good cause shown and without departing from the objects and principles enunciated in section 2 exempt affected persons from adherence to any of the limitations determined in terms of this section

(7)The Authority may, whenever deeded necessary in view of the developments in broadcasting technology or for the purposes of advancing the objects and principles enunciated in section 2 institutes and conduct a public inquiry and make recommendation to the Minister regarding amendment of any of the preceding subsections of this section

(8)The recommendations contemplated in subsection(7) must be Tabled in the National Assembly by the Minister within 14 days of receipt thereof, if the National Assembly is then in session, or if the National Assembly is not in session, within 14 days after the commencement of its next ensuing session

(9) a determination made in terms of subsection (1), whether pursuant to an inquiry by the authority, must not be applicable to and not be enforceable against any broadcasting service licensee to which such determination is made, but shall become applicable to and enforceable against such a broadcasting service licensee only upon the renewal of its license upon the expiration of such term

(10)The Authority must conduct an inquiry in terms of subsection(1) and make recommendations to the National assembly as to whether sections 64 and 65 are applicable to broadcasting services carrying more than one channel and the extent and terms upon which such sections must apply

CHAPTER 10

Competition Matters

66. Competition matters

(1) Where the Authority determines that the holder of a license under this Act or a person providing a service pursuant to a license exemption has engaged in an act or intends to engage in any act that is likely to substantially prevent or lessen competition by among other things

(a) Giving an undue preference to or

(b) Causes under discrimination against

Any other licensee or person providing a service pursuant to a license exemption, the authority may direct the license by written notice to cease or refrain from engaging in such act

(2) The Authority may prescribe regulations-

(a) setting out what actions in terms of subsections(1) would be deemed by the Authority as giving undue preference to or causing undue discrimination against another licensee or persons providing service pursuant to license exemption

(b)Detailing procedures for complaints and monitoring and investigation of such action that ensures the protection of consumer interests.

(c) Indicating the penalties that may be imposed for failure to comply with a written notice to cease or refrain from taking such actions as prescribed in terms of paragraph (a) above.

(3) The Authority must prescribe regulations defining the relevant markets and market segments as applicable, that pro-competitive conditions may be imposed upon markets or market segments have ineffective competition. The regulation must among other things-----

(a) Define and identify the retail and/or wholesale markets or market segments in which it intends to impose pro-competitive terms and conditions in cases where such markets are found to have ineffective competition

(b) Set forth the methodology to be used to determine the effectiveness of competition in such markets segments taking into account subsection (6)

(c) set forth the pro-competitive terms and conditions the authority may impose in order to remedy the perceived market failure in the markets or market found to have effective competition taking into account subsection (7)

(d) Declare licensees in the relevant market or market segments, as applicable that having significant market power as determined in accordance with subsection (4) and the pro-competitive conditions applicable to each such licensee

(e) set forth a schedule pursuant to which the Authority will undertake periodic review of the markets and market segments, taking into account subsection (8) the determination in respect to the effectiveness of competition and application of pro-competitive terms and conditions in those markets; and

(f) Provide for monitoring and investigation of anti-competitive behaviour in the relevant market and market segments

(4) A licensee has significant market power with regard to the relevant market or market segment where the Authority finds that the particular individual licensee or class licensee

(a) is dominant;

(b) Has control of essential facilities; or

(c) Has a vertical relationship that the Authority determines could harm competition in the market or market segments applicable to the particular category of license.

(5) Where the Authority imposes pro-competitive conditions under this section such pro-competitive conditions must be proportional to address the level of ineffective competition which the Authority has determined exists, in the relevant markets or market segments

(6) The methodology contemplated in subsection (3) (b) must included but\is not limited to an assessment of the following----

(a)When defining the relevant market or market segments the Authority must consider the non-transitory (structural, legal, or regulator) entry barriers to the applicable markets or market segments and the dynamic character and functioning of the subject markets or market segments

(b) When conducting an analysis of the effectiveness of competition in the relevant markets or market segments the Authority must take the following factors among others into account:

(I) an assessment of relative market share of the various licensees in the defined market segments and

(ii)A forward looking assessment of the market power of each of the market participants over reasonable period in terms of amongst others

(aa) actual and potential existence of competitors;

(bb) the level trends of concentration and history of collusion in the market

(cc) the overall size of each of the market participants

(dd) control of essential facilities

(ee) technological advantages or superiority of a given market participant

(ff) the degree of countervailing power in the market

(gg) easy privileged access to capital markets and financial resources

(hh) the dynamic characteristic of the market including growth, innovation, and products and services diversification

(ii) Economies of scale and scope

(jj) the nature and extent of vertical integration

(kk) ease of entry into the market, including market and regulatory barriers to entry

(7)Pro-competitive terms and conditions may include but are not limited to

(a) And obligation to act fairly reasonably in the way in which the licensee responds to requests for access, provisioning of services interconnection and facilities leasing:

(b) A requirement that the obligations contained in the license terms and pro-competitive conditions must be complied with in the periods and at the times required by or under such terms and conditions, failing which a penalty may be imposed

(c) A prohibition against discriminating in relation to matters connected with access provisioning of services interconnection and facilities leasing

(d) An obligation requiring the licensee to publish, in such manner as he Authority may direct all such information for the purpose of ensuring transparency in relation to

(i) Access, interconnection and facilities leasing or

(ii) The provision of communications network services communications services or any other service offered by the subject licensee applicable to the relevant market or market segments at issue

(e) An obligation to maintain a separation for accounting purposes between different matters relating to

(i) Access, interconnection and facilities leasing;

(ii)the provision of communication network services communications services or any other service offered b the subject licensee applicable to the relevant market or market segments at issue and

(iii) Retail and wholesale prices

(f) A requirement relating to the accounting methods to be used in maintaining the separation of accounts referred to in paragraph (f)

(g) Such price controls including requirements relating to the provisions of wholesale and retail prices in relation to matters connected with the provision of

(i) Access, interconnection and facilities leasing or

(ii) Communications network services, communication services or any other service offered by the subject licensee applicable to the relevant market or market segments at issue

(g) Such price controls including requirements relating to the provision of wholesale and retail prices in relation to matters connected with the provision of

(i) Access, interconnection and facilities leasing; or

(ii) Communications network services, communication services or any other service offered by the subject licensee applicable to the relevant market or market segments at issue

(k) Matters relating to the accounts, records and other documents to be kept and made available for inspection by the Authority

(8) Review of pro-competitive conditions

(a) Where the Authority undertakes a review of the pro-competitive conditions imposed upon one or more licensees under this chapter, the Authority must

(i) Review the market determinations made on the basis of earlier analysis and

(ii) Decided whether to modify the pro-competitive conditions set by reference to a market determination

(b) where on the basis of such review under this subsection, the Authority determines that a licensee to whom any pro competitive conditions apply is no longer a licensee possessing significant market power in that market or market segment the Authority must revoke the applicable procompetitive conditions applied to that licensee by reference to the previous market determination based on earlier analysis

(c) where on the basis of such review under this subsection the Authority determines that the licensee to whom pro-competitive conditions apply continues to possess significant market power or market segment but to do to changes in the competitive nature of such market or market segment the pro=competitive conditions no longer proportional the Authority must modify the applicable pro-competitive conditions applied to that licensee to ensure proportionality

(9)Subject to the provisions of the Act, the Competition Act, 1998 (act No 89 of 1998, applies to completion matters in the communications industry

(10) The Authority is for the purposes of the Competition Act 1998, a regulatory authority defined in section 1 of that Act

(11) The Authority may request and receive intervention or advice on proceeding related to competition, including proceedings under this chapter from the Competition Commission, established under section 19 of the Competition Act.

Competition

Section 66 Add a new subsection (3)

(3) The regulations in terms of subsection (2) must specify-

(a) the Authority may refrain, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty under subsection (1) where the Authority finds, as a question of fact, that to refrain would be consistent with South African communications and broadcasting policy objectives contained in section 2 of this Act;

(b) no ruling may be made unless as a question of fact, the Authority is satisfied that the service or class of services in questions, is or will be subject to competition sufficient to protect the interests of users; and

(c) The authority must not make a ruling if the Authority finds as a question of fact that to refrain would be likely to impair the establishment or continuance of a competitive market for that service or class of service

Add a new subsection at the end

The Authority may ask for and receive from the Competition Commission established in terms of section 19 of the Competition Act, intervention or advice on relevant proceedings of Authority, including proceedings under this Chapter

CHAPTER 11

Numbering

67. Numbering plans and number portability

(1) The Authority must prescribe

(a) A numbering plan which must be amended and updated as the Authority considers necessary

(i) For efficient use and allocation of numbers and

(ii) To accommodate the varied protocols used and services provided by licensees under the Act and

(B) measures to ensure that number portability is introduced in 2005 or soon thereafter as far as is practicably possible including

(i) The creation of a national number portability database; and

(ii) Cost allocation and cost recovery among licensees

(2) A numbering plan must consist of a scheme of identification so as to ensure that communications are correctly and efficiently directed to the point of inceptetion for which they are intended.

(3) Subject to subsection (7) the Authority must in preparing a numbering plan take account of existing numbering plans or schemes

(4) The numbering plan contemplated in subsection (1) (a) must be non-discriminatory

(5)The Authority must maintain and manage a central numbering database system

(6)every individual communication service licensee and individual communications network service licensee, as applicable, must submit information on all numbers, including numbers of prepaid subscribers allocated in terms of its license to the Authority

(7) The regulations prescribed in terms of subsection 91) must include matters relating to---

(a) The fees licensees must pay for the allocation of numbers to recover administration costs

(b)The conditions under which a licensee may be required to surrender unused numbers to the Authority for reallocation

(c) The allocation of responsibility between communications service licensees and communications network service licensees for the implantation of the numbering plan and number portability to---

(i) Ensure effective functionality

(ii) Ensure access an drouting within communications networks and

(iii) Allow licensees to assign numbers to subscribers and transfer numbers when subscribers change service in an efficient manner without unreasonable delay or disruption of service

(d) Protection for consumers including disclosure of consumer rights relating to—

(i) Numbers and number portability; and

(ii) the process and procedures to be followed for resolving subscriber complaints and affording subscribers remedies in the form of discounts and credits when the communications network service licensee or communications service licensee fails to meet its obligation under this section and

(e) A framework including a schedule fro transforming the numbering plan to a non-geographical numbering system taking into account similar nongeographic numbering plans adopted in other jurisdictions and implementation of electronic numbering allowing the interoperation between telephone numbers and the Internet domain name system

CHAPTER 12

Consumer Issues

Continued existence of Universal Service Agency

73. (1) Despite the repeal of the Telecommunications Act by this Act, the Universal

Service Agency established in terms of section 58(1) of the Telecommunications Act continues to exist as a juristic person in terms of this Act.

(2) The Minister may, by notice in the Gazette, appoint a board of up to seven members to provide oversight of and guidance to the Universal Service Agency.

(3) A board appointed by the Minister in terms of section 58(2) of the Telecommunications act is considered to have been appointed in terms of this Act.

Functions of Agency

74. (1) The Agency must—

(a) Strive to promote the goal of universal access and universal service;

(b) Encourage, facilitate and offer guidance in respect of any scheme to provide—

(i) Universal access or universal service; or

(ii) Telecommunication services as part of reconstruction and development projects and programmes contemplated in section 3(a) of the Reconstruction and Development Programme Fund Act, 1994 (Act No. 7 of 1994), where such provision will contribute to the attainment of the object of the project or programme in question; and

(c) Foster the adoption and use of new methods of attaining universal access and universal service.

(2) For purposes of subsection (1) (b) (ii), reference to telecommunication services in relation to development projects and programmes contemplated in section 3(a) of the reconstruction and Development Programme Fund Act, 1994, must be regarded as reference to communications network services under this Act.

(3) (a) The Agency must from time to time, with due regard to circumstances and attitudes prevailing in the Republic and after obtaining public participation to the greatest degree practicable, make recommendations to enable the Minister to determine what constitutes—

(i) Universal access by all areas and communities in the Republic to communications

Services and communications network services; and

(ii) The universal provision for all persons in the Republic of communications

Services and access to communications networks, Including any elements or attributes there of.

(b) Such a determination—

(i) Must be published in the Gazette; and

(ii) May be amended or substituted by the Minister on the recommendation of the agency as provided for in this subsection.

(4) The Agency—

(a) May undertake such investigations into matters relating to its functions as it may consider necessary;

(b) Must conduct research into and keep abreast of developments in the Republic and elsewhere on information communication technology, communications services and communications facilities;

(c) Must continually survey and evaluate the extent to which universal access and service has been achieved;

(d) May issue information from time to time on the provision of communications services and communications networks in the Republic and access thereto;

(e) May, and must when so requested by the Minister, make recommendations to the Minister in relation to policy on any matter relating to universal access and universal service;

(f) May, and must when so requested by the Authority, advise the Authority on any matter relating to universal access and universal service;

(g) Must continually evaluate the effectiveness of this Act and things done in terms thereof towards the achievement of the goal of universal access and universal service;

(h) May liaise, consult and co-operate with any person or authority;

(i) May appoint experts and other consultants on such conditions as the Agency may determine.

(5) The Agency must manage the Universal Service Fund in accordance with the provisions of this Chapter.

Head and staff of Agency

75. (1) The Agency is under the direction and control of the Head of the Agency appointed by the Minister.

(2) The Head must employ such other persons as are necessary to assist him or her with the performance of the functions of the Agency.

(3) The Head must, in the selection of the staff of the Agency—

(a) Promote the empowerment of historically disadvantaged groups, including women and youth;

(b) Subject to paragraph (a), apply equal opportunity employment practices.

(4) The Head and other staff of the Agency must be appointed on the grounds of their qualifications, expertise or experience in the fields, when viewed collectively, of development planning, community development, social sciences, economics, communications and publicity.

(5) A person may not be appointed or continue in office as Head or other member of the staff of the Agency if he or she becomes unfit to hold the office or becomes incapacitated.

(6) (a) The Head and other staff of the Agency must be appointed for such period not exceeding five years as may be determined when he or she is appointed.

(b) The Head and other employees of the Agency hold office on such conditions as to remuneration and otherwise—

(i) In the case of the Head, as the Minister may determine with the concurrence of the Minister of Finance;

(ii) In the case of other employees, as the Head may determine with the concurrence of the Minister and the Minister of Finance.

(c) Different periods and conditions may be determined under paragraph (a) or (b) in respect of different employees.

Financing of Agency

76. (1) The operating and capital costs of the Agency must be financed from money appropriated by Parliament from time to time for that purpose.

(2) The Agency must utilize any money contemplated in subsection (1) in accordance with the statement of estimated income and expenditure referred to in subsection (3).

(3) The Agency—

(a) Must in each financial year, at a time determined by the Minister, submit a statement of estimated income and expenditure for the following financial year to the Minister for his or her approval, granted with the concurrence of the Minister of Finance; and

(b) May in any financial year submit adjusted statements of estimated income and expenditure to the Minister for his or her approval, granted with the concurrence of the Minister of Finance.

Banking account

77. The Agency must, with the approval of the Director-General, open and maintain with a bank registered finally as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990), an account in which there must be deposited the money received by the Agency and from which payments for it or on its behalf may be made.

Annual and other reports

78. (1) The Agency must submit to the Minister—

(a) Such information and particulars as he or she may from time to time, in writing, require in connection with the activities of the Agency; and

(b) A report in regard to the functions, affairs and activities of the Agency, annually and as soon as is reasonably practicable after the end of each period of 12 months ending on 31 March, in respect of such period.

(2) Without derogating from the generality of the provisions of subsection (1), the annual report must, among others, include—

(a) Information regarding progress towards achieving the goal of universal service; and

(b) Such other information as the Minister may determine.

(3) The Minister must table a copy of the annual report in Parliament within 30 days after it is received by him or her if Parliament is then in ordinary session or, if Parliament is not then in ordinary session, within 30 days after the commencement of its next ordinary session.

Continued existence and control of Universal Service Fund

79. (1) Despite the repeal of the Telecommunications Act by this Act, the Universal service Fund established in terms of section 65(1) of the Telecommunications Act continues to exist in terms of this Act, and the Agency must keep account of the Fund in iIts books and credit the Fund with—

(a) Universal service contributions referred to in section 81(1); and

(b) Money accruing to the Universal Service Fund from any other source.

(2) All money received, the amounts of which in terms of subsection (1) must be credited to the Universal Service Fund in the books of the Agency, must be paid into the National Revenue Fund established by section 185 of the Constitution.

(3) Subsidies paid from the Universal Service Fund under section 80 must be financed from money appropriated by Parliament for that purpose.

(4) The Universal Service Fund must be administered by the Agency subject to the control and in accordance with the instructions of the Minister.

Application of money in Universal Service Fund

80. (1) The money in the Universal Service Fund must be utilised exclusively for the Payment of subsidies—

(a) For the assistance of needy persons towards the cost of the provision to, or the use by, them of communications services;

(b) Subject to subsection (2), to any communications network service licensee for the purpose of financing the construction or extension of communications networks in under-serviced areas as prescribed;

(c) To public schools and public further education and training institutions as defined in the South African Schools Acts, 1996 (Act No. 84 of 1996), and the further Education and Training Act, 1998 (Act No. 98 of 1998), respectively, for the procurement of communications services and access to communications networks;

(d) For the establishment and operation of centres where access can be obtained to communications networks.

(2) The Authority must, for purposes of subsection (1) (b), define under-serviced areas by regulation.

(3) The Authority must review and update, at least bi-annually, the definition of under serviced area prescribed and the list of designated under-serviced areas eligible for construction payments from the Universal Service Fund.

(4) The Minister may, for the purposes of payments referred to in subsection (1) (a) by notice in the Gazette determine—

(a) Categories of needy persons to whom assistance may be given;

(b) The persons who must apply for assistance and the manner in which such applications must be made;

(c) The manner in which and persons to whom subsidies may be paid.

Contributions to Universal Service Fund

81. (1) Every holder of a license granted or considered to have been granted in terms of Chapter 3 must pay, in addition to any other fees contemplated in this Act or the related legislation, the prescribed annual contributions to the Universal Service Fund.

(2) The Authority must prescribe—

(a) The basis and manner of determination of such contributions, which must not exceed 1 per cent of the licensee’s annual turnover or such other percentage of the licensee’s annual turnover as may be determined by the Minister by notice in the Gazette; and

(b) The dates when such contributions become payable and the manner in which they may be paid.

Competitive tender for universal service projects

82. (1) The Agency must provide incentives to communications network service licensees to construct, operate and maintain communications networks in under serviced areas through the award of project grants.

(2) The Agency must, in consultation with the Authority—

(a) Publish a notice in the Gazette stating its intention to award one or more project grants and invite interested communications network service licensees to submit proposals;

(b) Identify the targeted under-serviced area or under-serviced areas where project grants will be awarded;

(c) The time and place for submitting proposals;

(d) The scope of the projects which may vary according to the needs of the targeted under-serviced area or under-serviced areas;

(e) The criteria for evaluating proposals;

(f) The projected cost of the proposed project; and

(g) Such other matters as may be helpful in securing qualified proposals.

(3) The criteria for evaluating proposals may take into consideration—

(a) The objects of this Act set out in section 2;

(b) The scope of the communications network service licensee’s proposal, including the communications network proposed for construction in the

Under-serviced area and the technologies proposed;

(c) Any communications services the communications network service licensee proposes to offer in terms of its communications network service license and, as applicable, any communications service license or other license held by the communications network service licensee;

(d) The terms and conditions relating to any proposed services, including wholesale and retail pricing, taking into account the lack of competitive communications networks and services in the targeted under-serviced area; and

(e) Such other matters as the Agency, in consultation with the Authority, finds appropriate for the targeted under-serviced area and consistent with section 74(3).

(4) The subsidy for project grants must be paid out of the Universal Service Fund.

(5) The Agency must supervise the execution of projects awarded under subsection (1).

Accounts of Universal Service Fund

83. (1) The Agency must—

(a) Cause full records to be kept of the transactions of the Universal Service Fund;

(b) As soon as possible, but not later than three months after 31 March in each year, cause the books and accounts relating to such transactions to be balanced as at that date and thereafter prepare a statement showing in all necessary detail—

(i) The income and expenditure of the Fund during the preceding financial year; and

(ii) A balance sheet showing the assets and liabilities of the Fund as at the end of that year.

(2) The accounts and balance sheet of the Fund must be audited by the Auditor-General.

(3) As soon as possible after the accounts and balance sheet for any year have been audited, the Agency must submit a copy of the accounts and balance sheet to the Minister.

(4) The Minister must table a copy of the audited accounts and balance sheet in Parliament—

(a) Within 30 days after they have been received by him or her if Parliament is then in ordinary session or, if Parliament is not then in ordinary session, within 30 days after the commencement of its next ordinary session; or

(b) If so determined by the Minister, together with the annual report of the Agency in regard to the period concerned.

(5) For the purposes of this section, ‘‘financial year’ means the period extending from 1 April in any year to 31 March in the next succeeding year.