1.2 Orbicom wishes to thank the Portfolio Committee for the opportunity to respond to the issues and questions raised in the Bill. Furthermore Orbicom requests the opportunity to supplement this submission by way of oral representation to the Portfolio Committee at the public hearings scheduled to be held in respect of the Bill.

1.3 Orbicom is a communications company whose business focuses primarily on the provision of terrestrial and satellite broadcasting signal distribution services and related broadcasting transmission and support services in South Africa and across the African continent.

1.4 Orbicom holds numerous licences issued in terms of the Independent Broadcasting Authority Act, 1993 and the Telecommunications Act, 1996 as amended.

1.5 Orbicom is a member of the Radiocommunication Sector of the International Telecommunication Union ("the ITU"), and has actively participated in the activities of the ITU, including the ITU-R working groups and the 1995, 1997, 2000 and 2003 World Radiocommunication Conferences as part of the South African delegation.

1.6 Orbicom welcomes the publication of the ICASA Amendment Bill and, as an affected party, thanks the Portfolio Committee for the opportunity to contribute to the development of legislation that will create a regulatory environment that is certain, efficient and will be to the benefit of all South Africans.

1.7 In general, it is Orbicom's view that the electronic communications industry in South Africa needs a strong, independent and well-resourced regulator.

1.8 In this written submission, Orbicom will firstly deal with certain broad principles before going on to comment on specific sections of the Bill in more detail. The absence of comment on a specific section of the Bill does not imply that Orbicom necessarily supports or opposes the provisions of that section, as contained in the Bill.

1.9 Notwithstanding the views expressed by Orbicom in this submission, please be aware that we reserve our rights in their entirety to make further submissions and/or representations to the Portfolio Committee in respect of these and related issues.

SECTION A - GOVERNING PRINCIPLES

1. Constitutional Imperatives

1.1 Chapter 9 of the Constitution of the Republic of South Africa Act No 108 of 1996 ("the Constitution"), as the supreme law of the Republic of South Africa, provides for the establishment of state institutions supporting constitutional democracy.

1.2 The governing principles, functions and tenure of these institutions are all specified within Chapter 9 of the Constitution.

1.3 Specifically, Section 192 of the Constitution provides for the establishment of an independent authority to regulate broadcasting in the public interest.

1.4 It is, consequently, not clear to Orbicom why the Independent Communications Authority of South Africa ("ICASA"), which Orbicom presumes to be the body as envisaged in S192 of the Constitution should be dealt with differently from the other institutions specified in Chapter 9 of the Constitution insofar as issues of appointment of councillors, tenure of councillors and other matters related thereto are concerned.

1.5 Furthermore, Orbicom submits that the Constitution has empowered the National Legislature to establish the institutions referred to in Chapter 9 and believes that the Executive arm of Government should not become involved or seek to interfere in the activities of ICASA. This may well result in the unintended consequence of an infringement of the separation of powers principle that has been well established by our courts

6 Consequently Orbicom suggests that the current processes, which deal with the appointment and tenure of councillors of ICASA as well as other matters related thereto be retained in the Amendment Act.

2. Issues of Independence

2.1 Orbicom submits that the changes proposed in the Bill with respect to the appointment of Councillors may compromise the functional and personal independence of the Authority.

2.2 In its current form the bill seeks to give the Minister the power, albeit indirectly, to appoint the Chairperson and Councillors of ICASA. Orbicom submits that in the absence of processes and systems that ensure the functional and personal independence of the councillors and the chairperson a situation may arise whereby Councillors would be tempted to "curry favour" with the Minister and/or Executive arm of government in order to secure tenure of office.

2.3 Orbicom would like to propose that in order to maintain both the functional and personal independence of the Councillors of ICASA that the bill should consider the principles that were applied in establishing the functional and personal independence of judicial officers as specified in Chapter 8 of the Constitution.

2.4 These provisions have been specifically crafted in order to ensure that there exists and remains both functional and personal independence of the judiciary.

2.5 Consequently if these of principles were applied to the current bill it would certainly ensure that the Authority will be well positioned from an independence perspective.

3. Separation of Powers

3.1 Orbicom submits that the powers that the Bill proposes conferring on the Minister of Communications may be in violation of the Separation of Powers Doctrine. See the principle discussed in 1.4 supra in this regard.

3.2 Furthermore, if ICASA is to regulate in the public interest, it is therefore logical then that ICASA must also be accountable to the public. Orbicom submits that it is the National Assembly that represents the public. Therefore, ICASA must remain accountable in all regards to the National Assembly.

SECTION B - COMMENTS ON SPECIFIC SECTIONS OF THE BILL

1.Definitions

Orbicom believes that clear, unambiguous definitions are fundamental to the success of any legislation. In addition definitions should, as far as possible, be consistent with those used by the ITU given that the ITU Constitution and Convention, and Radio Regulation, are an international treaty whose provisions bind the Republic of South Africa.

Orbicom proposes that the term "Communications Sector" be defined, and offers the following definition:

"communications sector" means the broadcasting, broadcasting signal distribution, fixed, mobile and satellite sectors of industry.

2. Ad Section 6

Orbicom does not understand the rationale for specifically mentioning the Chairperson in section 4.

Orbicom submits that in the execution of the regulatory functions of ICASA, the Chairperson cannot act unilaterally, and therefore proposes that specific mention of the Chairperson be deleted.

2.2 Ad proposed section 4(1)(a)

Orbicom supports that ICASA must exercise the powers and perform the duties conferred and imposed on it by this Act and the underlying statutes. However, it is not clear to Orbicom what is meant by "and by any other law". Consequently Orbicom submits that this phrase should be clarified, or, preferably deleted.

2.3 Ad proposed section 4(3)(c)

Orbicom proposes that this section be reworded as follows:

"must manage the radio frequency spectrum in the national interest, and in accordance with internationally accepted technical standards, and in accordance with international treaties such as those of the ITU, as well as bilateral and/or multilateral treaties entered into by the Republic".

2.4 Ad proposed section 4(3)(e)

Orbicom proposes that 4(3)(e) be reworded to include the functions of amendment and revocation of licences as these are very important components of the licensing process. 4(3)(e) should read:

must grant, renew, amend, transfer and revoke licences;

2.5 Ad proposed section 4(4)

Orbicom is concerned that the Council may delegate any function of the Authority, and submits that the delegation of functions should not apply to any activity relating to a licensing process. All decisions relating to licensing activities must be taken by a quorum of Council.

3. Ad section 7

Orbicom submits that the period of 180 days within which ICASA must make a finding in relation to an inquiry is far too long, and therefore unacceptable.

Businesses in the communications sector cannot reasonably be expected to put their business plans on hold for 6 months whilst ICASA deliberates on an inquiry.

Orbicom therefore proposes that the period of 180 days be replaced by 30 days.

4. Ad section 8

As stated in Section A of this submission, Orbicom believes some of the amendments proposed to section 5 of the ICASA Act to be unconstitutional, whilst others are merely problematic.

Orbicom submits that the process for appointing Councillors should remain as it currently stands, and further submits that should the Minister be granted these powers, the independence of ICASA may be somewhat jeopardised.

ICASA, being required to regulate in the public interest, should be accountable to the public, and this can only be achieved if ICASA is accountable to Parliament and if Councillors are appointed by the President, on the recommendation of Parliament.

In this regard, Orbicom fully supports the submission made by the National Association of Broadcasters.

4.1 Ad proposed section 5(IA)(a)

Should the Portfolio Committee decide to accept the proposals for the appointment of Councillors as presently set out in section 8 of the Bill,

Orbicom would then seek clarity as to the mechanisms that would be employed to appoint the independent and impartial selection panel that would make recommendations to the Minister.

Orbicom submits that the appointment of such a selection panel could only be done by calling for public nominations to such a panel, and that there should be a public hearing into the suitability of candidates to serve on such a panel.

This may well prove to be a logistical nightmare and could have the unintended consequence of impeding the processes of appointing councillors resulting ultimately in the weakening as opposed to the strengthening of the regular. This we are certain would not be the intention of the legislature.

4.2 Ad proposed section 5(1A)(b)

The provisions of 5(1A)(b) as currently drafted will prove to be problematic whenever an odd number of Councillors must be appointed.

To overcome this problem, Orbicom submits that a shortlist of 3 more persons than the number of vacancies to be filled should be compiled.

4.3 Ad proposed section 5(3)(b)(ii)

Orbicom has a number of concerns regarding the provisions of 5(3)(b)(ii). As currently drafted, it is proposed to remove the fields of expertise of technology, frequency band planning and business practice from the requirements of prospective councillors.

Orbicom submits that all 3 of these areas of expertise are fundamental to the success of a communications regulator and that by appointing councillors to ICASA who do not possess such expertise will be to the detriment of the entire communications industry in South Africa.

Again, we believe that such an intended consequence could not be the intention of the Legislature.

5. Ad Section 12

Orbicom is concerned about the proposed deletion of subsections (2) and (3) of section 8 of the ICASA Act.

In Orbicom's understanding the effect of these proposed deletions would be that it would become unclear as to who has the power to remove a Councillor from office, if indeed anyone.

Orbicom consequently proposes that the provisions of subsections (2) and (3) of section 8 be retained.

As stated in the introductory paragraph of this submission, it is Orbicom's view that the electronic communications industry in South Africa needs a strong, independent and well-resourced regulator.

Support for a strong, independent and well-resourced regulator has also been expressed on numerous occasions by virtually all industry players, as well as the Department of Communications.

Orbicom is, therefore deeply concerned that the provisions concerning financing of ICASA that were contained in the Draft Convergence Bill published in Government Gazette No 25806 on 3 December 2003, have not been included in this Bill.

Orbicom proposes that the Bill be amended to allow ICASA to be funded by way of licence fees, and proposes that the wording as put forward in the schedule to the Draft Convergence Bill as contained in Government Gazette No 25806, be inserted into section 15.

Furthermore, in order to strengthen and capacitate ICASA, Orbicom proposes that the following subsection be included in section 15:

"The Authority may, in addition to the powers conferred upon it elsewhere in this Act or by any other law, perform all such acts and do all such things as are reasonably necessary for or ancillary, incidental or supplementary to-

(a) the achievement, pursuit, furtherance or promotion of the objects and principles as enunciated in section 2 and implementing, applying and giving effect to such principles and the provisions of this Act;

(b) the exercise and performance of any of its powers, functions and duties in terms of this Act."

7. Ad Section 20

Orbicorn proposes that the provisions of section 17B be amended to include a subsection that states that in the execution of its functions the Complaints and Compliance Committee will not entertain any complaints of a frivolous and/or vexatious nature.

7.2 Ad proposed section 17G

Orbicom is concerned as to whether ICASA inspectors can be given powers in terms of the Criminal Procedure Act, and consequently submits that subsection 17G(1) be deleted.

7.3 Ad proposed new section 171

Orbicom proposes the addition of a new section to the Bill that deals with the establishment of a National Spectrum Advisory Committee. Increasing requests for use of the radio spectrum, the need for more efficient and effective frequency assignment strategies, and ever changing radio technologies place an increasing burden on national spectrum managers. Administrations often have limited financial and human resources that can be applied to spectrum management. In some cases, these limitations can delay or restrict the implementation of communications vital to the national economy, services, and security. National spectrum managers sometimes find it difficult to focus available technical expertise on each of the myriad of services, bands, users, and technologies needing spectrum access in a country.

The ITU, in its report ITU-R SM.2012, Economic Aspects of Spectrum Management, recommends several methods of alternative support for national spectrum management. These include:

• communication groups with a direct interest in spectrum such as advisory committees, trade associations, professional organisations, and quasi-governmental associations;

• frequency co-ordinators (and co-ordination groups) and designated spectrum managers;

• spectrum management consultants, and support contractors.

The objectives of using groups outside the national spectrum manager to assist in the spectrum management process are:

• to save government financial or human resources;

• to increase the efficiency of spectrum use;

• to improve the efficiency of the frequency assignment and c~ ordination processes; or

• to supplement the expertise of the national spectrum manager.

These alternatives can be used to support the national spectrum manager in performing spectrum management functions.

The national spectrum manager must determine the limits of responsibility and authority granted to these groups based on the function to be supported. For example, while consultants can be used to study policy and planning opinions or support radio conference activities, they cannot be used to make policy and planning decisions or ratify conference agreements.

These methods have potential for saving the government financial or human resources, increasing the efficiency of spectrum use, improving the efficiency of the frequency assignment and co-ordination, and supplementing the expertise of the national spectrum manager.

Establishment of Spectrum Advisory Committee

Orbicom proposes the insertion of a new clause to establish a Spectrum Advisory Committee. In this regard Orbicom proposes the following wording:

171. (1) The Authority must establish a Spectrum Advisory Committee that consists of representatives from all spectrum users and national experts in the field of spectrum management.

(2) At least one member of the Committee must be a councillor, and who will also be the Chairperson of the Committee.

(3) The Spectrum Advisory Committee must advise the Authority on all aspects of spectrum management relating to the establishment of the various frequency plans that the Authority is required to develop in accordance with legislative provisions.