In terms of section 48 of the current Telecommunications Act, a MCTS licence may only be amended:

• to make conditions of the licence consistent with conditions being imposed generally in respect of all licences issued in the same category, for the purpose of ensuring fair competition between licensees in that category;
• to the extent necessitated by technological change;
• to the extent requested by the licensee.

The proposed Bill introduces additional grounds for amendment of an individual licence:

• in accordance with an order under section 17M of the ICASA Act following a finding and recommendation by the Complaints and Compliance Committee;
• where the Authority is satisfied that the amendment is necessary to ensure the achievement of the objectives of this Act;
• if the amendment relates to universal access or universal service and is necessary, in the opinion of the Authority, as a result of-

• changed circumstances in the market; or
• lack of electronic communications network services, broadcasting services, or electronic communications services in specifically identified areas of the Republic.

The Bill thus proposes that ICASA can amend a licence in response to a finding by the Complaints and Compliance Committee or in accordance with regulations in Chapter 10 or at any time if in its opinion it relates to universal access or universal service or to ensure the achievement of the objectives of this Act. In other words, ICASA is empowered to increase universal service and access obligations at any time without completing a market analysis and assessment process to identify the true access gap and the most appropriate, proportionate and least intrusive regulatory remedy to address any such gaps. ICASA can also amend licences by linking the necessity of such amendments to objectives of the Act

This clearly places any investor in an untenable position since it is unable to determine the totality of its obligations for incorporation into its business case. Licenced rights can also be amended by qualifying the need for amendment in terms of the objectives of the Act. A key criterion for investment is a stable and predictable regulatory environment. These broad sweeping powers of the Authority to amend licence and increase obligations in this manner will deter investors and will result in existing investors re-evaluating such investments.

To address the above investor concerns, it is proposed that amendments to licences should be in consultation with licencees, or alternatively, after consultation with licensees on the basis that such amendments will not cause undue prejudice to licensees.

10. Amendment of individual licence

1. The Authority may amend an individual licence in after consultation with the licensee –

1. to make the terms and conditions of the individual licence consistent with terms and conditions being imposed generally in respect of all individual licences of the same type;
2. for purpose of ensuring fair competition between licencees;
3. to the extent requested by the licensee provided it will not militate against orderly frequency management and will not prejudice the interests of other licensees;
4. to the extent necessitated by technological change or in the interest of orderly frequency management;
5. in accordance with a decision made by the Authority in terms of section 17E of the ICASA Act following a finding and recommendation by the Complaints and Compliance Committee;
6. where the Authority is satisfied that the amendment is necessary to ensure the achievement of the objectives of this Act;
7. if the amendment relates to universal access or universal service and is necessary, in the opinion of the Authority, as a result of-

1. changed circumstances in the market; or

(ii) lack of electronic communications network services, broadcasting services, or electronic communications services in specifically identifies areas of the Republic.

8. if the amendment is in pursuance of and in accordance with the regulations under Chapter 10.

(2) The provisions of sections 9(2) to (6) apply, with the necessary changes, to the amendment of an individual licence.

 

OR

 

 

10. Amendment of individual licence

2. The Authority may amend an individual licence in after consultation with the licensee provided that the amendment will not unduly prejudice the interests of the licensee –

1. to make the terms and conditions of the individual licence consistent with terms and conditions being imposed generally in respect of all individual licences of the same type;
2. for purpose of ensuring fair competition between licencees;
3. to the extent requested by the licensee provided it will not militate against orderly frequency management and will not prejudice the interests of other licensees;
4. to the extent necessitated by technological changes or in the interest of orderly frequency management;
5. in accordance with a decision made by the Authority in terms of section 17E of the ICASA Act following a finding and recommendation by the Complaints and Compliance Committee;
6. where the Authority is satisfied that the amendment is necessary to ensure the achievement of the objectives of this Act;
7. if the amendment relates to universal access or universal service and is necessary, in the opinion of the Authority, as a result of-

1. changed circumstances in the markets; or

(ii) lack of electronic communications network services, broadcasting services, or electronic communications services in specifically identifies areas of the Republic.

8. if the amendment is in pursuance of and in accordance with the regulations under Chapter 10.

Subsection 93 (1) of the Bill state that existing licences must be converted by granting one or more new licences on no less favourable terms. However, subsection 93(4)(b) should be made consistent with the terms of conversion, i.e. "no less favourable" as stipulated in subsection 93(1) in that additional rights must accompany commensurate obligations during the licence conversion process. The insertion of the words, "additional" and "commensurate" ensure that subsections 93(1) and 93(4)(b) are aligned and will not create uncertainty during the licence conversion process.

*****