Broadcasting Regulators – Mandate and Core Functions “The need for Regional Harmonisation”

1. Broadcasting Regulators – Mandate and Core Functions“The need for Regional Harmonisation” The South African Experience Presented by : Lumko Mtimde Chief Executive Officer Media Development and Diversity Agency 15 August 2006 Maputo, Mocambique

2. Roadmap of the presentation Introduction - About MDDA Highlights of the Broadcasting history in S.A. SA Regulatory Framework – mandate and core functions Need for Regional Harmonization Conclusion

3. Map of South Africa

4. About MDDA • Section 16 and 32 of the Constitution Act provides for freedom of expression and access to information. • The MDDA Act provides for a statutory body entrusted with the responsibility of promoting media development and diversity in S.A. by providing financial and other support to community (non profit) and small commercial media projects.

5. About MDDA • Help create an enabling environment for media development and diversity that is conducive to public discourse and which reflects the needs and aspirations of South Africans. • www.mdda.org.za

6. Broadcasting history in S.A. Pre 1993 • Regulated via the then Apartheid’s Government, Department of Posts and Telecommunication, and to some extent self-regulation. 1993 • IBA Act established a functionally independent and impartial regulator, the IBA, for broadcasting and signal distribution, in the public interest. • The Interim Constitution No. 200 of 1993 guaranteed this independency. 1996 • Telecommunications Act established the SATRA to regulate telecommunications in the public interest. • Minister retained various policy-making powers, more importantly certain licensing functions and a veto power on all telecommunications regulations. • Constitution Act No. 108 of 1996 re-enforced the IBA. • 1999, enactment of the Broadcasting Act providing a new broadcasting policy and legislative framework. 2000 • Anticipating convergence of technologies - the two regulators (IBA and SATRA) were merged into a single regulator, ICASA, in terms of the ICASA Act • Retained the independence character enshrined in the Constitution Act.

7. Broadcasting history in S.A. • Prior to 1994 • SABC run as a state broadcaster, mouthpiece of the Nationalist Party regime. • 702 Radio, Capital Radio and the homeland broadcasters (TBVC stations) • No other private broadcasters and no community broadcasters • No policy and proper legislative framework • 1994 and post 1994 • Transformation of SABC • Establishment of the IBA • Protection of the independence of the regulator through the Constitution and the Act.

8. S.A. Regulatory Framework – mandate and core functions • 1993 and 1996 Constitution Act of S.A. • Section 192 provides that national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society • ICASA is the independent authority to regulate broadcasting and telecommunications in the public interest • ICASA’s mandate is to perform duties and exercise powers under: • the Telecommunications Act of 1996, re - telecommunications • the IBA Act of 1993 and the Broadcasting Act of 1999, re - broadcasting • from 19 July 2006, the Electronic Communications Act of 2005, which repeals the above laws except the Broadcasting Act. • In respect of broadcasting matters, ICASA remained functionally independent, in respect of its licensing and regulatory powers, whereas in telecommunications matters the Minister retained some licensing powers and veto powers on regulations developed by the Authority. • Electronic Communications Act (ECA) strengthens ICASA’s licensing and regulatory powers over the entire electronic communications sector.

9. S.A. Regulatory Framework – mandate and core functions • Electronic Communications Act (ECA) strengthens ICASA’s licensing and regulatory powers over the entire electronic communications sector. • Replacement of the existing telecommunications and broadcasting licensing frameworks with a single licensing regime; • Enhancement of the Authority's competition powers in terms of dispute settlement and significant market power determinations.

10. S.A. Regulatory Framework – mandate and core functions • Policy and regulatory development by ICASA in the sector is informed by, amongst others,: • The Constitution, Act 108 of 1996 (as amended) • Independent Broadcasting Authority Act, No. 153 of 1993 (as amended) repealed by ECA • IBA’s Triple Inquiry Report, 1995 • White Paper on Broadcasting Policy, 1998 • Broadcasting Act, No. 4 of 1999 (as amended) • Independent Communications Authority of South Africa Act, No. 13 of 2000 (as amended) • Broad-Based Black Economic Empowerment Act, No. 53 of 2003 • Telecommunications Act, No. 103 of 1996 (as amended) repealed by ECA • Films and Publications Act, No 65 of 1996 (as amended) • Draft ICT BBEE Charter, 2005 • Competition Act, No. 89 of 1998 (as amended) • Promotion of Administrative Justice Act (as amended) • Electronic Communications Act of 2005 (ECA) from 19 July 2006

11. S.A. Broadcasting Regulatory Framework – mandate and core functions • 1994 and post 1994 • ICASA regulates in terms of the law and is obliged to conduct public processes in conducting its functions • Regulator required by law to promote administrative justice, in terms of the Promotion of Administrative Justice Act, which stipulate timeframe for consideration matters by administrative bodies and require “Reasons for Decisions” to be provided. • Regulator obliged to act transparently and in the public interest • Regulator developed a number of regulations (through public participation) in order to provide clarity and certainty regarding its positions on a number of regulatory areas • Regulations give meaning and effect to the laws.

12. S.A. Broadcasting Regulatory Framework – mandate and core functions • In the main, ICASA’s mandate and core function is : • Licensing, including the issuing of clear and measurable terms and conditions for licenses, • Developing a Regulatory framework, • Managing the broadcasting frequency spectrum, • Monitoring compliance to the license, regulations and the law, and • Regulating the industry in the public interest. • ICASA invites applications, consider applications, grant and issue licenses and the Minister plays no role in the broadcasting regulatory process • Three tiers of broadcasting licenses in South Africa: • Public • Commercial • Community

13. S.A. Broadcasting Regulatory Framework – mandate and core functions • Broadcasting Division (Licensees) • Television • 3 Public National Free-to-air Broadcasting Services (SABC) • 1 Commercial National Free-to-air Broadcasting Service (e-tv) • 1 Terrestrial Subscription Broadcasting Service (M-net) • 1 Community Television Broadcasting Service (TBN, which was grand-fathered) and (a few others from time to time on special events licenses, Soweto, Grahamstown, Cape Town, Durban) • 2 Public Regional Television Broadcasting Services (SABC – not operational yet) • SABC Africa • In addition to these licenced services there are 2 satellite based television broadcasting services (Vivid and DsTV) which are not licensed yet, but which do have permission to continue broadcasting until their applications have been dealt with by the Authority.

14. S.A. Broadcasting Regulatory Framework – mandate and core functions • Broadcasting Division (Licensees) • Sound Broadcasting (Radio) • 18 Public Sound Broadcasting Services • 13 Commercial Free-to-air Sound Broadcasting Services • 100 (82 are currently on air) Community Sound Broadcasting Services • In addition there is 1 satellite based commercial sound broadcasting service (WorldSpace) which has permission to continue broadcasting until its application has been dealt with by the Authority. • Broadcasting Signal Distribution • 1 Category One Licence – Common Carrier (Sentech) • 1 Category Two Licence – Commercial (Orbicom) • Some Community Sound Broadcasters are licensed to self provide their own signal distribution as Category Three Broadcasting Signal Distribution licences.

15. Need for Regional Harmonization • Communications industry is a dynamic and growing sector from time to time • Communications Regulators can be seen as always chasing a moving target • The sector develops and changes regularly • New regulatory challenges • Satellite broadcasting • Digital broadcasting • Convergence of technologies

16. Need for Regional Harmonization • Convergence means different things to different people and there is no one accepted definition. • One of the main drivers for convergence appears to be digital technology which is being utilised for the reproduction, storage, and transmission of information in all media. • Essentially this means that any form of content, whether it be still or moving pictures, sound, text or data, can potentially be made available over any communications platform. For example, currently it is possible to receive radio and television over the Internet, while digital television that is currently being developed will have some of the capabilities normally associated with personal computers. • S.A. experienced High Definition Television (HDTV) launched live during the 2006 World Cup match between Ghana and Brazil.

17. Need for Regional Harmonization • Convergence of technologies, without providing a definition, but for the purpose of this discussion, can be summarised as : • “Convergence is the migration of separate service sectors with separate infrastructure to a spectrum of services provided on multi-service network infrastructures.” (extracted from Justine White speech, Oct 2003) • Basically, it is the coming together of telecommunications, broadcasting and computing, in both infrastructure and services. • the International Telecommunications Union (ITU) indicates that convergence can be described as “the provision of new services over existing infrastructure, development of new types of infrastructure, and the enhancement of existing services and technologies to provide new capabilities”(ITU:1996).

18. Need for Regional Harmonization • Communications sector has become recognised as a catalyst for economic growth and development. • The challenge thereof is that the growing communications sector does not (at times) respect borders and boundaries. • Companies have grown to operate in many countries, or from one country but with no coverage limit. • Therefore, it could be a great opportunity for investors when the regional framework is clear, harmonised and not in conflict from country to country.

19. Need for Regional Harmonization • Regulatory Structures in the SADC region: • Communications Regulator’s Association of Southern Africa (CRASA) former called TRASA, as it was an exclusive telecommunications body. • African Communications Regulators Association’s Network (ACRAN / RIARC), a broadcasting regulator’s association in the continent. • Other regulatory initiatives : • neTtel@Africa, a capacity building programme initiated by TRASA, which brings together universities, regulators and policy makers. The programme is now a continental programme, endorsed/supported by other regulatory bodies like ARICEA, EARPTO and WATRA.

20. Need for Regional Harmonization • Regulatory Structures in the SADC region: • CRASA has been working towards harmonised regulations on the telecommunications front. It has published a number of model regulatory guidelines for SADC. • ACRAN, being new and working Africa wide, is still grappling with broad challenges, like legislative framework and the different approaches to broadcasting regulation in the continent. It has not yet developed regulatory models for the continent. • ACRAN has though supported/worked with Article 19 towards the development of a training manual for regulators. • NEPAD and the E-Africa Commission

21. Need for Regional Harmonization • Harmonisation could lead to: • some modelling of best practises. • Common approach regarding some regulatory aspects like frequency spectrum planning, equipment type-approvals and standards setting, satellite and digital broadcasting, promotion and development of African content, etc. in order to provide regulatory stability and certainty.

22. Conclusion • Whereas respect for sovereignty is guaranteed by the regional bodies, regional harmonization could be explored without compromising it. • Towards the same, regulatory structures need to work together. • There is a need for the rationalization of the many existing regulatory bodies in our continent, like ACRAN (for broadcasting), ATRN (for telecoms), regional bodies like (CRASA, WATRA, ARICEA and EARPTO) for telecoms, PAPU (for postal), ATU (for telecoms), E-Africa Commission (NEPAD), etc. • For example, CRASA could be regarded as the SADC platform for ACRAN and ACRAN could ensure that its programmes reflect/include the broadcasting regulatory work plan. • A harmonized regulatory framework would strengthen the regulatory oversight by countries and facilitate economic growth and development in our region. • Such harmonized approach will provide guidelines for countries development of their legislative and regulatory frameworks, where they don’t exist and will facilitate the exchange of information and experiences.

23. Asante sana • Ke a leboga • Ngiyabonga • I thank you • Lumko Mtimde • lumko@mdda.org.za • www.mdda.org.za • 15 August 2006