Posted by LA Thornton on Wednesday, August 8, 2012
The Minister of Communications has published the Electronic Communications Amendment Bill, 2012 for comment due 29 August 2012.
Two classes of individual ECNS licences?
In the Memorandum on the objects of the Bill, one is led to believe that the amendment to section 20 of the Act would limit the rights of certain individual ECNS licensees in respect of gaining rights of way. However, upon examination of the proposed amendment, it appears that this would not be the result. The proposed amendment would empower ICASA, by regulation, to indicate which ECNS licensees the chapter on rights of way applies. While, technically speaking, ICASA could hand pick certain individual licensees for such application, in practice, this could not happen. Fundamental administrative law principles include the obligation of administrative bodies to act in ways that are not discriminatory. ICASA could justify making the chapter applicable only to individual licensees, as opposed to class licensees. It could not, however, justify making the chapter applicable to only a few chosen individual licensees.
Regulation of Rights of Way
The more important proposed changes to the chapter of the Act dealing with rights of way are the amendments that make it clear that the Minister must develop policy within a year and that ICASA must follow this with regulations so that the negotiation of rights of way can proceed in a manner that is both acceptable to the industry and to land owners.
Regulation of Access
The proposed amendments to the provisions relating to interconnection and facilities leasing are also important. The Act needs to make it clear that ICASA has the obligation to effectively regulate access and to give ICASA the requisite powers and authority to do so.
Regulation of Spectrum
Another important regulatory issue is the regulation of spectrum planning and assignments. The Amendment Bill would transfer the planning and assignments for government use from ICASA to the Spectrum Management Agency, to be established. The Bill however does not itself establish such an Agency.
Comments on the Bill may be submitted to lerato@doc.gov.za by 29 August 2012.
