On 10 October 2014, ICASA published a
warning to iECS and iECNS licensees that transfer applications will not be approved "which do not have 30% equity ownership by HDGs", if filed after the publication of the warning.
Questions:
Will applications submitted prior to 10 October 2014 that do not have 30% equity ownership, be approved?
Does the warning amend the Licensing Process and Procedures Regulations, 2010, which state that ICASA has the authority to not approve (or approve) transfer applications with less than 30% ownership by HDGs? If so, is ICASA constrained to follow the regulation making procedures set out in the EC Act?
Or is this rather an interpretation of that provision in the regulations? If so, what authority does ICASA have to issue a declaratory order?
What about applications to transfer control of licences - does this warning apply to that situation too? The EC Act was recently amendment to require transfers of control to be approved by ICASA, but ICASA has not yet amended its regulations to take this into account.
Does this warning only apply to licences that contain a condition regarding ownership? ICASA refers to section 9(2)(b) of the EC Act which concerns new licence applications. It then refers to the obligation contained in an individual licence requiring equity ownership of no less than 30%. To my knowledge, no licences currently have such an obligation and none were issued as a result of action taken in terms of section 9(2)(b). All existing licences were converted from old category licences. No invitations for new licences (excluding broadcasting licences) have been issued.
In conclusion, ICASA's notice regarding licence transfers raises more questions than answers.
