ICASA's discussion document on ownership and control can be found
here. Comments are due 19 Feb 2010.
ICASA states that the result of the process in respect of broadcasting services is a recommendation to the Minister to alter the limitations on control provisions set out in the EC Act. You might recall that ICASA went through this same exercise in 2004 prior to the enactment of the
EC Act. It's recommendations were set out in a
Position Paper on the Review of Ownership and
Control of Broadcasting Services and Existing Commercial Sound
Broadcasting Licences dated 13 January 2004. Those recommendations
however were not considered by Parliament in enacting the EC Act. The old IBA Act provisions were simply imported into the EC Act (minus schedule 2 which gave substance to the provisions).
Even though ICASA does not have the authority to set ownership and control limitations in respect of broadcasting services, it may make regulations giving more substance to the EC Act provisions. It should take this opportunity to re-enact the substance of schedule 2 to the IBA Act as regulations made under the EC Act.
Schedule 2 to the IBA Act contained provisions setting out -
- instances of de facto control of a broadcaster
- instances of de facto control of a newspaper
- deemed control of a company
Of particular importance were the provisions that set deemed control of a company at 25 percent shareholding.
Even though the provisions of schedule 2 did not find their way into the EC Act, ICASA can and should draft regulations along the lines of schedule 2 to give meaning to the concept of “control” as it is used in the EC Act.
