ICASA recently published a discussion document on ownership and control for public comment. You can download a copy
here.
The issue is discussed separately for broadcasting services on the one hand, and electronic communications services on the other. ICASA has indicated that the result of this consultation 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. In respect of electronic communications services, ICASA intends to publish findings and draft regulations.
The discussion document mostly concerns the issue of diversity. In other words, it asks questions to elicit responses as to what requirements for ownership and control by black persons or “historically disadvantaged persons” should be. There are several questions that deal with the issue of foreign ownership and control and with cross ownership and control too. The due date for comments is 19 Feb 2010.
Unfortunately for ICASA, not unlike with regard to a number of other issues, such as competition issues and interconnection, the Electronic Communications Act is not so clear. As a result, ICASA may very well be constrained in its attempts to regulate ownership and control of electronic communications licences.
Sections 13(3), (4) and 5) of the Act, those that give ICASA direct authority to regulate ownership and control, sit as subsections of provisions on transfers. It could be (and probably will be) argued that they only apply in that context. Section 9(2)(b) empowers ICASA to place limitations on ownership on applicants for new individual licenses, however, this provision, does not allow ICASA to place limitations on existing licensees (or on class licensees).
