HISTORICAL OVERVIEW OF THE REGULATION OF BROADCASTING AND TELECOMMUNICATIONS IN SOUTH AFRICA

Prior to the advent of constitutional democracy in South Africa in 1994, the broadcasting and telecommunication sectors were regulated primarily by the provisions of the Radio Act, 1952 and the Broadcasting Act, 1976. These two statutes facilitated the complete control over all telecommunications and broadcasting activities in South Africa by the government  during the apartheid era. The government exercised exclusive control over the formulation of broadcasting and telecommunications policy, over the regulation of the broadcasting and telecommunications industry and, through the South African Broadcasting Corporation (SABC), over the provision of broadcasting services. The apartheid government abused its position of power in this regard in order to promote its political agenda. For instance, although the government claimed that the SABC was an independent body, free of editorial control over programme content, it was common knowledge that news broadcasts and other programmes were manipulated by senior government officials, including the State President.

REFORMS TO THE REGULATORY FRAMEWORK

During the multi-party negotiation process which resulted in the transition to democracy, it was decided to set up various bodies that would facilitate that transition. These bodies included the Independent Media Commission, the Independent Electoral Commission, the Transitional Executive Council and, importantly, the Independent Broadcasting Authority (IBA). The IBA was established by the Independent Broadcasting Authority Act, 1993 (the IBA Act). The IBA Act introduced, to a certain extent, a separation of powers in that the IBA became responsible for the formulation of broadcasting policy and for the regulation of broadcasting activities. The IBA was also mandated to supervise the expansion and diversification of the broadcasting industry by means of the privatisation of some of the SABC’s sound broadcasting services and by means of the licensing of new sound and television broadcasting services. By doing so, the IBA Act (which came into effect on 30 March 1994), reformed the regulation of broadcasting activities in South Africa.

The Constitution of the Republic of South Africa, 1996 came into effect on 4 February 1997. It provides, in section 192, 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. By enacting this provision, the Constitutional Assembly gave constitutional recognition to the IBA. It also entrenched the principle of the independence of the IBA.

The Broadcasting Act, 1999 established a broad framework for the regulation of the broadcasting industry and supplemented the provisions of the IBA Act. A substantial part of the Broadcasting Act was devoted to the restructuring of the SABC and, in particular, its conversion from a statutory body into a public company of which the state is the sole shareholder. The Broadcasting Act also provided that the Minister of Communications was ultimately responsible for the development of broadcasting policy. By conferring this power on the Minister, the power of the regulatory authority to determine broadcasting policy was diluted. The IBA Act was also amended in 1999 to empower the Minister to issue policy directions of general application on matters of broad national policy to the regulatory authority. However, the Minister’s power to develop policy is circumscribed in that the policies developed by him / her must comply with certain general principles.

Telecommunications was recognised  as a key sector requiring reform and the government set out its policy in this regard in the White Paper on Telecommunications Policy published in 1994,  The White Paper recognised the need for liberalization of the market in line with international trends and to facilitate the roll-out of networks and services in line with government’s developmental goals.  The first phase of reform to the sector saw the privatisation of the state-owned fixed line network and its incorporation as Telkom Limited and the licensing of two mobile operators (Vodacom (Pty) Ltd and Mobile Telecommunications Networks (Pty) Ltd). The Radio Act, 1952, in terms of which telecommunications had been regulated was then repealed by the Telecommunications Act, 1996, which came into effect on 1 July 1997. The Telecommunications Act deemed Telkom to be the holder of a licence to provide the public switched telecommunications service comprising local access, long-distance and international services and Telkom was granted exclusive rights in relation to the provision of these services for a period of five years.  Thereafter it was intended that a second national operator would be licensed, which would have access to Telkom’s facilities and resell Telkom services for a period of two years after which it would be permitted to self-provide.  In terms of the Telecommunications Act, the exclusive rights of Telkom and the second national operator were to expire in 2005. The Telecommunications Act introduced some competition in the value-added services sector (comprising such services as internet service provision, e-mail and other data services) which was not part of Telkom’s exclusive rights, although service providers were required to obtain facilities from Telkom alone and were not permitted to carry voice until the Minister determined otherwise.  Telkom was also permitted to provide value-added services and, as such, operated in the competitive downstream sector of the market while holding the monopoly in the upstream sector. Following delays in the licensing process, the second national operator, Neotel (Pty) Ltd, was only licensed in 2005 and commenced with the provision of wholesale services in 2006.  As yet, neither Neotel nor any other operator has access to the local access network (the local loop), which has not yet been unbundled.  The Minister prompted further liberalisation of the sector when she lifted the restrictions on value added services and mobile operators with effect from 1 February 2005, allowing them to obtain their facilities from any source as opposed to from Telkom alone and allowing them to carry voice.

The Telecommunications Act established a sector regulator known as the South African Telecommunications Regulatory Authority (SATRA), which was responsible for regulating a range of telecommunications matters. Although the Telecommunications Act stated that SATRA was an independent regulatory body, it empowered the Minister of Communications to issue policy directions to SATRA and for the Minister to promulgate the regulations that gave content to many of the provisions of the Act. 
  
The Independent Communications Authority of South Africa Act, 2000 (the ICASA Act) provided for the dissolution of the IBA and SATRA and for the creation, in their place, of a regulatory body known as the Independent Communications Authority of South Africa (ICASA). The ICASA Act recognised that technological and other developments in the fields of broadcasting and telecommunications had caused a rapid convergence of these fields and acknowledged a need to establish a single body to regulate broadcasting and telecommunications matters.

The Electronic Communications Act 36 of 2005 (the EC Act) repealed and replaced the IBA Act and the Telecommunications Act with effect from 19 July 2006.  At the same time the ICASA Act was amended in a way that generally allows ICASA further independence from the Ministry of Communications in its regulation of the communications sector.  Under the Telecommunications Act telecommunications operators were licensed as vertically integrated bodies to operate networks and provide services over those networks.  The EC Act has replaced this system with a horizontal licensing framework which provides for the separate licensing of networks and services.  To facilitate the convergence taking place in the sector, the EC Act provides for a single licensing framework in respect of all communications networks, regardless of the services provided across them, and communications services, although a distinction is retained between electronic communications services and broadcasting services. The EC Act also provides for a range of measures which ICASA may introduce to facilitate further competition in the sector.