The Independent Communications Authority of South Africa (ICASA) is the communications regulator of South Africa. It is charged with regulating the telecommunications, broadcasting and postal industries in the public interest. ICASA ensures the availability of affordable services of a high quality for all South Africans.
Establishment and Legal Framework
The object of the ICASA Act is to establish an independent authority for the regulation of broadcasting, electronic communications and postal services for the public benefit.
ICASA was established by the Independent Communications Authority of South Africa Act. This act provides for the dissolution of the Independent Broadcasting Authority and the South African Telecommunications Regulatory Authority and transfers the functions of these authorities to ICASA.
The licensing framework for telecommunications is contained the Electronic Communications Act, 2005 (‘ECA’)
Key Legislative Acts:
Read also: Understanding ICASA's Role
- Independent Communications Authority of South Africa Act
- Broadcasting Amendment Act
- Prevention and Combating of Corrupt Activities Act
- Independent Communications Authority of South Africa Amendment Act
Functions and Powers of ICASA
The ICASA Act enumerates the powers and functions of ICASA and its chairperson.
ICASA is responsible for:
- Licensing of services
- Prescribing regulations and for enforcing compliance with rules and regulations
- Protecting consumers from unfair business practices and poor quality services
- Conducting inquiries and adjudicating disputes and complaints brought against licensees
The ICASA Act permits ICASA to hold inquiries into matters within its remit. It also sets out the procedures for conducting these inquiries.
The ICASA Compliance Procedure Manual Regulations,2011 (‘Compliance Procedure Manual Regulations’) prescribed in terms of the ICASA Act impose extensive reporting obligations on licensees.
In terms of the Compliance Procedure Manual Regulations, licensees must submit prescribed reports on compliance with regulations relating to universal service, E-rates, tariffs, and codes of conduct for customers and persons with disabilities.
Read also: Property Practitioners Regulatory Authority
Specific Functions Include:
- Exercising powers and performing duties conferred by the ICASA Act, underlying statutes, and any other law.
- Acting consistently with the obligations of the Republic under any applicable international agreement.
- Making recommendations to the Minister on policy matters and amendments to the Act and the underlying statutes.
- Monitoring the electronic communications sector to ensure compliance.
- Managing the radio frequency spectrum.
- Developing and enforcing licence conditions.
- Granting, renewing, amending, transferring, and revoking licences.
- Approving technical parameters and transmitter characteristics.
- Making regulations on any matter consistent with the objects of the Act.
- Inspecting transmitters and communications apparatus.
- Undertaking enquiries on any matter within its jurisdiction.
- Investigating and adjudicating complaints.
Structure and Operations
The Authority acts through the Council contemplated in section 5. The Authority is independent, and subject only to the Constitution and the law, and must be impartial and must perform its functions without fear, favour or prejudice.
The ICASA Act also establishes the Complaints and Compliance Committee (‘CCC’)
The ECA delineates the respective roles of ICASA and the Minister. The function of the Minister of Communications (‘Minister’) is to develop legislation and to make policies on matters of national policy applicable to the ICT sector.
The ICASA Act permits ICASA to hold inquiries into matters within its remit and sets out the procedures for conducting these inquiries.
Concurrent Jurisdiction
ICASA has concurrent competition jurisdiction with the Competition Commission, a body established in terms of the Competition Act,1998.
Read also: Discover Thula Thula
In most instances, ICASA's competition jurisdiction is secondary to that of the Competition Commission.
On 29 August 2019, ICASA and the Competition Commission signed a Memorandum of Agreement (‘MOA’) setting out the principles of cooperation and interaction when dealing with complaints, mergers and when making determinations regarding the effectiveness of electronic communications markets and significant market power in those markets.
Licensing and Regulatory Framework
Unless exempted, no person may provide ECS or ECNS without a licence. Depending on the scope of the services, either an individual or class service licence will be required.
The ECA requires that ICASA must, in granting any service licence, ensure that the services, viewed collectively, are provided by persons or groups of persons from a diverse range of communities in South Africa.
An application for an individual licence may only be made in response to an Invitation to Apply (‘ITA’) issued by ICASA. ICASA may only issue an ITA pursuant to a Ministerial policy direction.
Applicants for individual licences must demonstrate to ICASA that at least 30% of the applicant is owned by historically disadvantaged individuals.
A class licence may be obtained by registration and application can be made at any time. ICASA is required to process the application within 30 days unless it notifies the applicant otherwise.
Types of Licenses:
- Individual ECS: (issued for 20 years) - Required to provide ECS that consists of voice telephony utilizing numbers from the national numbering plan.
- Class ECS: (issued for 10 years) - Required to provide ECS that does not make use of numbers from the national numbering plan.
Absent an exemption, no person may make use of the radio frequency spectrum without a licence issued by ICASA.
The ECA permits ICASA to prescribe regulations regarding the types of ECNS, ECNs, and ECS that may be provided without a licence.
The ECA vests the control of radio frequency spectrum in ICASA. Unless exempted, no person may make use of radio frequency spectrum without a licence.
Only ECNS licensees may apply for a radio frequency spectrum licence in terms of the Radio Frequency Spectrum Regulations.
No person may possess, use, supply, sell or lease any type of electronic communications equipment, facility, or radio apparatus used in connection with the provision of electronic communications unless that equipment, facility or radio apparatus has been type approved by ICASA.
All equipment that has been type approved and received type approval certificate must have a label permanently affixed thereto reflecting ICASA’s logo and the type approval reference number. The labelling requirements set out in the Labelling Regulations, 2013.
The ECA requires that ICASA maintain and manage a national numbering plan consisting of geographic and non-geographic numbers.
Only individual ECS licensees may apply for numbers from the national numbering plan for use in conjunction with mobile, fixed line and VoIP voice services. Numbers are regarded as a national resource and are not owned by a licensee.
ICASA introduced number portability as a consumer protection initiative in 2005.
The ECA requires that applicant for a licence in terms of the ECA must show that it is a South African citizen (in the case of a natural person) or that it is be registered in South Africa with its principal place of business located within South Africa.
If a foreign entity wishes to apply for an individual licence, that foreign entity must, in addition to incorporating a local company, ensure that at least 30% of the local company is owned and controlled by historically disadvantaged individuals or groups.
Recent Developments and Challenges
Recently, ICASA has been focusing on several key areas, including spectrum management and compliance enforcement.
ICASA, the regulator for the South African communications sector, plans to implement a new regulation from as early as 02 October 2014. This new regulation may have far-reaching implications for mobile service operators in South Africa
ICASA is cracking down on the unlawful use of Starlink satellite Internet services within the country.
ICASA has instituted a formal investigation to ascertain the veracity of the allegations and to gather relevant facts and evidence. In the interim, ICASA has deployed inspection teams to conduct physical verifications in the affected areas.
ICASA has always maintained that Starlink is illegal in South Africa unless it obtains a license to operate locally.
Last week, Communications Minister Solly Malatsi proposed amending rules to allow companies like Starlink to enter South Africa without sharing ownership.
Telecoms companies vs ICASA in court
One of the challenges ICASA faces is ensuring that its regulations are both effective and fair, promoting competition while also protecting consumers. There’s only so much corporations voluntarily do to make it easier for consumers to hold them accountable.
Before encouraging consumers to make use of the reporting systems of regulators, such as ICASA we often use them ourselves or encourage a small section of our community to make use of them so we can assess how functional and user friendly they are.
However, as an institution with a public service mandate it should surely ring alarm bells when consumers need to be ‘workshopped’ to use a complaints system.
A more efficient and effective way of serving consumers is ensuring that the process is as accessible and user friendly as possible - which is far more cost effective than attempting to run workshops all over the country.
Ensuring Compliance
After securing a license, businesses must comply with regulatory obligations, which may include regular reporting, adherence to industry standards, and annual license renewals. Non-compliance can result in penalties, suspension, or revocation of licenses, so ongoing commitment to regulatory standards is essential.
Other Relevant Acts:
- The Regulation of Interception of Communications and Provision of Communication-related Information Act,2002 (‘RICA’)
- The Competition Act 89,1998
- The Films and Publications Act,1996
- The Consumer Protection Act, 2008 (‘CPA’)
- Cybercrimes Act, 2020 (‘CCA’)
ICASA is authorized by the ECA to prescribe the types of equipment, facilities and radio apparatus and the circumstances in which type approval is not required.
ECNS and ECS licensees must, upon request, interconnect to any other ECA licensee and to exempted persons requesting interconnection.
All interconnection agreements concluded pursuant to the Interconnection Regulations are filed with ICASA and are available for public inspection.
Roaming is not defined in the ECA although it does fall within the definition of ECNS. There are no regulations directly applicable to roaming or to the conclusion of roaming agreements.
In terms of the ECA, ECNS licensee must, on request lease electronic communications facilities to any other person licensed or exempted in terms of the ECA.
Popular articles:
tags: #Africa
