Scrap ICT bill, Free Market Foundation urges

A bill that will introduce a radical overhaul of legislation governing South Africa’s ICT sector should scrapped in favour of tweaking existing legislation, the Free Market Foundation again argued on Monday.

The foundation wants the Electronic Communications Amendment Bill scrapped and only minor changes made to the existing Electronic Communications Act, introduced in 2005.

“Industry consensus,” it said, “is that the current act, while not perfect, is adequate to drive the necessary progress required in the ICT industry.”

It described the amendment bill as a “disaster” that will “damage one of the few post-apartheid success stories”. It said it has “reworked” the bill to remove “the most suspect clauses” and proposed “some small amendments” to existing legislation.

“The end result is that there is so little left of the amendment bill that the department of telecommunications & postal services should scrap it entirely and return to the existing policy under the existing act, albeit with some tweaking.”

The foundation, which was established in 1975 to “promote and foster an open society, the rule of law, personal liberty, and economic and press freedom”, said scrapping the bill will allow the market to “get on with the job of driving competition”.

“The Electronic Communications Amendment Bill, based almost entirely on the controversial 2016 ICT white paper, ignores industry input to the white paper and is bad policy,” the organisation said in a statement.

“It places government in control of a critical economic sector; will effectively nationalise a private industry; will create a government monopoly; will expropriate private property; will remove the independence of industry regulator Icasa; and will introduce regulatory complexity and new government-controlled institutional bodies.

‘”It lacks clarity and essential detail (which may make it unconstitutional); lacks a mandated socioeconomic impact assessment; and opens the door to more corruption and patronage. The telecoms department failed to consult properly on key proposals at every stage. While we remain concerned with some aspects of the current act, such as the enabling of price control, compared to the proposed amendment bill, it is far superior.”

Proposals

The foundation has proposed, among other things, that:

• Government’s plan to create a wholesale wireless open-access network should be scrapped because it is “untried, unproven and unworkable”.
• An attempt to “centralise power” in the hands of the telecoms minister should be removed and, where appropriate, the authority given to Icasa.
• Spectrum should be freely tradeable.
• Obligations on service providers to allow other service providers to access their infrastructure should be removed — in other words, wholesale open-access requirements should be removed from the amendment bill along with similar provisions in the current act.
• The objective “to address barriers to market access in the sector” should be replaced with one to “address the legislative and regulatory barriers to market entry”. The law should not be used to justify further interventions by government in the free market, it said.
• The notion of promoting “service-based competition” should be removed along with provisions empowering government to regulate the “concentration and duplication” of infrastructure in urban areas. “Infrastructure competition is a legitimate business practice that has enabled South Africa’s advanced network infrastructure.”
• The objective of “redressing” market dominance and control should be removed as this is “ambiguous and economically suspect”.
• Clauses relating to competition in the bill and the act should be scrapped. “The Competition Act is the law that regulates ICT competition. Overlapping laws are contrary to the rule of law.”
• The right of government and service providers to enter private property without the owner’s consent should be removed and this right limited to public property only.
• The obligation of new property developments to provide facilities for electronic communications infrastructure should be deleted. “Leave this to market demand.”
• The “superfluous prohibition on refusing entry during ‘emergency situations’” should be removed. “Real emergencies are covered by the common law doctrine of necessity.”
• Most of the Southern African Development Community roaming requirements in the bill should be scrapped. “Networks should provide users with adequate information regarding available services, costs and user permission required.”
• The requirement that end-user charters can prescribe ‘standards of service … and other matters of concern … that end users and subscribers can expect’ should be removed. “This arbitrarily empowers regulators to prescribe ‘standards’ for virtually anything and is contrary to the rule of law.”  — © 2018 NewsCentral Media