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TELECOMMUNICATIONS LAW in South Africa

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TELECOMMUNICATIONS LAW in South Africa The regulation of telecommunications really only began in TELECOMMUNICATIONS South Africa after the historic first democratic election in 1994. Many developments in the policy, law and regulation inSouthAfrica LAW TELECOMMUNICATIONS have taken place since then. LAW This book, Telecommunications Law in South Africa, has been written to provide an overview of the policy, law in South Africa and regulation of telecommunications in South Africa. It includes chapters on the important regulatory topics, including Licensing, Interconnection and Facilities Leasing, Pricing and Universal Service. It also includes chapters on The Regulators and Convergence, as well as an Overview and chapters on Economics and Technologies, authored by recognised experts in those areas. Separate chapters on the Electronic Communications and Transactions Act and The Regulation of the Interception of Communications and Provision of Communication Related Information Act are also included. This book will prove invaluable to legal practitioners in the field, as well as policy makers, legislators, regulators, journalists, academics, researchers, consultants, students, and telecommunications companies. Edited by Lisa Thornton, Yasmin Carrim, Patric Mtshaulana and Pippa Reburn 00 Contents!! 5/10/06 12:06 PM Page 1 TELECOMMUNICATIONS LAW in South Africa Edited by Lisa Thornton, Yasmin Carrim, Patric Mtshaulana and Pippa Reyburn A Lisa Thornton Inc empowerment initiative Funded in part by the ACACIA Programme of the International Development Research Centre (IDRC), Canada 00 Contents!! 5/10/06 12:06 PM Page 2 2 First published in 2006 by STE Publishers 4th Floor Sunnyside Ridge, Sunnyside Office Park, 32 Princess of Wales Terrace, Parktown 2143 Johannesburg, South Africa © April 2006 © Lisa Thornton Inc ISBN 1-919855-76-9 Design: Mad Cow Studio Index: Mirie Van Rooyen Illustrations: Courtesy APC (Association for Progressive Communicators) Printed and bound in South Africa by Interpak Books All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without prior written permission of both the copyright holder and the publishers of the book. This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition being imposed on the subsequent pur- chaser. 00 Contents!! 5/10/06 12:06 PM Page 3 3 CONTENTS Preface – LISA THORNTON Note from Funders – HELOISE EMDON CHAPTER 1 Telecommunications Law – An Overview – LISA THORNTON 16-48 Introduction 17 1 What is Telecommunications? 17 2 Why Telecommunications is Specially Regulated 18 3 How Telecommunications is Regulated 19 4 The Regulation of Telecommunications in South Africa 20 4.1 Constitutional Framework 20 4.2 National Policy 22 4.3 International Law 28 4.4 National Legislation 30 Conclusion 47 CHAPTER 2 Telecommunications Technologies – MIKE BRIERLEY 50-81 Introduction 51 1 What is Telecommunications? 51 2 Where did Telecommunications start? 52 3 Digital versus Analogue Communications 52 4 Circuit versus Packet Technologies 53 5 Speed of Transmission 54 5.1 It’s all about speed! 54 5.2 How has this been possible? 55 6 Telecommunications Technologies 55 6.1 Multiplexing Mechanisms 55 6.2 Wireless Technologies 57 6.3 Television and Satellite Technologies 60 6.4 Legacy Wireline (Copper) Technologies 61 7 The Internet 62 7.1 Internet Protocols (IP and TCP/IP) 62 00 Contents!! 5/10/06 12:06 PM Page 4 4 7.2 IP Addressing 63 7.3 Broadband Technologies 65 Conclusion 66 Glossary of Terms 67 CHAPTER 3 The Economics of Telecommunications and its Regulation – JAMES HODGE AND KEITH WEEKS 82-98 1 The Defining Economic Features of Telecommunications 83 1.1 Significant Economies of Scale 83 1.2 Network Externalities 85 1.3 Compatibility and Standards 87 1.4 Complementarities in Demand 88 1.5 Switching Costs 88 2 The Economics of Telecommunication Regulation 89 2.1 Some Aspects of ex-ante Regulation 91 2.2 Some Aspects of ex-post Regulation 94 CHAPTER 4 The Telecommunications Regulators – LERATO MOKGOSI 100-130 Introduction 101 1 Comparative Analysis 101 2 Legislative Framework of the Regulators 102 2.1 Constitution of the Republic of South Africa 102 2.2 Regulatory bodies established in terms of the Telecommunications Act 103 2.3 Powers of the Minister in terms of Telecommunications Act 104 2.4 Powers of the DoC in terms of Telecommunications Act 105 2.5 Competition Act, 89 of 1998 106 2.6 Independent Communications Authority of South Africa Act, 13 of 2000 (Icasa Act) 107 3 International Instruments and Organisations 107 3.1 International Telecommunications Union (ITU) and the African Green Paper 107 3.2 World Trade Organisation (WTO) 108 3.3 Telecommunications Regulators’ Association of Southern Africa (Trasa) 109 4 Icasa 110 4.1 Formulation and objects 110 4.2 Powers and duties of Icasa 111 4.3 Structure 112 4.4 Challenges facing Icasa as a merged Regulator 112 4.5 Independence of the Regulator 113 00 Contents!! 5/10/06 12:06 PM Page 5 5 4.6 Staffing of the Regulator 122 5 Competition Regulation 123 5.1 Telecommunications Regulation and Competition 123 5.2 Relationship between the Competition Commission and Icasa 124 5.3 Objectives of Regulation of Competition in Telecommunications 125 5.4 Sector-specific Regulation versus general Competition Regulation 127 Conclusion 129 CHAPTER 5 Licensing – SEENA YACOOB AND KAMESHNI PILLAY 132-171 Introduction 133 1 Licensing 133 1.1 What is a Licence? 133 1.2 What are the Objectives of Licensing? 134 2 Telecommunication Licensing in South Africa 135 2.1 International Obligations 135 2.2 The Legislative Framework in South Africa – An Introduction 137 3 Telecommunication Service Licences: Chapter V of the Telecommunications Act 137 3.1 The Legislative Requirement 137 3.2 Categories of Telecommunication Service Licences 140 3.3 Applications and Consideration of Applications 142 3.4 Ownership and Control Restrictions 143 3.5 Amendment of Licences 145 3.6 Renewal of Telecommunication Service Licences 146 3.7 Transfer of Licences 147 3.8 Public Switched Telecommunication Services (PSTS) 147 3.9 Mobile Cellular Telecommunication Services 151 3.10 Value Added Network Services (Vans) 156 3.11 Private Telecommunication Network Services 159 3.12 Under-serviced Area Licences 160 3.13 Sentech 161 3.14 Global Mobile Personal Communications by Satellite Services 163 3.15 Mobile Data Services 164 4 Frequency Licensing: Chapter IV of the Telecommunications Act 164 4.1 Frequency Use Licences 165 4.2 Certificates of Proficiency 166 4.3 Authority to Operate 166 4.4 Guidelines for Licences 166 4.5 Procedure for Application of Licences 166 4.6 Radio frequency spectrum licences in the 1800 MHz frequency band and third Generation radio frequency spectrum licences 167 5 Equipment Licensing: Chapter VI of the Telecommunications Act 168 00 Contents!! 5/10/06 12:06 PM Page 6 6 5.1 Equipment Type Approval 168 5.2 Equipment Standards 168 5.3 Registration as a Supplier 169 6 Licence Fees 169 Conclusion 171 CHAPTER 6 Interconnection and Facilities Leasing – JOY MARIE LAWRENCE 172-198 Introduction 173 1 What are Interconnection and Facilities Leasing and why are they Important? 173 2 Should Interconnection and Facilities Leasing be regulated? 174 3 How should Interconnection and Facilities Leasing be regulated? 178 4 The Regulatory Framework of Interconnection and Facilities Leasing in South Africa 179 4.1 Section 43(1): Interconnection 180 4.2 Facilities Leasing - Section 44(1)-(4) 181 4.3 Agreements to be lodged with Authority – Sections 43(2) and 44(4) 182 4.4 Authority to prescribe Guidelines - Sections 43(3), 44(5) and 44(6) 182 4.5 Provision of facilities other than from Telkom – Section 44(7) 182 4.6 Request for Facilities Leasing or to interconnect – Section 43(4) 183 4.7 Authority may impose terms and conditions – Section 43(5)(b) 184 4.8 Enforceability of terms and conditions – Section 43(6) 184 4.9 Negotiations not precluded if licence not awarded as yet – Section 43(8) 184 4.10 Period of Interconnection Agreement – Section 43(10) 185 4.11 Interconnection rates to be made public – Section 43(11) 185 5 Interconnection and Facilities Leasing Guidelines 185 5.1 Background 185 5.2 Analysis of Interconnection Guidelines and Supplementary Interconnection Guidelines 186 5.3 Analysis of Facilities Leasing Guidelines and Supplementary Facilities Leasing Guidelines 194 Conclusion 197 CHAPTER 7 Telecommunications Pricing Regulation – LISA THORNTON AND JAMES HODGE 200-214 Introduction 201 1 Why Pricing Regulation? 201 2 The Telecommunications Act provisions regarding pricing 201 2.1 Determining Fees and Charges for Telecommunication Service – 00 Contents!! 5/10/06 12:06 PM Page 7 7 The Rate Regime 201 2.2 Accounts and Records to be kept by Licensees 202 3 The Regulation of PSTS Retail Pricing 203 3.1 The Ministerial Rate Regime 203 3.2 The First Icasa Rate Regime 204 3.3 The Rate Regime Dispute 207 3.4 The Filing of Tariffs 208 4 The Regulation of MCTS Retail Pricing 209 4.1 The Rate Regime 209 4.2 Rate Regime Reviews 210 4.3 The Filing of Tariffs 211 5 Regulatory Accounts 211 5.1 PSTS Regulatory Accounts 212 5.2 MCTS Regulatory Accounts 213 Conclusion 214 CHAPTER 8 Universal Service
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