The Independent Communications Authority of South Africa (Icasa) is responsible for regulating the telecommunications, broadcasting and postal industries.  It is also required to ensure wide coverage of sporting events in the “public interest”, and that views are fair and diverse and broadly representative of South African society.

The various regulations to monitor and control telecommunications and broadcasting had been in place for some time and appeared to be working. Or, at least, broadcasters could manage their way around the regulations without being brought to a halt by a roadblock.

However, in December 2018, Icasa issued radically new draft regulations. It had not identified any problem, nor had any international benchmarking been undertaken based on measurable indicators.

It has since received voluminous submissions, and it is highly unlikely that Icasa has the capacity to properly deal with these. Nor is there any published response report on its website.

The draft regulations follow the same vein as the Independent Communications Authority (ICA) and the Electronic Communications Act (ECA) in using vague and indeterminate descriptions, impossible to define and measure; including “public interest”, “fairness and diversity”, and “views broadly representing South African society”.

“Public interest” pops up all over, but what exactly constitutes public interest? And how does one ascertain whether the public interest is being served or not? Can Icasa reveal any evidentiary-based research that indicates that the “public interest” was not being served?

Icasa has not provided any meaningful definitions for its vague references; for example:

  • “Developmental sports” are aimed at promoting “social change”, “enlarging the population’s choices” and “increasing opportunities to all members of the society” [See * below].
  • “Minority sports” means any sport that “does not have the majority of the population’s following” or having a less distinctive presence … This is nonsensical, and [See * below].
  • The broadcasting of national sporting events must reach a “wider audience” (Icasa has not identified the audience, has no statistics to indicate the size, and therefore cannot determine whether the audience has “widened”).
  • Further, can Icasa translate “widened” into a meaningful number or percentage? And while it is at it, what does it mean by revenue? And in whose hands? And how would it obtain this information? And how would it verify that the so-called revenue has increased?
  • And Icasa does not differentiate between TV and radio. “Full live coverage”, of say chess, would apply to radio as well, but without the digital image. Go figure.

* Problem statement 101

Icasa fails miserably in solving problems:

  • What is the problem? Fail.
  • How does one measure it? Fail.
  • How does one measure the impact of a regulation to ascertain where it has had the intended result, or reflects an improvement? Fail.

Did Icasa fall into the trap of producing new regulations to satisfy a vague mandate?

One can imagine the scenario, a very important person (VIP) insists that the poor have an inalienable right to watch the sport of their choice, at full live coverage. Skipping over any discussion, the VIP insists on “give me the solution, not the problem”.

There are further nonsensical rulings:

  • Group A national sporting events must be broadcast on free-to-air with full live coverage (presumably this means from beginning to end), and includes the summer Olympic games, at which 33 sporting events will take place over two weeks. It is not possible to cover every single event live, with “full coverage”.
  • A free-to-air licensee must be allowed to bid for the rights on a “non-exclusive basis” if it cannot acquire the sporting rights in Group A. However, paid subscriptions subsidise the broadcast of free-to-air. If free-to-air were given equal rights, no one would bother to pay-to-watch. This would destroy pay TV.
  • Group B national sporting events, such as the Comrades Marathon, are offered to a “subscription broadcasting licensee on a non-exclusive basis under sub-licencing conditions”.
  • Group C includes the minority and development sports such as indigenous games, chess and varsity sports (I would not like to hazard a guess as to what this is …). Broadcasters must broadcast at least two events per annum, and this would entail full live coverage from beginning to end. Of jukskei?

In the words of Mr Bumble in Oliver Twist by Charles Dickens: “If the law supposes that,” he said, squeezing his hat emphatically in both hands, “the law is an ass.”

Hackneyed solutions result in a myriad of problems

Leon Louw, executive director of the Free Market Foundation, at a recent media presentation and discussion on ‘the Rugby World Cup and sports broadcasting rights in SA’ in Rosebank, said “The market is unpredictable. It is the threat of a competitor that makes it free.”

MultiChoice, in its submission to Icasa, noted that (paraphrased): there are no winners here. The viability of both subscription and free-to-air broadcasters would be negatively impacted. The draft regulations are likely to result in less, not more, sport being broadcast.

Icasa has issued some 113 final regulations, and runs the imminent risk of strangulation by regulation.

Barbara is a CA(SA) with post graduate qualifications in tax and international tax. Her experience includes working for auditors, large corporates, and Sars. Economics, financial corruption and tax policy are among her interests.

This article was first published on Moneyweb on 21 October 2019