Media release: DTPS ECA Bill – void for vagueness and therefore probably unconstitutional

“The controversial Electronic Communications Amendment (ECA) Bill is void for vagueness and therefore probably unconstitutional in its current form and unlikely to become law,” said Free Market Foundation executive director Leon Louw in an FMF media briefing on Tuesday 24 April. The ECA Bill is one of several pieces of legislation needed to implement government’s highly contentious information and communications technology (ICT) policy introduced in October 2016 to industry outrage and dismay. 

“Even the DG Mr Robert Nkuna has admitted that the DTPS (Department of Telecommunications and Postal Services) could not define key policy terms and asked for industry assistance at the recent consultations. The Bill is a ‘terrible, failed, anti-progress and corrupt’ idea and is fundamentally flawed and we are seeking senior counsel opinion,” said Louw.

Media reports say that the DTPS is ‘actively re-writing the Bill’ following industry input but recent experience cautions that the DTPS may not be entirely sincere in its announcement. The contentious contents of the ECA Bill following questionable industry engagement demonstrate this.

Any user of data – consumers, business, education, government infrastructure and more – will be affected by the outcomes of this Bill and subsequent legislation. It is not just a technology story, but one that affects the entire economy and how SA competes on the global stage. This industry provides the infrastructure, technologies, products, services and expertise that run the country’s access to and use of the Internet and mobile communications of any sort.

Speaking on the same platform as Louw, IITPSA (Institute of IT Professionals South Africa) programme consultant and past president Adrian Schofield strongly criticised the ANC’s policies on telecommunications, saying the focus is on the control and limitation of the sector and that they are holding back progress. He also said that MTN and Vodacom could not be blamed for the way the SA market has developed and that they simply took advantage of the prevailing environment as commercial companies do.

Schofield questioned whether the DTPS really understands the complex nature of the telecommunications sector saying that the Bill itself talks of the lack of and need for market information and analysis so how could the DTPS produce legislation without this? Louw agreed saying the lack of real understanding and market data was apparent in the vagueness and ambiguity of the language used.

The white paper contained several key provisions which will damage one of SA’s few post apartheid success stories. These provisions included the implementation of a WOAN – wireless open access network – a failed experiment only seen in Rwanda; cost based pricing (network operators must allow competitors to access their networks at cost), and the return of previously assigned spectrum from the network operators.

Spectrum is the lifeblood of the industry. Government has delayed the new allocation of desparately needed additional spectrum (radio frequency) to provide for the rapid increase in demand for data. Lack of new spectrum is causing higher data prices and depreciating quality of calls and service.

Schofield said, “Allocation of spectrum is very technical, and we do not expect our ministers to be good at that sort of stuff. Ministers are supposed to be looking after the needs of people and directing policy accordingly.”

These key provisions, and others, will dramatically alter the competitive dynamics of the sectors and deter essential investment to bring new technologies and improved services to consumers.

Following the 2016 ICT white paper, government invited the ‘big 6’ network operators to participate in behind closed doors negotiations. Then the ECA Billl appeared which, according to the main players, violated the agreements reached and put the industry on a collision course with the DTPS. Almost none of the agreed policies were included. Again, the industry was outraged. Vodacom CEO Jameel Joosub called the Bill ‘the ICT sector’s Mining Charter’ and MTN’s Godfrey Motsa said it was a ‘terrible idea’.

Joosub warned that taking away the operators’ spectrum would amount to expropriation. “The impact of this is investment will slow down. When telcos invest, they invest for the long term. The minute you start to talk about returning spectrum, it makes the entire network useless.”


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