ECA amendment bill “void for vagueness”

April 25th, 2018, Published in Articles: EngineerIT

Raymond Louw, executive director of the Free Market Foundation (FMF).

Commenting on the Electronic Communications Act (ECA) amendment bill at a recent media briefing, Raymond Louw, executive director of the Free Market Foundation (FMF) summed up the bill as “void for vagueness, terrible idea, failed idea, anti-progress idea and corrupt idea”.

Rumours have been circulating that government has decided to scrap the amendment bill and start from scratch. This was further fuelled by a comment from the Minister of Finance in a recent SABC interview, when he said government was giving urgent attention to spectrum availability to support the government’s growth and investment initiative.

When asked by EngineerIT if the rumours were true, DTPS spokesperson, Siyabulela Qoza said he was not aware of any plans. He said that the DTPS was working on changes to the draft in light of feedback presented by industry and civil society at a recent workshop. Regarding timeframe, he said the amended redrafted ECA bill would have to be approved by cabinet and discussed with the portfolio committee, which he says will happen during the fourth quarter of this year. However, industry find this doubtful and suggest that a new or amended draft bill will not see the light of day till after the elections next year.

When the bill was first announced at the end of November last year, the troubles started for the DTPS and Minister Siyabonga Cwele. Only 30 days were allowed for comment. This was considered an underhanded way of steamrolling the amendment bill and the DTPS had to extend the closing date for comment till 31 January 2018.

Forty-three submissions were received, of which 30 organisations had indicated that they wanted to make oral submissions. At the workshop there were four submissions that supported the amendment bill – albeit half-heartedly! Two organisation attached conditions to their support.

When the white paper was published last year, there was no resemblance to the green paper and the discussion that followed the green paper process. Six of the industry players met with the DTPS behind closed doors to discuss their objections to many aspects of the white paper. The industry believed that they had reached a sustainable compromise with government but when the draft amendment bill was gazetted, it became clear that government had negotiated in bad faith.

Raymond Louw said what struck him most at the workshop was when the the DTPS director general, Robert Nkuna, admitted that he did not know what the WOAN stands for! The term is not defined in draft bill. Does it mean wireless open access network or wholesale open access network? That also raises the question of who or what organisation is behind driving the changes to the ECA. Who is likely to benefit? Certainly not mobile phone users, who are likely to have to pay more.

Louw said there are many undefined ambiguities in the draft bill such as “high demand spectrum “and “networks must provide their services on a cost basis?” Does it really mean no one can profit from their investment? The list of ambiguities goes on.

Commenting on “networks must provide services at cost”, Shmeel Joosub of Vodacom said this would be the slow demise of the current network as companies would not achieve the required earnings to maintain their networks or make new investments. He described the amendment bill as the “mining charter of the mobile industry”.

Adrian Schofield, programme director for the Institute of Information Technology Professionals SA (IITPSA), addressed the media briefing and said that it does not make sense to move spectrum management from ICASA to the ministry. ICASA has the technical experience – why give spectrum management to the politicians?

The FMF and mobile companies are believed to be consulting legal counsel. If the amendment bill as it currently stands would be passed into law, there are likely to be long and hard legal battles in the courts.