ICASA issues draft amendments to licensing and broadcasting services regulations

On 19 March 2020, the Independent Communications Authority of South Africa (ICASA) published draft amendments to the Class Licensing Processes and Procedures Regulations, 2010 and the Standard Terms and Conditions for Class Broadcasting Services Regulations, 2010. The draft amendments will help to streamline, clarify and align licensing processes.

Key proposals of the Draft Processes and Procedures Regulations are to:

  • amend the definition of "application" to include applications for renewals of licences.  Licensees who wish to renew licences obtained under the current regulatory framework will have to comply with the Draft Processes and Procedures Regulations as well;

  • amend the definition of "historically disadvantaged persons". In the 2010 version of the regulations, "historically disadvantaged persons" are defined as "South African citizens who are Black people, women or people with disabilities and that Black people are defined to include Africans, Indians and Coloureds." The amended definition is "black persons, women, and persons with disabilities and youth, who before the Constitution of the Republic of South Africa, 1996 came into operation, were disadvantaged by unfair discrimination on the basis of race, gender, disability, sexual orientation or religion."

  • make the Processes and Procedures Regulations applicable to all class licences;

  • amend the provisions relating to the payment of prescribed fees. Applicants or registrants of licences must pay all fees to ICASA in full and comply with the requirements of the Compliance and Procedure Manual Regulations, 2011;

  • amend the provisions relating to the surrender of a class licence. Licensees must continue to provide their services until they have applied to ICASA to surrender their licences. They must notify end-users of the termination of the licensed service on two separate occasions: before they submit the application for surrender and again two months before the service is due to end; and

  • require those intending to provide ECS licence-exempt services or to operate, construct or maintain private electronic communications networks to apply to ICASA for the necessary exemptions on the prescribed form.

Key proposals of the Draft Terms and Conditions Regulations are to:

  • amend the notification requirements for changes to a licensee's (i) name; (ii) contact details or contact person; (iii) principal place of business; (iv) postal address; and (v) financial year end.  The amendments eliminate the need to notify ICASA of  changes to a licensee's financial year end and extend the notification period to 14 days from seven;

  • amend the provisions relating to the commencement of ECNS and ECS operations. Currently, ECNS licensees must commence operations within 24 months and ECS licensees within 12 months, calculated from the date the licence was issued, unless ICASA grants an extension. Under the draft amendments, a licensee may only request one extension. ECNS licensees must apply for an extension at least 12 months before the first 24-month period ends and ECS licensees must apply for it at least six months before the initial 12-month period expires. The maximum extension granted will be 24 months (for ECNS) and 12 months (for ECS);

  • amend provisions relating to the hours of operation of ECNS and ECS licensees to 24 hours a day, unless the licensee notifies ICASA of a shorter schedule of operations; and

  • substantially increase the penalty prescribed in the 2010 regulations. The maximum penalty for contraventions will be 10% of a licensee's annual turnover.

The deadline to submit written representations to ICASA, which was initially 17 April 2020, is now 18 May 2020.