ISPA’S “Three Wishes” for New ICT Legislation

1 July 2015

The creation of a uniform and enforceable open access regime that allows for greater competition, an understanding of net neutrality that accepts the importance of the non-discrimination between Internet traffic, and the creation of an ICASA that is equipped to translate policy into practice are ISPA’s three wishes for the eventual ICT legislation set to be debated in 2016.

ISPA’s commentary follows the recommendations made by the ICT Panel of Experts to the Minister of Telecommunications and Postal Services as set out in National integrated ICT Policy Review Report published in March this year. The recommendations will be used to develop a final policy position for ICTs in South Africa – in the form of a white paper – by the end of March 2016. The policy is expected to form the basis for new legislation governing the ICT sector.

“ISPA welcomed the publishing of the final report in March: it is an excellent document that represents a significant step in the right direction. ISPA supports in particular the provisions around the triumvirate of net neutrality, open access service competition and the need to beef up ICASA. ISPA is further hopeful that all stakeholders will remain focused on the next milestone of a white paper by the end of March 2016,” explained ISPA regulatory advisor, Dominic Cull.

He specifically congratulated the panel on providing a rational and well-considered basis on which to proceed on this landmark journey of critical importance to South Africa’s future economic health and democratic wellbeing. “The recommendations made by the panel regarding key issues such as open access and competition provide a clear policy path to the resolution of delivery and cost bottlenecks which are inhibiting greater take-up of broadband services,” said Cull.

The panel’s final report defines an open access system as one which offers effective access to infrastructure; transparent pricing, terms and conditions of access with no cross-subsidisation; and offers access in a non-discriminatory manner that does not favour services affiliated with the providing company. “Our view is that these principles are already set out in the Electronic Communications Act, they have just not been effectively implemented. However, their restatement for future policy is to be welcomed,” added Cull.

ISPA supports the panel’s position regarding the promotion of competition in South Africa. The panel recommends that final policy should adopt a hybrid approach which promotes “a combination of facility-based and services-based competition subject to different markets conditions and facilitate a healthy balance of competition between incumbents and new entrants”.

ISPA furthermore notes that the final report advocates adopting an “Open Internet policy” incorporating the broad principles of net neutrality. While the detail is a regulatory matter to be dealt with by ICASA, the panel recommends that policy should focus on upholding the principle of net neutrality with a view to non-discrimination in terms of Internet traffic.

An Open Internet policy does not preclude reasonable network management, but must prevent anti-competitive behaviour where dominant players use networks to discriminate by prioritising selected data traffic and access to specific services and applications.

In conclusion, the final report also recognises that no amount of new policy will serve to address the implementation gap. “The necessary steps should be taken to ensure that ICASA is equipped to implement and enforce the regulation which will translate the new policy into practice. Without a strong regulator capable of implementing new policy and the SA Connect National Broadband Plan we are simply wasting our time,” concluded Cull.