South Africa – Individual Licence Amendment Provisions in the Electronic Communications Act

This Practice Note outlines the individual licence amendment provisions in South Africa’s Electronic Communications Act (ECA). 

 

Section 10 of the ECA provides the Independent Communications Authority of South Africa (ICASA) with the power to amend the provisions of individual licences in certain cases.  Box 1 sets out section 10(1) of the ECA, which establishes this power.  As section 10(1) illustrates, ICASA’s authority to amend individual licences is limited to making changes related primarily to regulatory or public policy concerns.

 

Box 1: Section 10(1) of South Africa’s Electronic Communications Act

Amendment of Individual Licence

10.(1) The Authority may amend an individual licence after consultation with the licensee—

     (a) to make the terms and conditions of the individual licence consistent with the terms and conditions being imposed generally in respect of all individual licences of the same type;

     (b) for the purpose of ensuring fair competition between licensees;

     (c) to the extent requested by the licensee provided it will not militate against orderly frequency management and will not prejudice the interests of other licensees;

     (d) to the extent necessitated by technological change or in the interest of orderly frequency management;

     (e) in accordance with a decision made by the Authority in terms of section 17E of the ICASA Act following a finding and a recommendation by the Complaints and Compliance Committee;

     (f) where the Authority is satisfied that the amendment is necessary to ensure the objectives of the Act;

     (g) if the amendment relates to universal access or universal service and is necessary, in the opinion of the Authority, as a result of—

          (i) changed circumstances in the market; or

          (ii) lack of electronic communications network services, broadcasting services, or electronic communications services in specifically identified areas of the Republic.

     (h) if the amendment is in pursuance of and in accordance with the regulations made under Chapter 10.

 

Source: South Africa, Electronic Communications Act, 2005, Act No. 36, 2005.

 

The ICASA’s power to amend individual licences is subject to a number of procedural requirements.  These requirements help to ensure that affected licensees are given proper notice of any proposed amendments and the opportunity to make representations to the ICASA about any proposed amendments before a final decision is taken. 

 

Pursuant to the terms of section 10(1), the ICASA must consult with the licensee before amending an individual licence.  Section 10(2), in combination with section 9, provide guidance about how the consultation with the licensee should unfold.  Section 10(2) states that “the provisions of section 9(2) to (6) apply, with the necessary changes, to the amendment of a licence.”

 

The provisions of section 9(2) to (6) outline the procedural requirements that surround the process of applying for and granting of an individual licence.  When applied in the context of amending an individual licence under section 10, these sections require that notice of a proposed amendment be published in the government Gazette and that interested parties be invited to make representations about the amendment in writing to the ACASA.  Interested parties are also permitted to submit written responses to any representations.  Section 9(2)(e) gives the ACASA the authority to hold a public hearing on the matter, though such a hearing is not mandatory. 

 

The provisions of section 9(2) to (6) further set out the procedural framework for providing notice of proposed amendments; for receiving comments, representations, responses, and other information; for the treatment of commercially sensitive information; and for the taking of a decision.  Section 9(5) stipulates that after considering the proposed amendment and any written representations made with respect to the proposed amendment, the ICASA must notify the affected licensee of its decision.  The ICASA must provide reasons for its decision.  Finally, a copy of the decision, the amended licence conditions, and the reasons for the ICASA’s decision must be published in the government Gazette. 

 

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