[13 October 2013]
The Independent Communications Authority of South Africa (ICASA) recently issued a notice in a government publication to address confusion about how much control a licensee can give to a third party. The notice itself is included below, but it doesn’t seem very helpful.
The main issue is that ICASA doesn’t clearly define “leasing” in the notice. If they want to provide clarity, they should also explain how the terms written on licenses interact with giving rights to others, such as subsidiaries, agents, or contractors.
Unfortunately, even after seven years, there’s still a lot of confusion about how the Electronic Communications Act (ECA) licensing framework works. This is a major problem since this framework is the foundation for all service licensing regulations. It’s important that ICASA clears this up as soon as possible.
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THE LEASING OF ECS/ECNS LICENCES IN THE PROVISION OF ELECTRONIC COMMUNICATIONS SERVICES
1. In terms of section 4(3)(b) of the Independent Communications Authority of South Africa Act 13 of 2000 (“ICASA Act”), as amended, the Authority is empowered to “monitor the electronic communications sector to ensure compliance with the ICASA Act and the underlying statutes/’ It has come to the attention of the Authority that there is a widespread practice amongst holders of ECS/ECNS Licences in which they lease their ECS/ECNS licences.
2. The Authority considers the leasing of licences as a contravention of section 5 (12) of the Electronic Communications Act 35 of 2005 (“the EC Act”) which stipulates that “a licence confers on the holder the privileges and subjects him or her to the obligations provided for in this Act and as specified in the licence”.
3. The Authority hereby notifies all holders ECS/ECNS licences that the practice of leasing ECS/ECNS licences is prohibited in terms of the Act. Any licensee found to be in contravention of its licence terms and conditions will be referred to the Complaints and Compliance Committee (the “CCC”). For any queries please contact the following:
Godfree Maufana: Manager: ECS/ECNS
Tel: 011 566 3215.
Email: gmaulana@icasa.org.za
Block D, Pinmill Farm, 164 Katherine Street
Sandton
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