Strict new rules proposed for South African network operators and internet providers

The Independent Communications Authority of South Africa (Icasa) has published draft regulations that could introduce rigorous processes for sharing changes between network providers and broadcasters.

Individual licensees will no longer be able to simply notify Icasa of changes in participation, but will need to obtain prior approval from the regulatory authority.

On Wednesday March 16, 2022, Icasa published the draft regulation in the government gazette, while the communications industry focused on the spectrum rod.

“This amendment will require all licenses to obtain Icasa’s approval for any change in their holding, no matter how small,” said Wilmari Strachan and Naledi Ramoabi of the ENSAfrica law firm.

Icasa motivated the proposed change by stating that its current notification process is susceptible to abuse or misapplied.

“Through a notification, the Authority is unable to monitor and manage sufficiently the change of shareholding, in particular to the extent that it changes ownership and control over time”, said Icasa.

“Any modification of the shareholding has the effect of modifying the shareholding structure of that entity and such modifications may conflict with the objectives and mandates of the Authority as indicated in the Court of Auditors”.

Strachan and Ramoabi point out that the process to get Icasa’s approval is not foreseen in the draft regulation, so it is not clear how it will work and what fee should be paid.

It is also unclear whether a similar process needs to be followed as is currently required for approval of control change applications.

A change of control request is expensive and very time-consuming, and takes six to 18 months, Strachan and Ramoabi said.

Icasa states that the process will be prescribed in the Process and Procedure Regulations. It has not yet published changes to these regulations.

Comments and written declarations on the Draft Regulations must be submitted to Icasa no later than 4:00 pm on May 5, 2022 by post, hand delivery or electronically.

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