r the ECA.
Although the IBA Act has been repealed, most of its provisions are retained in the ECA. Accordingly, the regulation of broadcasting under the ECA remains somewhat unchanged.
The ECA contemplates three broad categories of broadcasting services, namely public broadcasting, commercial broadcasting and community broadcasting. As indicated above, depending on the scope of the service, persons who provide a broadcasting service may either be issued with an individual licence or a class licence.
ECA requires all service licensees who make use of radio frequency spectrum to be in possession of a radio frequency spectrum licence. The consequence of this provision is that all persons who provide a broadcasting service will need to be in possession of two licences – an electronic communications service licence and a radio frequency spectrum licence.
Under the previous regulatory dispensation, a broadcasting licensee only required one licence for the purposes of providing the broadcasting service; and a broadcasting signal distribution licence was required by those persons who provided broadcasting signal distribution services.
As indicated above, the ECA amends certain sections of the Broadcasting Act. The amendments have resulted in the Broadcasting Act effectively being an "SABC" Act (the South African Broadcasting Corporation, or SABC, is South Africa's public broadcaster) as it deals with matters pertaining to the SABC.
The ECA imposes an obligation on persons who provide a broadcasting service to contribute towards the Universal Service and Access Fund (USAF). The funds in the USAF must be used to pay subsidies (to, for example, public schools) for providing access to electronic communications.
Electronic communications services
There is still an obligation on electronic communications network service providers to lease electronic communications facilities to any person licensed in terms of the ECA or to persons who provide a service pursuant to a licence exemption.
There is also an obligation on all licensees licensed in terms of the ECA to interconnect with any other licensee or with persons who provide a service pursuant to a licence exemption.
The ECA grants ICASA more powers to deal with competition matters in the electronic communications sector than it previously had under the Telecommunications Act.
While a memorandum of agreement was signed between ICASA and the Competition Commission (Commission) in 2002 to regulate the relationship between the regulatory authorities, the ECA gives ICASA the authority to consider and adjudicate competition matters without the assistance of the Commission. In this regard, the ECA provides that ICASA has the discretion to request assistance from the Commission when such matters are before it.
The ECA provides that all regulations that were made in terms of the Telecommunications Act or the IBA Act remain valid unless repealed by ICASA.
Other Relevant Legislation
Electronic Communications and Transactions Act
The ECTA came into effect in August 2002. Amongst other things, ECTA aims to:
- promote understanding, acceptance and growth of e-commerce;
- promote legal certainty in respect of e-transactions;
- ensure that e-commerce in South Africa conforms to the best international practice; and
- develop a safe, secure and effective environment for consumers and businesses to use e-commerce.
Based largely on similar legislation in other jurisdictions and on the UNCITRAL Model law, ECTA is essentially divided into the following parts to address legal requirements for:
- data messages;
- communication of data messages;
- registration of cryptography providers and authentication service providers;
- consumer protection;
- protection of critical databases;
- domain name authority;
- cyber inspectors; and
- computer crime.
While ECTA governs electronic commerce in the general sense, many of the provisions of ECTA empower the legislature to enact specific regulations to provide further impetus to the substance and application of ECTA.
Regulation of Interception of Communications and Pro