SUBMISSION BY TELKOM SA LIMITED ON THE DRAFT ASTRONOMY GEOGRAPHIC ADVANTAGE BILL: NOTICE
631 OF 2007 PUBLISHED IN
GOVERNMENT GAZETTE 29897 DATED
Introduction
1
Telkom
SA Limited (“Telkom”) would like
to thank the Portfolio Committee on Science and Technology for the opportunity
to submit written comments on the draft Bill. In addition, Telkom would like to
requests an opportunity to make a presentation at the public hearings scheduled
for 31 July to 1 August 2007 and would require a time slot of one (1) hour.
2
The
draft Bill was published 25 May 2007 . Comments were originally invited on this
draft Bill by the Department of Science and Technology and Telkom accordingly
submitted its comments. These comments were expanded in this submission and
should be seen as an update from the comments previously submitted.
3
Telkom
recognises and appreciates the fact that most of its comments submitted in
April 2006[1]
on the draft Bill were in fact included in this new draft Bill. We trust that
the additional comments included in this submission will further assist the Portfolio
Committee on Science and Technology in improving the Bill.
Specific comments on draft Bill
4
While acknowledging the necessity to have various
terms defined in terms of an Act of Parliament, Telkom nonetheless believes
that such exercise is essential to clarify and define technical terms as close
as reasonably possible to their common usage. Telkom is cognisant of the fact
that misinterpretation and misconstruction of various terms may result in the
objectives of the Bill not being achieved. Based on this understanding, Telkom
deems it prudent to express certain reservations pertaining to some of the
definitions in the definitions clause (section 1) of the Bill.
Comments on section 1 of
the Bill: “Definitions”
5
Section 1
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5.1
As indicated in Telkom’s earlier submissions in
respect of the draft Bill, Telkom would like to reiterate its reservation
relating to the identification of “components, connections and
telecommunications links” as “astronomy devices”.
Telecommunications systems
were regulated under the Telecommunications Act 103 of 1996 (as repealed), and
now fall under the exclusive purview of the Electronic Communications Act 36 of
2005 (“EC Act”). The identification of telecommunications links as “astronomy
devices” will put a significant aspect of communications (telecommunications
and broadcasting) under the jurisdiction of the Department of Science and
Technology – which Telkom reasonably assumes was not the intention of the
Legislator.
Furthermore, considering
that these links are not necessarily stand-alone networks and systems it is
Telkom’s submission that it will create confusion and conflict not only between
this proposed Bill and the EC Act, but between the clear, distinguishable functions
of the Independent Communications Authority of South Africa (“ICASA”) and the
proposed Astronomy Device Management Authority (created under section 28(3)(b)
of the draft Bill).
Finally, electronic communications
systems are regulated by ICASA and that should also apply to communications
links utilised for radio astronomy systems. The Department of Science and
Technology is requested to seek comments from ICASA on what is perceived to be
an encroachment on an exclusive ICASA domain.
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5.2
Telkom
believes that the concepts “core”, “central” and “coordinated” have not been clearly
defined in this draft Bill. The references to sections 7(1), 9(1) and 11(1)
merely points to the declaration process and, although some subtle differences
in purpose and implementation of the three area types are evident from these
and other sections in the draft Bill, it is not 100% clear what the purpose of
these three areas is and how these will be implemented in practice. Considering
that the implementation of astronomy advantage areas revolves entirely around
these three concepts, it is Telkom’s opinion that the terms “central astronomy advantage area”, “coordinated astronomy advantage area”
and “core astronomy advantage area” should
be clearly defined.
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5.3
For
the purpose of consistency and to avoid any possible confusion, Telkom
recommends that these two definitions be aligned by expanding the definition of
“identified activity” as follow: “identified activity” means an activity declared as such in terms
of section 24 in respect of one or more coordinated astronomy advantage
areas”.
Comment on section 2 of the Bill: “Objects of the Act”
6
Section 2
6.1
Errata:
Delete word “of” (“to identify and to protect of areas…”).
Comment on section 4 of the Bill: “Conflicts with other
legislation”
7
Section 4
7.1
Telkom
is concerned with this Act taking precedence over, for example, the EC Act. Section
92 of the EC Act confirms the validity of Telkom’s rights in respect of the
licences granted under the Telecommunications Act (for example to use the radio
frequency spectrum on a national basis), despite the repeal of the
Telecommunications Act by the EC Act. Furthermore, should this Bill negate the
rights of Telkom as acknowledged by the EC Act, it is then obvious that this
Bill is in conflict with the provisions of the EC Act. Section 94 of the EC Act
contains similar provisions as this Bill, that in the event of conflict with
other legislation, the provisions of the EC Act take preference. Telkom seeks
clarity, and would like to understand how the conditions of this Act will
override those rights and could possibly negatively impact the way Telkom
delivers services to customers in certain areas. Also considering section 22(1)
it is clear that the intention of this draft Bill is to transfer responsibility
of the management of the radio-frequency spectrum in the declared areas from
ICASA to the Minister of Department of Science and Technology.
Comment on section 5 of the Bill: “Areas which may be declared astronomy
advantage areas”
8
Section 5(1)
8.1
Section
5(1) contemplates a two-step approach in declaring an area as an astronomy advantage
area namely the “designation” of an area and then “declaring” an area. Apart
from publishing a notice in the Gazette, the process that will be followed in
“designating” an area is not clear from the draft Bill and should be further
clarified.
8.2
Furthermore,
in accordance with section 5(2), a designation should be done only with the
concurrence of the Minister responsible for local government, the Premier of
the Province concerned and any affected municipality. Considering the potential
impact that the declaration of additional sites as astronomy advantage areas
may have on, for example, communications operators, it is recommended that a
public participation process, as contemplated under section 42, be followed
prior to such designation. It is further noted that the Province of the Northern Cape
8.3
It is
also recommended that the use of the terms “declare” and “designate”, as
contained in sections 7(1)(a) and 7(1)(c) respectively, be carefully
considered. An area is firstly “declared” in terms of section 7(1)(a) and then
“designated” in terms of section 7(1)(c), which seems to be in conflict with
section 5. This also applies to sections 9(1) and 11(1).
Comment on section 7 of the Bill: “Declaration of core astronomy
advantage area”
9
Section 7(3)
9.1
Errata:
Change the word “an” to “a” (“…subsection (2), an declaration…”).
Comment on section 11 of the Bill: “Declaration of coordinated astronomy
advantage area”
10
Section 11(5)(b)
10.1
Although
Telkom could appreciate the reasons why the area should include whole, rather
than part, of a municipal area, Telkom submits that, considering the
operational and practical implication that a coordinated area will have on, for
example, communications operators, Telkom would recommend that it should be endeavoured
to keep this area as small as possible using scientific principles in its
calculation, rather than increasing the area to match Municipality areas only
because it could be more convenient to implement and managed.
Comment on Chapter 3 of the Bill: “Management and control of central and core astronomy advantage areas”
11
Chapter 3
11.1
Considering
that sections 15 and 16 also address coordinated astronomy advantage areas it
is suggested that the title of Chapter 3 also include coordinated astronomy advantage
areas.
Comment on section 15 of the Bill: “Management authorities”
12
Section 15
12.1
It is
Telkom’s submission that the definition of “management authority” in section 1 of
the draft Bill is in conflict with the provisions of this section 15(1) due to
the omission of “person” in section 15(1).
12.2
Same
applies to section 19(2)(b) of the draft Bill.
12.3
It is
Telkom’s observation that it is quite likely that the inclusion of “person” in
section 1 and subsequently in section 15(2) might have been erroneous. It is
further Telkom’s observation that it is inconceivable for the Minister to
assign such responsibility on an individual without reference to specific
credentials or criteria declaring such a person competent to act in such a
capacity. Should this observation be unfounded then clarity is sought in
respect of the omission of “person” in section 15(1) of the Bill.
Comment on section 18 of the Bill: “Co-management of core or central astronomy
advantage area”
13
Section 18
13.1
Since
a co-management agreement is binding on the successor-in-title (subsection
18(5)), it is suggested that the word “may” be change to “must”.
Comment on section 20 of the Bill: “Restrictions in core astronomy advantage area”
14
Section 20(1)(c)
14.1
A core
astronomy advantage area is designated in terms of section 7(1)(c) and not
section 9(1)(c). Section (9)(1)(c) refers to the designation of central
astronomy advantage areas. It is,
therefore, proposed to delete the reference to section 9(1)(c).
15
Section 20(3)
15.1
Section
20(3) deals with entering a core astronomy advantage area. It is therefore
suggested that the phrase “or central” in the last line be deleted (…”entering
the core or central astronomy advantage area…”).
Comment on section 22 of the Bill: “Protection of astronomy observations in radio
frequency spectrum in core and central astronomy advantage areas”
16
Section 22(2)
16.1
The
migration from analogue transmissions to digital transmissions, if possible,
will have a cost implication for the relevant communications operator. Whereas
this conversion may sometimes be part of an existing strategy (e.g. analogue to
digital broadcasting migration) this is not always true. In some cases, the
migration of analogue transmissions to digital transmissions in a selected area
(e.g. the declared astronomy advantage areas) is not an option, for example
analogue trunking, which will require the migration of the entire national
network. It is therefore very important that the Bill addresses the issue of financial
compensation in cases that migration has to be implemented.
16.2
Using
the phrase “transmits or broadcasts into a core or central astronomy
advantage area” implies that the Minister may regulate transmissions located outside
the core and central astronomy advantage areas transmitting towards a core or central
astronomy advantage area. In order to ensure that there is no doubt as to the
area within which these transmissions may be regulated and, considering the assumed
purpose of a coordinated astronomy advantage area as a “buffer zone”, it is
suggested to add the phrase “from within a coordinated area” as follows:
“…which transmits or broadcasts into a core or central astronomy advantage
area, from within a coordinated astronomy advantage area, to migrate…”.
Alternatively, the word “into” should be replaced with “in” so as to limit the
migration to systems located within the core or central areas.
Comment on section 23 of the Bill: “Declared activities in core or central advantage
area”
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Section 23(4)
17.1
It is
noted that the public participation process is in relation to subsection (3)
regarding prescribing activities that are required to cease, or prescribing
conditions under which certain activities may continue. It is however noted
that a public participation process is not required with regard to subsections
23(1) and 23(2) dealing with the declaration of activities that may not be
conducted in a core or central astronomy advantage area and the review of
existing activities respectively. Telkom therefore requests that the public
participation process be extended to also apply to the actions required under
subsections 23(1) and 23(2). It is noted that the declaration of activities
within a coordinated area is conditional to a public participation process
(section 24(4)).
Comment on section 25 of the Bill: “Authorisation to undertake
identified activities”
18
Section 25(4)
18.1
Telkom
considers this time frame (60 days) to be too long for the following reasons:
18.1.1
After
this period the competent authority may request the person who intends to
undertake the identified activity to submit an impact assessment report.
18.1.2
If the
competent authority does not respond within the prescribed 60 days, in terms of
subsection 25(7) the person who made the notification must resubmit the
notification with a further 60 days for the competent authority to consider the
notification. An impact assessment report could still be required after this
period.
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Section 25(5)
19.1
Telkom
is concerned regarding the time this process could potentially take to complete
as well as the cost associated with the process, especially considering that
the report must be compiled by a person to be approved by the competent
authority. It is unclear who will qualify to complete such report, what
criteria will be used in appointing a competent and impartial person and what
fees such person will charge to prepare such report.
Comment on section 27 of the Bill: “Review
of identified activities which impact on astronomy”
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Section 27(1)
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20.1
Since
section 27 deals with “identified activities”, Telkom is of the opinion that
the reference to section 23(1) should in actual fact be a reference to section 24(1).
Section 23(1) deals with “declared activities” for core and central astronomy
advantage areas.
Comment on section 28 of the Bill: “Astronomy
and Astronomy devices”
21
Section 28(2)
21.1
Telkom’s
submission in respect of this section should be read in conjunction with its
submission made under paragraph 5.1. Although Telkom appreciates that the
Minister responsible for communications and ICASA will be consulted, Telkom would
recommend that a public participation process also be included in the Bill under
section 28, before the Minister declare any device, apparatus, equipment or
instrument as an astronomy device.
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Section 28(4)
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22.1
Telkom’s
submission in respect of this section should be read in conjunction with its
submissions made above in respect of the definition of “astronomy devices” in
section 1 of the definition clause.
It is Telkom’s submission that the retention of the
current section 28(4) is mainly dependent on the proposed amendment of “astronomy devices” in section 1 of the
draft Bill.
Should the Department persists with the current
definition of “astronomy devices”, then Telkom would like to record its
disapproval of the current section 28(4) of the draft Bill – this is premised
on the same argument raised in respect of “astronomy devices” under section 1
of the draft Bill.
22.2
Telkom
is, furthermore, of the view that clauses 29 (Entry upon and construction of
lines across land and waterways) and 30 (Pipes under streets) should not
pertain to the establishment of electronic communications facilities and
networks by persons not licensed in terms of Chapter 3 of the EC Act, as this
may create confusion and conflict, as Telkom has pointed out in paragraph 5.1
of this submission.
Comment on section 37 of the Bill: “National
Standards for control of activities which may be detrimental to astronomy”
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Section 37(5)
23.1
Telkom
is very concerned that the Minister of Science and Technology may have the
power to declare national standards or measures that apply “generally
throughout the Republic”. It is understood that the declared astronomy
advantage areas are there specifically to protect these areas and Telkom
therefore fails to see the need to extend protection of these areas to include
the entire Republic. The potential impact on communications operators is
already considerable considering only the declared areas; by extending these to
include the entire Republic could have tremendous negative implications on
communications service delivery in South Africa
23.2
It is
furthermore suggested that section 51(3)(b) also be changed accordingly.
Comment on section 41 of the Bill: “Consultation
by Minister”
24
Section 41
24.1
According
to section 41, the Minister “must” consult national organs of
state, the relevant MEC and the municipalities. However, the Minister “may”
follow the consultative process “as may be appropriate in the circumstances”
when declaring core, central and coordinating areas. Telkom submits that Telkom
(and other users of spectrum for example) must be consulted before any area is
declared as astronomy advantage area, considering the tremendous impact that
the declaration of these areas may have on Telkom and other users of the
spectrum.
Comment on section 50 of the Bill: “Regulations
by Minister”
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Section 50
25.1
Telkom
respectfully submits that it is concerned that the Minister be allowed to make
Regulations without applying the public participation process as prescribed in
section 42. The potential impact on users of spectrum is very high and
un-consulted regulations could be detrimental for Telkom and other users of the
spectrum. The concern is that the Minister is in support of astronomy and does
not necessarily view the opinion of the communications community. Although
public participation has been introduced in many sections of the draft Bill,
Telkom recommends that it be specifically added under this section in order to
ensure that regulations will be brought about through a process that includes
public participation.
Comment on section 51 of the Bill: “General”
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Section 51(1)
26.1
It is
not clear what “material financial implication” means and by whom and how it
will be determined. Telkom suggests that this concept be defined in section 1
of the Bill; Telkom is also requesting clarity on the concept.
Comment on section 52 of the Bill: “General
offences and penalties”
27
Section 52(1)
27.1
In
subsection (1)(d), the phrase: “or any condition prescribed in terms of
section 27(2)” seems like a duplication from subsection (1)(c). Also,
subsection (1)(d) focuses on contravention of standards whereas section 27(2)
deals with specific identified activities which may continue.
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Section 52(2)
28.1
Possible
offences under this draft Bill are listed in subsection (1). It is therefore
recommended that the reference to subsection (2) under subsection (2) be
deleted (…subsections (1) or (2) is ….).
Conclusion
While Telkom is fully
cognisant of the significance of large optical and radio astronomy projects to
the South African economy, we are of the view that a suitable balance must be
achieved between the requirements of such projects and the need to construct,
operate and maintain cost effective systems to serve the communication needs of
the population in these declared areas.
The economy of any given area, the ability to conduct business using
voice and data systems, and the general safety and convenience of the
inhabitants are all dependent on the availability of such communications
systems.
In many cases
communications companies will need to use wireless systems to provide the most
cost effective services in rural areas, where the deployment of cable and fibre
is extremely costly. For this reason
Telkom urges that consideration be given to the employment of methods and
systems by the Department and / or any managing bodies, within core, central
and particularly within the coordination areas, which will facilitate and not hinder
that provision of cost effective communication systems. Without the possibility
of using wireless communication systems unrestricted within these areas, the
digital divide will definitely increase for these areas.
Telkom would be
pleased to assist with the provision of any communications infrastructure and
systems that may be required for the implementation of the various astronomy
projects, and invites the Department of Science and Technology to approach it
on any matters relating to the provision of such communication services.