Even Icasa has welcomed the President`s decision not to sign the controversial Icasa Amendment Bill. But what does this mean for the Electronic Communications Act? EVEN THE INDEPENDENT Communications Authority of South Africa (Icasa) has welcomed President Thabo Mbeki`s decision not to sign the controversial Icasa Amendment Bill last week.

However, industry`s new worry is how long this will delay the implementation of the Electronic Communications (EC) Act.

The Amendment Bill has been a source of great concern for several months, since questions were first raised about how constitutionally sound it was. Among the stumbling blocks were the powers the Bill gave Communications Minister Ivy Matsepe-Casaburri over the supposedly independent regulatory body.

Nonetheless, the Bill proceeded through Parliament to the President`s desk. He decided this week to refer it back to Parliament for further consideration.

Inextricably linked to the Icasa Amendment Bill is the EC Act, which was signed into law this week. However, the industry as a whole agrees that it will be problematic to implement the EC Act until the Icasa Amendment Bill issue has been concluded.

Icasa councillor Tracy Cohen noted this week: "Icasa strongly supports the move by the President to send the Bill back to Parliament to remedy its defects and protect and enshrine the values of the Constitution in our sector and enabling legislation. We look forward to the commencement date of the EC Act, but must emphasise the importance of the Icasa Amendment Bill being constitutionally sound."

"It is clear that the ECA cannot commence until the Icasa Amendment Bill is corrected."

Cohen said there was no clarity yet on the process to be followed for reworking the Icasa Amendment Bill, but said Icasa had been "cautiously planning for various scenarios since the deliberations on this Bill last year. As there is no indication as to when the Amendment Bill may be revised, the processes under way, such as interconnection and facilities leasing (and various other licensing and policy processes) will continue as planned. We will not pend or stay any important regulatory process that may compromise the public interest."

Cohen added that Icasa had said last week that when the Bill was promulgated, it would be planned for in Icasa`s deliberations. "The commencement of the ECA does not alter the regulatory landscape overnight and there are extensive transitional measures, and a two-year period in which to effect them," she said.

WAITING FOR THE EC ACT

Stakeholders in the ICT sector say that while they are delighted with the signing of the EC Act, it needs to be implemented as soon as possible.

The Act provides a regulatory framework for the convergence of broadcasting, broadcasting signal distribution and the telecommunications sectors. The Act also repeals the Telecommunications Act of 1996, the Independent Broadcasting Authority Act and portions of the Broadcasting Act.

According to Albi Modise, Department of Communications` chief director, the President needs to make a proclamation before the Act becomes effective. However, Modise couldn`t say when this proclamation would take place.

Janet MacKenzie, a director at law firm Cliffe Dekker Attorneys, noted that without signing the date of effect meant that it was an act without any legal standing as yet.

MacKenzie, who presented before the Parliamentary Portfolio Committee on Communications on behalf of several clients during last year`s hearings, said it appeared the absence of a date of commencement was related to the sending back of the Icasa Amendment Bill for clarification.

"These two Acts are very closely linked. One cannot have one without the other," she said.

As far as MacKenzie is concerned the review of the Icasa Amendment Act could still take some time.

Telecoms players such as Storm, MTN, Cell C, the Communications Users` Association of South Africa, MyADSL and Gateway Communications have all expressed the hope that the EC Act would be implemented soon.

They say they expect the Act to provide regulatory stability and allow them to `harness the potential of new technologies` such as WiMAX and VOIP to offer new services, which would serve to make the marketplace more competitive. Once it happens.