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Telecommunication Laws and Regulations 2009
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Chapter 41
Lisa Thornton Inc
South Africa
1 Framework
1.1 What are the overall policies and objectives for theelectronic communications industry and have these been
published in draft or final form?
South Africa (SA) promulgated the Electronic Communications Act
(ECA) in 2005 as the primary legislation regulating the electronic
communications industry. The ECA replaced the then
Telecommunications Act and most of the broadcasting legislation.
The object of the ECA is to provide for the regulation of electronic
communications in the public interest. It establishes the industry
regulator, the Independent Communications Authority of South
Africa (ICASA) and the Universal Service and Access Agency of
South Africa (USAASA) to promote universal service.
In addition to the ECA, SA also promulgated the followinglegislation, which regulates certain aspects of the industry:
Electronic Communications and Transactions Act (ECTA);
Competition Act; and
Regulation of Interception of Communications and Provision
of Communication-Related Information Act (Interception Act).
Most of the budget of the Department of Communications,
however, goes to public enterprises. In addition to regulating the
industry, the government has interests in, inter alia, Telkom,
Sentech, the South African Broadcasting Corporation, and
Broadband Infraco.
1.2 Is South Africa a member of the World Trade
Organisation?
Yes, South Africa is a member of the World Trade Organisation.
1.3 Has South Africa made commitments under the
GATS/GATT regarding telecommunications and has South
Africa adopted the WTO Basic Telecommunications
Agreement?
In 1994, SA made commitments to open up the value added
telecommunications services market segment to competition. In
1997, SA made commitments in terms of the Fourth Protocol on
Basic Telecommunications, to open up other market segments to
competition, and to establish an appropriate regulatory environment,details of which are set out in the Reference Paper; however, only the
commitments regarding mobile services were met.
1.4 How is the provision of electronic communications
networks or services regulated? Is the provision of
electronic communications networks or services open to
competition in South Africa?
Electronic communications networks and services are primarily
regulated by ICASA in terms of the ECA. However, the Minister
of Communications (Minister) is responsible for making policy and
issuing policy directions to ICASA and for making key regulatory
decisions, such as when new individual electronic communications
network services (ECNS) may be licensed.
There currently exists some competition in the provision of services.
However, SA is still in the process of transitioning from a statutorily
protected monopoly for the provision of public switched
telecommunication services (PSTS) and duopoly for the provision of
mobile cellular telecommunications services (MCTS). Although a
second PSTS provider and third MCTS provider have been licensed(in addition to Sentech), any new applications for individual ECNS
and electronic communications services (ECS) may only be made
after an invitation issued by ICASA. The establishment and
implementation of a regulatory framework effectively facilitating
competition remains hampered by the fact that the government
maintains significant financial interests in industry players.
1.5 Which are the regulatory and competition law authorities?
How are their roles differentiated?
ICASA is charged with regulating the electronic communications
industry in terms of the ECA, inclu13 531n respect of competition
matters.
The Competition Act relates to competition matters across all
industries, inclu13 53the electronic communications industry. The
Competition Act establishes the Competition Commission with
investigative powers, the Competition Tribunal with adju13cative
powers, and the Competition Appeal Court to hear appeals and
review decisions of the Competition Tribunal.
There is concurrent juris13ction between ICASA and the competition
authorities31n respect of competition matters in the electronic
communications industry. The Deputy Minister recently announced
that the Competition Act and the ECA will be amended to alter this
concurrent juris13ction; however, no specifics have been released.
1.6 Are decisions of the national regulatory authority able to
be appealed? To which court or body?
ICASAs decisions are not appealable; however, its decisions may
be taken on review to the High Court.
Lisa Thornton
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2 Licensing
2.1 If a licence or other authorisation is required to install or
operate electronic communications networks or provide
services over them, please briefly describe the process and
timescales.
The provision of ECNS, ECS and broadcasting services (BS)
requires either an individual or class licence or must be exempt
from licensing. ECNS, ECS and BS licences will either be
individual or class.
Those licensees that are individual will include ECNS of national or
provincial scale, and voice telephony ECS that use numbers
allocated by ICASA. Licence applications for individual licences
may only be made in response to an invitation and in respect of
individual ECNS licences, only after a policy direction issued by
the Minister.
Class licences will include ECNS of municipal scale, data ECS and
voice ECS where numbers are sub-allocated by licensees. ICASAmust act on class registration applications within 60 days and it if
fails to do so, there will be a deemed registration.
ICASA has prescribed that certain services may be exempt from
licensing, including non-profit ECS, resellers of ECS and private
ECNS; however, service providers must apply for exemptions.
There currently is a moratorium on the processing of all
applications because ICASAhas not promulgated all of the required
licensing regulations, for example, application fees.
2.2 What other requirements, permits or approvals must be
met or obtained before networks may be installed or
operated and services provided?
In addition to service licensing, if a service provider intends to
use spectrum, that provider must obtain the required radio
frequency spectrum licence. All equipment used by licensees
must be type approved by ICASA and all technical standards
prescribed must be followed.
2.3 May licences or other authorisations be transferred and if
so under what conditions?
No individual or class licence may be assigned, ceded or transferred
without the prior permission of ICASA.
2.4 What is the usual or typical stated duration of licences or
other authorisations?
According to regulations, individual ECNS licences will be issued
for 20 years, ECS licences for fifteen years, and BS for from ten to
fifteen years. Class ECNS and ECS licences will be issued for ten
years, and class BS for seven years.
3 Public and Private Works
3.1 Are there specific legal or administrative provisions dealing
with access to public and private land in order to install
telecommunications infrastructure?
The ECA grants to all ECNS licensees certain rights regarding
access to land, including, inter alia:
to enter upon any land and construct and maintain facilities,
subject to environmental regulations;
to use underground conduit pipes;
to construct and maintain facilities under streets, roads and
footpaths;
to place gates on property owners fences; and
to cause trees or vegetation to be cut, subject toenvironmental regulations.
3.2 Do any specific rules exist which assist in securing or
enforcing rights of way over public or private land, for the
installation of network infrastructure?
ECNS licensees must exercise their rights in accordance with
regulations prescribed by ICASA, and the Minister must, in
consultation with the Ministers of Provincial and Local
Government, Land Affairs, Environmental Affairs, inter alia,
develop guidelines for the rapid deployment and provisioning of
electronic communications facilities, facilitating other
governmental approvals, e.g., zoning approval, and resolvingdisputes with landowners. Neither the regulations nor the
guidelines have been made.
3.3 Is there a specific planning or zoning regime that applies
to the installation of network infrastructure?
No, there is not.
3.4 Are there any rules requiring established operators to
share their infrastructure, e.g. masts, sites, ducts or
cables?
Existing interconnection regulations require Telkom to co-locateunless it is not technically feasible. However, these existing
regulations have, to a large extent, not been enforced.
4 Access and Interconnection
4.1 Is network-to-network interconnection and access
mandated, and what are the criteria for qualifying for the
benefits of interconnection?
Every licensee must interconnect and every ECNS licensee must
provide facilities, on request, on terms negotiated, unless the
request is unreasonable. ICASA must determine whether a requestis unreasonable, ie, whether the request is technically and
financially feasible, and will promote the efficient use of
communications networks and services.
ICASA may exempt licensees from the obligation to interconnect and
provide facilities, but only if ICASA has not found such licensees to
have significant market power (SMP) in the relevant market.
ICASA has proposed to exempt all ECNS licensees from the
obligation to provide facilities pending a determination on the issue
of SMP.
All regulations made by ICASA in terms of the
Telecommunications Act remain in force until amended or
repealed by ICASA in terms of the ECA. There are existing
interconnection and facilities leasing regulations that apply inrespect of interconnection to PSTS licensees. ICASA has
published for public comment new draft interconnection and
facilities leasing regulations in terms of the ECA.
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4.2 How are interconnection or access disputes resolved? Does
the national regulatory have jurisdiction to adjudicate and
impose a legally binding solution?
If the parties are unable to agree to terms and conditions for
interconnection or facilities leasing, and the dispute is referred to
ICASA by one of the parties, ICASAmay do one of three things:
impose the terms and conditions of interconnection or
facilities leasing;
propose terms and conditions of interconnection or facilities
leasing and instruct the parties to re-negotiate; or
refer the matter to the Complaints and Compliance
Committee (CCC).
The CCC must hear the matter and then make a recommendation to
ICASA as to the appropriate action, which could include, if the
licensee has repeatedly been found guilty of violations, suspension
or revocation of its licence.
Either party to an agreement may notify the CCC of a dispute in
respect of the implementation of interconnection or the provision of
facilities. The CCC must hear and decide the dispute on an expedited
basis in accordance with regulations to be prescribed by ICASA.
4.3 Are charges for interconnection and/or network access
subject to price or cost regulation and, if so, how?
ICASA may prescribe regulations establishing a framework of
wholesale interconnection and facilities leasing rates taking into
account the provisions of the ECAthat deal with competition matters.
The existing regulations set up a discriminatory pricing regime. Major
Operators (e.g., Telkom) providing Essential Services to Public
Operators (e.g., PSTS and MCTS licensees) must provide services or
facilities at long run incremental costs (LRIC). Major Operators
providing Essential Services to Service Providers (e.g., value added
network services licensees) must provide services at fully allocated
costs (FAC). Major Operators providing Essential Services to Private
Operators (e.g., private telecommunications network licensees) may
charge retail prices.
In ICASAs draft regulations on interconnection, pricing regulation
applies to no one unless and until ICASA makes a determination on
SMP. Once that is done, LRIC will apply but only after 12 months,
and only after 24 months if the licensee in question does not have to
file regulatory accounts. Similarly, in respect of facilities leasing,
ICASA has proposed that LRIC will apply but only after 24 months if
the licensee in question does not have to file regulatory accounts. FAC
is to apply in the meantime.
4.4 In the local loop are existing owners of access
infrastructure required to unbundle their facilit ies and if
so, on what terms or regulatory controls?
The Minister has issued a policy direction to ICASA that all
licensees must have access to the local loop, and that accordingly
local loop unbundling (LLU) must be implemented urgently to be
completed by 2011. ICASA recently called for tenders for a
consultant to advise it on the implementation of LLU. ICASA also
has proposed to declare as essential facilities local loops, sub-loops
and associated facilities.
4.5 How are existing interconnection and access regulatory
conditions to be applied to new network technologies such as
so-called next generation networks or IP-based networks?
The ECA does not make a distinction between technologies used in
respect of regulating interconnection and facilities leasing.
5 Price and Consumer Regulation
5.1 Are (i) retail or (ii) wholesale price controls imposed on
any operator in relation to fixed, mobile, or other services?
In terms of the Telecommunications Act, the retail prices of Telkom,
Vodacom and MTN, were, to some extent, regulated at first by the
Minister and then by ICASA by the imposition of price caps.
Nonetheless, retail prices in SA, however, remain comparatively high.
Under the ECA, ICASA may impose price controls as licence
conditions for both wholesale and retail prices. This, however,
must be preceded by determinations by ICASA of relevant markets,
the effectiveness of competition in markets, SMP, and appropriate
pro-competitive licence conditions. Although ICASA has begun to
make proposals in these regards, the finalisation of the process is
likely years away.
5.2 Is the provision of electronic communications services to
consumers subject to any special rules and if so, in what
principal respects?
ICASA must make regulations setting out a code of conduct
applicable to licensees; setting out the minimum standards for end-
user and subscriber service charters; prescribing a code of conduct
with regard to people with disabilities; and establishing a consumer
advisory panel. ICASA has prescribed all of the regulations called
for in the ECA. However, it has decided to reconsider the
regulations setting out the minimum standards for end-user and
subscriber service charters.
ICASA recently prescribed regulations regarding handset subsidies,
but the coming into force of the regulations has been postponed by
ICASA because the regulations are being challenged on review.
5.3 Are there any rules governing use and retention of
customer call information?
Service providers must store communications-related information,
such as switching, dialing and signaling information that identifies
the origin, destination, termination, duration, and equipment used,
for a period of three years. They must also comply with
interception directions issued by judges to provide information to
law enforcement officers.
6 Numbering
6.1 How are telephone numbers and network identifying codes
allocated and by whom?
ICASA must prescribe a numbering plan for the efficient use and
allocation of numbers, to accommodate the various protocols used
and services provided, and to transform the numbering plan to a
non-geographic numbering system utilising electronic numbering
allowing the interoperation between telephone numbers and the
Internet domain name system.
ICASA has not prescribed numbering plan regulations in terms ofthe ECA; however, there are numbering plan regulations that
ICASA made in terms of the Telecommunications Act. The use of
numbers must be authorised by ICASA upon application submitted
in terms of the regulations.
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The ECTA established the .za Domain Name Authority to assume
responsibility for the .za domain name space.
6.2 Are there any special rules which govern the use of
telephone numbers?
The specific rules that govern the use of numbers are located in
the numbering plan regulations and in numbering allocations
made by ICASA.
6.3 How are telephone numbers made available for network
use and how are such numbers activated for use by
customers?
There are rules in the numbering plan regulations regarding the
issuance of numbers to customers, including, inter alia, that the
allocation must be controlled by the original applicant even though
sub-allocations are allowed; the number must be used for the
purpose stated in the original application and in accordance withany conditions imposed by ICASA; and licensees must configure
their networks to ensure that numbering plan allocations are
complied with.
6.4 What are the basic rules applicable to the porting (i.e.
transfer) of telephone numbers (fixed and mobile).
ICASA was required in terms of the ECA to prescribe regulations to
ensure that number portability was introduced in 2005. To date,
ICASA has not prescribed number portability regulations in terms
of the ECA. However, there are number portability regulations that
ICASA made in terms of the Telecommunications Act, dealing with
number portability between PSTS licensees on the one hand andMCTS licensees on the other.
The implementation of number portability is dependent on ordering
system specifications to be negotiated between operators and
published by ICASA for public comment. This process has not been
completed in respect of geographic number portability. Mobile
number portability, on the other hand, is currently being implemented.
7 Fees
7.1 What fees and levies are payable and to whom with
respect to the grant of a licence or other authorisation for
the installation or use of network infrastructure or the
provision of communication services?
ICASA may prescribe regulations establishing application and
registration fees, licence fees (taking into account any policy
direction issued by the Minister), numbering allocation fees, and
contributions to the Universal Service and Access Fund.
ICASA has to date not promulgated any of these regulations in
terms of the ECA. However, under regulations made under the
Telecommunications Act, telecommunications licensees are
required to pay 0.1 percent of licence fee income as a licence fee,
and 0.2 percent to the Universal Service and Access Fund (USAF),
annually.
All fees paid and contributions to the USAF are paid into the
National Revenue Fund.
8 Submarine Cables
8.1 What are the main rules governing the bringing into South
African territorial waters, and the landing, of submarine
cables? Are there any special authorisations required or
fees to be paid with respect to submarine cables?
An ECNS licence is required to land a submarine cable in SA. No
specific regulations governing the landing of submarine cables have
been promulgated. However, the Minister has proposed to impose
rules that would require ECNS licensees to be individual licensees,
to comply with majority South African (or African) ownership
requirements, and to obtain a separate authorisation from the
Minister.
In addition to the requirement to have an ECNS licence, there are
other regulatory requirements, such as those under the National
Environmental Management Act for an Environmental Impact
Assessment, and the Sea-Shore Act for a lease, that are applicable.
The Minister has issued a policy direction to ICASA to considerprioritising and urgently prescribing a list of essential facilities to
include facilities connected to the SAT-3/WASC/SAFE cable.
ICASA has proposed to declare as essential facilities international
facilities such as submarine cables and satellite earth stations,
including back haul circuits, cable landing stations, colocation
space, earth stations, international gateways, land based fibre optic
cables, main distribution frames and undersea fibre optic cables.
9 Radio Frequency Spectrum
9.1 Is the use of radio frequency spectrum specifically
regulated and if so, by which authority?
Spectrum is regulated by ICASA in terms of the ECA. However,
the Minister has certain regulatory authority, including the
obligation to approve (or disapprove) the band plan and to decide
whether the migration of users that are government entities, is
permitted.
9.2 In the grant of spectrum rights are distinctions made
between mobile, fixed and satellite usage?
Spectrum licences are awarded consistent with the radio frequency
band plan. The band plan indicates which spectrum is designated
for use for which type of service. ICASA has recently published a
proposed new band plan for public comment.
9.3 How is the installation of satellite earth stations and their
use for up-linking and down-linking regulated?
The installation of satellite earth stations is regulated no differently
than the installation of facilities in respect of other spectrum. A
spectrum licence is required. In addition, an ECNS licence is required.
The Minister recently published a proposed policy direction for public
comment, directing ICASA to issue an invitation for individual ECNS
licences for the provision of satellite infrastructure.
9.4 How is the use of radio frequency spectrum authorised inSouth Africa? Do the procedures available include spectrum
auctions and comparative selection of candidates?
Spectrum licences allowing an entity to use certain spectrum are
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awarded by ICASA. Applications are made on application forms
made available by ICASA and are considered on an ad hoc basis.
ICASA may make regulations and criteria for awarding spectrum
licences for competing applications or instances where there is
insufficient spectrum available to accommodate demand. ICASA
has recently concluded an enquiry into the criteria and process forawarding spectrum licences for use of available 2.5-2.6 GHz and 4-
3.6 GHz spectrum. ICASA has indicated that it will draft
regulations that will create a two stage process for awarding
licences, involving a pre-qualification phase designed to ensure that
the spectrum is awarded to entities owned by historically
disadvantaged individuals (HDIs), followed by an auction.
9.5 Can the use of spectrum be made licence-exempt? If so,
under what conditions?
ICASA may exempt certain uses of spectrum from the licensing
requirement, and prescribe the conditions under which unlicensed
use may take place. It has prescribed certain spectrum licenceexemptions including for the use of the 2.4 GHz band for wide band
wireless systems, inter alia.
9.6 If licence or other authorisation fees are payable for the
use of radio frequency spectrum, how are these applied
and calculated?
The specific amounts of application and licence fees for the various
uses of spectrum have been prescribed by ICASA.
9.7 Are spectrum licences able to be traded or sub-licensed
and if so on what conditions?
The ECA enjoins anyone from using spectrum without a
spectrum licence granted to that person, and therefore sub-
licensing may not be allowed.
Spectrum licences may be transferred in terms regulations made
by ICASA, but only twelve months after the date of issue or in
the case of commercial operations, twelve months after the
facilities are operational.
10 Interception
10.1 What are the essential rules applicable to the interception
of messages, traffic data and other call records? Whichrules apply to the retention of such call data, and over
which period(s)?
The Interception Act sets out the circumstances under which
government entities or other persons may or must intercept or
monitor communications and establishes that in all other
circumstances interception and monitoring is prohibited. Similarly,
the Interception Act prohibits the provision of communications-
related information except in certain circumstances.
The Interception Act also establishes certain obligations on
electronic communications services providers, to have the
capability to intercept communications over their networks, to store
communications-related information, and to gather and retain
certain personal information about customers regarding their
identity and contact details. Service providers must comply with
interception directions issued by judges.
11 The Internet
11.1 Are services over the Internet regulated in any different
way to other electronic communications services? Which
rules, if any, govern access to the Internet at a wholesale
and/or retail level?
Internet networks are regulated as ECNS as other ECNS are
regulated. Internet services are regulated as ECS (and not
broadcasting services, which attract additional regulation in respect
of inter alia, content).
If an entity is merely a content provider, it does not need a licence or
fall within the ambit of the entities that are regulated under the ECA.
This is not to say that the electronic communications content is not
regulated at all in SA. It is regulated by, for example, copyright law,
the Films and Publications Act and the ECTA.
11.2 Are there any rules to prevent, restrict or otherwise govern
Internet or email communications, in particular, marketingand advertising communications?
The ECTA was promulgated to enable and facilitate electronic
communications and transactions, by removing some of the real or
perceived legal uncertainties regarding electronic communications
and transactions.
The ECTA provides that anyone who sends unsolicited commercial
information must give the recipient the opportunity to be removed
from the list, and provide information on how that person got on the
list. It also provides for the limitation of liability for service
providers if such providers are members of an industry
representative body that has adopted a code of conduct and has been
recognised by the Minister.
12 USO
12.1 Is there a concept of universal service obligation; i f so how
is this defined, regulated and funded?
The Minister must determine the meaning of universal service and
universal access, from time to time. USAASA recently published
draft definitions for public comment, which will lead to
recommendations being made to the Minister.
The ECA provides for the USAF, out of which certain subsidies
may be paid if Parliament appropriates money for that purpose.The ECA empowers ICASA to place universal service obligations
(USOs) on licensees. ICASA has not done so yet, as its licence
conversion process has not been completed. Until the licence
conversion process is complete, the existing licence conditions
remain in force: Telkom (although Telkom was awarded a
monopoly partly in return for the promise of achieving universal
service, it failed in this respect, and it has no continuing USOs in its
licence), Neotel, Vodacom, MTN, Cell C, and Sentech.
13 Foreign Ownership Rules
13.1 Are there any rules restricting direct or indirect foreignownership interests in electronic communications companies
whether in fixed, mobile, satellite or other wireless operations?
All licensees must be either citizens, or entities registered in SA
with their principle place of business in SA. This does not,
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Lisa Thornton
Lisa Thornton IncPO Box 1377Saxonwold 2132South Africa
Tel: + 1 502 570 9078 (USA)
Fax: + 27 87805 5429 (RSA)Email: [email protected]
Lisa Thornton founded Lisa Thornton Inc in 2000 in order to providehigh quality, professional, solution oriented services to the ICTindustries in South Africa. She recently opened Lisa Thornton
Consulting in the USA.Ms Thornton has been named the leading individual in the area oftechnology, media and communications in South Africa by PLCWhich Lawyer?, as the leading telecommunications lawyer in Cross
Border - Communications Handbook, and is included in TheInternational Whos Who of Regulatory Communications Lawyers.Ms Thornton has experience in South Africa, the USA, and in anumber of African jurisdictions other than South Africa, and hasdone work for international organisations such as the International
Telecommunications Union and the Commonwealth Telecom-munications Organisation.Ms Thornton is an advisor to many clients including large and smallbusinesses, civil society, regulators, academia, and governments.
Lisa Thornton Inc is a leading South African law firm for the information and communications technology (ICT)
industries, providing a range of services including commercial, regulatory, competition, administrative and constitutional
law, and policy advice, to all sectors of the industry, including new media, telecommunications, broadcasting,computing, e-commerce and associated sectors.
The firm has been named as one of the leading firms in the area of technology, media and communications law in South
Africa by PLC Which Lawyer?. Lisa Thornton has been recognised by a number of local and international organisations
as one of the leading ICT lawyers in South Africa.
The firm is committed not only to excellence, but also to empowerment, and has completed the Telecoms Book Project,
which resulted in the publication of L Thornton, et al (eds), Telecommunications Law in South Africa (2006 STE Publishers).
Lisa Thornton Inc South Africa
however, restrict the ownership of such entities.
ICASA, in granting licences, must ensure that services, viewed
collectively, are provided by persons or groups from a diverse range
of communities in SA, and must promote the empowerment of
HDIs. In respect of new individual licences, ownership by HDIs
must be no less than 30 percent or some other percentage prescribed
by ICASA. Although HDI is not defined in the ECA, ICASA, has
recommended that it include South African citizens, who are black
people, including Africans, Indians and Coloureds, women, and
people with disabilities; associations whose majority members are
such persons; and juristic persons, were greater than 25 percent of
the share capital is held by such persons.
In addition, one or more foreigners may not exercise control over a
commercial BS licensee, have a financial interest or interest in
voting shares or paid-up capital in a licensee of more than 20
percent, or constitute more than 20 percent of the board of directors
of a licensee.
14 Future Plans
14.1 Are there any imminent and significant changes to the
legal and regulatory regime for electronic communications?
The ECA came into force mid-2006, substantially altering the
regulatory framework for the electronic communications industry
in SA. The process of transitioning from the old regulatory regimes
applicable differently in respect of telecommunications and
broadcasting is still underway. Significantly, the conversion of
licences issued under the previous regulatory regimes to ECA
licences is not yet complete. The High Court recently ruled that
Vans licensees are entitled to ECNS licences in the conversion
process and requiring Icasa to implement its ruling. The ECAindicates that conversion of licences must complete by no later than
January 2009.
Furthermore, in addition to many pending regulatory processes
mentioned in this chapter, there are a number not yet underway,
such as those triggered by the recently issued Broadcasting Digital
Migration Policy.
It is not possible to predict all the changes that will take place over
the immediate and short term. However, it is likely that the changes
will result in a more competitive environment leading to increased
quality, choice and ultimately to universal service. Movements in
this direction, however, will continue to be slowed due to the
conflicting roles played by the SA government as policy maker,
regulator and competitive service provider.
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