“The Toothless Regulator”

orICASA’S REGULATION OF

THE SABC

Prinola GovendenPrinola Govenden

STRUCTURE PRESENTATIONSTRUCTURE PRESENTATION Background ResearchBackground Research

Brief historical Context ICASA and SABCBrief historical Context ICASA and SABC

ICASA’s mandated role with regards to the SABCICASA’s mandated role with regards to the SABC

What ICASA is doing in practice / processes/ protocolWhat ICASA is doing in practice / processes/ protocol Challenges and gaps in ICASA’s regulation of the SABCChallenges and gaps in ICASA’s regulation of the SABC

Future - what is needed so ‘ICASA regulate SABC in the Future - what is needed so ‘ICASA regulate SABC in the public interest’?public interest’?

Background to ResearchBackground to Research Masters dissertation, entitled “Toothless regulator?” A critical Masters dissertation, entitled “Toothless regulator?” A critical

analysis of ICASA’s regulation of the SABC so that it analysis of ICASA’s regulation of the SABC so that it functions as a public service broadcaster.functions as a public service broadcaster.

The research addressed three questions:The research addressed three questions:

1. What actions has ICASA taken and not taken to ensure that the 1. What actions has ICASA taken and not taken to ensure that the SABC performs its role as a public service broadcaster in the SABC performs its role as a public service broadcaster in the public interest?public interest?

2. What factors enable or undermine ICASA’s ability to regulate 2. What factors enable or undermine ICASA’s ability to regulate the SABC effectively? the SABC effectively?

3. In what ways can ICASA be strengthened to become more 3. In what ways can ICASA be strengthened to become more effective? (general, ICASA as an institution).effective? (general, ICASA as an institution).

Background Background ResearchResearch……

Timeframe- conducted over a year Timeframe- conducted over a year February 2008 - February February 2008 - February 2009.2009.

Informing the study: Informing the study:

-Documents-Documents

-Press reports-Press reports

-Interviews-Interviews

BRIEF HISTORICAL CONTEXTBRIEF HISTORICAL CONTEXT SABC regulated, owned and controlled by the state, SABC regulated, owned and controlled by the state,

used as a vital tool in Apartheid era.used as a vital tool in Apartheid era. The SABC used to combat anti-apartheid forces.The SABC used to combat anti-apartheid forces. From 1991 a process of restructuring of the SABC From 1991 a process of restructuring of the SABC

began. began. A new “Vision and Value” framework was created for A new “Vision and Value” framework was created for

the SABC, (1993/1994). the SABC, (1993/1994). Need for independent public broadcaster was clear;Need for independent public broadcaster was clear; Also need for independent regulator, to act in public Also need for independent regulator, to act in public

interest;interest; ICASA’s predecessor - Independent Broadcasting ICASA’s predecessor - Independent Broadcasting

Authority (IBA) created, as Chapter 9 Institution in Authority (IBA) created, as Chapter 9 Institution in SA Constitution - highlighting its importance.SA Constitution - highlighting its importance.

HISTORICAL CONTEXT…HISTORICAL CONTEXT…

First Tasks of the IBA:First Tasks of the IBA: Repositioning the SABC as independent public broadcasterRepositioning the SABC as independent public broadcaster Conduct a wide-ranging policy inquiry - known as the Conduct a wide-ranging policy inquiry - known as the

“Triple Inquiry” including analysis of viability of public “Triple Inquiry” including analysis of viability of public service broadcasterservice broadcaster

The Triple Inquiry Report recommended the nature The Triple Inquiry Report recommended the nature and funding of the public service broadcasterand funding of the public service broadcaster

IBA Act, entrenched the role of IBA in protecting the IBA Act, entrenched the role of IBA in protecting the independence of SABC enabled the IBA to more fully independence of SABC enabled the IBA to more fully play a role in safeguarding SABCplay a role in safeguarding SABC

HISTORICAL CONTEXT…HISTORICAL CONTEXT…

Early IBA mired in controversy and Early IBA mired in controversy and corruptioncorruption

Despite these had many important Despite these had many important successes, transformation of industry, as successes, transformation of industry, as well as Community Radio licenceswell as Community Radio licences

In 2000 IBA merged with the South African In 2000 IBA merged with the South African Telecommunications Authority (SATRA) to Telecommunications Authority (SATRA) to become ICASA, in order to regulate the become ICASA, in order to regulate the telecommunications and broadcasting telecommunications and broadcasting industries, and more recently postal industries, and more recently postal services.services.

ICASA’s role - SABCICASA’s role - SABC

Determined by policy includingDetermined by policy including::

- - The The ICASA Act 2000 ICASA Act 2000 as amended, independent authority to as amended, independent authority to “regulate “regulate broadcasting in the public interest” broadcasting in the public interest”

- The - The Electronic Communications Act 2005,Electronic Communications Act 2005, ICASA protect the integrity ICASA protect the integrity and viability of the SABC and ensure that it services specific and viability of the SABC and ensure that it services specific needs; in its regulation of the SABC, needs; in its regulation of the SABC, ICASA must not unduly ICASA must not unduly interfere in the commercial activities of the SABCinterfere in the commercial activities of the SABC..

- - The The Broadcasting Act 1999 Broadcasting Act 1999 as amended, ICASA as amended, ICASA monitor and monitor and

enforce compliance SABC Charterenforce compliance SABC Charter

SABC CHARTERSABC CHARTER

Amid the noise and confusion:Amid the noise and confusion: The SABC Charter upholds principles universality, The SABC Charter upholds principles universality,

accessibility, diversity and editorial independence etc. accessibility, diversity and editorial independence etc.

-The SABC provide official languages; wide range of -The SABC provide official languages; wide range of programming; diversity programming; diversity -SABC offer a variety of news, information and analysis -SABC offer a variety of news, information and analysis -The SABC whilst pursuing its objectives and exercising -The SABC whilst pursuing its objectives and exercising its powers, must enjoy freedom of expression, creative its powers, must enjoy freedom of expression, creative and programming independence.and programming independence.

(Broadcasting Act 99 as Amended)(Broadcasting Act 99 as Amended)

REGULATIONREGULATION ICASA monitors SABC licences and other regulatory documents, ICASA monitors SABC licences and other regulatory documents,

including Broadcasting code of conduct and local content for including Broadcasting code of conduct and local content for broadcasters.broadcasters.

In terms of the SABC: In terms of the SABC: The SABC The SABC regulatory environment:regulatory environment:

-Answerable to ICASA. -Answerable to ICASA. -Answerable to the BCCSA for complaints -Answerable to the BCCSA for complaints -ICASA has jurisdiction investigate complaints of alleged non--ICASA has jurisdiction investigate complaints of alleged non-compliance SABC licences compliance SABC licences -Accountable to Advertising Standards Authority (ASA) complaints -Accountable to Advertising Standards Authority (ASA) complaints on advertisements on advertisements -The SABC member of the National Association of Broadcasters -The SABC member of the National Association of Broadcasters (NAB)(NAB)- AND of course: Parliament and the DOC- AND of course: Parliament and the DOC

The process thus farThe process thus far

ICASA informed by policyICASA informed by policy

Use the policy to make regulationsUse the policy to make regulations

Then use those to inform the licence conditions for broadcasters Then use those to inform the licence conditions for broadcasters with special conditions for the SABCwith special conditions for the SABC

SABC TV AND RADIO licenceS…SABC TV AND RADIO licenceS…

While each service/channel has its own conditions While each service/channel has its own conditions there are some common to all.there are some common to all.

Including, ensuring that:Including, ensuring that:-The SABC offers a -The SABC offers a public service that public service that fulfils specific fulfils specific

requirements in the Actrequirements in the Act-Adheres to certain -Adheres to certain programming and news programming and news

requirementsrequirements -Includes -Includes advertisements advertisements and and subsidising of revenuesubsidising of revenue -The SABC then has to furnish ICASA with specific -The SABC then has to furnish ICASA with specific

informationinformation. .

SABC TV AND RADIO licenceS…SABC TV AND RADIO licenceS…

Public servicePublic service-- ICASA ensure that SABC provides a public service upholds the ICASA ensure that SABC provides a public service upholds the

principles of universality, accessibility, independence news and principles of universality, accessibility, independence news and public affairspublic affairs

ProgrammingProgramming-- ICASA ensure ICASA ensure programmingprogramming upholds the principles of universal upholds the principles of universal

service, service, local content local content and diversityand diversity-ICASA ensure SABC’s -ICASA ensure SABC’s news, information and current affairsnews, information and current affairs offers offers

balanced coverage and is independentbalanced coverage and is independent

Advertising (i.e. Funding)Advertising (i.e. Funding)- ICASA ensure SABC not broadcast more than an average of ten ICASA ensure SABC not broadcast more than an average of ten

minutes and excess of twelve minutes of advertisements per hour. minutes and excess of twelve minutes of advertisements per hour. - -The SABC may draw revenues from advertising, sponsorships, -The SABC may draw revenues from advertising, sponsorships,

grants, donations and licence feesgrants, donations and licence fees

SABC TV AND RADIO licenceS…SABC TV AND RADIO licenceS…

InformationInformation

-The SABC must furnish ICASA, on quarterly basis, information -The SABC must furnish ICASA, on quarterly basis, information involving company documents, programming, advertisements and involving company documents, programming, advertisements and complaints complaints

-The -The company documents include: company documents include: details of SABC board member details of SABC board member removed from office, the SABC’s memorandum and articles of removed from office, the SABC’s memorandum and articles of association, judgements awarded in a court of law against the association, judgements awarded in a court of law against the SABC, annual financial statements and other related financial SABC, annual financial statements and other related financial information that ICASA requires information that ICASA requires

--Programming documents,Programming documents, SABC show the extent of the different SABC show the extent of the different genres, South African television content or music content, and use genres, South African television content or music content, and use of official languages of official languages

--Advertising documents,Advertising documents, the extent of advertisements broadcast in the extent of advertisements broadcast in every hour, a written report on complaints received and the way in every hour, a written report on complaints received and the way in which the SABC addressed each complaintwhich the SABC addressed each complaint

The process thus far…The process thus far…

ICASA’s role informed by policyICASA’s role informed by policy

Use the policy to make regulationsUse the policy to make regulations

Then use those to inform the licence conditions for broadcasters Then use those to inform the licence conditions for broadcasters with special conditions for the SABCwith special conditions for the SABC

ICASA monitors compliance and SABC submits information to ICASA monitors compliance and SABC submits information to ICASA to prepare reports (discussed later)ICASA to prepare reports (discussed later)

What can ICASA do? What is their power in respect of the What can ICASA do? What is their power in respect of the above?above?

ICASA’S MANDATE AND POWERICASA’S MANDATE AND POWER

ICASA has the power to grant, develop, renew, amend, transfer, ICASA has the power to grant, develop, renew, amend, transfer, revoke, suspend, cancel and enforce the licence conditions; revoke, suspend, cancel and enforce the licence conditions; required to develop necessary regulations required to develop necessary regulations (EC Act 2005). (EC Act 2005).

The The ICASA Act 2000 ICASA Act 2000 as amendedas amended stipulates that ICASA has the stipulates that ICASA has the power to obtain from any licencee any information pertaining to power to obtain from any licencee any information pertaining to licences, to conduct research, undertake inquiries within its licences, to conduct research, undertake inquiries within its jurisdiction, investigate and adjudicate complaints received. jurisdiction, investigate and adjudicate complaints received.

The The EC Act 2005EC Act 2005 states that ICASA also has the power to demand states that ICASA also has the power to demand from a licencee a recording of any programme broadcast. from a licencee a recording of any programme broadcast.

PROCESSPROCESS ICASA’S ICASA’S REGULATIONREGULATION

ICASA COUNCIL

ICASA MONITORING AND COMPLIANCE UNIT

COMPLAINTS AND COMPLIANCE COMMITEE

SABC POLICY AND REGULATORY AFFAIRS DEPT.

ICASA MONITORING AND ICASA MONITORING AND COMPLIANCE DEPT.COMPLIANCE DEPT.

Dept. steers the entire process of monitoring the SABC. Dept. steers the entire process of monitoring the SABC. The actual monitoring is conducted by the ICASA Compliance The actual monitoring is conducted by the ICASA Compliance

Officers. Officers. The monitoring with regards to SABC’s radio, commercial and The monitoring with regards to SABC’s radio, commercial and

community broadcasters is divided among eight permanent community broadcasters is divided among eight permanent Compliance Officers. Compliance Officers.

There are also eight part time Compliance Officers employed on a There are also eight part time Compliance Officers employed on a six month contract, who are dedicated to monitoring SABC TV. six month contract, who are dedicated to monitoring SABC TV.

ICASA requests the recorded programs from the SABC so that the ICASA requests the recorded programs from the SABC so that the necessary information is obtained for monitoring and compliancenecessary information is obtained for monitoring and compliance

ICASA REGULATORY ICASA REGULATORY PRACTICESPRACTICES

ICASA monitors and ensures compliance of the SABC licences ICASA monitors and ensures compliance of the SABC licences through focus on quantitative measurement of the different genres, through focus on quantitative measurement of the different genres, music, talk, news, local content, programming, languages and other music, talk, news, local content, programming, languages and other relevant areas. relevant areas.

ICASA also monitors areas such as the number of news bulletins ICASA also monitors areas such as the number of news bulletins per day, news sources, its universality and diversity. per day, news sources, its universality and diversity.

Also, monitors the SABC’s Black Economic Empowerment and Also, monitors the SABC’s Black Economic Empowerment and gender of its personnel to determine if it is reflective of the gender of its personnel to determine if it is reflective of the demographics of the country. demographics of the country.

ICASA also makes a note of the advertising by the SABC. ICASA also makes a note of the advertising by the SABC. Previously the regulator did focus on the SABC’s funding and its Previously the regulator did focus on the SABC’s funding and its impact on their capacity to produce programming. Currently, the impact on their capacity to produce programming. Currently, the regulator briefly takes into consideration funding when compiling a regulator briefly takes into consideration funding when compiling a report on the SABC. report on the SABC.

PROCESS BREACH LICENCEPROCESS BREACH LICENCE SABC informed of it in writing; SABC rectifies the breach timeously SABC informed of it in writing; SABC rectifies the breach timeously

then ICASA makes a record of it and does not escalate it further. then ICASA makes a record of it and does not escalate it further. If SABC does not respond and rectify the breach, the ICASA If SABC does not respond and rectify the breach, the ICASA

Compliance Officer refers the SABC to CCC for sanction. Compliance Officer refers the SABC to CCC for sanction. In the event of a breach ICASA may also suggest to the SABC to In the event of a breach ICASA may also suggest to the SABC to

apply to amend their licence, if for instance the SABC indicates that apply to amend their licence, if for instance the SABC indicates that they lack sufficient local drama to air on television. they lack sufficient local drama to air on television.

The SABC, says Rankin, have been co-operative in rectifying every The SABC, says Rankin, have been co-operative in rectifying every breach ICASA has brought to their attention. breach ICASA has brought to their attention.

PROCESS BREACH PROCESS BREACH LICENCE...LICENCE...

During the period ICASA did not have to escalate the SABC to the During the period ICASA did not have to escalate the SABC to the Complaints and Compliance Committee (CCC) for non compliance Complaints and Compliance Committee (CCC) for non compliance of the SABC licences. of the SABC licences.

One interviewee (SABC) believed that the system was effective on One interviewee (SABC) believed that the system was effective on an administrative level. For example: If SABC informed ICASA that an administrative level. For example: If SABC informed ICASA that they were unable to meet a language quota, ICASA would ensure they were unable to meet a language quota, ICASA would ensure the process was escalated and that the SABC had to demonstrate the process was escalated and that the SABC had to demonstrate progressive movement towards rectification. progressive movement towards rectification.

COMPLAINTS AND COMPLAINTS AND COMPLIANCE COMMITEECOMPLIANCE COMMITEE

Adjudicate complaints pertaining to alleged non-compliance of Adjudicate complaints pertaining to alleged non-compliance of licences. licences.

It is also required to hear (if appropriate), investigate, and make a It is also required to hear (if appropriate), investigate, and make a finding on all matters and complaints referred to it on allegations of finding on all matters and complaints referred to it on allegations of non-compliance. non-compliance.

The CCC, upon making a finding, recommends ICASA’s council:The CCC, upon making a finding, recommends ICASA’s council:- Warning a licencee to desist from any further contravention Warning a licencee to desist from any further contravention - finefine or take specific steps. or take specific steps. - If a licencee is repeatedly been found guilty of material violations, If a licencee is repeatedly been found guilty of material violations,

ICASA may amend or revoke the licence, or prohibit the licencee ICASA may amend or revoke the licence, or prohibit the licencee from providing the licenced service for a period not exceeding thirty from providing the licenced service for a period not exceeding thirty days. days.

SABC POLICY AND SABC POLICY AND REGULATORY AFFAIRS REGULATORY AFFAIRS

UNITUNIT Liaises with ICASA on behalf of the SABC, and submits reports, Liaises with ICASA on behalf of the SABC, and submits reports, recordings and the relevant information to ICASA, and ensures that recordings and the relevant information to ICASA, and ensures that the SABC fulfils its licence conditions and other regulations the SABC fulfils its licence conditions and other regulations prescribed by ICASA. prescribed by ICASA.

Interacts with ICASA administratively and submits regular quarterly Interacts with ICASA administratively and submits regular quarterly reports to ICASA with regards to its compliance with language, reports to ICASA with regards to its compliance with language, content and other requirements. content and other requirements.

Strategic interaction between ICASA and the SABC that occurs at Strategic interaction between ICASA and the SABC that occurs at the Group executive level, on engagements such as regulations for the Group executive level, on engagements such as regulations for elections, television political promotions and issues of funding. elections, television political promotions and issues of funding.

Challenges and gaps in Challenges and gaps in ICASA’s regulation of the SABCICASA’s regulation of the SABC

Whilst to some degree effective administrative level; quantitative Whilst to some degree effective administrative level; quantitative measurement; and license conditions uphold important ‘public measurement; and license conditions uphold important ‘public service’ values.service’ values.

General consensus- only entity satisfied ICASA’s regulation SABC General consensus- only entity satisfied ICASA’s regulation SABC is ICASA itself, even SABC not satisfied. is ICASA itself, even SABC not satisfied.

According ICASA, SABC fulfilling licence conditions, never referred According ICASA, SABC fulfilling licence conditions, never referred to CCC for non-compliance.to CCC for non-compliance.

However SABC shadow what a public service broadcaster should However SABC shadow what a public service broadcaster should be.be.

Challenge: Silent RegulationChallenge: Silent Regulation

ICASA has adopted a problematic stance limiting its regulatory ICASA has adopted a problematic stance limiting its regulatory mandate to only monitor the licence conditions (quantitative)mandate to only monitor the licence conditions (quantitative)

ICASA’s regulation characterized by a lack of pro-active ICASA’s regulation characterized by a lack of pro-active regulation in several areas, “silence” in SABC controversies:regulation in several areas, “silence” in SABC controversies:

-commercial funding model and crises-commercial funding model and crises

-allegations of editorial bias -allegations of editorial bias

-withdrawing programmes, -withdrawing programmes,

-‘blacklisting’-‘blacklisting’

-suspensions Executive members -suspensions Executive members

-Calls for the SABC Board to step down -Calls for the SABC Board to step down

AN ICASA VIEW of SABC AN ICASA VIEW of SABC CRISESCRISES

Rankin, Rankin, ICASA not overtly concerned with the SABC’s controversies ICASA not overtly concerned with the SABC’s controversies

because it is “none of ICASA’s business” because it is “none of ICASA’s business” ICASA can only become directly involved if the matter is ICASA can only become directly involved if the matter is

related to a licence contravention. related to a licence contravention. ICASA’s domain is to follow up on the failure of the SABC to ICASA’s domain is to follow up on the failure of the SABC to

submit information, to the highest level of management if submit information, to the highest level of management if necessary necessary

ICASA tends to steer away from the SABC’s “internal politics” ICASA tends to steer away from the SABC’s “internal politics” as the SABC is “in a sense a politically charged body because as the SABC is “in a sense a politically charged body because of the appointments of the SABC board” of the appointments of the SABC board”

Allegations against the SABC in the public domain are noted in Allegations against the SABC in the public domain are noted in ICASA’s Compliance function and put in Annual report. ICASA’s Compliance function and put in Annual report.

ICASA also notes the newspaper reports and the number of ICASA also notes the newspaper reports and the number of complaints and judgments at the BCCSA, against the SABC. complaints and judgments at the BCCSA, against the SABC.

Challenge: Regulatory Challenge: Regulatory methodsmethods

Quantitative measurement and “silence”Quantitative measurement and “silence” Phumelelo Ntombela-Nzimande: Phumelelo Ntombela-Nzimande: -a more aggressive stand in the regulating broadcasting industry, esp. -a more aggressive stand in the regulating broadcasting industry, esp.

private operators e.g. not promulgating sports of national private operators e.g. not promulgating sports of national importance, SABC cannot compete with private operators for sports importance, SABC cannot compete with private operators for sports rights in an open market rights in an open market

--type of method ICASA, not to be so prescriptive in terms of type of method ICASA, not to be so prescriptive in terms of quantitative measurement of quotas, restricts the SABC’s creativity- quantitative measurement of quotas, restricts the SABC’s creativity- has confronted ICASAhas confronted ICASA

-Rather find a way quantifying through other means, e.g. allowing a -Rather find a way quantifying through other means, e.g. allowing a trade off, provided the SABC demonstrates the fulfilment of other trade off, provided the SABC demonstrates the fulfilment of other developmental imperatives. developmental imperatives.

-Unreasonable targets set, have to sell every minute, responsibility -Unreasonable targets set, have to sell every minute, responsibility argue to Fiscus increase funding argue to Fiscus increase funding

--Libby Lloyd, ICASA move away “rigid annual monitoring of the SABC” Libby Lloyd, ICASA move away “rigid annual monitoring of the SABC” to issues such as diversity of news across all broadcasters. to issues such as diversity of news across all broadcasters.

Challenge: Enforcement Challenge: Enforcement

Need for broader monitoring and enforcement Need for broader monitoring and enforcement beyond licence condition adherencebeyond licence condition adherence

Johann Koster, ICASA have reasonable regulations, Johann Koster, ICASA have reasonable regulations, problem lies in lack of enforcement of broader issues problem lies in lack of enforcement of broader issues

--Communication plays a major role in enforcement and Communication plays a major role in enforcement and ICASA has never been strong on communication. E.g. ICASA has never been strong on communication. E.g. ICASA no blueprint of broadcasting in ten years. ICASA no blueprint of broadcasting in ten years.

--Libby Lloyd, ICASA’s major issue not consistently Libby Lloyd, ICASA’s major issue not consistently monitoring on broader issues and holding SABC monitoring on broader issues and holding SABC accountable for breaches. accountable for breaches.

-Anton Harber “it seems that ICASA has shown itself to be -Anton Harber “it seems that ICASA has shown itself to be ‘toothless’ in enforcing” its important regulatory ‘toothless’ in enforcing” its important regulatory requirements. requirements.

Challenge: LEGISLATIONChallenge: LEGISLATION

Legislation is unsatisfactoryLegislation is unsatisfactory

Libby Lloyd, Libby Lloyd, vagueness of the SABC’s Charter and licence vagueness of the SABC’s Charter and licence conditions, ICASA cannot actually monitor the SABC on, broad conditions, ICASA cannot actually monitor the SABC on, broad statements on universality, diversity, children’s programming -Lloyd, statements on universality, diversity, children’s programming -Lloyd, not certain ICASA done SABC debacles, because the SABC Charter not certain ICASA done SABC debacles, because the SABC Charter is so vague. is so vague. --Lloyd states that the law is not clear enough allows ICASA to “slip Lloyd states that the law is not clear enough allows ICASA to “slip and slide and dodge its responsibilities”. and slide and dodge its responsibilities”.

Kevin Bloom, difficult for an independent regulator, legally no Kevin Bloom, difficult for an independent regulator, legally no mandate to sort out what is essentiality an internal problem.mandate to sort out what is essentiality an internal problem.

Phumelelo Ntombela-Nzimande argues “ICASA does not appreciate Phumelelo Ntombela-Nzimande argues “ICASA does not appreciate

the legal ‘teeth’ it has to address the SABC’s issues” the legal ‘teeth’ it has to address the SABC’s issues” Draft Public Service Broadcasting Bill- Draft Public Service Broadcasting Bill- transfers power to other transfers power to other

organs. organs.

Challenge: MANDATE AND Challenge: MANDATE AND POWERPOWER

Does ICASA have sufficient power and the mandate to intervene Does ICASA have sufficient power and the mandate to intervene and legislate on contentious issuesand legislate on contentious issues

Harber argues “ICASA does not have enough power because they Harber argues “ICASA does not have enough power because they are not given sufficient resources to be able to exercise their are not given sufficient resources to be able to exercise their power”.power”.

Ntombela-Nzimande ICASA does have strong mandate and power Ntombela-Nzimande ICASA does have strong mandate and power but “does not realise the sharpness of teeth they have, they do not but “does not realise the sharpness of teeth they have, they do not bite even when they have teeth” bite even when they have teeth”

Rankin, ICASA has enough mandate and power. Rankin, ICASA has enough mandate and power. Koster “quite a strong arm and can punch a lot of people if they Koster “quite a strong arm and can punch a lot of people if they

need to”, using this strong arm depends on enforcement and need to”, using this strong arm depends on enforcement and communication, “does not communicate well enough and their communication, “does not communicate well enough and their resources in terms enforcement is problematic”. resources in terms enforcement is problematic”.

Challenge: MANDATE AND Challenge: MANDATE AND POWER…POWER…

Lloyd suggests ICASA’s legislation needs clarification so that there Lloyd suggests ICASA’s legislation needs clarification so that there are no loopholes that “either ICASA, the industry or the Minister can are no loopholes that “either ICASA, the industry or the Minister can exploit”. exploit”.

Van Rooyen Van Rooyen states that ICASA definitely has sufficient mandate and states that ICASA definitely has sufficient mandate and power however “the relevant Act is inherently tricky to apply”: power however “the relevant Act is inherently tricky to apply”: -ICASA “teething problems” because it has huge tasks with the new -ICASA “teething problems” because it has huge tasks with the new law. law. --ICASA does have the “teeth” and are able to impose a maximum ICASA does have the “teeth” and are able to impose a maximum fine of a million rand a day, however this will only be imposed in fine of a million rand a day, however this will only be imposed in exceptional circumstances exceptional circumstances -ICASA would rather “make proper regulations which are fair” and “if -ICASA would rather “make proper regulations which are fair” and “if there is intentional malice then “teeth”, but “one must be careful there is intentional malice then “teeth”, but “one must be careful when dealing with ordinary actions and accepting there was malice”. when dealing with ordinary actions and accepting there was malice”.

Challenge: IndependenceChallenge: Independence

Allegations of ICASA’s lack of independenceAllegations of ICASA’s lack of independence Harber, three way relationship/process, between the Minister of Harber, three way relationship/process, between the Minister of

Communications, ICASA Communications, ICASA Koster, ICASA’s independence questionable ICASA reports to Koster, ICASA’s independence questionable ICASA reports to

“politically motivated people whom are running the country”. “politically motivated people whom are running the country”. Harber, ICASA’s passivity and failure to take an independent stance Harber, ICASA’s passivity and failure to take an independent stance

has allowed the Minister of Communications to play a greater role has allowed the Minister of Communications to play a greater role SABC. E.g. ICASA’s passivity SABC’s shareholders compactSABC. E.g. ICASA’s passivity SABC’s shareholders compact

Lloyd ICASA’s questionable “one gets the sense that ICASA is Lloyd ICASA’s questionable “one gets the sense that ICASA is scared of taking positions that are seen as opposing government”. scared of taking positions that are seen as opposing government”. ICASA’s fear of the government evident in its lack of a submission ICASA’s fear of the government evident in its lack of a submission amendment Broadcasting Bill concerning the SABC removal amendment Broadcasting Bill concerning the SABC removal clauses. clauses.

Challenge: Fear and lack of willChallenge: Fear and lack of will

ICASA “fear” to get involved ICASA “fear” to get involved

Koster, ICASA is “fearful” and hesitant to assume involvement as Koster, ICASA is “fearful” and hesitant to assume involvement as the regulator does not “want to be seen as interfering in the internal the regulator does not “want to be seen as interfering in the internal processes of the SABC”. processes of the SABC”.

Skinner, despite ICASA’s underfunding, lacks political will, Skinner, despite ICASA’s underfunding, lacks political will, regulators around world possess much less resources than ICASA regulators around world possess much less resources than ICASA and yet are more proactive.and yet are more proactive.

Challenge: AppointmentsChallenge: Appointments

Attribute ICASA’s “silence” to appointment of councillors. Attribute ICASA’s “silence” to appointment of councillors.

Harber- ICASA not appointing people who are asserting an active Harber- ICASA not appointing people who are asserting an active role at the SABC. role at the SABC.

Skinner, many lay claim that a number of ICASA’s appointments are Skinner, many lay claim that a number of ICASA’s appointments are political.political.

Challenge: Resources and Challenge: Resources and CapacityCapacity

ICASA lacks sufficient resources and capacity to regulate SABC ICASA lacks sufficient resources and capacity to regulate SABC effectively. effectively.

Koster states that in certain areas ICASA is adequately funded Koster states that in certain areas ICASA is adequately funded however its enforcement, communication and research areas are however its enforcement, communication and research areas are not allocated sufficient funds. not allocated sufficient funds.

Nadia Bulbulia states that the monitoring of the new SABC licences Nadia Bulbulia states that the monitoring of the new SABC licences should be a “stand alone department”, does not possess the should be a “stand alone department”, does not possess the necessary resourcesnecessary resources

Libby Lloyd, ICASA inadequate monitoring capacity (staff members Libby Lloyd, ICASA inadequate monitoring capacity (staff members and skill) for monitoring of all the broadcasters countrywide and and skill) for monitoring of all the broadcasters countrywide and around the clock. around the clock.

Effects of ICASA’s under-fundingEffects of ICASA’s under-funding Sean Rankin, lack of sufficient funding and human resources is a Sean Rankin, lack of sufficient funding and human resources is a

“huge impediment to the regulator effectively regulating the SABC” “huge impediment to the regulator effectively regulating the SABC”

ICASA contracts part time SABC Monitors only on a six months ICASA contracts part time SABC Monitors only on a six months basis, more funding full time.basis, more funding full time.

Budgetary constraints forestalled the acquiring of new monitoring Budgetary constraints forestalled the acquiring of new monitoring units, better monitoring equipment units, better monitoring equipment

ICASA’s “Monitoring Report on SABC TV services 2006” challenged ICASA’s “Monitoring Report on SABC TV services 2006” challenged by the SABC on the basis of methodology, shows that ICASA’s by the SABC on the basis of methodology, shows that ICASA’s capacity to be able to monitor the SABC needs to be addressed, capacity to be able to monitor the SABC needs to be addressed, SABC questioned the methodology, correctness and content of this SABC questioned the methodology, correctness and content of this report, and ICASA agreed to issue an addendum to it because of report, and ICASA agreed to issue an addendum to it because of factual inaccuracies (finds breaches licence). factual inaccuracies (finds breaches licence).

Effects ICASA’s under-funding…Effects ICASA’s under-funding…

ICASA’s Annual Report 2007ICASA’s Annual Report 2007

- Fails to mention the number of monitoring visits by ICASA to the Fails to mention the number of monitoring visits by ICASA to the SABC. It does mention conducted 64 visits in total to commercial SABC. It does mention conducted 64 visits in total to commercial and community stations. Appears to be neglect of SABC in and community stations. Appears to be neglect of SABC in comparison to others. comparison to others.

- ICASA produced the least amount of monitoring reports on the ICASA produced the least amount of monitoring reports on the SABC, as compared to the community (40) and private (11) SABC, as compared to the community (40) and private (11) broadcasters. broadcasters.

ICASA Compliance Officer Sean Rankin ascribes this neglect to a ICASA Compliance Officer Sean Rankin ascribes this neglect to a human resource problem. human resource problem.

Effects ICASA’s underfunding…Effects ICASA’s underfunding…

Attribute ICASA’s “silence” in the SABC’s controversies to under Attribute ICASA’s “silence” in the SABC’s controversies to under resourcing:resourcing:

-Harber ICASA’s “silence” issue of resources, ICASA is inundated with -Harber ICASA’s “silence” issue of resources, ICASA is inundated with work, ICASA is “swamped” with work and “if they can ignore a work, ICASA is “swamped” with work and “if they can ignore a problem they will”, which is a kind of an “enforced passivity”.problem they will”, which is a kind of an “enforced passivity”.

-Libby Lloyd, more skills such as people that are equipped to conduct -Libby Lloyd, more skills such as people that are equipped to conduct economic analysis. Lloyd adds that with skills such as economic economic analysis. Lloyd adds that with skills such as economic analysis, ICASA would be enabled to “question the SABC on analysis, ICASA would be enabled to “question the SABC on spending money”. spending money”.

Relationship SABC and ICASARelationship SABC and ICASA

Keys to a successful relationship:Keys to a successful relationship: Trust and honesty;Trust and honesty; Communication;Communication; Respect;Respect; Dependability.Dependability.

Challenge: Relationship SABC Challenge: Relationship SABC and ICASAand ICASA

Rankin, one of the major areas of challenge to the regulator SABC: Rankin, one of the major areas of challenge to the regulator SABC: “is sustaining a co-operative and respectful working relationship” “is sustaining a co-operative and respectful working relationship”

SABC Policy and Regulatory Department populated with ex SABC Policy and Regulatory Department populated with ex IBA/ICASA employees, familiar regulator functions, advantage IBA/ICASA employees, familiar regulator functions, advantage frustrating or manipulating the processfrustrating or manipulating the process

Challenge: Relationship…Challenge: Relationship…

Rankin: SABC has an antagonistic relationship Rankin: SABC has an antagonistic relationship with the regulator and an “arms length” with the regulator and an “arms length” relationship: relationship:

-The SABC does not respect ICASA as the -The SABC does not respect ICASA as the regulator, ICASA has a respectful relationship regulator, ICASA has a respectful relationship with E-TVwith E-TV

SABC not co-operative SABC not co-operative e.g. Rankin recalls an instance when he could e.g. Rankin recalls an instance when he could

not visit the SABC’s not visit the SABC’s Good Hope FM, Good Hope FM, did not did not receive response. Other broadcasters in terms receive response. Other broadcasters in terms of visits and inspections are co-operative. of visits and inspections are co-operative.

Relationship Relationship (Historically)(Historically)

Difficult relationship can be traced back days of the (IBA)Difficult relationship can be traced back days of the (IBA) Nadia Bulbulia, Triple Enquiry there was a very “untenable relationship” Nadia Bulbulia, Triple Enquiry there was a very “untenable relationship”

between the IBA and SABC. between the IBA and SABC. - SABC did not honour the IBA as the regulator who had the power to SABC did not honour the IBA as the regulator who had the power to

oversee the SABC’s delivery of its mandate. oversee the SABC’s delivery of its mandate. - -Bulbulia contends that “there was no clear recognition by the SABC that -Bulbulia contends that “there was no clear recognition by the SABC that

they were in fact regulated by the IBA”. they were in fact regulated by the IBA”. Libby Lloyd, “conflicting relationship” Libby Lloyd, “conflicting relationship”

-SABC initiated and argued very strongly “they did not have to deal with -SABC initiated and argued very strongly “they did not have to deal with the IBA because they accounted to Parliament not the regulator”. the IBA because they accounted to Parliament not the regulator”.

Rankin stems from historical roots: Rankin stems from historical roots: -Rankin, IBA formed attempted to implement certain policies in terms of -Rankin, IBA formed attempted to implement certain policies in terms of the IBA Act of which the SABC was not in favour of, i.e. Selling of SABC the IBA Act of which the SABC was not in favour of, i.e. Selling of SABC stations.stations.-I-Initial argument 1996/1997 when ICASA questioned the SABC about nitial argument 1996/1997 when ICASA questioned the SABC about their advertising spend, ICASA co-chairperson De Klerk and SABC Chief their advertising spend, ICASA co-chairperson De Klerk and SABC Chief Executive Officer Sisulu, fallout made the front cover of the Executive Officer Sisulu, fallout made the front cover of the Financial Financial Mail.Mail.

Future: Strengthening Future: Strengthening ICASA’s regulation of SABCICASA’s regulation of SABC

ICASA needs specific transformation to become an effective “Watchdog” for a ICASA needs specific transformation to become an effective “Watchdog” for a democratic South Africa, rather than be perceived as a “Toothless” regulator-Need a democratic South Africa, rather than be perceived as a “Toothless” regulator-Need a full audit of ICASA. full audit of ICASA.

ICASA’s independence needs to be bolstered in reality.ICASA’s independence needs to be bolstered in reality. Suitable process appoint the “best people” and not the most “politically Suitable process appoint the “best people” and not the most “politically

correct/connected” people. correct/connected” people. Clarification on the SABC charter Clarification on the SABC charter Mandate and powers of ICASA needs urgent clarificationMandate and powers of ICASA needs urgent clarification ICASA and the SABC’s relationship need to be one that follows “the rules”ICASA and the SABC’s relationship need to be one that follows “the rules” Increased funding (Perhaps the industry and retaining a portion of the surplus funds it Increased funding (Perhaps the industry and retaining a portion of the surplus funds it

submits to the National Revenue Fund) for: submits to the National Revenue Fund) for: -Establish sufficient, focused capacity to comprehensively monitor the SABC, -Establish sufficient, focused capacity to comprehensively monitor the SABC, -Increase its staff capacity-Increase its staff capacity-Better monitoring equipment -Better monitoring equipment -Conduct more visits and inspections and compile reports and make available to the -Conduct more visits and inspections and compile reports and make available to the public. public. -To enable a focus on real issues, and not be immobilized by a deficient budget-To enable a focus on real issues, and not be immobilized by a deficient budget

Future: Strengthening Future: Strengthening ICASA’s regulation of SABCICASA’s regulation of SABC Finally:Finally:For an independent effective public For an independent effective public

broadcaster it is critical that we have a broadcaster it is critical that we have a “dynamic”, independent and effective “dynamic”, independent and effective regulator. I.e. We need to Re-think the regulator. I.e. We need to Re-think the whole process of regulation of the SABC whole process of regulation of the SABC and regulatory practices.and regulatory practices.

Thank you!Thank you!PrinolaPrinola

DOCUMENTSDOCUMENTS-Policy and Regulatory-Policy and Regulatory

Policy documents- Policy documents- -IBA Act 1993-IBA Act 1993-The Broadcasting Act 1999 as amended -The Broadcasting Act 1999 as amended -ICASA Act 2000 as amended -ICASA Act 2000 as amended -The Electronic Communications Act 2005. -The Electronic Communications Act 2005.

Regulatory documents- Regulatory documents-

-The SABC’s eighteen television and radio licences -The SABC’s eighteen television and radio licences -The South African music content regulations -The South African music content regulations -South African television content regulations -South African television content regulations -Local content regulations. -Local content regulations. -The monitoring/programming/compliance documents-The monitoring/programming/compliance documents

DOCUMENTS-DOCUMENTS-Annual ReportsAnnual Reports

ICASA Annual Report 2007 ICASA Annual Report 2007

SABC Annual Report 2007SABC Annual Report 2007

* The ICASA and SABC Annual Reports 2008 not used in the * The ICASA and SABC Annual Reports 2008 not used in the study- eventual issue, too late inclusion, study mature stage of study- eventual issue, too late inclusion, study mature stage of completion. completion.

DOCUMENTS- DOCUMENTS- Press reportsPress reports

Press reports time period 1 January 2006 to 30 August 2008. Press reports time period 1 January 2006 to 30 August 2008. --The Freedom of Expression Institute website-The Mail and Guardian online-Empire magazine -Maverick magazine-The Media magazine

““ICASA” and “SABC”ICASA” and “SABC”- SABC’s performance as a public service broadcaster SABC’s performance as a public service broadcaster - SABC’s controversies SABC’s controversies - ICASA’s regulation of the SABCICASA’s regulation of the SABC- critiques of ICASA’s performancecritiques of ICASA’s performance- ICASA’s institutional arrangements ICASA’s institutional arrangements

INTERVIEWSINTERVIEWSNine InformantsNine Informants

Sean Rankin-ICASA Compliance Officer

Kobus Van Rooyen-A ICASA councillor, member of ICASA’s Complaints and Compliance Committee (CCC). -Chairperson of the Broadcasting Complaints Commission of South Africa (BCCSA).

Phumelelo Ntombela-Nzimande-The SABC’s Chief People Officer (CPO) -Former head of the SABC’s Policy and Regulatory Affairs Unit.

*The Chief Executive Officer of the SABC Dali Mpofu not interviewed, recommended Phumelele

INTERVIEWS… INTERVIEWS…

Nadia BulbuliaNadia Bulbulia-Former IBA/ICASA councillor -Former SABC board member

Libby LloydLibby Lloyd-Former IBA/ICASA councillor. -Former IBA/ICASA councillor. -Former CEO of the Media Development and Diversity Agency (MDDA). -Former CEO of the Media Development and Diversity Agency (MDDA).

Johann Koster.Johann Koster.--Executive Director of the National Association of Broadcasters (NAB). Executive Director of the National Association of Broadcasters (NAB). -Former head of ICASA’s Monitoring and Complaints Unit. -Former head of ICASA’s Monitoring and Complaints Unit.

Kate SkinnerKate Skinner-Co-ordinator SOS coalition-Co-ordinator SOS coalition

INTERVIEWS…INTERVIEWS… Kevin Bloom

-A Journalist-Former joint editor of Empire magazine, former editor-at-large

Maverick, and founding editor the Media magazine.

Anton Harber

-Caxton Professor of Journalism and Media Studies at Wits University -Former head of Kagiso Broadcasting -A Business Day columnist