Taxonomies
Related documents
- Is commenced by Electronic Communications Act, 2005: Commencement
- Is amended by Electronic Communications Amendment Act, 2014
- Is amended by Electronic Communications Amendment Act, 2007
South Africa
Electronic Communications Act, 2005
Act 36 of 2005
- Published in Government Gazette 28743 on 18 April 2006
- Assented to on 11 April 2006
- Commenced on 19 July 2006 by Electronic Communications Act, 2005: Commencement
- [This is the version of this document as it was from 2 February 2008 to 20 May 2014.]
- [Amended by Electronic Communications Amendment Act, 2007 (Act 37 of 2007) on 2 February 2008]
Chapter 1
Introductory provisions
1. Definitions
In this Act, unless the context indicates otherwise—"affiliate" means with respect to any person, any other person that, directly or indirectly—(a)controls the first mentioned person;(b)is controlled by the first mentioned person; or(c)is under common control, with the first mentioned person;"Agency" means the Universal Service and Access Agency of South Africa established by section 80;"Authority" means the Independent Communications Authority of South Africa established by section 3 of the Independent Communications Authority of South Africa Act, 2000 (Act No. 13 of 2000);"broadcasting" means any form of unidirectional electronic communications intended for reception by—(a)the public;(b)sections of the public; or(c)subscribers to any broadcasting service,whether conveyed by means of radio frequency spectrum or any electronic communications network or any combination thereof, and "broadcast" is construed accordingly;"Broadcasting Act" means the Broadcasting Act, 1999 (Act No. 4 of 1999);"broadcasting service" means any service which consists of broadcasting and which service is conveyed by means of an electronic communications network, but does not include—(a)a service which provides no more than data or text, whether with or without associated still images;(b)a service in which the provision of audio-visual material or audio material is incidental to the provision of that service, or(c)a service or a class of service, which the Authority may prescribe as not falling within this definition;"broadcasting service licensee" means a person to whom a broadcasting service licence has been granted in terms of this Act;"broadcasting service radio frequency bands" means that part of the electromagnetic radio frequency spectrum which is allocated for the use of broadcasting services by the Authority, taking into account the ITU table of allotment, in so far as such allocation has been agreed to or approved by the Republic;"broadcasting service licence" means a licence granted by the Authority to a person in terms of section 5(2)(b) or section 5(4)(b);"broadcasting signal distribution" means the process whereby the output signal of a broadcasting service is taken from the point of origin, being the point where such signal is made available in its final content format, from where it is conveyed, to any broadcast target area, by means of electronic communications and includes multi-channel distribution;"carrier pre-selection" means the ability of a subscriber of an electronic communications service to access and use the electronic communications services of another electronic communications service licensee or person exempted as provided for in section 6;"channel" means a single defined programming service of a broadcasting services licensee;"class licence" means a licence granted by the Authority to a person in terms of section 5 (4);"class licensee" means a person to whom a class licence has been granted in terms of this Act;"commercial broadcasting" means a broadcasting service operating for profit or as part of a profit entity but excludes any public broadcasting service;"common carrier" means a person licensed to provide an electronic communications network service who is obliged to provide signal distribution for broadcasting services on a non-discriminatory and non-exclusive basis;"community" includes a geographically founded community or any group of persons or sector of the public having a specific, ascertainable common interest;"community broadcasting service" means a broadcasting service which—(a)is fully controlled by a non-profit entity and carried on for non-profit purposes;(b)serves a particular community;(c)encourages members of the community served by it or persons associated with or promoting the interests of such community, to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service; and(d)may be funded by donations, grants, sponsorships or advertising or membership fees, or by any combination of the aforementioned;"Competition Act" means the Competition Act, 1998 (Act No. 89 of 1998);"Complaints and Compliance Committee" means the committee established by the Authority in terms of section 17A of the ICASA Act;"days" means working days unless otherwise specified;"Director-General" means the Director-General of the Department of Communications;"dominant" has the same meaning given to that term in section 7 of the Competition Act;"election" means an election as defined in section 1 of the Electoral Act, 1998 (Act No. 73 of 1998);"election period" means the period commencing with the date on which the election day is proclaimed and ending on the day immediately following upon the day on which candidates of any of the political parties are declared elected;"electronic communications" means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof by means of magnetism, radio or other electromagnetic waves, optical, electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct, but does not include content service;"electronic communications facility" includes but is not limited to any—(a)wire;(b)cable (including undersea and land-based fibre optic cables);(c)antenna;(d)mast;(e)satellite transponder;(f)circuit;(g)cable landing station;(h)international gateway;(i)earth station; and(j)radio apparatus or other thing,which can be used for, or in connection with, electronic communications, including where applicable—(i)collocation space;(ii)monitoring equipment;(iii)space on or within poles, ducts, cable trays, manholes, hand holds and conduits; and(iv)associated support systems, sub-systems and services, ancillary to such electronic communications facilities or otherwise necessary for controlling connectivity of the various electronic communications facilities for proper functionality, control, integration and utilisation of such electronic communications facilities;"electronic communications network" means any system of electronic communications facilities (excluding subscriber equipment), including without limitation—(a)satellite systems;(b)fixed systems (circuit and packet-switched);(c)mobile systems;(d)fibre optic cables (undersea and land-based);(e)electricity cable systems (to the extent used for electronic communications services); and(f)other transmission systems, used for conveyance of electronic communications;"electronic communications network service" means a service whereby a person makes available an electronic communications network, whether by sale, lease or otherwise—(a)for that person’s own use for the provision of an electronic communications service or broadcasting service;(b)to another person for that other person’s use in the provision of an electronic communications service or broadcasting service; or(c)for resale to an electronic communications service licensee, broadcasting service licensee or any other service contemplated by this Act,and "network services" is construed accordingly;"electronic communications network service licensee" means a person to whom an electronic communications network service licence has been granted in terms of section 5 (2) or 5 (4);"electronic communications service" means any service provided to the public, sections of the public, the State, or the subscribers to such service, which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services;"electronic communications service licensee" means a person whom an electronic communications services licence has been granted in terms of section 5 (2);"emergency organisation" means, in respect of any locality, the relevant police, fire, ambulance or traffic authority or coast guard services for that locality and any other similar organisation providing assistance to the public in emergencies;"end-user" means a subscriber and persons who use the services of a licensed service referred to in Chapter 3;"essential facility" means an electronic communications facility or combination of electronic communications or other facilities that is exclusively or predominantly provided by a single or limited number of licensees and cannot feasibly (whether economically, environmentally or technically) be substituted or duplicated in order to provide a service in terms of this Act;"existing licences" means the licences granted to persons prior to the coming into force of this Act in accordance with the provisions of the Telecommunications Act, the IBA Act or the Broadcasting Act;"financial interest" means an interest that may not have voting rights attached to it but which gives the person or entity an equity or debt interest directly through shares or other securities or indirectly through an agreement giving it—(a)the power to control the licensee; or(b)an effective say over the affairs of the licensee;"free-to-air service" means a service which is broadcast and capable of being received without payment of subscription fees;"harmful interference" means interference which—(a)seriously degrades, obstructs, or repeatedly interrupts an electronic communication or broadcasting service operating in accordance with ITU Radio Regulations; or(b)is not within CISPR interference level limits as agreed to or adopted by the Republic;"IBA Act" means the Independent Broadcasting Authority Act, 1993 (Act No. 153 of 1993);"ICASA Act" means the Independent Communications Authority of South Africa Act, 2000 (Act No. 13 of 2000);"ICT Charter" means the Black Economic Empowerment Charter for the ICT sector;"individual licence" means a licence that is granted by the Authority to a person in terms of section 5 (2);"interconnection" means the physical or logical linking of two or more electronic communications networks, electronic communications services, broadcasting services, services provided pursuant to a licence exemption or any combination thereof;"interference" means the effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radio communication system, manifested by any—(a)performance degradation;(b)misinterpretation; or(c)loss of information,which could be extracted in the absence of such unwanted energy;"ICT" means information, communications and technology;"ITU" means International Telecommunications Union;"licensee" means a person issued with a licence to provide services in terms of Chapter 3 of this Act;"licence exemption" means an exemption granted by the Authority in terms of section 6 of this Act;"licence area" means the geographical area specified in a licence;"market power" has the same meaning as that term is defined in the Competition Act;"Minister" means the Minister responsible for Communications;"multi-channel distribution service" means a broadcasting signal distribution service that provides broadcasting signal distribution for more than one channel at the same time on the same signal, and "multi-channel distributor" is construed accordingly;"number portability" means the ability of subscribers to an electronic communications service or persons providing a service pursuant to a licence exemption, to retain their existing numbers without impairment of quality, reliability, or convenience when switching from one electronic communications service licensee to another electronic communications service licensee;"party election broadcast" means a direct address or message broadcast free of charge on a broadcasting service and which is intended or calculated to advance the interests of any particular political party;"person" means a natural or a juristic person;"political advertisement" means an advertisement broadcast on a broadcasting service which is intended or calculated to advance the interests of any particular political party, for which advertisement the relevant broadcasting service licensee has received or is to receive, directly or indirectly, any money or other consideration;"prescribed" means prescribed by regulation made by the Authority in terms of this Act or the related legislation;"private electronic communications network" means an electronic communications network used primarily for providing electronic communications for the owner’s own use;"public broadcasting service" means any broadcasting service provided by the South African Broadcasting Corporation or other public state-owned enterprise;"public entity" has the meaning assigned to it in section 1 of the Public Finance Management Act, 1999 (Act No. 1 of 1999);[definition of "public entity" inserted by section 1 of Act 37 of 2007]"radio" means an electromagnetic wave which is propagated in space without artificial guide and having a frequency below 3000 GHz;"radio apparatus" means an electronic communications facility which is capable of transmitting or receiving any signal by radio, excluding subscriber equipment, if such subscriber equipment is used solely for that purpose;"radio frequency band" means a specified range of frequencies for use by one or more persons authorised to use the band;"radio frequency band for security services" means one or more specified range of frequencies for use by one or more agencies classified as a security service;"radio frequency plan" means a national plan that includes, but is not limited to—(a)a table of frequency allocations for all bands below 3000 GHz taking into account the ITU table of allotments, in so far as such allotments have been adopted and agreed upon by the Republic, which may include designations of certain utilisations; and(b)a plan, as applicable, for the migration of systems and equipment of existing users within specific radio frequency bands, including radio frequency bands for security services, to different frequency bands;"radio frequency spectrum" means the portion of the electromagnetic spectrum used as a transmission medium for electronic communications;"radio frequency spectrum licence" means a licence authorising the holder to use the radio frequency spectrum;"radio station" means one or more transmitters or receivers or a combination of transmitters and receivers, including the accessory equipment, necessary at one location for carrying an electronic communications service or any electronic communications authorised by the authority;"registered political party", for the purposes of Chapter 9, means—(a)any registered party defined in section 1 of the Electoral Act, 1998; or(b)any alliance of such registered parties, as the case may be, which, for the purpose of any particular election, has, before the commencement of the relevant election period, submitted its list of candidates for the National Assembly or any other legislature contemplated in the Constitution;"related legislation" means the Broadcasting Act and the Independent Communications Authority of South Africa Act and any regulations, determinations and guidelines made in terms of such legislation and not specifically repealed by this Act;"Republic" means the Republic of South Africa, its possessions, air space and territorial waters;"reseller" means a person who—(a)acquires, through lease or other commercial arrangement, by any electronic communications network service or electronic communications service; and(b)makes such electronic communications network service or electronic communications service available to subscribers for a fee,whether or not such electronic communications network services or electronic communications services made available by the reseller—(i)are identical to the electronic communications network service or electronic communications service acquired;(ii)are packaged, bundled or otherwise re-grouped to form new or varied service offerings;(iii)are combined, linked or used in connection with electronic communications networks or electronic communications facilities owned by the reseller; or(iv)add value to such electronic communications network services or electronic communications services,and "resale" is construed accordingly;"retail" means the sale, lease or otherwise making available of services offered by licensees to subscribers;"security services" means the security services of the Republic established in terms of Chapter 11 of the Constitution;"Sentech Act" means the Sentech Act, 1996 (Act No. 63 of 1996);"service charter" means a document, developed by a licensee after consultation with its staff, subscribers and end-users which sets out the standards of service subscribers can expect and is a performance measurement and accountability tool that focuses on subscriber service outcomes;"SMME" means a small enterprise defined in section 1 of the National Small Enterprise Act, 1996 (Act No. 102 of 1996);"SMS" means short messaging service whereby text is sent over an electronic communications network;"sound broadcasting service" means a broadcasting service consisting of the transmission of audio signals and the reproducing of the signals in the form of sounds, but not also in the form of images or other visible signs or signals;"subscriber" means a person who lawfully accesses, uses or receives a retail service of a licensee referred to in Chapter 3 for a fee or the retail services of a person providing a service pursuant to a licence exemption;"subscriber equipment" means any device which is used by a subscriber to access, use or receive the services of a licensee referred to in Chapter 3 or the services of a person providing a service pursuant to a licence exemption, including without limitation, a telephone, regardless of technology such as IP (internet protocol) phones, mobile phones, publicly available phones; a handset, a computing device such as a personal digital assistant or a personal computer; a device for receiving a sound radio broadcasting service and a television; or other device or equipment, and any associated software;"subscription broadcasting service" means a broadcasting service provided to a subscriber upon payment of a fee;"Telecommunications Act" means the Telecommunications Act, 1996 (Act No. 103 of 1996);"television broadcasting service" means a broadcasting service consisting of the transmission of visual images or other visible signals with or without accompanying sounds, where the visual images are such that their sequences are seen as moving pictures;"transition period" means the period or periods, referred to in Chapter 15 for, among other things, converting the existing licences to the licensing structure set out in this Act;"this Act" includes the Schedule, regulations, orders, determinations and guidelines;"under-serviced area" means the geographically identified areas defined by the Authority in accordance with this Act;"universal access" means universal access to electronic communications network services, electronic communications services and broadcasting services as determined from time to time in terms of Chapter 14;"universal service" means the universal provision of electronic communications services and broadcasting services as determined from time to time in terms of Chapter 14;"vertical relationship" means vertical relationship as defined in section 1 of the Competition Act;"wholesale" means the sale, lease or otherwise making available an electronic communications network service or an electronic communications service by an electronic communications network service licensee or an electronic communications service licensee, to another licensee or person providing a service pursuant to a licence exemption.2. Object of Act
The primary object of this Act is to provide for the regulation of electronic communications in the Republic in the public interest and for that purpose to—Chapter 2
Policy and regulations
3. Ministerial policies and policy directions
4. Regulations by Authority
Chapter 3
Licensing framework
5. Licensing
6. Licence exemption
7. Prohibition of provision of service without licence
Except for services exempted in terms of section 6, no person may provide any service without a licence.8. Terms and conditions for licences
9. Application for and granting of individual licences
10. Amendment of individual licence
11. Renewal of individual licence
12. Surrender of individual licence
A licensee may, at any time, by written notice, surrender an individual licence to the Authority in accordance with the requirements set out in the individual licence or in the manner prescribed by the Authority.13. Transfer of individual licences or change of ownership
14. Suspension or cancellation of individual licence
15. Effect of suspension, cancellation, surrender or expiry of individual licence
16. Class licence
17. Registration for class licence
18. Refusal of registration for class licence
19. Renewal of class licence
Chapter 4
Electronic communications networks and electronic communications facilities
20. Application
21. Guidelines for rapid deployment of electronic communications facilities
22. Entry upon and construction of lines across land and waterways
23. Underground pipes for purposes of electronic communications network service
24. Pipes under streets
25. Removal of electronic communications network facilities
26. Fences
27. Trees obstructing electronic communications network facilities
28. Height or depth of electronic communications network facilities
29. Electrical works
Chapter 5
Radio frequency spectrum
30. Control of radio frequency spectrum
31. Radio frequency spectrum licence
32. Control of possession of radio apparatus
33. Frequency co-ordination
34. Radio frequency plan
Chapter 6
Technical equipment and standards
35. Approval of type
36. Technical standards for equipment and electronic communications facilities
Chapter 7
Interconnection
37. Obligation to interconnect
38. Interconnection regulations
39. Filing of interconnection agreements
40. Notification of interconnection disputes
41. Interconnection pricing principles
The Authority may prescribe regulations establishing a framework of wholesale interconnection rates to be charged for interconnection services or for specified types of interconnection and associated interconnection services taking into account the provisions of Chapter 10.42. Carrier pre-selection
Chapter 8
Electronic communications facilities leasing
43. Obligation to lease electronic communications facilities
44. Electronic communications facilities leasing regulations
45. Filing of electronic communications facilities leasing agreements
46. Notification of electronic communications facilities leasing agreement disputes
47. Facilities leasing pricing principles
The Authority may prescribe regulations establishing a framework for the establishment and implementation of wholesale rates applicable to specified types of electronic communication facilities and associated services taking into account the provisions of Chapter 10.Chapter 9
Broadcasting services
48. Application
This chapter applies only to broadcasting service licensees.49. Public broadcasting service licences
In considering the grant of a new public broadcasting service licence the Authority must, with due regard to the objects and principles enunciated in section 2, among others, take into account the following:50. Community broadcasting service licences
In considering the grant of a new community broadcasting service licence the Authority must, with due regard to the objects and principles enunciated in section 2, among others, take into account whether—51. Commercial broadcasting service licences
In considering the grant of a new commercial broadcasting service licence the Authority must, with due regard to the objects and principles enunciated in section 2, among others take into account the following:52. Prohibition on granting of broadcasting service licence to party-political entities
No broadcasting service licence may be granted to any party, movement, organisation, body or alliance which is of a party-political nature.53. Record of programmes broadcast by broadcasting service licensees
54. Code of conduct for broadcasting service licensees
55. Control over advertisements
56. Prohibition on broadcasting of party election broadcasts and political advertisements except in certain circumstances
A party election broadcast and a political advertisement must not be broadcast on any broadcasting service except during an election period and then only if, and to the extent authorised by the provisions of sections 57 and 58.57. Broadcasting of party election broadcasts on public broadcasting services
58. Political advertising on broadcasting services
59. Equitable treatment of political parties by broadcasting service licensees during election period
60. Restriction on subscription broadcasting services
61. Preservation of South African programming
62. Broadcasting signal distribution objectives
63. Self provisioning by broadcasting service licensees
64. Limitations on foreign control of commercial broadcasting services
65. Limitations on control of commercial broadcasting services
66. Limitations on cross-media control of commercial broadcasting services
Chapter 10
Competition matters
67. Competition matters
Chapter 11
Numbering
68. Numbering plans and number portability
Chapter 12
Consumer issues
69. Code of conduct, end-user and subscriber service charter
70. People with disabilities
The Authority must prescribe regulations setting out a code on people with disabilities that will be applicable to all categories of licences.71. Consumer advisory panel
Chapter 13
General
72. Establishment of Electronic Communications and ICT Museum, information communication technology for government and other related services
73. E-rate
74. Offences and penalties
75. Directory services
The Authority may prescribe or impose through licence conditions, as the case may be, measures in respect of directories and directory enquiry services, regarding—76. Establishment of public emergency communications centres
77. Duties of 112 Emergency Centres and licensees
78. National public emergency number
79. Standards, capabilities and operating procedures of 112 Emergency Centres
Chapter 14
Universal Service and Access Agency of South Africa
80. Continued existence of Universal Service Agency
81. Functions of Board
82. Functions of Agency
83. CEO and staff of Agency
84. Financing of Agency
85. Banking account
The Agency must, with the approval of the Director-General, open and maintain with a bank, registered as such in terms of the Banks Act, 1990 (Act No. 94 of 1990), an account in which there must be deposited the money received by the Agency and from which payments for it or on its behalf may be made.86. Annual and other reports
87. Continued existence and control of Universal Service Fund
88. Application of money in Universal Service and Access Fund
89. Contributions to Universal Service and Access Fund
90. Competitive tender for universal service and access projects
91. Accounts of Universal Service and Access Fund
Chapter 15
Transitional provisions
92. Existing licences
93. Licence conversion
94. Conflicts
In the event of any conflict between the provisions of this Act, the related legislation or any other law relating to the regulation of broadcasting or electronic communications, the provisions of this Act prevail.95. Existing regulations
96. Application of Act
This Act binds the State.97. Repeal and amendment of laws
The laws referred to in the first column of the Schedule are repealed or amended to the extent indicated in the third column.98. Short title and commencement
This Act is called the Electronic Communications Act, 2005, and comes into operation on a date determined by the President by proclamation in the Gazette.History of this document
21 May 2014 amendment not yet applied
02 February 2008 this version
19 July 2006
Commenced by
Electronic Communications Act, 2005: Commencement
18 April 2006
11 April 2006
Assented to
Subsidiary legislation
Cited documents 11
Legislation 11
- Competition Act, 1998
- Constitution of the Republic of South Africa, 1996
- Deposit-taking Institutions Act, 1990
- Electoral Act, 1998
- Further Education and Training Act, 1998
- Income Tax Act, 1962
- Independent Communications Authority of South Africa Act
- National Heritage Resources Act, 1999
- National Small Enterprise Act, 1996
- Public Finance Management Act, 1999
- South African Schools Act, 1996
Documents citing this one 881
Gazette 838
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