Telecommunications Amendment Act, 2001

30 November 2001 No. 22889 THE PRESIDENCY No. 1264 30 November 2001 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 64 of 2001: Telecommunications Amendment Act, 2001 AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 22889 GAZETTE, GOVERNMENT 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT. 200 1 GENERAL EXPLANATORY NOTE: [

1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate existing enactments. insertions in (English text signed by the President.) (Assented to 29 November 2001.) ACT and substitute other definitions; to make provision for radio To amend the Telecommunications Act, 1996 (Act No. 103 of 1996), so as to insert new definitions frequency access in the 1800 MHz frequency band; to make provision for new kinds of licences; to make further provision for applications for licences and the consideration thereof; to provide anew for the taking of decisions on applications for licences; to provide for public switched telecommunication services and public switched telecommunication networks; to further regulate mobile cellular telecom- munication services; to provide for the commencement licences; to further regulate private telecommunication networks; to make further provision for the interconnection of telecommunication systems; to further provide for the availability centres; to make further provision for certain functions Communications Authority of South Africa; and establishment of a telecommunications museum; to provide for the repeal of another; and to provide for matters particular law and the amendment connected therewith. of telecommunication facilities; to provide for emergency to make provision for the or duration of certain of the Independent of a E IT ENACTED by the Parliament of the Re.public of South Africa, as B fo11ows:- Amendment of section 1 of Act 103 of 1996, as amended by section 23 of Act 13 of 2000

1. Section 1 of the Telecommunications Act, 1996 (hereinafter referred to as “the 5 principal Act”), is hereby amended- (a) by the insertion after the definition of “broadcasting signal distribution” of the following definitions: “ ‘carrier of carriers’ means a te1ecommun:ication service (including any signal conveyed by means of the telecommunication system of that 10 service) which- originates on the telecommunication system of a public switched telecommunication service licensee or mobile cellular telecommu- nication service licensee or an under--serviced area licensee in the Republic and terminates in a telecommunication system in another country or vice versa; or originates and terminates in a telecommunication system of an operator licensed in another country to provide international services, but is conveyed via a teleclommunication system in the Republic on a wholesale basis, 15 20 GOVERNMENT GAZETTE, 30 NOVEMBER 2001 No. 22889 3 TELECOMMUNICATIONS AMENDMENT ACT, 200 1 Act No. 64,2001 but which specifically excludes the termination of international telecom- I munication services to end-users directly in the Republic; ‘carrier pre-selection’ means any facility by which subscribers to a telecommunication service can access the services of an interconnected national long-distance telecommunication operator and international telecommunication operator;”; 5 (b) by the insertion after the definition of ‘Directolr-General’ of the following definitions: “ ‘directories’ means a list (which may be made available in se arate parts and through different media) of customers of a designated licensee 10 or multiple licensees and their telephone numbers which are generally arranged in alphabetical order and not by reference P to a description of the trades, professions or businesses carried on by those customers; ‘directory enquiry service’ means the provisilon of information contained in directories; (c) by the substitution for the definition of “Eskom” of the following definition: “Eskom” means Eskom referred to in section 2(1) of the Eskom Act, 1987 (Act No. 40 of 1987), artd includes its subsidiaries.”; (d) by the substitution for the definition of “fixed line operator” of the following definition: “ ‘fixed-line operator’ means [Telkom and] a holder of a licence to provide a public switched telecommunication service or any other person who provides a licensed telecommunication service by means of a telecommunication system consisting mainly of fixed lines, and ‘opera- tor’ be construed accordingly;”; shall ( e ) by the insertion after the definition of “fixed-line operator” of the following definition: “ ‘fixed-mobile service’ means a service provided by the holder of a public switched telecommunication service 1:icence or an under-serviced area licence that permits a customer of the licensee to access the public switched telecommunication network of the licensee and obtain telecom- a fixed point or whilst munication services from such licensee from either in motion within the local exchange area, but shall not permit call 1 handover between cells.”; 15 20 25 30 If) by the substitution for the definition of “interconnect” of the following 35 definition: ‘‘ ‘interconnect’ means [to link two] the ph,ysical or logical linking of telecommunications systems [80 that users of either] in order to enable linked to communicate with [users] g any user of a system [may] u s any other telecommunication system] so limked, and ‘interconnection’ has a corresponding meaning;”; of, or utilise services provided by means of, [the] another system [or 40 (g) by the insertion after the definition of “interconnect” of the following definitions: “ ‘international telecommunication service’ means a telecommunication service (including any signal conveyed by means of the telecommunica- tion system of such service) which- ( a ) originates in a telecommunication system in the Republic and terminates in a telecommunication system in another country or vice versa; or (b) originates and terminates :in a telecommunication system in another i 50 country but is conveyed via a telecommunication system in the Republic;”; 45 ‘local access telecommunication service’ means a telecommunication service provided within a defined geographic area, comprising the conveyance of signals- (a) between any customers of the licensee within that area; and ( b ) to and from a customer of the licensee and the network of any public service telecommunication licensee with whom the licensee is interconnected at a point i.n that area, 55 60 and include the installation, bringing into service, the maintenance and repair of the telecommunication network which is provided, maintained I 4 No. 22889 GAZETTE, GOVERNMENT 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATI’ONS AMENDMENT ACT, 2001 and operated by the licensee for the purposes of providing the local access telecommunication service as contemplated in section 39; ‘local exchange’ means a facility in the public switched telecommunica- tion network to which usel: lines are connected within a local exchange; ‘local exchange area’ means a geographically defined and limited area, as defined by the exchange area code allolzated by the Authority for that area, to which all exchange lines are connected and which are served by the same local exchange;”i (h) by the substitution for the definition of “Minister” of the following definition: ‘‘ ‘Minister’ means the Minister [for Posts, Telecommunications and Broadcasting] of Communications;”; (i) by the insertion after the definition of “Minist(-r” of the following definitions: “ ‘mobile cellular telecommunication network’ means a telecommuni- cation network designed to use limited radio frequency spectrum between cellular terminal e.quipment and network transceivers to provide a mobile service across a cellular network according to technical standards that are applicable to the assigned frequencies by- (a) allocating a limited number of frequencies within each of a number 5 10 15 of defined geographical areas or cellls; (b) allowing the re-use of the same frequencies in different non- 20 adjacent cells; and (c) enabling users to maintain connections while moving through different geographical areas by making use of call handover between adjacent cells; ‘mobile cellular telecommunication service’ means a telecommunication service provided by a 1:icensed mobile cellular telecommunication operator as referred to in section 37; ‘mobile cellular operators’ means Voda.com (Pty.) Ltd., Mobile Tele- phone Networks (Pty.) Ltd.. and Cell C (Pty.) Ltd.; ‘multimedia service’ means a telecommunication service that integrates and synchronises various forms of media to communicate information or content in an interactive format, including services such as- (a) internet through television; (b) pay-per-view; (c) video on demand; (d) electronic transactions (including e-commerce); ( e ) text; if) data; (g) graphics; (h) animation; audio; (i) ( j ) visual content, but shall not include mobile cellular telecommunication services and public switched telecommunication serv:ices; ‘national long distance telecommunication service’ means a telecommu- nication service comprising the conve:yance of signals between the providing lolcal access telecommunication network of any licensee services in an area, and the network of the same or of another licensee providing such service in another area, and includes the installation, bringing into service, maintenance and repair of the telecommunication the network that is provided, maintained and operated by the licensee for purposes of providing the national long distance telecommunication service as contemplated in section 38; ‘number portability’ means a capability whereby a subscriber to a telecommunication servicl:. who so re’quests can retain his or her telephone number when changing service from one public switched telecommunication service licensee to another public switched telecom- munication service licensee or one mobile cellular telecommunication service licensee to another mobile cellular telecommunication service licensee;”; 25 30 35 40 45 50 55 60 GOVERNMENT GAZETTE, 30 NOVEMBER 2001 No. 21889 5 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act No. 64,2001 (j) by the insertion after the definition of “prescribed” of the following . definitions: “ ‘private telecommunication network’ means a telecommunication system provided by a person for purposes principally or integrally related to the operations of that person and which is installed onto two or more separate, non-contiguous premises and where the switching systems (nodes) of at least two of these premises are interconnected to the public switched telecommunication network as contemplated in section 41; ‘public switched telecommunication networks’ means the telecommuni- cation systems installed or otherwise provided, maintained and operated by a public switched telecommunication licensee for the purpose of providing public switched telmecommunication services; ‘public switched telecommunication services’ means the provision of telecommunication services to an end-user on a subscription basis or for a fee referred to in section 36; ‘public switched telecommunication service licence’ means a licence referred to in section 34(2)(u)(i);”; 5 10 15 ( k ) by the insertion after the definitionof “radio apparatus” of the following definition: “ ‘radio frequency spectrum licence’ means a licence referred to in section 30;”; (1) by the insertion after the definition of “regulation” of the following 20 definitions: “ ‘resale’ means the provision of any public switched telecommunica- tion service by means of telecommunication facilities which are obtained by the public switched telecommunication service licensee or under- serviced area licensee in 0rde.r to sell such services to its customer, and “reseller” shall be construed .accordingly; ‘second national operator’ means the second holder of a public switched telecommunication service licence; .‘Sentech’ means Sentech (Pty) Ltd, a company established pursuant to the Sentech Act, 1996 (Act No. 63 of 1996);”; (m) by the insertion after the definition of “signal” o i the following definition: “ ‘small business’ (commonly referred to as an ‘SMME’) means a ‘small business’ as defined in section 1 of the National Small Business Actl 1996 (Act No. 102 of 1996);”; (n) by the insertion after the definition of “telecom.munication system” of the following definition: “teledensity” means the number of telephone lines per 100 persons; (0) by the insertion after the definition of “Telkom” of the following definition: ‘‘ ‘third generation telecommunication frequency licence’ means the radio frequency spectrum licence referred to in section 30B;”; and ( p ) by the insertion after the definition of “Universal Service Fund” of the following definitions: 25 30 35 40 “ ‘value-added network service’ means a telecommunication service provided by a person over a telecommunication facility, which facility has been obtained by that person in accordance with the provisions of section 40(2) of the Act, to one or more customers of that person concurrently, during which value is added for the benefit of the customers, which may consist of- (a) any kind of technological intervention that would act on the content, format or protocol or similar aspects of the signals transmitted or received by the customer in order to provide those customers with additional, different or re:structured information; (b) the provision of autho:rised access to, and interaction with, processes for storing and retrieval of text and data; (c) managed data network services; ‘voice over internet protocol’ means a series of techniques permitting transmission of a voice over the internet or through one or more telecommunication facilities using internet protocol.”. Amendment of section 2 of Act 103 of 1996 “ ( r ) promote and facilitate convergence of telecommunication, broadcasting and information technology; (s) develop the Information, Communication and Technology (ICT) strategv for the Republic, in order to bridge the digital divide.”. 5 Amendment of section 3 of Act 103 of 1996

3. The following section is hereby substituted for section 3 of the principal Act: “3. This Act shall not apply in relation to broadcasting, broadcasting signal distribution or broadcasting services frequency bands, except as provided in sections [28(3)] 2(r) and 127 to 129 and in relation to multimedia services (if applicable).”. 10 Amendment of section 29 in Act 103 of 1996

4. Section 29 of the principal Act is hereby amended by the substitution for 15 subsections ( 5 ) and (6) of the following mbsections, re,spectively: “ ( 5 ) The Authority [shall] may, after the period referred to in subsection (4) has passed, hold a hearing in respect of .the proposed plan. (6) After the hearing, if any, and after due consideration of any written representations received pursuant to the notice mentioned in subsection (4) or tendered at the hearing, the Authority shall adopt the frequency band plan in question, with or without amendment, and cause such plan to be published in the Gazette. ” . 20 Insertion of sections 30A and 30B in Act 103 of 1996

5. The following sections are hereby inserted in the principal Act after section 30: 25 “Radio frequency spectrum access in 1800 MHz frequency band 30A. (1) ( a ) Within six months after the date of commencement of this paragraph or such longer period as the Minister may determine, the mobile cellular operators may apply to the Authority for access to the radio frequency spectrum in the 1800 MHz frequency band to provide mobile cellular telecommunication services and such other services as the mobile cellular operators are, from time-to-time, licensed to provide. ( b ) Within 30 days of receipt of the application contemplated in paragraph (a) the Authority shall assign to each mobile cellular operator a radio frequency spectrum- (i) against the payment of such fees, to be payable over a period, as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may prescribe. ( c ) For purposes of paragraph (b)(i), the Minister may specify by notice in the Gazette a multiple payment schedule pursuant to which the mobile cellular operators shall make payment, and the terms and conditions of such payment. (d) Prior to the date a radio frequency spectrum is assigned to a mobile cellular operator as contemplated in paragraph (b), the holder of a licence which exists at the commencelment of the Telecommunications Amendment Act, 2001, shall, in accordance with radio regulations governing migration and clearing of radio spectrum bands, clear the spectrum to be occupied by such mobile cellular operator. (2) ( a ) The second national operator and Telkom shall each be deemed to be a holder of a radio frequency spectrum licence in the 1800 MHz frequency band to provide public switched telecommunication services. and such other services as the second national operator, from time-to-time. is licensed to provide. 30 35 40 45 50 GOVERNMENT GAZETTE, 30 NOVEMBER 2001 No. 22889 7 TELECOMMUNICATIONS AMEhDMENT ACT, 2001 Act No. 64.2001 ~~ (b) Within six months after the date the second national operator is granted a public switched telecommunication service licence, or such longer period as the Minister may determin'e, Telkom may apply to the Authority for a radio frequency spectrum licence in the 1800 MHz frequency band to provide public switched telecommunication services, and such other services as Telkom, from time-to-time, is licensed to provide. (c) The Authority shall issue to the second national operator and Telkom a radio frequency spectrum licence contemplated in paragraph ( a ) or (b), as .the case may be- (i) against the payment of such fees, to be payable over a period, as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may specify in that licence. (d) For purposes of paragraph (c)(i), the Minister may specify by notice in the Gazette a multiple payment schedule pursuant to which the second national operator and Telkom, respectively, shall make payment, and the terms and conditions of such payment. (3) (a) Holders of a radio frelquency spectrum licence in the 1800 MHz frequency band shall co-ordinate, in good faith, their respective frequency usage with other such licensees t o - (i) avoid harmful interference among licensees; (ii) ensure efficient use of the 1800 MHz frequency band; and (iii) allow for the provision of cost-efficient services. (b) The Authority may prescribe regulations governing the co-ordination contemplated in paragraph (a), which may indude a process for the speedy resolution of disputes among licensees. (4) In determining the fees (contemplated in subsections (l)(b)(i) and (2)(c)(i) the Minister shall take into account-- (i) MHz pair per population per licence year; (ii) provision of paired or unpaired spectrum; (iii) technical and administrative cost of spectrum management, including projected costs for Authority involvement in frequency co-ordination contemplated in subsection (3); and (iv) any other matter that is consistent with section 2. 5 10 15 20 25 30 35 Third generation telecommuniication radio frequency spectrum licence 30B. (1) ( a ) Within six months after the date of commencement of this paragraph or such longer period as the Minister may determine, the mobile cellular operators may apply to the Authority for a third generation telecommunication radio frequency spectrum licence to provide mobile cellular telecommunication services and such other services as the mobile cellular operators, from time-to-.time, are licensed to provide. (b) The Authority shall issue to each mobile cellular operator a third generation telecommunication radio frequency spectrum licence contem- plated in paragraph (a)- (i) against the payment of such fees, to be payable over a period, as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may specify in that licence. (c) For purposes of paragraph (b)(i), the Minister may specify by notice in the Gazette a multiple payment schedule pursuant to which the mobile cellular operators shall make payment, and the terms and conditions of such payment. (d) Prior to the date a third generation radio frequency spectrum licence takes effect, the holder of a licence which exi,sts at the commencement of the Telecommunications Amend.ment Act, 2001, shall, in accordance with radio regulations governing migration and clearing of radio spectrum bands, clear the spectrum to be occupied by such mobile cellular operator. (2) (a) The second national operator and Tekom shall each be deemed to be a holder of a third generation telecomrnunication radio frequency spectrum licence to provide public switched telecommunications services, and such other services as the second national. operator and Telkom, from time-to-time, are licensed to provide. 40 45 50 55 60 - 8 No. 22889 GOVEFWMENT GAZETTE. 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT, 2001 (6) Within six months after the date the second national operator is granted a public switched telecommunic,ations service licence, or such longer period as the Minister may determine, Telkom may apply to the Authority for a third genteration telecommunication radio frequency spectrum licence to provide public switched telecommunication services, as Telkom, from time-to-time, is licensed to and such other services provide. (c) The Authority shall issue to the second national operator and Telkom a third generation telecommunication radio frequency spectrum licence contemplated in paragraph (u) or (b), as the case may be- (i) against the payment of such fees, to be payable over a period, as the Minister shall determine by notice in the Gazette; and (ii) subject to such conditions as the Authority may specify in that licence. (d) For purposes of paragraph (c)(i), the Minister may specify by notice in the Gazette a multiple payment schedule pursuant to which the second national operator and Telkom, respectively, shall make payment and the terms and conditions of such payment. (3) (a) Holders of a third generation telecommunication radio frequency spectrum licence shall co-ordinate, in good faith, their respective frequency usage with other such licensees to- (i) avoid harmful interference among licensees; (ii) ensure efficient use of any applicable frequency band; and (iii) allow for the provision (of cost-efficient services. (b) The Authority may prescribe regulations governing the co-ordination contemplated in paragraph (a), which may include a process for the speedy resolution of disputes among licensees. (4) In determining the fees contemplated in subsections (l)jb)(i) and (2)(c)(i), the Minister shall take into account- (i) MHz pair per population per licence year; (ii) provision of paired or unpaired spectrum; (iii) technical and administrative cost of spectrum management, including projected costs for Authority involvement in frequency co-ordination contemplated in subsection (3); and (iv) any other matter that is (consistent with section 2.”. Insertion of sections 32A, 32B and 32C in Act 103 of’ 1996

6. The following sections are hereby inserted in the principal Act after section 32: 5 10 15 20 25 30 3s “Holders of public switched telecommunication services licences and granting of further licences 32A. (1) From 7 May 20Cl2 until 7 May 2005 Telkom and the second national operator shall be the: holders of public switched telecommunica- tion service licences. 40 (2) (a) For a period of two years after the date of commencement of the public switched telecommunication service licence the second national operator may use Telkom’s facilities on a resale basis in accordance with agreements concluded between the parties for the purposes of providing public switched telecommunication services. (b) The agreements contemplated in paragraph (a) become effective within 60 days of the issuing of the public switched telecommunication service licence to the second national opera.tor. (3) Where Telkom and the second national operator fail to conclude agreements contemplated in subsection (2), or after the parties have negotiated in good faith and used their reasonable endeavours to resolve disputes relating to such agreements, either party may request the Authority in writing to resolve all outstanding issues. (4) (a) Where the Authority receives, a request contemplated in subsection (3), it shall, within 30 days of that request, determine the terms and conditions of the agreement in a manner consistent with this Act. 45 ~ so GOVERNMENT GAZETTE, 30 NOVEMBER 2001 ~ ~~~~ No. 22889 9 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act No. 64, 2001 (b) Where the Authority makes a determination in terms of paragraph (a), the determination shall be binding on the parties and shall form part of the agreement between the parties. (c) The agreement contemplated in paragraph (b) shall lapse two years after the date of its conclusion. ( 5 ) (a) Before 31 December 2003 the Minister shall- (i) determine, by way of a mxrket study, the feasibility of granting one or more public switched telecommunication service licences in addition to the licences referred to in subsection (1); and (ii) by notice in the Gazette, publish the determination. (b) In conducting the market study contemplated in paragraph (a), the Minister shall consider- (i) the Republic’s international obligations; (ii) national and international market conditions prevailing at the time; (iii) the Republic’s policy objectives; and (iv) any other relevant factor. (6) (a) If the Minister determines that any additional public switched telecommunication service licence may be granted- (i) such licence may only come into effect by 8 May 2005; and (ii) at least one of the additional operators shall be licensed to provide service-based competition. (b) A holder of a licence contemplated in paragraph (a) may- (i) compete as a service-based licensee and may not provide its own facilities until the Minister so determines; and (ii) utilise the facilities of Telkom and the second national operator on a resale basis for a period of I:WO years from the date of commencement of its public switched telecommunication service licence, in accor- dance with agreements concluded between the parties for the purposes of providing public switched telecommunication services. (7) Where the Minister makes the determination contemplated in subsection (5), the Authority ma:y prescribe regulations to ensure equal and non-discriminatory access to facilities among all licensed operators. (8) In any case where telecommunication facilities are made available pursuant to section 44 or the regulations promulgated thereunder to the holder of a licence to provide public switched telecommunication services, such licence holder shall have the right of resale, Second national operator application and qualification 32B. (I) The second national operator shall be granted a public switched telecommunication service licence on no less favourable terms and conditions than those of the licence held by Telkom. ( 2 ) Subject to subsection (3), such percentage of the equity interest of the second national operator shall be set aside for Eskom and Transnet, as the Minister, with concurrence of the Minister of Public Enterprises, may determine. (3) The final determination of the equity interest of Eskom and Transnet in the second national operator shall be determined by the value of the contribution of Eskom and Transnet, as the case may be, in the second national operator. (4) The contribution referred to in subsection (3) may include, among other things- ( a ) cash; (b) rights of way; (c) immovable property; (d) personal rights; and ( e ) other assets, including existing infrastructure, facilities and equip- ment. (5) ( a ) For the purposes of this subsection, “servitude” means any servitude, lease, right of use or other real right (whether registered or not) in or over land in favour of Esk:om, Transnet and the South African Rail Commuter Corporation Limited established in terms of the Legal Succes- sion to the South African Transport Services Act, 1989 (Act No. 9 of 1989), 5 10 15 20 25 30 35 40 45 50 55 60 ~ ~-~ ~~~~ ~ 10 No. 22889 GAZETIE, GOVERNMENT 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT. 2001 which existed immediately prior to the commencement of this Act, for the conveyance or provision 'of electricity, telecommunications, pipelines, railways, transport or electrical substations. (b) Every servitude is hereby extended so as to include the additional purposes of switched telecommunication service or network by right to use the land to which such servitude relates for providing a public means of telecommunication facilities. I (c) Eskom may allow any of its subsidiaries in respect of Eskom 5 servitudes to- (i) utilise a servitude in respect of the additional right referred to in 10 paragraph (b) on such terms and conditions as may be agreed upon between Eskom and the subsidiary; (ii) allow any third party in which Eskom has an equity interest to utilise of that additional right on such terms and the servitude in respect conditions as may be agreed upon between the parties; or (iii) utilise a servitude in respect of that additional right in order to provide any third party on such public switched teleconununication services to terms and conditions a:; may be agreed upon between the parties. (d) Compensation as contemplated in section 25(3) of the Constitution shall be payable by the party exercising the additional right as contemplated in paragraph (b) to the registered land-owner concerned, to the extent that the servitude becomes more onerous than the original servitude. ( e ) Notice of the exercise or use of the right in terms of paragraph (c) shall be given in writing to the registered owner of the land concerned, post, and the either by personal service or by pre-paid registered compensation contemplated in paragraph (d) shall be payable and shall be assessed as at the date of such notice. (f) Sections 9, 10, 11, 12(3), 12(5), 14 and 15 of the Expropriation Act, 1975 (Act No. 63 of 1975), shall with the necessary changes be applicable in respect of any compensatilon claim, compensation offer and the payment and determination of such compensation. (g) The Registrar of Deeds shall make such entries or endorsements in or on any relevant title deed or other documents in the office of the Registra or submitted to the Registrar, as may be necessary for the purposes of paragraph (c). ( h ) No fees or other levies shall be payable in respect of entries 01 endorsements contemplated in paragraph (8). I 15 20 25 30 35 (i) Paragraphs (c), (d), (e), (f), (8) and (h) apply with the necessary changes to Transnet and its subsidiaries licensed in terms of this Act and the South African Rail Commuter Corporation Limited. 40 Sentech 32C. (1) With effect from 7 May 2002, Sentech Limited referred to in section 4 of the Sentech Act, 1996 (Act No. 63 of 1996), shall be granted a licence to provide- ( a ) an international telecormunication gateway service enabling it to 45 operate as a carrier of carriers; and (b) multimedia services to any person who requests such service. (2) Sentech shall provide the multimedia service as a common carrier on a reasonable, equitable and non-discriminatory basis. (3) In respect of the granti:ng of other multimedia services licences- 50 (a) the Minister shall invite applications on a date to be fixed by the Minister by notice in the Gazette; and (b) section 34(2)(b) and ( c ) apply with the necessary changes. (4) On or before 31 December 2001, the Authority shall publish in the Gazette draft licences, which shall include proposed conditions on which Sentech Limited must provide the services contemplated in subsection (1). subsection (4), Sentech Limited and any interested party may submit written comments to the Authority in connection with the proposed conditions to the licence. (5) Within 30 days of the publication referred to in (6) After due consideration of the comments contemplated in subsection (5), if any, the Authority shall :finalise the licences and issue them to Sentech with effect from 7 May 2002. 55 I 6o I GOVERNMENT GAZETTE, 30 NOVEMBER 2001 No. 22889 11 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act No. 64,2001 (7) The holder of a telecommunication service licence shall not be precluded from providing services which are the same as, or similar to multimedia services, provided that such services fall within the ambit of the telecommunication service licmce so held. (8) No person who provides the service contemplated in subsection (1)(b) shall permit such service to be used for the carrying of voice only until a date to be fixed by the Minister by notice in the Gazette.”. Amendment to section 33 of Act 103 of 1996

7. Section 33 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (a) of the following paragraph: “ ( a ) as contemplated in sections 32C(l)(b), 34(2)(a)(i) to [iv] and 39 to 41; and”. Amendment of section 34 of Act 103 of 11996 5 10

8. Section 34 of the principal Act is hereby amended- (a) by the deletion in subsection (2)(a)(iv) of the word “or” and by the insertion in that subsection of the following subparagraph, the existing ‘subparagraph (v) becoming subparagraph (vi): 15 “(v) a multimedia service; or”. (b) by the substitution in subsection ( 2 ) for paragraphs (b) and (c) of the following paragraphs, respectively: “(b) The Minister shall, in an invitation contemplated in paragraph (a), specify- (i) (ii) the kind of service in respect of which applications are invited; the form in which applications shall be submitted and the manner in which it is contemplated that the service shall be provided, [or] the place where and times when [a] an2 document in that regard may be obtained from the Authority; the period within and manner in which such applications shall be lodged. (iii) 20 25 (c) Prior to publishing any invitation contemplated in paragraph (a), the Minister shall consult with the Authority to determine the evaluation criteria the Authority intends to use in making its recommendation to the Minister pursuant to section 35(l)(a)(i) and the weighing factor applicable to each evaluation criterion and the application of section 35(4) and ( 3 . ” ; 30 35 ( c ) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words: “(3) In the case of an application for a licence to provide a telecommunication service rleferred to in subsection (2) or any other telecommunication service prescribed for the purposes of this subsection the Authority [shall] m a y - ” ; 40 (d) by the addition to subsection (3) olf the following paragraph: “ ( d ) A hearing contemplated in paragraph (c) may be open to the public.”. ( e ) by the insertion after subsection (3) of the following subsections: 45 “(3A) The Authority may require an applicant or an interested party who has lodged written representations in terms of subsection (3) to furnish the Authority, within the period specified by it, with such further information as may be reasonably necessary in order to consider the application. (3B) No application may be amended or varied after the period u) by the substitution in subsection (4) for paragraph (b) of the following contemplated in subsection (2)(b)(iii).”; paragraph: “(b) ci) The Authority may, at the request of an applicant or person who lodged representations, determine that any document or information [relating to the financial caplacity or business plans of any person or to] that- is commercially s&sit&e or any other matter- reasonably justifying confidentiality, shall not be open to public inspection, if such document or information can be separated from the application, representations or other documents in question. 50 55 60 12 No. 22889 GAZETTE, GOVERNMENT 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT, 2001 -111. (ii) For purposes of this paragraph commercially sensitive documents or information or other matter reasonably justifying confidentiality shall exclude documents or information that was or becomes, or as a matter of law should be, generally available to the public.”. Substitution of section 35 of Act 103 oft 1996

9. The following section is hereby substituted for section 35 of the principal Act: “Decision on applications 35. (1 ) The Authority shall, after having duly considered any application for a licence made in terms of submissions in relation to the applications that may be called for by the Authority and submitted to the Authority within the period determined by the Authority- in section ( a ) in the case of an application recsDmmendation to the Minister, and propose this Act and any written for a licence referred to 34(2)(a), make its licence conditions; and 5 10 (b) in the case of any other licence application, notify the applicant of its 15 decision, the reasons therefor and the licence conditions. (2) The Minister may in respect of a recommendation by the Authority contemplated in subsection (1)- ( a ) accept it; (b) request further information from the Authority; (c) (d) reject it. refer it back to the Authority for further consideration; or (3) In the consideration of applications in terms of this Act, due regard shall be given to application:- (a) by persons from historically disadvantaged groups; and (b) which promote the empowerment and advancement of women in the telecommunication industry. (4) Without derogating from subsection (3), in the evaluation of equity ownership held by persons from historically disadvantaged groups or held by women in an application for a licence in terms of this Act, the Authority shall give due preference for up to 30% of such equity ownership or such higher equity ownership percentage as may be prescribed. (5) Subject to section 36(5), a licence shall be granted on conditions appropriate to the licence artd consistent with the objects section 2 and the other provi:;ions of this Act. referred to in (6) The Authority shall, where the application has been granted, issue the licence in question to the applicant. (7) Any licence granted in t1:rms of this section, shall become effective on 20 25 30 35 the date specified therein. (8) Nothing in this section derogates from the rights of an applicant to be furnished with reasons for a decision under the Promotion of Administra- tive Justice Act, 2000 (Act ND. 3 of 2000).”. 40 Insertion of section 35A in Act 103 of 1996

10. The following section is hereby ins1:rted in the principal Act after section 35: “Alternative licensing methods 35A. (1) Notwithstanding sections 34 and 35- (a) in the case of a licence referred to section 34(2), the Minister may in specific instances determine the manner in which applications may be made, such as by way of’ auction or tender, or both, and the licensing process and the licensing conditions that will apply; and ( b ) for all other licences, the Authority may in specific instances prescrii the licensing conditions $at will apply.”. 45 50 GOVERNMENT GAZETTE, 30 NOVEMBER 2001 No. 22889 13 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act No. 64,2001 Insertion of sections 36A and 36B in Act 103 of 1996

11. The following sections are hereby inserted in the principal Act after section 36: “Contents of expression ‘public switched telecommunication service’ 36A. (1) A ‘public switched telecommunication service’ shall be a telecommunication service to Ihe general public on a subscription basis, which shall include services such as- (a) national long-distance telecommunication service; ( b ) international telecommunication service; (c) local access telecommunic,ation service contemplated in section 39; (d) public pay-telephone service; (e) maritime telecommunicatim service; (f) service comprising the prcmvision of telegrams; (g) fixed-mobile services; ( h ) the supply of telecommunications equipment, the installation, bring- ing into service, maintenance and repair of that part of the public switched telecommunication network that is provided, maintained and operated by the public switched telecommunication services licensee for the purposes of providing any telecommunication service, such as the provision of telecommmication circuits for- (i) private (ii) links between sites of the same operator or multiple operators; (iii) telecommunication fl.cilities used for the provision of private circuits; telecommunication networks; (iv) telecommunication facilities used for the provision of value- added network services; (v) telecommunication facilities used for the provision of telecom- munication services in under-serviced areas contemplated in section 40A; (vi) telecommunication fazilities used to provide voice over internet protocol; (vii) third generation telecommunication facilities; (viii) telecommunication facilities to provide fixed-mobile services in the 1800 MHz frequency band; and (i) any other service reasonably complementary to the provision of those services (whether provided on a fixed or fixed mobile basis) such as the provision, repair and maintenance of equipment located on a customer’s premises and any other telecommunications apparatus of any kind. Contents of expression ‘public switched telecommunication networks’ 36B. (1) A ‘public switched .:elecommunication networks’ shall be the telecommunication systems wtich are installed or otherwise provided, maintained and operated by a public switched telecommunication service licensee for the purpose of proLiding public switched telecommunication services and fixed-mobile services such as- (a) a local access network; (b) a national long-distance network; and (c) an international network; by whatever means such as copper cables, wireless loops, microwave links, optic fibre cables, satellite ear:h stations, space segments and satellite systems, by means of which signals can be conveyed between all or any of- (i) two or more terminal connection points; (ii) two or more network conncction points; (iii) a terminal connection point. and a network connection point; (iv) a terminal connection point or a network connection point, as the case may be, and a corresponding point in another country; (v) a public pay-telephone and the terminal connection point, a network connection point or a corresponding point in another country. 5 10 1.5 l0 l.5 30 35 $0 45 50 55 14 No. 22889 GOVERNMENT GAZETTE, 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT, 200 1 (2) The systems contemplated in subsection (1) shall not include telecommunication equipment located on the premises of a customer, unless it is meant for public pay-telephones or mobile telecommunications on the premises of a customc?”. Substitution of section 37 of Act 103 of’ 1996 5

12. The following section is hereby substituted for section 37 of the principal Act: “Mobile cellular telecommunication services 37. (1) @) Vodacom (Pty.:, Ltd. and Mobile Telephone Networks (Pty.) Ltd., companies incorporated in terms of the Companies Act, 1973 (Act No. 61 of 1973), shall each be deemed to be the holder of a licence in terms of this Act to provide a mobile cellular telecommunication service in accordance with the terms and conditions of the telecommunications licences and multiparty implementation agreement published under Cien- eral Notice No. 1078 of 29 October 1993: Provided that each such company shall apply to the Minister through the Authority within six months after the date of commencement of this Act, or such extended period as the Authority may allow, for such a licence and the Minister shall grant the application and the Authority shall issue .:o that company a licence which shall, subject to section 42(3)(a), incorporate those terms and conditions. [(Z) (a) An invitation con1.emplated in section 34(2) shall be issued in accordance with the provisions of paragraph (b). (b) The Authority shall, within two years after the commencement of 10 15 20 this Act, conduct an enquiry in terms of section 27 into the economic feasibility of the provision of more than two mobile cellular telecom- munication services and make known Gazette, and, if services is feasible, recommend that the Minister invite applications the grant of a licence to provide such service. it finds that the provision of more than two such its finding by notice in the for 25 (c) If the Minister follows that recommendation the provisions of sections 34 and 35 shall apply.] (b) Cell C (Pty.) Ltd., a company incorporated in terms of the Companies Act, 1973 (Act No. 61 of 1973), shall be the holder of a licence in terms of this Act to provide a mobile cellular telecommunication service in accordance with the terms and conditions as specified in its licence issued to it by the Authority on 25 June 2001. [(d)] (2) A licence contemplated in [paragraph (a)] subsection (1) shall c o n t a i n a condition prohibiting the mobile cellular telecommunication service in question, until a date to be fixed by the Minister by notice in the lines which may be required for the Gazette, from utilising any fixed provision of the service other than fixed lines made available by Telkom or any other person providing a public switched telecommunication service. (3) The holder of a licence in terms of this section shall not be required to hold a licence contemplated in section 34(2)(a)(i), (iii) or (iv) or section 39 or 40 to enable him or her to provide the mobile cellular telecommuni- cation service in question. (4) (a) Before 31 December 2003 the Minister shall- (i) determine, by way of a market study, the feasibility of granting a mobile cellular telecommunication licence in addition to the licences refelred to in subsection (1); and - (ii) by notice in the Gazette, publish the determination. (b) In conducting the mark<e Minister shall consider the Republic’s international obligations; ( 5 ) If the Minister determines that any additional licence may be granted, such licence may be issued after 31 December 2003 in terms of section 34 ” 30 35 40 45 50 55 GOVERNMENT GAZETTE. 30 NOVEMBER 200 1 No. 22889 15 TELECOMMUNICATIONS AMENCMENT ACT, 2001 Act No. 64,2001 Amendment of section 38 of Act 103 of 19!)6

13. Section 38 of the principal Act subsection (1) of the following subsection: is hereby amended by the substitution for “( 1) No [person] persons other than Tdkom shall be granted a licence to provide national long-distance telecommunication services until after [a date to be fixed by the Minister by notice in the Gazette] 7 May 2002.”. 5 Amendment of section 39 of Act 103 of 19!)6

14. Section 39 of the principal Act is hereby amended- (a) by the substitution in subsection (1) for paragraph (a) of the following paragraph: “(a) No [person] persons other than Telkom shall be granted a licence to provide a local access telecommunication service until after [a date to be fixed by the Minister by notice in the Gazette] 7 May 2002.”; and following substitution in subsection (2) for paragraph ( a ) of the (b) by the paragraph: 10 15 “ ( a ) No [person] persons other than Telkom shall be granted a licence to provide a public pay-telephone service until after [a date to be fixed by the Minister by notice in the Gazette] 7 May 2002.”; (c) by the addition to subsection (2) of the following paragraph: ( c ) nothing in this section shall be construed as limiting applications for (a) to public switched a licence contemplated in paragraph telecommunication services licensees only.”. 20 Amendment of section 40 of Act 103 of 1996

15. Section 40 of the principal Act is hereby amended- (a) by the substitution for subsection ( 2 ) of the following subsection: “(2) A licence to provide any value-added network services, includ- ing, but not limited to, electronic data interchange, [E-mail] electronic mail, protocol conversion, access to a database network service, shall contain a condition that the service in question [shall] be provided by means of telecommunication facilities= 0 until 7 May 2002, provided by Telkom or made available to Telkom to be fixed by the as contemplated in section 44 [until a date Minister by notice in the Gazette, and a different date may be so fixed in respect of national long-distance facilities]; or a managed data fb) after 7 May 2002, provided by Telkom and the second national operator or any of them until a date fixed by the Minister by notice in the Gazette.”; and 25 30 35 (b) by the addition to subsection @)\of the following paragraph, the existing subsection becoming paragraph (a) : “(b) Without prejudice to any rights of Telkom under its public 40 switched telecommunication service licence which exist at the com- the mencement of the Telecommunications Amendment Act, 2001, second national operator and t i e licensees contemplated in section 40A may provide voice over internet protocol after 7 May 2002.”. Insertion of section 40A in Act 103 of 1996 45

16. The principal Act is hereby amended by the insertion of the following section after section 40: “Under-serviced area licence 40A. (1) The Minister shall by notice in the Gazette determine those geographic areas where there is teledensity of less than 5% and in respect of 1 50 which small businesses may apply to the Authority for under-serviced area licences to provide such services or facilities. (2) ( a ) The Authority may issue an under-serviced area licence to a small business on application in the prt:scribed manner. 16 GAZETTE, GOVERNMENT No. 22889 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT. 2001 ( b ) In the consideration of applications in terms of this section, due regard shall be given to applications- (i) by persons from historkally disadvantaged groups; and (ii) from applicants which are managed and controlled, or owned, by women. (3) An under-serviced area licensee shall provide any telecommunication services, including voice over internet protocol services, fixed-mobile services and public pay telephones, in respect of the area to which the licence applies. (4) Under-serviced area licences granted by the Minister shall become effective after 7 May 2002. ( 5 ) All under-serviced area licences granted under this section shall be issued on materially the same terms and conditions. (6) Under-serviced area licensees may by agreement obtain interconnec- tion to the networks of public switched telecommunication service licensees and mobile cellular operators, and through the national long- distance telecommunication service of a public switched telecommunica- tion service licensee to the international telecommunication gateway of a carrier of carrier’s licensee, if such agreement complies with- (a) section 43 and any regulations prescribed to give effect to that section; and ( 6 ) the prescribed terms and conditions, including price, in terms of which under-serviced area licensees may obtain such interconnection.”. Amendment of section 41 of Act 103 of’ 1996

17. Section 41 of the principal Act is hereby amended- (a) by the substitution in subsection (1) for paragraphs (a) and (b) of the following paragraphs: “ ( a ) A person providing a telecommunication network for purposes principally or integrally related to the operations of such person (hereinafter referred to as a private telecommunication network), shall, notwithstanding the provisions of sections 32(1) and 33(1) and regard- less of whether or not such network is utilised by means of telecommu- nication facilities made available by Telkom, or the second national operator, not require a licence except as contemplated in paragraph (b). (b) A private telecommunication network licence shall, subject to the regulations, be required for the provision of a private telecommunication network, where such netMrork is interconnected to the telecommunica- tion system of Telkom or :my other person providing a public switched telecommunication [network] service.”; (b) by the deletion of subsection (!); and (c) by the addition of the following subsections: “( 10) (a) The Minister :shall, with the concurrence of the Minister of Education, establish an entity to construct and operate an educational I network. (6) The entity contemphted in paragraph (a) shall be deemed to have been granted a private telecommunications network licence to link all public schools and public further education and training institutions defined in the South African Schools Act, 1996 (Act No. 84 of 1996), and the Further Education and Training Act, 1998 (Act NO. 98 of 1998), respectively, as well as such other education and training institutions as may be determined by the Minister of Education. (11) (a) The Minister shall, with the concurrence of the Minister of Transport, establish an lmtity to construct and operate a private telecommunication netwo1.k to fulfil South Africa’s obligations in terms of- (i) the International Convention for the Safety of Life at Sea (SOLAS) 1974178; 5 10 15 20 25 30 35 40 45 50 55 (ii) Annexure 12 to the Convention on International Civil Aviation, signed by South Africa on 7 December 1944 in Chicago; and (iii) the International Convention on Maritime Search and Rescue, 1979. ~ i 60 200 GAZETTE, NOVEMBER GO\, ERNMENT 30 1 2001 TELECOMlMUNICATIONS AMENDMENT ACT, No. 22859 17 ~~ Act No. 64,2001 ( b ) The entity contemplated in paragraph ( a ) shall- (ij be referred to as “Maritime andAeronautica1 Radio Services”; and private telecommunications (ii) be deemed to have been granted a network licence.”. Amendment of section 43 of Act 103 of 1996 5

18. Section 43 of the principal Act is hereby amended- (a) by the substitution for subsection (1) of the following subsection: “(I) (a) Any public switched telecommunication service licensee shall, when requested by any other person providing telecommunication services, interconnect its telecommunication systems to the telecommu- nication system of the other person, in accordance with the terms and conditions of an interconnection agreement entered into between the parties, unless such request i:; unreasonable. (b) For the purposes of paragraph (a), a request is reasonable where the Authority determines that the requested interconnection- (i) (ii) will promote the efficient use of the public switched telecommuni- is technically feasible; cation network; (iii) can be implemented on a reciprocal basis between the parties. (c) An agreement contemplated in paragraph ( a ) shall be entered into within the prescribed period or such extended period as the Authority may allow in any particular case. (d) The parties concerned :shall, unless exempted by regulation- (i) notify the Authority if any request contemplated in paragraph (a) is made; (ii) where the reasonableness of any such request is disputed, refer the dispute to the Authority for its decision; (iii) where the parties are unwilling or unable to negotiate or agree on terms and conditions within the period or extended period contemplated in paragraph (c), submit all outstanding issues to the Authority for resolution.,”; (b) by the substitution in subsection (4) for paragraphs (a) and (b) of the following ~ ~- paragraphs, respectively: “(a) in the case of a dispute relating to reasonableness as contemplated in subsection (l)(d)(ii), make a determination taking into ation the factors referred to in subsection (l)(b), relevant factor; consider- and any other 35 (b) in the case of unwillingness or inability by the parties to negotiate or agree on the terms and conditions of interconnections, the Authority may- 40 (i) impose terms and conditions in accordance with the guidelines contemplated in subsection (3); or (ii) propose terms and conditions in accordance with the guide- lines Contemplated in subsection (3) which, subject to renego- tiations, shall be agreed to by the parties within such period as the Authority may y~ecify.”; ’ 45 (c) by the substitution in subsection (5) for paragraph ( b ) of the following paragraph: “(b) Where the Authority determines that any terms and conditions are not consistent with the guidelmes contemplated in subsection ( 3 ) , it may direct the parties to [negotiate] renegotiate and agree on new terms and conditions within such period as the Authority may specify, or itself propose terms and conditions consistent which, subject to renegotiation, shall be agreed by the parties within such period as it may specify, and the provisions of subsection [(l>(e)(iii)l (l)(d)(iii) and (4)(b) shall apply with the necessary changes.”; and with those guidelines and 50 55 NOVEMBER 30 GAZETTE, GOVERNMENT 22889 No. 18 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT, 2001 (d) by the addition of the following subsections: “(10) ( a ) Five years after the date on which an interconnection agreement is concluded a party to that agreement may request the other party or parties to promptly negotiate in good faith to modify or amend some or all of the terms of such agreement. (bj Subsections (1) to (6) and the regulations promulgated under this section shall apply, with the necessary changes, in relation to any proposed modification or amendment of any term or condition contem- plated in paragraph (a). 5 (1 1) Interconnection rates and any agreement with regard thereto shall 10 be made public.”. Amendment of section 44 of Act 103 of 1996

19. Section 44 of the principal Act is hereby amended- (a) by the deletion of subsection (1 ); (b) by the substitution for subsections (2), (3) and (4) of the following 15 subsections, respectively: “(2) Telkom and any other provider of a public [fixed] switched telecommunication service shall, when requested by any other person providing a telecommunica.tion service, including a private telecommu- nication network, lease or otherwise make available telecommunication 20 facilities to such other person pursuant between the parties, unless such request is unreasonable. to an agreement to be entered into (3) The provisions of section [43(l)(c), (d) and (e)] 43(l)(b)(i) and (ii), (c) and (e) shall apply, -with the necessary changes, in relation to any request and agreement contemplated in [subsections (1) and] subsec- 25 tion (2). - (4) Every agreement for ‘the leasing [or otherwise making available] of telecommunication facilities or resale, including any agreement contemplated in [subsections (1) and] subsection (2), shall, unless exempted by the regulations, be lodged by the parties with the Authority 30 to enable it to determine whether the agreement is consistent with the guidelines contemplated in subsection ( 3 . ” ; (c) by the addition to subsection (5) of the following paragraph, the existing subsection becoming paragraph (a): “(b) The guidelines contemplated in paragraph (a) may relate to- (iJ resale, including the basis for determining wholesale and retail 35 (uJ tariffs; and the manner in which telecommunication facilities are made available.”; and (d) by the substitution for subsection (7) of the following subsection: 40 “(7) (uJ In the application of section [43(l)(e)(iii)] 43(l)(d)(iii) and (4)(b) in relation to making the telecommunication facilities of [Telkom] a public switched telecommunication service licensee available to another person and where the Authority is satisfied that [Telkom] holder of a public switched telecommunication service licence is 45 unwilling or unable to make suitable facilities available to that person within a reasonable period of time, the Authority may, instead of proposing terms and conditions as contemplated in section 43(4)(b), authorise that person to provide or obtain any necessary telecommuni- cation facilities other than from [Telkom] such holder on conditions 50 determined by the Authority, notwithstanding the provisions of sections [37(2)(c),] 38(2), 40(2) and 41(2)(a) and this section. (b) Subject to section 32,4(2) and (4), notwithstanding the guidelines contemplated in subsection (5), no public switched telecommunication service licencee shall be required to unbundle its local loop for the period 55 of two years referred to in section 32A(2)(a) and (4).”. Amendment of section 45 of Act 103 of I996 2!0. Section 45 of the principal Act is hereby arnended- (a) by the substitution for subsection (2) of the following subsection: GOTIERNMENT GAZETTE, 30 NOVEMBER 2001 No. 22889 19 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act No. 64,2001 “ ( 2 ) The manner of detemining fees and charges shall be prescribed only in respect of fields where no or insufficient competition exists: Provided that within 12 months after the date of commencement of this Act, the Minister shall determine such fees and charges in respect of Telkorn, and such fees and charges shall be in force until the later of- ( a ) the third anniversary of the date on which the Minister issued a licence to Telkom in accordance with section 36( l ) ( a ) ; and ( b ) the date when the Authority prescribes a new determination of fees and charges in respect of Telkom.”; and (b) by the addition of the following subsection: 5 10 “(3) From a date to be ;elermined by the Minister, all public schools as defined in the South Africm Schools Act, 1996 (Act No. 84 of 1 9 9 6 ’ ~ 1 and all public further education and training institutions as defined in the Further Education and Training Act, 1998 (Act No. 98 of 1998), shall be entitled to a 50% discount on- ( a ) all telecommunication calls to an internet service provider; and (6) any connection or simdar fees or charges levied by an internet accessing the internet or transmitting and access and service provider for receiving any signals via the internet or for such transmission and r e c e p t h ” . 15 20 Amendment of section 53 of Act 103 of 1!)96

21. Section 53 of the principal Act is heretly amended by the addition of the following subslxtion, the existing section becoming subsection (1): “ ( 2 ) (a) The Authority may, with regard to the matters referred to in subsection (l), make regulations to ensure efficient and effective monitoring and investigation 25 of uncompetitive actions, ensuring protection of consumer interests and for the speedy resolutions of complaints in regard thereto. (6) The Authority shall report annually to the Minister on the overall status and efficiency of the regulations contemplated in paragraph (a).”. Amendment of section 54 103 of Act of 1996 30

22. Section 54 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: “( 1) No person shall use, supply, sel:., offer for sale or lease or hire, any type of telecommunication equipment or facility, including radio apparatus, in connection with telecommunication unless that type has, subject to subsection (2), been 35 approved by the Authority.”. Amendment of section 58 of Act 103 of 19196

23. Section 58 of the principal Act is hereby amended by the addition of the following subsection, the existing section becoming subsection (1): “(2) The Minister may, by notice in the Gazette, appoint a board of up to seven 40 members to provide oversight of and guidance to the Universal Service Agency.”. Amendment of section 61 of Act 103 of 1996

24. Section 61 of the principal Act is hereby amended- (a) by the substitution for subsection 1:2) of the following subsection: “ ( 2 ) The [Authority] Agency shall utilise any money contemplated in 45 subsection (1) in accordance with the statement of estimated expenditure referred to in subsection (3).”; and /b) by the substitution in subsection (3) for the words preceding paragraph ( a ) of the following words: “The [Authority] Agency-“. 50 20 No. 22889 GOVERNMENT GAZETTE, 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT. 2001 Almendment of section 65 of Act 103 of 1996

25. Section 65 of the principal Act is hereby amended by the substitution for subsection (4) of the following subsection: “(4) The Universal Service Fund shall be administered by the Agency subject to the control and in accordance with the instructions of the [Authority] Minister.”. 5 Amendment of section 66 of Act 103 of 1996

26. Section 66 of the principal Act is hereby amended- ( a ) by the substitution for subsections (1) and (2) of the following subsections, respectively: “(1) The money in the Universal Service Fund shall be utilised 10 exclusively for the payment of subsidies- (a) for the assistance of needy persons towards the cost of the provision to or the use by them of telecommunication services; (b) [subject to subsection (3)] to Telkom and to any other holder of a licence in terms of Chapter V which imposes obligations on the 15 holder relating to the extension of its [public switched] telecom- munication service to areas and communities which are not served or not adequately served by telecommunication services, for the purpose of financing such extension; to public schools and public further education and training 20 institutions referred tc section 45(3) for the procurement of internet services and equipment necessary to access the internet; (c) (d) for the establishment of centres where access can be obtained to telecommunication facilities; for the establishment of public information terminals; and to assist small businesses and cooperatives to acquire and construct infrastructure to provide telecommunication services to areas which are not served or not services; and to facilitate the provision of multimedia services. adequately served by telecommunication 25 30 (e) cf) (x) (2) The money in the fund shall be apportioned for the separate (b) of] referred-to in purposes [of paragraph (a) and paragraph subsection (1) in accordance with [the prescribed] a formula determined by the Minister by notice in the Gazette.”; - (c) by the deletion of subsection (d) by the substitution in subsectior. (4) for the words preceding paragraph (a) of (3); and 35 the following words: “The [Authority] Minister may, for the purposes of payments referred to in [subsections] subsection ( l ) ( a ) and [(3) prescribe] (b) by notice in the Gazette determine-”. 40 Amendment of section 67 of Act 103 of 1996

27. Section 67 of the principal Act is hereby amended by the substitution in subsection (2) for paragraph ( a ) of the following paragraph: “(a) the basis and manner of detem-.nation of such contributions, which shall not exceed 0,5% of a licencee’s annual turnover; and”. 45 Insertion of section 67A in Act 103 of 1996

28. The principal Act is hereby amended by the insertion after section 67 of the following section: “Competitive tender for universal service projects 67A. (1) The Agency competitive bid to the project. (2) The Agency shall in allocating the subsidy take into account, inter alia, the provisions of section 2. GAZETTE, GOVERNMENT 30 NOVEMBER 2001 No. 22889 21 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act No. 64,2001 (3) The subsidy for universal access projects shall be paid out of the Universal Service Fund. (4) The Agency shall supervise the execution of projects awarded under subsection (l).”. Insertion of new Chapter X in Act 103 of 1996 5 29.. The following Chapter is hereby inserted in the principal Act after Chapter IX: “CHAPTER X EMERGENCY CENTRES Definition

78. In this Chapter, unless thr: context otherwise indicates, ‘emergency 10 organisation’ means, in respect of any locality, the relevant police, fire, ambulance or traffic authority 01’ coast guard services for that locality and any other similar organisation providing assistance to the public in emergencies. Centres Emergency Establishment of 112 15 79. (1) The Minister may b,y notice in the Gazette establish public emergency communications centres to be known as ‘112 Emergency Centres’. (2) A 112 Emergency Centre is a communications service centre by means of which the user of a public telephone system has the ability to reach an emergency centre by dialling the numerals 11 2 in order to request an emergency service. (3) 112 Emergency Centres st.all be accountable to the Minister. (4) 11 2 Emergency Centres shall be exempted from holding a licence to provide telecommunication services in terms of any section of this Act. 25 Functions of 112 Emergency Centres 80. (1) 112 Emergency Centres shall transmit any telecommunication request for an emergency service to any emergency organisation. (2) Licensees required to carry calls to 112 Emergency Centres may not levy any charge on the caller for placing calls to 112 Emergency Centres. (3) Licensees transporting any telecommunication from 112 Emergency Centres to any emergency organisation shall be entitled to recover from the relevant emergency organisation the reasonable cost that it incurs in transporting such telecommunication. number emergency Public 81. (1) The number 112 is hereby established as the exclusive national public emergency number. (2) No person may apply for the registration in terms of applicable intellectual property legislation, or any other law, of any mark or domain name containing the numerals 1-1-2 in that sequence. (3) No person may call the national emergency telecommunication number, 11 2, for any purpose other than a request for an emergency service contemplated in section 79(2). 30 35 40 Standards, capabilities and operating procedures of 112 Emergency Centres 45 82. (1) As far as practicably possible, 112 Emergency Centres shall have voice, data and global positioning systems capability. 22 No. 22889 GOVERNMENT GAZETTE, 30 NOVEMBER 200 I Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT, 2001 (2) 112 Emergency Centres shall develop and apply common technical standards and standard operating procedures as directed by the Minister from time to time by notice in the Gazette. (3) Subject to obtaining an appropriate radio frequency licence in accordance with section 30, 112 Emergency Centres may establish their own radio networks, provided such networks are used exclusively to communicate calls to 11 2 Emergency Centres or emergency organisations. (4) Emergency Centres may display the 112 public emergency number on public roads and other public places without cost.”. Amendment of section 89 of Act 103 of 1996 5 10

30. Section 89 of the principal Act is hereby amended- ( a ) by the substitution for subsection (1) of the following subsection: “( 1) The Authority shall prescribe= - ( a ) a numbering plan for use in respect of telecommunication services- (b) measures to ensure that nc.mber portability shall be introduced in 2005, 15 including- (i) the creation of a national number portability database; and (ii) cost allocation and cost recovery among licensees.”; and (b) by the addition of the following subsections: “(4) The numbering plan ,contemplated in subsection ( l ) ( a ) shall be 20 non-discriminatory. (5) The Authority shall maintain and manage a central numbering database system. (6) Every operator shall submit information on all numbers, including numbers of pre-paid subscribers, allocated to subscribers in terms of its 25 licence to the Authority.”. Insertion of sections 89A and 89B in Act 103 of 1996

31. The following sections are hereby inserted in the principal Act after section 89: “Directory services

89A. The Authoritv mav mescribe. or imDose throunh licence 30 conditions, as the case may be, measures in respect of directories and I directory enquiry services, regarding- (a) the protection of personal data; (b) the protection of privacy; (c) language preferences; (d) the prevention of fraud; ( e ) the prohibition of marketing and unfair trading practices; (fi the provision of assistance to law enforcement or other public safety officials; (g) related charges; (h) the establishment of a national directory information database; and (i) such other related matters as the Authority shall determine. Government directory information service 35 40

89B. The Authority shall allocate a four digit number through which the public can access government directory information services free of 45 charge.”. Carrier pre-selection 89C. (1) The Authority shall prescribe regulations- (a) establishing a framework for facilities in terms of which subscribers to I a telecommunication service can access the services of an intercon- nected national long distance telecommunication operator and an international telecomm~~nication operator; and 50 GOL’ERNMENT GAZETTE, 30 NOVEMBER 2001 23 No. 22889 TELECOMMUNICATIONS AMENDMENT ACT, 2001 Act Na. 64,2001 (6) requiring all holders of public switched telecommunication services licences to phase in the facilities referred to in paragraph ( a ) by not later than 31 December 2003. (2) The framework contemplated is subsection (1) shall ensure that the implementation and maintenarce of the facilities referred to therein are n o n - d l s c r i m l n a t o r y ’ e c t to section 2(j).”. Amendment of section 96 of Act 103 of 11996 %!. Section 96 of the principal Act is hereby amended- ( a ) by the substitution for subsection (1) of the following subsection: (1) The Authority may make regulations in relation to- w any matter which in t e m s of this Act shall or may be prescribed by regulation; 5 10 (bj any technical matter necessary or expedient for the regulation of telecommunication activities; (c) any matter of procedure or form which may be expedient to prescribe for the purposes of this Act. necessary or 15 (b) by the substitution for subsection (4) of the following subsection: “(4) The Authority shall, not less than [three months] one month before any regulation is macle, cause the text of such regulation to be published in the Gazette, together with a notice declaring its intention to make that regulation and inviting interested persons to furnish the Authority with written comments thereon [or representations in regard thereto].”. (c) By the substitution in subsection ( 5 ) , for the words preceding paragraph (a), of the following words: The provisions of subsection [(l)] (4) shall not apply in respect of- (d) by the addition of the following subsection: “(8) When prescribing any regulation, the Authority shall give due regard to.section 2dj).”. Insertion of section 96A in Act 103 of 19916

33. The following section is hereby inserted in the principal Act after section 96: 20 25 30 “Telecommunications Museum 96A. (1) The Director-General shall establish and manage a museum that depicts the evolution and the history of the telecommunication sector in South Africa. ( 2 ) The museum and its contents shall be a national asset as defined in the 35 National Heritage Resources Act, 1999 (Act No. 25 of 1999). (3) The content of the museum housed in the Telkom Museum on Telecommunication History shall be transferred to the museum established in terms of subsection (1). 40 Information, Communication and Technology strategy 96B. (1) (a) The Minister sha..l, as soon as possible after the c o m e n c e - and an Information, Communication this section, develop ment of Technology (ICT) strategy. (bj The strategy shall be reviewed every two years. (c) The strategy shall be published in the Gazette when it has been developed or reviewed. ( 2 ) When developing or reviewing the strategy, the Minister shall give due regard to- (a) the Republic’s national objectives; (b) section 2(r) and (s); ( c ) the Republic’s international obligations; and (d) any other relevant factor.”. 45 24 No. 22889 GAZETTE, GOVERNMENT 30 NOVEMBER 2001 Act No. 64,2001 TELECOMMUNICATIONS AMENDMENT ACT, 2001 hmendment of section 101 of Act 103 of 1996

34. Section 101 of the principal Act is hereby amended by the deletion in paragraph ( b ) of the word “or” and the insertion after that paragraph of the following paragraphs: “(bA) contravenes the provisions of sections 54 and 56; (hBj contravenes provisions of section 81(2) or (3);”. the 5 Repeal and amendment of laws

35. The laws specified in the Schedule are hereby repealed or amended, as the case may be, to the extent set out in the third column thereof. Withdrawal of regulations

36. The regulations made under section 52 regarding limitations on ownership and 10 control in respect of mobile cellular telecommunication services published in Gazette No. 19828 on 5 March 1999, are hereby withdrawn. Short title

37. This Act is called the Telecommunications Amendment Act, 2001. C;O\’ERNblENT GAZETTE, 30 NOVEMBER 2001 TEL,ECOMI\/IUNICATIONS AMENDMENT ACT. 2001 No. 22859 25 Act No. 64.2001 SCHEDULE Laws repealed or amended No. and year of Act Short title Extent of amendment or re- Act No. 143 of 1993 Act No. 63 of 1996 __ Vational Emergency Tele- ,hone Service 4ct, 1993 jentech Act, 1096

1. The substitution for section 5 of the following section: “5. The main object and of the the main business Company shall be to pro- vide- - (a) as a common carrier, signal broadcasting distribution for broad- casting licensees in accordance with the provisions of the Inde- pendent Broadcasting Authority Act; (bj telecommunication services in accordance with the provisions of the Telecommunica- tions Act, No. 103 of 1996).”. 1996 (Act