Sports Broadcast Regulations: ICASA briefing; with Minister and Deputy Minister

Meeting report

Minister’s introduction

Ms Stella Ndabeni-Abrahams, Minister of Communications, said that she and the Minister of Sport, Art and Culture had engaged the Independent Communications Authority of South Africa (ICASA) on a review of sports broadcasting regulations. She had established teams to look at matters that required the Department’s legislative and policy intervention. A review of the regulations was necessary following complaints by the public about the broadcasts of the South African Broadcasting Corporation (SABC). The proposed amendments sought to strike a balance between commercial and public interest.

The matters that the proposed amendments sought to address crosscut into different departments and organisations, such as the Competition Commission of South Africa. Therefore, there was need for different departments to work together to fast-track the drafting of the regulations.

On 12 March 2020, ICASA would present the regulations to the Minister, and thereafter the Department would proceed to gazette them.

Sports broadcast regulations: ICASA briefing

Ms Nomonde Gongxeka-Seopa, Councillor: ICASA, briefed the Committee on the progress of reviewing the Sports Broadcasting Services Regulations. She described the legislative background motivating the review, the purpose and objects of the regulations, the regulations, the process followed, the proposed list, dispute resolution and penalties.

Section 192 of the Constitution of the Republic of South Africa, and Section 60 (1) and (2) of the Electronic Communications Act, motivated the review of the regulations.

(See presentation for further details).

The purpose of the regulations was to identify and list national sporting events, and to regulate the broadcasting of national sporting events in South Africa. Also, the purpose of the regulations was to list sporting events that:

• Had been identified as national sporting events, as well as minority and developmental sports in terms of section 10 (1) (i) of the Broadcasting Act; and
• Cannot be acquired exclusively for broadcasting by subscription television broadcasting licensees.

The aim of the regulations was, among other issues, to determine the criteria to be used in the listing of national sporting events; identify and list national sporting events; provide a dispute resolution mechanism; and ensure a wider audience reach, whilst striking a balance with commercial viability of the broadcaster. The criteria used in the listing of national sport events involved identifying a confederation sporting event involving a national team or a national representative; a semi-final and final of a national knockout competition; or an opening game, semi-final and final of a confederation sporting event. The current listing had sporting events including the summer Olympic Games; the Paralympics, Commonwealth Games, All Africa Games, and FIFA World Cup. ICASA proposed to add the Netball World Cup and the Trim And Fitness International Sport for All (TAFISA) Games to the list.

During the Authority’s consultative process, it was established that stakeholders were not using the current dispute resolution mechanism contained in the 2010 regulation. ICASA proposed to amend the provisions dealing with dispute settlement resolutions.

On penalties, a broadcasting service licensee that contravened or failed to comply with the provisions of the existing regulations would be referred to the Complaints Compliance Committee (CCC), and if found guilty, was liable to a fine not exceeding R500 000 for the contravention of regulations 6(1) - (3), or 8(1) and (2), or 9(1) and (2), and/or any further recommendation from the CCC.

Discussion

Ms V Malomane (ANC) asked for the criteria that ICASA had previously used in the listing of national sporting events. It was important to know if the new regulations would not have a negative impact on sport development.

Mr W Faber (DA) said he acknowledged the need by the SABC to broadcast sports such as soccer and rugby to communities. Be that as it may, how would the SABC afford to pay for the licenses, especially considering fact that the entity currently had financial problems? Companies like Multichoice spent millions on licences, and in order to ensure financial stability they charged a subscription fee for their services.

Mr T Mhlongo (DA) requested ICASA to either furnish evidence proving that the Sports Broadcasting Service Regulations had received enough public participation, or abandon presenting the regulations to the Minister on 12 March, since various sporting communities had complained about the lack of effective participation. The delegates had not distinguished between the different types of sporting codes in their presentation. What were the applicable criteria for giving these groups airtime on the SABC?

There were allegations of collusion between ICASA and the Competition Commission of South Africa. Could ICASA explain this?

On multiple occasions, the SABC had failed to reach an agreement with the International Management Group. What was the cause of this?

Mr B Madlingozi (EFF) said that sports and culture were important aspects of society, and it was important to safeguard this against western cultures and artistic expressions. ICASA was the regulator of all communications in South Africa and the spaces it created should showcase different sporting events that allowed the expression of South African cultures, and not the cultures of other countries. This was to ensure that sport promoted social cohesion and healing from the injustices of the past.

Ms P van Damme (DA) said that she understood the purpose of the sporting regulations was to make different sporting activities accessible to South Africans. Nonetheless, she felt this was impossible and ICASA was selling dreams to South Africans. The SABC did not have the money to buy rights from the various international sporting federations. There was a risk of endless years of litigation if ICASA decided to proceed with the review of the regulations. It would be wise for ICASA go back and consult extensively on the matter before presenting the regulations to the Minister.  

Mr M Seabi (ANC) was interested in knowing what had prompted the need for the review. Did the law require a review after every five years, or had it arisen out of necessity following a research conducted by the organisation? Had ICASA consulted extensively with the relevant stakeholders on the proposed review, and what had been their view? Would the proposed amendments bring proper balance between public and commercial interests?

Mr L Molala (ANC) reminded the delegates that the Members of Parliament represented the public. In that vein, their views to advance the interests of the public were not directed at undermining the economic interests of South Africa. They were directed at promoting social cohesion through improving access to sporting activities for the poor. Parliament had to approve a public hearing on the regulations. It appeared that consultation had been limited to sporting federations and other sporting business stakeholders. The dispute settlement resolution mechanism required reinforcement. The fine prescribed in the regulations was too low, and did not deter organisations from violating the law. Organisations could violate the law, secure in the knowledge that they could pay off the fine. The Committee also needed to shift its focus from the SABC as the service provider, and try to come up with strategies to capacitate ICASA and ensure sporting events were made available on free-to-air. The joint Committee should consider inviting ICASA and all the interested stakeholders to deliberate on the proposed amendments.

Department’s response

Ms Pinky Kekana, Deputy Minister of Communications, replied that the object of the regulations was to ensure a wider audience reach whilst striking a balance with the commercial viability of the broadcaster. ICASA was not looking out only for the commercial interests of the SABC, but of the public as well. It was important to note this was the first engagement with the Committees. Equipped with the Committees’ input, ICASA would make changes to the regulations. The Minister had also mentioned that there were financial implications to the regulations. This would require the Department to engage with the National Treasury.

Chairperson Dlulane stated that the review process of the regulations was taking long, and it was important for the two Committees to work closely together to finalise the whole process. ICASA should take caution not to be selective when conducting public hearings. The Committee valued the element of development in sport and seeing that this had not been covered in the presentation, it recommended that ICASA to go back and rethink the regulations.

Minister Ndabeni-Abrahams referenced Section 192 of the Constitution dealing with the functions of ICASA. The function of ICASA was to regulate, not create the law. The Department created the law. Moreover, Section 192 of the Constitution recognised sport as one of the leading aspects of social cohesion and hence provided ICASA with guidance on its duties to regulate.

She also referred to section 60 (1) of the Electronic Communications Act, which stipulates that subscription broadcasting services may not acquire exclusive rights that prevent or hinder the free broadcasting of national sporting events. Sub-section 2 of the section prescribes what the Department needs to do in the event of violation of sub-section 1.

There were elements of the legislation that required the Department, the Committee and other important stakeholders -- for example, the Competition Commission of South Africa -- to work together in reviewing the regulations.

Minister Ndabeni-Abrahams said that the purpose of the regulations was to determine the criteria used in the listing of national sporting events. The determination required a clear definition of what South Africa considered as developmental sport. The task to define developmental sport was that of the policy maker, and not ICASA.

The SABC and Multichoice had different mandates, so one did not need to look at the issue of competition when considering the two entities together. The responsibility of ICASA was to ensure that there was some sort of equity between those who could afford to pay subscription fees and those who could not afford.

Regarding the penalties, the Minister replied that unfortunately these were the fines prescribed by the law. This demanded the Department and the Portfolio Committee to revise the law in totality in order to give it full effect. It was not within ICASA’s functions to determine the fines.

Ms Gongxeka-Seopa commented that ICASA regulated in the public interest.

Section 10(i) of the regulations made provision for developmental sport.

Regarding public participation, the regulations stipulate the process of consultation, which ICASA had followed diligently. It would proceed to consult with the Minister in accordance with the prescribed regulations that state that after consultations with the public, the authority could proceed to consult with the Minister.

On what had prompted the need for the review, she replied that after every two or three years, ICASA was required to review the regulations to see if they were still serving their purpose.

Ms Gongxeka-Seopa declined to comment on the SABC’s financial situation, but observed that there had been a time when the SABC had traded with a healthy balance sheet.

It was important for the Committee to understand the importance of the review, and what this meant to the public. If it were not for the agreement that the SABC had had with Multichoice during the Rugby World Cup, most South Africans would not have known who Siya Kolisi was.

Ms Violet Molete, Senior Manager: ICASA, referred to Section 60 of the Act to clarify that the obligation was on subscription broadcasting services, and not the SABC. The regulations were not meant for the SABC. The regulations were meant to ensure that important sporting events were made available on free-to-air television.

She said the criteria used in the listing of national sporting events were limited to confederation sporting events involving a national team.

ICASA was aware that the figure for penalty charges was very low. The Complaints Committee within ICASA had advised that the lawmakers could adjust the amount to R1 million.

Ms Van Damme said that her views were not sponsored by Multichoice -- they were simply realistic, as the idea that ICASA had in mind was not going to materialise.

Mr Mhlongo reiterated that the regulations had not received enough public participation, and ICASA had not presented evidence proving otherwise, as he had requested. It was unwise for ICASA and the Department to subsequently gazette something that would not work. The Premier Soccer League (PSL) in South Africa had complained that the new regulations would result in the loss of revenue.

Mr Molala thanked ICASA for the presentation, and reminded the Committee that they had come with a presentation, and not a draft of the regulations. It was unfair to direct questions pertaining to the SABC to ICASA.

Mr Seabi expressed confidence that what ICASA was doing would work.

Deputy Minister Kekana said that between 2012 and 2018, the SABC had made significant investments in the PSL. While the commercial interests of sporting federations and broadcasting companies were important, public interest -- in the light of social cohesion -- was equally important. The goal was to strike a balance between commercial and public interests through the unbundling of broadcasting rights.

The Chairperson said that Committee Members would have more time to engage when ICASA brought forward the draft regulations. The fact that the SABC had a turnaround strategy for its financial situation could not be ignored, and it deserved some level of confidence.

The meeting was adjourned.