Electronic Communications Act, 2005 (Act No. 36 of 2005) Chapter 1 : Introductory Provisions 1. Definitions

 

In this Act, unless the context indicates otherwise—

 

"Advertising Standards Authority of South Africa"

means the entity which regulates the content of advertising, or any entity that replaces it but has the same functions;

[Definition inserted by section 1(a) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"affiliate"

means with respect to any person, any other person that, directly or indirectly—

 

"Agency"

means the Universal Service and Access Agency of South Africa established by section 80;

 

"allocation"

in relation to a frequency band, means the entry in the Table of Frequency Allocations of a given frequency band for the purpose of its use by one or more terrestrial or space radio-communication services or radio astronomy service under specified  conditions;

[Definition inserted by section 1(b) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"assignment"

in relation to a radio frequency or radio frequency channel, means authorisation given by the Authority for a radio station to use a radio frequency or radio frequency channel under specified conditions, and "assign" must be interpreted accordingly;

[Definition inserted by section 1(b) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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);

 

"broad-based black economic empowerment"

has the meaning assigned to it in the Broad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003);

[Definition inserted by section 1(c) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"broadband"

means an always available, multimedia capable connection with a minimum download speed as determined by the Minister by notice in the Gazette;

[Definition inserted by section 1(c) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"broadcasting"

means any form of unidirectional electronic communications intended for reception by—

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—

 

"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 allocation, in so far as such allocation has been agreed to or approved by the Republic;

[Definition substituted by section 1(d) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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;

 

"CEO"

means the chief executive officer of the Agency appointed in terms of section 82A;

[Definition inserted by section 1(e) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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 Sentech Limited, a state owned company established in terms of the Sentech Act, 1996 (Act No. 63 of 1996), and any other 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;

[Definition substituted by section 1(f) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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—

 

"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, electro-magnetic 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—

or other thing, which can be used for, or in connection with, electronic communications, including, where applicable—

[Definition substituted by section 1(g) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014).]

 

"electronic communications network"

means any system of electronic communications facilities (excluding subscriber equipment), including without limitation—

 

"electronic communications network service"

means a service whereby a person makes available an electronic communications network, whether by sale, lease or otherwise—

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);

 

"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) or 5(4);

[Definition substituted by section 1(h) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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, or use a service pursuant to a licence exemption, referred to in Chapter 3;

[Definition substituted by section 1(i) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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—

 

"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—

 

"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 ICT Sector Charter, a sector code on broad-based black economic empowerment, issued in terms of the Broad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003);

[Definition substituted by section 1(j) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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—

which could be extracted in the absence of such unwanted energy;

 

"ICT"

means information, communications and technology;

 

"ITU"

means International Telecommunication Union;

[Definition substituted by section 1(k) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"licensee"

means a person issued with a licence to provide services in terms of Chapter 3 or to use the radio frequency spectrum in terms of Chapter 5 of this Act;

[Definition substituted by section 1(l) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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;

 

"political party"

for the purposes of Chapter 9, means—

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;

[Definition inserted by section 1(m) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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);

 

"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 the national radio frequency plan contemplated in section 34 that includes, but is not limited to—

[Definition substituted by section 1(n) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"radio frequency spectrum"

means the portion of the electromagnetic spectrum used as a transmission medium for electronic communications and broadcasting;

[Definition substituted by section 1(o) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"radio frequency spectrum licence"

means a licence authorising the holder to use the radio frequency spectrum in terms of Chapter 5 of this Act;

[Definition substituted by section 1(p) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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, broadcasting service or any electronic communications authorised by the Authority;

[Definition substituted by section 1(q) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"registered political party"

[Definition deleted by section 1(r) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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—

[Paragraph (a) substituted by section 1(s) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

whether or not such electronic communications network services or electronic communications services made available by the reseller—

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 and end-users can expect and is a performance measurement and accountability tool that focuses on subscriber and end-user service outcomes;

[Definition substituted by section 1(t) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"service licence"

means a licence authorising the holder to provide any service contemplated in Chapter 3;

[Definition inserted by section 1(u) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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 network services, electronic communications services and broadcasting services as determined from time to time in terms of Chapter 14;

[Definition substituted by section 1(v) of the Electronic Communications Amendment Act, 2014 (Act No. 1 of 2014)]

 

"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.