Telecommunications Act, 1996
No. 103 of 1996

[As amended by:
Telecommunications Amendment Act, No. 12 of 1997
Public Service Laws Amendment Act, No. 47 of 1997
Skills Development Act, No. 97 of 1998
Independent Communications Authority of South Africa Act, No. 13 of 2000
Telecommunications Amendment Act, No. 64 of 2001]

(English text signed by the President.)
(Assented to 12 November 1996.)

GENERAL EXPLANATORY NOTE:

[          ]   Words in bold type in square brackets indicate omissions from existing enactments.
                Words underlined with a solid line indicate insertions in existing enactments.

ACT

To make new provision for the regulation of telecommunication activities other than broadcasting, and for the control of the radio frequency spectrum; and for that purpose to establish an independent South African Telecommunications Regulatory Authority and a Universal Service Agency; to repeal the Radio Act, 1952, and the Radio Amendment Acts of 1957, 1962, 1963, 1969 and 1974 and to amend the General Law Amendment Acts of 1957 and 1975, the Post Office Act, 1958, the Post Office Service Act, 1974, the Broadcasting Act, 1976, the Legal Succession to the South African Transport Services Act, 1989, and the Independent Broadcasting Authority Act, 1993; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

ARRANGEMENT OF ACT

CHAPTER I

Introductory provisions

1. Definitions
2. Objects of Act
3. Application of Act
4. State bound by Act

CHAPTER II

South African Telecommunications Regulatory Authority

5. Establishment of South African Telecommunications Regulatory Authority

CHAPTER III

Committees, appointment of experts, and enquiries

26. Appointment of experts
27. Enquiries by Authority

CHAPTER IV

Radio frequency spectrum

28. Control of radio frequency spectrum
29. Frequency band plans
30. Frequency and station licences, certificates and authorities
30A. Radio frequency spectrum licences in 1800 MHz frequency band
30B. Third generation telecommunication radio frequency spectrum licence
31. Control of possession of radio apparatus

CHAPTER V

Telecommunication services

32. Prohibition on provision of telecommunication service without licence
32A. Holders of public switched telecommunication services licences and granting of further licences
32B. Second national operator application and qualification
32C. Sentech
33. Kinds of licences
34. Applications and consideration thereof
35. Decision on applications
35A. Alternative licensing methods
36. Public switched telecommunication services
36A. Contents of expression "public switched telecommunications service"
36B. Contents of expression "public switched telecommunications network"
37. Mobile cellular telecommunication services
38. National long-distance telecommunication services
39. Local access telecommunication services and public pay-telephone services
40. Value-added network services
40A. Under-serviced area licence
41. Private telecommunication networks
42. Existing licences and authorities
43. Interconnection
44. Making telecommunication facilities available
45. Fees and charges for telecommunication services
46. Accounts and records to be kept by licensees
47. Duration of telecommunication service licences
48. Amendment of telecommunication service licences
49. Renewal of telecommunication service licences
50. Transfer of telecommunication service licences
51. International telecommunication facilities
52. Limitations on control of telecommunication services
53. Uncompetitive actions

CHAPTER VI

Telecommunication equipment, suppliers and technicians

54. Telecommunication equipment to be of approved type
55. Technical standards for telecommunication facilities and equipment
56. Registration of suppliers of telecommunication apparatus and equipment
57. Certification of technicians

CHAPTER VII

Universal Service Agency

58. Establishment of Universal Service Agency
59. Functions of Agency
60. Head and staff of Agency
61. Financing of Agency
62. Bank account
63. Annual and other reports
64. Lapsing of certain sections

CHAPTER VIII

Universal Service Fund

65. Establishment and control of Universal Service Fund
66. Application of money in Universal Service Fund
67. Contributions to Universal Service Fund
67A. Competitive tender for universal service projects
68. Accounts of Universal Service Fund

CHAPTER IX

Functions of fixed line operators in relation to telecommunication facilities and works

69. Operators to perform functions in prescribed manner
70. Entry upon and construction of lines across any lands
71. Underground pipes for telecommunication services
72. Pipes under streets
73. Removal of pipes and facilities
74. Fences
75. Trees obstructing telecommunication facilities
76. Height or depth of cables and facilities
77. Electrical works

CHAPTER X

Emergency centres

78. Definition
79. Establishment of 112 Emergency Centres
80. Functions of 112 Emergency Centres
81. Public emergency number
82. Standards, capabilities and operating procedures of 112 Emergency Centres

CHAPTER XI

General provisions

88. Application fees and annual fees
89. Numbering plans
90. Financial assistance to telecommunication forums
91. Delegation of functions
92. Register of licences and approvals
93. Confidentiality
94. Financial year and auditing of accounts of Authority and Agency
95. Radio regulations
96. Regulations

CHAPTER XII

Enforcement

97. Production of licensees' books and records
98. Appointment of inspectors
99. Powers of inspectors
100. Offences by licensees
101. Offences by other persons
102. Penalties

CHAPTER XIII

Repeal and amendment of laws

103. Repeal of Radio Act, 1952
104. Repeal of section 42 of General Law Amendment Act, 1957
105 to 118. Amendment of Post Office Act, 1958
119. Repeal of Radio Amendment Acts of 1957, 1962, 1963, 1969 and 1974
120 to 123. Amendment of Post Office Service Act, 1974
124. Repeal of certain sections of General Law Amendment Act, 1975
125. Amendment of Broadcasting Act, 1976
126. Amendment of Legal Succession to South African Transport Services Act, 1989
127 to 129. Amendment of Independent Broadcasting Authority Act, 1993

CHAPTER XIV

Approved transactions and commencement of Act

130. Approved transactions
131. Short title and commencement

CHAPTER I

Introductory provisions

Definitions

1.

In this Act, unless the context indicates otherwise—

"Agency" means the Universal Service Agency established by section 58;
"Authority" means the Independent Communications Authority of South Africa established by section 3 of the Independent Communications Authority of South Africa Act, 2000;
[Definition of "Authority" substituted by section 23 of Act 13 of 2000]
"broadcasting" means broadcasting as defined in section 1 of the Independent Broadcasting Authority Act, 1993 (Act No. 153 of 1993);
"broadcasting services frequency bands" means broadcasting services frequency bands as defined in section 1 of the Independent Broadcasting Authority Act, 1993 (Act No. 153 of 1993);
"broadcasting signal distribution" means broadcasting signal distribution as defined in section 1 of the Independent Broadcasting Authority Act, 1993 (Act No. 153 of 1993);
"carrier of carriers" means a telecommunication service (including any signal conveyed by means of the telecommunication system of that service) which—

(a) originates on the telecommunication system of a public switched telecommunication service licensee or mobile cellular telecommunication service licensee or an under-serviced area licensee in the Republic and terminates in a telecommunication system in another country or vice versa; or
(b) 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, but which specifically excludes the termination of international telecommunication services to end-users directly in the Republic;
[Definition of "carrier of carriers" inserted by section 1(a) of Act 64 of 2001]

"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;
[Definition of "carrier pre-selection" inserted by section 1(a) of Act 64 of 2001]
"chairperson" means the chairperson appointed under section 5(2) of the Independent Communications Authority of South Africa Act, 2000;
[Definition of "chairperson" inserted by section 23 of Act 13 of 2000]
"Council" means the Council contemplated in section 3(2) of the Independent Communications Authority of South Africa Act, 2000;
[Definition of "Council" substituted by section 23 of Act 13 of 2000]
"councillor" means any councillor appointed under section 5(1) of the Independent Communications Authority of South Africa Act, 2000;
[Definition of "councillor" substituted by section 23 of Act 13 of 2000]
"Department" means the Department of Communications;
"Director-General" means the Director-General: Communications;
"directories" means a list (which may be made available in separate parts and through different media) of customers of a designated licensee or multiple licensees and their telephone numbers which are generally arranged in alphabetical order and not by reference to a description of the trades, professions or businesses carried on by those customers;
[Definition of "directories" inserted by section 1(b) of Act 64 of 2001]
"directory enquiry service" means the provisilon of information contained in directories;
[Definition of "directories" inserted by section 1(b) of Act 64 of 2001]
"Eskom" means Eskom referred to in section 2(1) of the Eskom Act, 1987 (Act No. 40 of 1987), and includes its subsidiaries;
[Definition of "Eskom" substituted by section 1(c) of Act 64 of 2001]
"...";
[Definition of "family member" deleted by section 23 of Act 13 of 2000]
"fixed-line operator" means 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 "operator" shall be construed accordingly;
[Definition of "fixed-line operator" substituted by section 1(d) of Act 64 of 2001]
"fixed-mobile service" means a service provided by the holder of a public switched telecommunication service 1icence 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 telecommunication services from such licensee from either a fixed point or whilst in motion within the local exchange area, but shall not permit call handover between cells;
[Definition of "fixed-mobile service" inserted by section 1(e) of Act 64 of 2001]
"frequency band" means a specified range of frequencies for use by one or more radio communication services;
"frequency band plan" means a table setting out the allocations of various frequency bands for use by one or more radio communication services under specified conditions;
"Human Resources Fund" means the Human Resources Fund established by section 78;
"interconnect" means the physical or logical linking of telecommunications systems in order to enable any user of a system so linked to communicate with any users of, or utilise services provided by means of, another system so linked, and "interconnection" has a corresponding meaning;
[Definition of "interconnect" substituted by section 1(f) of Act 64 of 2001]
"international telecommunication service" means a telecommunication service (including any signal conveyed by means of the telecommunication 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 country but is conveyed via a telecommunication system in the Republic;
[Definition of "international telecommunication service" inserted by section 1(g) of Act 64 of 2001]

"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 in that area,
and include the installation, bringing into service, the maintenance and repair of the telecommunication network which is provided, maintained and operated by the licensee for the purposes of providing the local access telecommunication service as contemplated in section 39;
[Definition of "local access telecommunication service" inserted by section 1(g) of Act 64 of 2001]

"local exchange" means a facility in the public switched telecommunication network to which user lines are connected within a local exchange;
[Definition of "local exchange" inserted by section 1(g) of Act 64 of 2001]
"local exchange area" means a geographically defined and limited area, as defined by the exchange area code allocated by the Authority for that area, to which all exchange lines are connected and which are served by the same local exchange;
[Definition of "local exchange area" inserted by section 1(g) of Act 64 of 2001]
"licence" means a licence referred to in section 32;
"Minister" means the Minister of Communications;
[Definition of "Minister" substituted by section 1(h) of Act 64 of 2001]
"mobile cellular telecommunication network" means a telecommunication network designed to use limited radio frequency spectrum between cellular terminal equipment 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 of defined geographical areas or cellls;
(b) allowing the re-use of the same frequencies in different non-adjacent cells; and
(c) enabling users to maintain connections while moving through different geographical areas by making use of call handover between adjacent cells;
[Definition of "mobile cellular telecommunication network" inserted by section 1(i) of Act 64 of 2001]

"mobile cellular telecommunication service" means a telecommunication service provided by a licensed mobile cellular telecommunication operator as referred to in section 37;
[Definition of "mobile cellular telecommunication service" inserted by section 1(i) of Act 64 of 2001]
"mobile cellular operators" means Vodacom (Pty.) Ltd., Mobile Telephone Networks (Pty.) Ltd.. and Cell C (Pty.) Ltd.;
[Definition of "mobile cellular operators" inserted by section 1(i) of Act 64 of 2001]
"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;
(f) data;
(g) graphics;
(h) animation;
(i) audio;
(j) visual content,
but shall not include mobile cellular telecommunication services and public switched telecommunication services;
[Definition of "multimedia service" inserted by section 1(i) of Act 64 of 2001]

"national long distance telecommunication service" means a telecommunication service comprising the conveyance of signals between the network of any licensee providing local access telecommunication 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 network that is provided, maintained and operated by the licensee for the purposes of providing the national long distance telecommunication service as contemplated in section 38;
[Definition of "national long distance telecommunication service" inserted by section 1(i) of Act 64 of 2001]
"number portability" means a capability whereby a subscriber to a telecommunication service who so requests can retain his or her telephone number when changing service from one public switched telecommunication service licensee to another public switched telecommunication service licensee or one mobile cellular telecommunication service licensee to another mobile cellular telecommunication service licensee;
[Definition of "number portability" inserted by section 1(i) of Act 64 of 2001]
"prescribed"—

(a) means, subject to paragraph (b), prescribed by regulation;
(b) in relation to radio activities, radio apparatus and other radio matters, means prescribed by radio regulation;

"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;
[Definition of "private telecommunication network" inserted by section 1(j) of Act 64 of 2001]
"public switched telecommunication networks" means the telecommunication systems installed or otherwise provided, maintained and operated by a public switched telecommunication licensee for the purpose of providing public switched telecommunication services;
[Definition of "public switched telecommunication networks" inserted by section 1(j) of Act 64 of 2001]
"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;
[Definition of "public switched telecommunication services" inserted by section 1(j) of Act 64 of 2001]
"public switched telecommunication service licence" means a licence referred to in section 34(2)(u)(i);
[Definition of "public switched telecommunication service licence" inserted by section 1(j) of Act 64 of 2001]
"radio" means electromagnetic waves which are propagated in space without artificial guide and having frequencies of lower than 3 000 Ghz;
"radio apparatus" means a telecommunication facility which is capable of transmitting or receiving any signal by radio, other than—

(a) a sound radio set or other device capable of receiving broadcasting by radio in the form of sound but not also in the form of images or any other visible signal, if such set or device is used only for the reception of broadcasting;
(b) except in sections 54 and 55, a television set as contemplated in the Broadcasting Act, 1976 (Act No. 73 of 1976);

"radio frequency spectrum licence" means a licence referred to in section 30;
[Definition of "radio frequency spectrum licence" inserted by section 1(k) of Act 64 of 2001]
"radio regulation" means a regulation made under section 95;
"regulation" means a regulation made under section 96;
"resale" means the provision of any public switched telecommunication service by means of telecommunication facilities which are obtained by the public switched telecommunication service licensee or under-serviced area licensee in order to sell such services to its customer, and "reseller" shall be construed accordingly;
[Definition of "resale" inserted by section 1(l) of Act 64 of 2001]
"second national operator" means the second holder of a public switched telecommunication service licence;
[Definition of "second national operator" inserted by section 1(l) of Act 64 of 2001]
"Sentech" means Sentech (Pty) Ltd, a company established pursuant to the Sentech Act, 1996 (Act No. 63 of 1996);
[Definition of "Sentech" inserted by section 1(l) of Act 64 of 2001]
"signal" includes signs, sounds, writing or information of any kind;
"small business" (commonly referred to as an "SMME") means a "small business" as defined in section 1 of the National Small Business Act, 1996 (Act No. 102 of 1996);
[Definition of "small business" inserted by section 1(m) of Act 64 of 2001]
"station" means any separate radio apparatus or a combination thereof;
"telecommunication" means the emission, transmission or reception of a signal from one point to another by means of electricity, magnetism, radio or other electromagnetic waves, or any agency of a like nature, whether with or without the aid of tangible conductors;
"telecommunication facility" includes any wire, cable, antenna, mast or other thing which is or may be used for or in connection with telecommunication;
"telecommunication service" means any service provided by means of a telecommunication system;
"telecommunication system" means any system or series of telecommunica­tion facilities or radio, optical or other electromagnetic apparatus or anysimilar technical system used for the purpose of telecommunication, whether or not such telecommunication is subject to rearrangement, composition or other processes by any means in the course of their transmission or emission or reception;
"teledensity" means the number of telephone lines per 100 persons;
[Definition of "teledensity" inserted by section 1(n) of Act 64 of 2001]
"Telkom" means Telkom S.A. Limited, a company contemplated in section 3(1) of the Post Office Act, 1958 (Act No. 44 of 1958);
"third generation telecommunication frequency licence" means the radio frequency spectrum licence referred to in section 30B;
[Definition of "third generation telecommunication frequency licence" inserted by section 1(o) of Act 64 of 2001]
"this Act" includes the regulations and the radio regulations;
"Transnet" means Transnet Limited, a company contemplated in section 2(1) of the Legal Succession to the South African Transport Services Act, 1989 (Act No.9 of 1989);
"universal access" means universal access to telecommunication services as determined from time to time in terms of section 59(2)(a)(i);
"universal service" means the universal provision of telecommunication services as determined from time to time in terms of section 59(2)(a)(ii);
"Universal Service Fund" means the Universal Service Fund established by section 65(1);
"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 restructured information;
(b) the provision of authorised access to, and interaction with, processes for storing and retrieval of text and data;
(c) managed data network services;
[Definition of "value-added network service" inserted by section 1(p) of Act 64 of 2001]

"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;
[Definition of "voice over internet protocol" inserted by section 1(p) of Act 64 of 2001]

(2) In interpreting any provision of this Act regard must be had to the International Telecommunication Conventions concluded at Malaga and Torremolinos in 1973 and Nairobi in 1982 and the Radio Regulations of the International Telecommunication Union.

Objects of Act

2.

The primary object of this Act is to provide for the regulation and control of telecommunication matters in the public interest, and for that purpose to—

(a) promote the universal and affordable provision of telecommunication services;
(b) promote the provision of a wide range of telecommunication services in the interest of the economic growth and development of the Republic;
(c) make progress towards the universal provision of telecommunication services;
(d) encourage investment and innovation in the telecommunications industry;
(e) encourage the development of a competitive and effective telecommunications manufacturing and supply sector;
(f) promote the development of telecommunication services which are responsive to the needs of users and consumers;
(g) ensure that, in relation to the provision of telecommunication services, the needs of the local communities and areas are duly taken into account;
(h) ensure that the needs of disabled persons are taken into account in the provision of telecommunication services;
(i) ensure compliance with accepted technical standards in the provision and development of telecommunication services;
(j) ensure fair competition within the telecommunications industry;
(k) promote the stability of the telecommunications industry;
(l) encourage ownership and control of telecommunication services by persons from historically disadvantaged groups;
(m) protect the interests of telecommunications users and consumers;
(n) encourage the development of human resources in the telecommunications industry;
(o) promote small, medium and micro-enterprises within the telecommunications industry;
(p) ensure efficient use of the radio frequency spectrum;
(q) promote the empowerment and advancement of women in the telecommunications industry.
(r) promote and facilitate convergence of telecommunication,broadcasting and information technology;
(s) develop the Information, Communication and Technology (ICT) strategy for the Republic, in order to bridge the digital divide.
[Paragraphs (r) and (s) inserted by section 2 of Act 64 of 2001]

Applications of Act

3. This Act shall not apply in relation to broadcasting,broadcasting signal distribution or broadcasting services frequency bands, except as provided in sections 2(r) and 127 to 129 and in relation to multimedia services (if applicable).
[Section 3 substituted by section 3 of Act 64 of 2001]

State bound by Act

4.

The provisions of this Act bind the State, except—

(a) Chapter VI in relation to the South African National Defence Force; and
(b) sections 101 and 102.

CHAPTER II

South African Telecommunications Regulatory Authority

Establishment of South African Telecommunications Regulatory Authority

5.

[Subsections (1), (2) and (3) deleted by section 23 of Act 13 of 2000.]
(4)

(a) The Minister may from time to time by notice in the Gazette issue to the Authority policy directions consistent with the objects mentioned in section 2.
(b) The Minister shall, before a policy direction contemplated in paragraph (a) is issued

(i) consult the Authority;
(ii) in order to obtain the view of interested persons, cause the text of such direction to be published in the Gazette together with a notice declaring his or her intention to issue that direction and inviting interested persons to lodge written representations in relation to the direction in the manner specified in such notice within 30 days from the date of the notice; and
(iii) refer the proposed direction for comment to the committees of Parliament appointed for the purpose of considering matters relating to telecommunications.

(c) The provisions of paragraph (b) shall not apply in respect of any alteration by the Minister of a policy direction in consequence of comments or representations received by him or her pursuant to consultation, publication or reference in terms of that paragraph.
(d) The Authority shall perform its functions in terms of this Act in accordance with a policy direction issued under this section.
(e) A policy direction issued under this section may be amended, withdrawn or substituted by the Minister, and the provisions of this section shall apply, with the necessary changes, in relation to any such amendment, withdrawal or substitution.

[Sections 6 to 20 inclusive repealed by section 23 of Act 13 of 2000.]
[Section 17 amended by section 1 of Act 12 of 1997.]
[Section 17 amended by section 35(1) of Act 47 of 1997.]

CHAPTER III

Committees, appointment of experts and enquiries

[Sections 21 to 25 inclusive repealed by section 23 of Act 13 of 2000.]

Appointment of experts

26. (1) The Authority may appoint as many experts as may be necessary, including experts from other countries, with a view to assisting the Authority in the performance of its functions.
(2) The terms, conditions, remuneration and allowances applicable in respect of any expert by virtue of his or her appointment in terms of subsection (1), and the work to be performed or service to be rendered by virtue of such appointment, shall be determined in a written agreement entered into for that purpose between the Authority and the expert concerned.

Enquiries by Authority

27.

(1) The Authority may from time to time conduct an enquiry into any matter relevant to—

(a) the achievement of the objects mentioned in section 2;
(b) the performance of its functions in terms of this Act.

(2) The Authority shall make known its intention to conduct such an enquiry by the publication in the Gazette of a notice to that effect.
(3) The notice referred to in subsection (2) shall indicate the subject-matter of the enquiry and invite interested persons, within the period specified in the notice—

(a) to submit written representations; and
(b) to indicate whether they require an opportunity to make oral representations to the Authority.

(4) Written representations made pursuant to a notice contemplated in subsection (2) shall, subject to subsection (7), be open to inspection by interested parties during the normal office hours of the Authority.
(5) The Authority shall, at the request of any interested person and on payment of such fees as may be prescribed, furnish him or her with a certified copy of or extract from representations open to inspection as contemplated in subsection (4).
(6)

(a) The Authority shall advise persons referred to in subsection (3)(b) of the place where and time when oral representations may be made.
(b) Such oral representations shall, subject to subsection (7), be made in public.

(7) The provisions of section 34(4) and (5) shall apply, with the necessary changes, in relation to representations contemplated in subsections (4) and (6). (8) The Authority shall, after it has conducted an enquiry, by notice in the Gazette—

(a) make known its findings and any recommendations or conclusions pursuant to such enquiry; or
(b) state that such findings and any such recommendations or conclusions are open to inspection, and the provisions of subsections (4) and (5) shall apply, with the necessary changes, in relation thereto.

(9) The Authority shall, within two years after the commencement of this Act, conduct an enquiry in terms of this section into matters relating to mobile cellular telecommu­nication services referred to in section 37(2).

CHAPTER IV

Radio frequency spectrum

Control of radio frequency spectrum

28.

(1) The Authority shall be vested with the control, planning, administration, management and licensing of the radio frequency spectrum.
(2)

(a) In controlling, planning, administering, managing and licensing the use of the radio frequency spectrum, the Authority shall comply with the applicable standards and requirements of the International Telecommunication Union and its Radio Regulations, as agreed to or adopted by the Republic.
(b) The Authority shall honour present and future commitments of the Republic in terms of international agreements and standards in respect of radio communication and telecommunication matters.
[Subsection (3) deleted by section 23 of Act 13 of 2000]

Frequency band plans

29.

(1) The Authority may from time to time prepare a frequency band plan in respect of any part of the radio frequency spectrum.
(2) A frequency band plan shall—

(a) define how the radio spectrum shall be used;
(b) aim at ensuring that the radio frequency spectrum is utilised and managed in an orderly, efficient and effective manner;
(c) aim at reducing congestion in the use of frequencies and at protecting frequency users from any interference or other inability to make use of the frequencies assigned to them;
(d) avoid obstacles to the introduction of new technologies and telecommunication services;
(e) aim at providing opportunities for the introduction of the widest range of telecommunication services and the maximum number of users thereof as is practically feasible.

(3) In preparing a frequency band plan in terms of this section, the Authority—

(a) shall have due regard to the reports of experts in the field of spectrum or frequency band planning and to internationally accepted methods for preparing such plans;
(b) shall take into account existing uses of the radio frequency spectrum and any frequency band plans in existence or in the course of preparation.

(4) The Authority shall give notice in the Gazette of its intention to prepare a plan and in such notice invite interested parties to submit their written representations to the Authority within such period as may be specified in such notice.
(5) The Authority 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.
[Subsections (5) and (6) substituted by section 4 of Act 64 of 2001]
(7)

(a) Any frequency band plan adopted in terms of this section and all such comments, representations and other documents as have been received in response to the notice contemplated in subsection (4) or tendered at the hearing, shall be kept at the offices of the Authority and shall, subject to paragraph (b), be open to public inspection by interested persons during the normal office hours of the Authority, and the Authority shall at the request of any person and on payment of such fee as may be prescribed, furnish him or her with a copy thereof.
(b) The provisions of section 34(4) and (5) shall apply, with the necessary changes, in relation to any comments or representations contemplated in paragraph (a).

(8)

(a) The Authority may review a frequency band plan adopted in terms of this section.
(b) The provisions of subsections (2) to (7) shall apply, with the necessary changes, in relation to any amendment contemplated in paragraph (a).

Frequency and station licences, certificates and authorities

30.

(1) No person shall transmit any signal by radio or use radio apparatus to receive any signal by radio, or do or permit to be done anything for which a licence, certificate or authority is required in terms of this section, except under and in accordance with—

(a) a licence conferring on the licensee the right to use, or to cause any person in his or her employ or under his or her control to use, a station for any prescribed purpose or to use any radio frequency or group of radio frequencies for any purpose and in the manner prescribed;
(b) a certificate of proficiency, issued to any person who passes the examinations referred to in subsection (4) or who qualifies therefor under the radio regulations, to use a station for any prescribed purpose or to maintain a station in a category which may in terms of the radio regulations only be maintained by the holder of such a certificate;
(c) an authority issued to the holder of a certificate referred to in paragraph (b) and conferring on such holder the right to use any station which under the conditions of any licence issued under paragraph (a) or under the radio regulations or any other law may only be used by the holder of such an authority;
(d) a licence deemed to be issued or issued by the Minister as provided in subsection (3)(a).

(2)

(a) Licences, certificates and authorities referred to in subsection (1)(a) to (c) shall be issued by the Authority.
(b) The procedures in relation to applications for such licences, certificates and authorities and the information to be supplied for the consideration of such applications shall, subject to subsection (3)(b) and (c), be as prescribed.

(3)

(a) Telkom shall be deemed to be the holder of a licence to provide local exchange telecommunications services by way of radio-local-loop and fixed radio facilities, as was provided immediately before the date of commencement of this Act: Provided that as at the date of commencement of this Act Telkom shall be deemed to have applied to the Minister for a frequency spectrum or a station licence in terms of this Act and, after the provisions of section 36(6), (7), (8) and (9) have been complied with in relation to the terms and conditions of the licence, and if a licence has been issued to Telkom in accordance with section 36(1), the Minister shall grant the application and the Minister shall issue such licence to Telkom with a period of validity of 25 years from the date of commencement of this Act.
(b) A frequency spectrum or station licence shall be required as provided in subsection (1)(a) in addition to any telecommunication service licence contemplated in Chapter V, where the provision of the service or the use thereof entails the use of radio as contemplated in that subsection: Provided that this paragraph shall not apply to the licences referred to in paragraph (a).
(c) Upon application and payment of a licence fee, Telkom shall be entitled to a licence issued by the Minister to provide local exchange telecommunication services by means of radio-local-loop and fixed radio facilities.
(d) Where the applicant intends to provide a telecommunication service he or she shall make application for a frequency spectrum or station licence contemplated in subsection (1)(a), with the necessary changes in accordance with section 34, except in so far as the regulations or radio regulations provide otherwise: Provided that this paragraph shall not apply to the licences referred to in paragraph (a).
(e) Section 35(2), (3) and (4) shall apply, with the necessary changes, in relation to a decision on an application referred to in paragraph (c).

(4) The Authority may conduct examinations, or cause examinations to be conducted, to determine the proficiency of any person to use or maintain a station as contemplated in subsection (2)(b).
(5)

(a) A licence, certificate or authority issued in terms of section 7(1)(a), (c) or (d) of the Radio Act, 1952 (Act No.3 of 1952), and which was still valid immediately before the date of commencement of this Act, shall be deemed to have been issued in terms of this section.
(b) The South African National Defence Force shall be deemed to be the holder of a licence under subsection (1)(a) authorising it to use the radio frequencies and groups of radio frequencies which had been assigned to it for defence purposes immediately before the date of commencement of this Act: Provided that the said Force shall apply to 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 that the Authority shall grant such a licence in terms of this section to the Force.

(6) The Authority may amend a frequency spectrum licence or station licence issued under subsection (1)(a) or (d) or (5)(b)—

(a) to implement any frequency band plan or in the interest of orderly frequency management, if the amendment will not cause substantial prejudice to the licensee;
(b) if requested thereto by the licensee concerned.

(7) The procedures in relation to the amendment, renewal or transfer of a frequency spectrum licence, certificate or authority contemplated in this section shall be as prescribed.
(8) Subsection (1) shall not apply to a person who utilises radio—

(a) in the course of making due and proper use of a telecommunication service, the provision of which is duly licensed in terms of this section and Chapter V, as a customer or end user thereof;
(b) in the course of making due and proper use of a telecommunication service, the provision of which is duly licensed in terms of this section and Chapter V, as part of his or her duties in the service of the State or a local authority, including any military, police or traffic force; or
(c) in accordance with the regulations contemplated in subsection (9).

(9)

(a) The authority may prescribe—

(i) categories of radio apparatus, the use or possession of which; or
(ii) the circumstances in which the use or possession of radio apparatus, shall not require a licence, certificate or authority in terms of this section or a permit in terms of section 31.

(b) An article mentioned in a notice published in the Gazette immediately before the date of commencement of this Act declaring any article not to be radio apparatus for the purposes of the laws governing radio, shall be deemed to have been prescribed in terms of this subsection.

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 commencement 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.
(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 determine, 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 frequency spectrum licence in the 1800 MHz frequency band 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 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 (1)(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.

[Section 30A inserted by section 5 of Act 64 of 2001]

Third generation telecommunication 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 contemplated 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 exists at the commencement 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 Tekom shall each be deemed to be a holder of a third generation telecommunication 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.
(b) Within six months after the date the second national operator is granted a public switched telecommunications service licence, or such longer period as the Minister may determine, Telkom may apply to the Authority for a third generation telecommunication radio frequency spectrum licence 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 third generation telecommunication 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 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 (1)(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.

[Section 30B inserted by section 5 of Act 64 of 2001]

Control of possession of radio apparatus

31.

(1) Subject to section 30(9), no person shall have in his or her possession any radio apparatus unless he or she is in possession of a permit issued by the Authority in terms of this section or a frequency spectrum or station licence issued in terms of section 30 authorising such possession, or unless he or she is a supplier registered in terms of section 56.
(2) The procedure for obtaining a permit in terms of subsection (1), shall be as prescribed.
(3) Where any radio apparatus is found in the possession of any person in contravention of the provisions of this section, the Authority may—

(a) seal or alter such apparatus or any part thereof in order to prevent the use of that radio apparatus for the purpose of transmission or reception, and issue to such person a permit for a limited or indefinite period authorising the possession of that apparatus on condition that it is not during such period used for such purpose;
(b) seize such apparatus, whether or not it is sealed as contemplated in paragraph (a), for disposal in terms of subsection (4).

(4) Radio apparatus seized under subsection (3)(b) shall be held by the Authority until—

(a) its possession is authorised in terms of subsection (1) or (3)(a); or
(b) it is dealt with by a court in terms of section 102(2).

CHAPTER V

Telecommunication services

Prohibition on provision of telecommunication service without licence

32. (1) Subject to the provisions of this Act, no person shall provide a telecommunication service except under and in accordance with a telecommunication service licence issued to that person in terms of this Chapter.
(2) A licence shall confer on the holder the privileges and subject him or her to the obligations provided in this Act or specified in the licence.

Holders of public switched telecommunication services licences and granting of further licences

32A.

(1) From 7 May 2002 until 7 May 2005 Telkom and the second national operator shall be the holders of public switched telecommunication service licences.
(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 operator.

(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.
(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 market 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), 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 two years from the date of commencement of its public switched telecommunication service licence, in accordance 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 may 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.
[Section 32A inserted by section 6 of Act 64 of 2001]

Second national operator application and qualification

32B.

(1) 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 equipment.

(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 Eskom, Transnet and the South African Rail Commuter Corporation Limited established in terms of the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989), 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 right to use the land to which such servitude relates for purposes of providing a public switched telecommunication service or network by means of telecommunication facilities.
(c) Eskom may allow any of its subsidiaries in respect of Eskom servitudes to—

(i) utilise a servitude in respect of the additional right referred to in 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 the servitude in respect of that additional right on such terms and conditions as may be agreed upon between the parties; or
(iii) utilise a servitude in respect of that additional right in order to provide public switched telecommunication services to any third party on such terms and conditions as 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, either by personal service or by pre-paid registered post, and the 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 compensation 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 Registrar 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 or endorsements contemplated in paragraph (8).
(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.

[Section 32B inserted by section 6 of Act 64 of 2001]

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 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 granting of other multimedia services licences—

(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).
(5) Within 30 days of the publication referred to in subsection (4), Sentech Limited and any interested party may submit written comments to the Authority in connection with the proposed conditions to the licence.
(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.
(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 licence 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.
[Section 32C inserted by section 6 of Act 64 of 2001]

Kinds of licences

33.

(1) The categories of licences which may be granted, and the telecommunication services authorised by such licences, are—

(a) as contemplated in sections 32C(1)(b), 34(2)(a)(i) to (v) and 39 to 41; and
(b) subject to subsection (2), as prescribed.
[Paragraph (a) substituted by section 7 of Act 64 of 2001]

(2) The Authority may prescribe the telecommunication services and activities, other than those referred to in subsection (1)(a), which may be provided or conducted without a licence.

Applications and consideration thereof

34.

(1) Any person may, subject to the provisions of this Act, make application for a licence in the manner prescribed.
(2)

(a) No application shall be lodged or entertained in respect of a licence to provide—

(i) a public switched telecommunication service;
(ii) a mobile cellular telecommunication service;
(iii) a national long-distance telecommunication service;
(iv) an international telecommunication service;
(v) a multimedia service; or
(vi) any other telecommunication service prescribed for the purposes of this subsection,
[Subparagraph (v) inserted and subparagraph (vi) renumbered by section 8(a) of Act 64 of 2001]
unless such application is lodged pursuant to and in accordance with an invitation issued by the Minister by notice in the Gazette: Provided that this subsection and subsections (3), (4) and (5) shall not apply to an application which is deemed to have been made in terms of section 30(3)(a), 36(1)(a) or 40(1)(a).

(b) The Minister shall, in an invitation contemplated in paragraph (a), specify—

(i) the kind of service in respect of which applications are invited;
(ii) the form in which applications shall be submitted and the manner in which it is contemplated that the service shall be provided, and the place where and times when any document in that regard may be obtained from the Authority;
(iii) the period within and manner in which such applications shall be lodged.
[Paragraph (b) substituted by section 8(b) of Act 64 of 2001]

(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(1)(a)(i) and the weighing factor applicable to each evaluation criterion and the application of section 35(4) and (5).
[Paragraph (c) substituted by section 8(b) of Act 64 of 2001]

(3) In the case of an application for a licence to provide a telecommunication service referred to in subsection (2) or any other telecommunication service prescribed for the purposes of this subsection the Authority may—

(a) give notice of the application in the Gazette and invite interested persons to lodge representations in relation to the application within the period mentioned in the notice;
(b) in the same or a subsequent such notice, make known the conditions contemplated in section 35(4) on which it is proposed the licence shall be granted;
(c) after the period for lodging representations in terms of paragraphs (a) and (b) has passed, hold a hearing in respect of the application and such terms and conditions;
(d) a hearing contemplated in paragraph (c) may be open to the public.
[Subsection (3) amended by section 8(c) and paragraph (d) added by section 8(d) of  Act 64 of 2001]

(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.
[Subsection (3A) added by section 8(e) of Act 64 of 2001]
(3B) No application may be amended or varied after the period contemplated in subsection (2)(b)(iii).
[Subsection (3B) added by section 8(e) of Act 64 of 2001]
(4)

(a) All applications, representations and other documents relating to an application which are lodged with the Authority shall, subject to this subsection, be open to public inspection during the normal office hours of the Authority, and the Authority shall at the request of any person and on payment of such fee as may be prescribed, furnish him or her with a copy thereof.
(b)

(i) The Authority may, at the request of an applicant or person who lodged representations, determine that any document or information that is commercially sensitive 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.
(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.
[Paragraph (b) substituted by section 8(f) of Act 64 of 2001]

(c) If the Authority refuses a request contemplated in paragraph (b), the applicant or person concerned shall be allowed to withdraw the document or information in question.

(5)

(a) A hearing contemplated in subsection (3)(c) shall, subject to paragraph (b), be open to the public.
(b) Before considering any document or information which the Authority has determined shall not be open for public inspection, the Authority may direct that the public or any member or category thereof shall not be present at the hearing: Provided that before making such direction the Authority shall notify those present of its intention to do so, allow persons to object to such direction and give due consideration to any objection made.

(6) When issuing invitations for applications in respect of licences to be lodged in terms of this section, the Minister shall have regard to any relevant provision made in terms of section 36(3) in the licence issued to Telkom.

Decision on applications

35.

(1) The Authority shall, after having duly considered any application for a licence made in terms of this Act and any written 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—

(a) in the case of an application for a licence referred to in section 34(2)(a), make its recommendation to the Minister, and propose licence conditions; and
(b) in the case of any other licence application, notify the applicant of its 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) refer it back to the Authority for further consideration; or
(d) reject it.

(3) In the consideration of applications in terms of this Act, due regard shall be given to applications—

(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 and co