Guy Berger
Guy Berger

Hands off video on the internet

Strangely, at a time when South Africans are beginning to benefit from better and cheaper broadband connectivity, our communications regulator is toying with the idea of licensing online video.

The notion smacks of institutional self-interest, of a body in search of a cause to justify its existence. But the irony is that the Independent Communications Authority of South Africa (Icasa) already has more than it can cope with.

A prominent example is the long-dragged out and still uncompleted process of licensing digital broadcasting to cellphones. As a result of Icasa’s delays, South Africa is basically missing the boat that could have been the World Cup. We won’t be catching a vehicle that could have taken us into a new generation of media services. If the licences were issued tomorrow, very few folk indeed would get their hands on a DVB-H enabled phone in time for the mega-sports event. The interest and urgency won’t be the same thereafter.

But no matter about its capacity limits in regard to broadcasting to cellphones, Icasa is instead spending time contemplating whether it is desirable and feasible to regulate video online.

The short answer to the Authority: no, no, no. And no again.

The regulator put out a Discussion Paper floating the issues earlier this year. Reading between the lines, the regulator seems to be itching to expand its powers beyond traditional broadcasting and telephony:

  • It envisages “unilinear” online video (which it incorrectly calls IPTV), which goes to subscribers, as requiring a “broadcast licence” under the Electronic Communications Act;
  • It envisages online “video on demand” (dubbed as “non-linear”) as requiring an “electronic communications licence” under the same law.

At the same time, Icasa is seeking to distinguish these services from other online video offerings which, presumably, would be allowed to continue unlicensed.

Would the envisaged licensing affect Zoopy or Myvideo? What about online services available in South Africa but hosted elsewhere? YouTube?

These questions highlight the potential regulatory creep that could happen with Icasa’s distinctions, especially because video online seldom tends to be on the “pure” model of Icasa’s so-called IPTV and Video on Demand. In an online universe of hybrid offerings, fragmented consumption patterns and user-generated content, the artificial distinction made by Icasa could lend itself to framing the vast bulk of online video as being subject to licensing.

Icasa’s belated attempt to define a position in relation to online video comes long after Telkom Media was initially licensed to provide subscription TV two years ago. The licence then was apparently “technology neutral”. In other words, Telkom would have been expected to apply for a radio frequency licence if it had then planned to deliver its offering via the airwaves.

But, at the time, the company was not expected to do traditional broadcasting. Instead, the anticipation was that there would be “triple play” — a package of internet, TV and voice services along the same phone lines. At it turned out, however, Telkom got cold feet and sold off the business … which still today has to announce its plans.

In a sense then, the online video (“IPTV”) horse has already left the stable, even though it has yet to get onto the racetrack. If Icasa has its way, however, anyone now wanting to get into serious online video distribution would have to begin from scratch at square one, and apply for a licence of one sort or another.

That gate would be a guarantee of long delays for anyone the regulator deems to fall into the licensing categories. But once licenses are issued, they would likely be pretty meaningless, because of the practical impossibility of Icasa monitoring whether conditions are being met. Internet services can deal in a torrent of content, and Icasa is far from having capacity to check what’s flowing. In other words, there would be a bureaucratic formality that ultimately serves no purpose except to delay or exclude.

More fundamentally, however, the notion of having to get Icasa’s permission per se, to do video online (however categorised) is abhorrent. In fact, it’s entirely against the provisions of the Constitution. There is no case to justify licensing of online video services as there is in traditional broadcasting — because simply there is no scarcity of frequency in the online universe. Not singling out video content data is what the US calls “net neutrality”, and a body like Icasa should take cognisance accordingly.

In the eyes of the authority, the rationale for possible regulation is related to content (not to the scarce frequency factor). But the body itself also acknowledges in its Discussion Paper that there are other bodies such as the Film & Publications Board and the Advertising Standards Authority that deal with problematic content. Quite so.

Furthermore, it is perfectly clear the existing system of online self-regulation is working well, with the help of ISPs, online content distributors and the public itself reporting abuses. Quite why Icasa now seems to want to involve itself in licensing online video is therefore unclear. And unpalatable.

As I’ve written in a submission on the Discussion Document: “Icasa exists to serve the needs of a democracy, and the fundamental principle is freedom as the basic condition of existence, and restraint as the exception.” I hope enough voices make this point so that it is heeded.