ICASA’s OTT inquiry - What it means for telcos, broadcasters and streaming platforms

Peter Grealy, Livia Dyer, Karl Blom, Wendy Tembedza (Partners), Humayra Hajat & Prineil Padayachy (Senior Associates) At Webber Wentzel

The Independent Communications Authority of South Africa (ICASA) has launched a market inquiry (the Inquiry) with the stated intention to investigate the impact of over-the-top services (OTTs) on licensees in the telecommunications, broadcasting and postal sectors.  The scope of the Inquiry is broad, and it could have significant implications for OTT service providers, telecommunications licensees and broadcasting licensees.

For OTT service providers, the Inquiry raises the possibility of being brought within South Africa’s communications licensing framework, an outcome that draft policy proposals have contemplated for several years. Platforms offering voice, messaging, video streaming or other services or functionality over the internet often operate without local licences and, depending on the outcome of the Inquiry, may face new compliance requirements.  Several prominent OTT players are foreign-based with no or limited corporate presence in South Africa, raising practical questions about how any such new obligations would be given effect.  The Inquiry could shape licensing requirements, content obligations, spectrum and numbering allocation, and regulatory contributions.

For telecommunications licensees, the Inquiry provides an opportunity to engage on the regulatory treatment of OTT services relative to licensed services. The relationship between OTT providers and the networks over which their services are carried, often referred to as the “fair share” debate, is likely to feature in submissions. The findings could inform spectrum policy, interconnection terms and universal service obligations.

For broadcasting licensees, the potential implications are equally significant.  Streaming platforms compete for audiences and advertising revenue, and the Inquiry may consider the extent to which they should be subject to requirements comparable to those applicable to licensed broadcasters, such as local content quotas, or must-carry obligations.  Any move towards greater regulatory parity could materially affect the competitive landscape.

The Inquiry will proceed in four phases:

·        Phase 1 – Commencement: Stakeholders have 10 working days from publication of the notice (4 September 2026) to ask any clarification questions following which ICASA will publish responses to these questions if ICASA considers this to be necessary.

·        Phase 2 – Discussion Document: ICASA will publish a Discussion Document for written comment over a period of 45 working days. Submissions will be made public on ICASA's website. Stakeholders must indicate if they wish to make oral representations.

·        Phase 3 – Public Hearings:  ICASA may, at its discretion, hold public hearings and request further information from stakeholders within seven working days.

·        Phase 4 – Findings:  Within 90 days of the Inquiry’s conclusion, ICASA will publish a summary of its findings in the Government Gazette and on its website.

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