ict-law-and-regulation-south-africa-blog

Communications Minister on Readiness for 4IT

Mon, 06 Jan 2020 18:54:57 +0100

The Minister of Communications announced several new initiatives and provided updates on others, in support of its readiness to lead the fourth industrial revolution (4IR) in South Africa.

1. The appointment (and later withdrawal) of an administrator (of a repurposed universal service agency) to implement digital migration, and repurposing the universal service fund to a 4IR fund

2. The appointment of an administrator (of a new technology company) to oversee government IT spend

3. The pending Data Policy, Smart Communities Framework, sectoral masterplans, and Digital Industrial Strategy

4. The pending Digital Skills Policy, and creation of digital skills institute

5. The merger of Sentech and Broadband Infraco

6. The merger of regulator, .ZA domain name authority, and Films and Publications Board

The Minister also announced that the final report of the 34 member 4IR Commission appointed by the President will be released in January 2020.

Interception Legislation Unconstitutional

Wed, 02 Oct 2019 15:54:22 +0100

In the North Gauteng High Court, in Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others, Judge Sutherland has found that certain provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Act are unconstitutional.

First, RICA is unconstitutional because it does not provide for notice (after the fact) of the interception. Second, there are not adequate safeguards in place where an interception order is granted without prior notice. Third, there are not adequate procedures set out to be followed in examining, copying, using, destroying or storing data obtained by interception. Fourth, there are not adequate safeguards protecting journalists and lawyers. The unconstitutionality is suspended for two years. And it must be confirmed by the Constitutional Court. However, certain amendments to the legislation were ordered pending action by Parliament to rectify the unconstitutional provisions.

In addition to these decisions on constitutionality, Judge Sutherland found that the practice of bulk surveillance in South Africa is not authorised by any law and therefore unlawful.

High Demand Spectrum Policy and Policy Direction re licensing of WOAN

Wed, 31 Jul 2019 14:55:52 +0100

The Minister of Communications, on 26 July 2019, published policy on high demand spectrum and a policy direction issued to the Independent Communications Authority of South Africa (Icasa) for the licensing of a wireless open access network.

The spectrum policy provides for preferential treatment for assignment of spectrum to WOAN in the 700 MHz, 800 MHz, and 2600 MHz bands. The assignment of high demand spectrum to others must meet certain conditions, including that the other licensee must procure 30 percent of its capacity from WOAN for a period of five years, that rural and under-serviced areas must be serviced first, and compliance with empowerment obligations.

The policy direction is for Icasa to issue an invitation to apply for an electronic communications network service for WOAN. The manner of licensing is left to the discretion of Icasa. However, certain criteria are established for the WOAN, including, that the WOAN must be at least 70 percent owned by South Africans and must comply with empowerment obligations, including 30 percent ownership by historically disadvantaged persons.

Icasa is also directed to consider, inter alia, reduced spectrum fees for the WOAN.

Finally, Icasa is direction to investigate spectrum requirements of 5G in bands lower than 6 GHz and the millimeter wave bands currently under study at World Radio Conference 2019 (WRC-19), and to report to the Minister six months after WRC-19.

High Demand Spectrum Policy and Policy Direction to ICASA re licensing of WOAN

Wed, 31 Jul 2019 13:37:30 +0100

Inquiry into Subscription Television Broadcasting Services

Tue, 29 Aug 2017 17:06:17 +0100

The Independent Communications Authority of South Africa has published a Discussion Document in its Inquiry into Subscription Television Broadcasting Services. This is the inquiry that must proceed regulations that -

1. define markets,
2. determine if there is ineffective competition in those markets,
3. identify licensees with significant market power in those markets, and
4. impose appropriate pro-competitive licence conditions on licensees with significant market power.

The following markets are proposed by Icasa.

Wholesale content:
premium movies
live soccer
live rugby
live cricket
other premium content
non-premium content
Wholesale channel:
basic tier
premium tier
Retail:
basic tier
premium tier
Wholesale technical services

Icasa has preliminarily assessed the markets identified and views them as possibly ineffectively competitive.

Without saying as much, it also identified Multichoice/DSTv as having significant market power.

The pro-competitive licence conditions proposed by Icasa include:

shorter duration of long term contracts
rights splitting and rights divestiture
wholesale must-offer
set-top box interoperability

Comments are due 31 October 2017.

National Integrated ICT Policy White Paper - Part 4

Mon, 05 Dec 2016 17:49:15 +0100

The National Integrated ICT Policy White Paper was published 26 September 2016. The White Paper deals with many issues. In this part IV of the series, we will look at the rapid deployment policy, dealing with how licensees acquire rights of ways to construct or install infrastructure.

Background

The Electronic Communications Act (EC Act) grants to all electronic communications network service (ECNS) licensees certain rights regarding access to land, including, inter alia, the following.

to enter upon any land and construct and maintain facilities, subject to environmental regulations;
to use underground conduit pipes;
to construct and maintain facilities under streets, roads and footpaths;
to place gates on property owners’ fences; and
to cause trees or vegetation to be cut, subject to environmental regulations.

ECNS licensees must exercise their rights in accordance with regulations to be made by ICASA. The Minister of Telecommunications and Postal Services (MoTaPS) must first develop a policy and policy directions. There still are no policy and policy directions and regulations in line with the EC Act that govern how ECNS licensees exercise their EC Act rights.

The issue of access came before the Constitutional Court in City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others. The majority in that case came to the conclusion that the rights granted in terms of the EC Act had to be exercised in line with the common law on servitudes, as well as any other applicable law. The court interpreted the EC Act as follows.

Licensees get to choose which premises to access.
Licensees must exercise their rights in a “civil and reasonable manner”, including giving reasonable notice to the property owner, and consulting with the owner in respect of the manner of access.
Compensation in proportion to the advantage gained by the licensee and the disadvantages suffered by the owner, is payable.
Where disputes arise about the manner of the licensee exercising its rights or the extent of the compensation payable, these must be determined by way of dispute resolution or by way of adjudication, and access in the absence of resolution will be unlawful.

The court also held that licensees must abide by all relevant laws, including municipal by-laws, the only limit being that by-laws may not require the municipality’s consent. If by-laws exist that regulate the manner in which a licensee may exercise its powers, the licensee must comply.

Rapid Deployment Policy

The ICT White Paper mentions the City of Tshwane court case. It then proceeds to set out a procedure that may not be in line with the decision of the court, especially as it relates to property owners. According to the White Paper, a licensee will give written notice and then the property owner has “limited rights of objection”. The property owner however may object 14 days before the licensee intends to start work and only if the proposed facility with “cause significant interference with the property”. Compensation will be limited, as is the right to object to the manner of access.

The ICT White Paper also recognizes that many governmental approvals are necessary, including town planning approval, environmental approval, aviation approval and building approval. The White Paper sets out the aspiration that all of these various approvals will be expedited and run concurrently, taking no longer than one month to complete. The White Paper provides for an eventual automated system to work alongside a database of all infrastructure.

Many of these policies set out in the ICT White Paper, of course, rely on a number of intervening regulatory or legislative processes, including the following.

changes to the EC Act (if the common law of servitudes is to be subordinated, for example)
adoption of policy and policy directions made in terms of the EC Act
adoption of regulations made in terms of the EC Act
amendment or adoption of procedures by municipalities
amendment or adoption of building regulations by the Minister of Trade and Industry

Other issues dealt with in the ICT White Paper include issues relating to access to high sites, trenches, infrastructure such as roads, pylons, and water and sewer systems. These policies dovetail with the open access policies, which encourage the sharing of facilities.

The ICT White Paper also sets out policies for the deployment of facilities in new developments. The White Paper calls upon the Minister to lease with the Minister of Trade and Industry to amend the national building regulations to establish a requirement for new development and renovation plans include plans for ICT infrastructure. The White Paper also outlines a process to reduce exclusive arrangements between licensees and land owners.

Institutions and Responsibilities

Finally, to implement the Rapid Deployment Policy, it is anticipated that the following entities will have the following responsibilities.

Minster oversee implementation of policy
liaise with other Ministers
establish National Co-ordinating Centre and Rapid Deployment Steering Committee

Icasa make rapid deployment regulations
liaison between licensees and Centre
make dispute regulations and resolve disputes between licensees and property owners

Government agree to reasonable compensation
land owners co-ordinate activities of licensees
provide infrastructure information to Centre
makes rules in line with national policy and rules
include infrastructure in development plans

National establish common way-leave rules
Co-ordinating create database
Centre / co-ordinate infrastructure rollout
Steering engage industry bodies
Committee provide advice to licensees

Municipalities / approve way-leaves at cost
SALGA provide infrastructure information to Centre
include infrastructure in development plans

National Integrated ICT Policy White Paper - Part 3

Mon, 05 Dec 2016 17:49:22 +0100

The National Integrated ICT Policy White Paper (White Paper or ICT Policy) has been published, 26 September 2016. In this part 3 of a series, we unpack the spectrum policy (including the issue of a wireless open access network).

The White Paper rightly characterizes the policy on spectrum as a paradigm shift. As such, amendments to existing legislation will be required before the policy can be effected. Some of the specifics are discussed herein.

There are three aspects of the spectrum policy that seem to be key. The first is the development of a wireless open access network (WOAN). The second is the future of existing spectrum assignments/licences. The third is the changing roles of Icasa and the Minister.

Wireless Open Access Network

The spectrum policy indicates that all spectrum that is deemed to be high demand spectrum by the Minister (including all IMT spectrum), will be assigned on an open access basis. The first part of this policy is that all spectrum not currently assigned will be set aside for assignment to a WOAN.

The WOAN will be, according to the White Paper, a public-private consortium consisting of all entities wishing to participate. Icasa will be responsible to provide the WOAN with both electronic communications network service and spectrum licences. Icasa is required to follow the following principles.

voluntary participation
ownership structure that provides meaningful participation of all
no single entity should be allowed the potential for dominance or control
effective participation of women, youth and persons with disabilities
the WOAN may only provide wholesale services

In addition, the White Paper indicates that the WOAN will be provided the following.

reduced or waived spectrum fees
access to public buildings and other public infrastructure
allocation of universal service funds

Although the process is not to be competitive, Icasa is nevertheless required to “follow a public process” to evaluate the consortium’s technical plan, financial viability, ability to commence rollout, operational capacity, strategy to enter into agreements with existing wireless operators, and universal access strategy.

Although the White Paper states that no amendments to existing legislation are envisaged, there do in fact seem to be required amendments to make the WOAN a reality. The EC Act is not really set up to support a procedure like the one envisaged in the White Paper. The EC Act requires both service licensing as well as spectrum licensing, and treats the two separately. So, let’s look at them.

Service Licensing

In terms of service licensing provisions of the EC Act, license applications for individual licences may be made only in response to an invitation to apply issued by Icasa, and in respect of a network license, the Minister must first issue a policy direction to Icasa. So, in order to proceed, Icasa will first need a policy direction issued by the Minister. Then Icasa will have to issue an invitation to apply.

The problem, however, is that the EC Act prohibits the Minister from issuing policy or policy directions regarding the granting, amendment, transfer, renewal, suspension or revocation of a licence, except as permitted in terms of the Act. Unfortunately, however, there is nothing currently in the Act that permits the Minister to issue the type of policy or policy direction to Icasa that would permit licensing of the WOAN.

Another problem is that the EC Act and Icasa’s regulations envisage actual applicants that will become actual licensees, which, according to the EC Act must be SA entities. The Act does not envisage Icasa cobbling together an applicant/licensee out of a group of volunteers.

The EC Act also provides that licenses will be issued on standard terms established by Icasa. The EC Act does not currently contemplate a wholesale only licence, with special terms relating to preferential access to public infrastructure and universal access funds, inter alia. Indeed, the very definition of electronic communications network service seems to negate a wholesale only licence. ECNS is defined as a service whereby a person makes available an electronic communications network, whether by sale, lease or otherwise for that person's own use for the provision of an electronic communications service or broadcasting service; etc.

Spectrum Licensing

According to the EC Act, Icasa has the obligation to prescribe procedures and criteria for radio frequency spectrum licensing in instances where there is insufficient spectrum available to accommodate demand. Icasa has done this in the Spectrum Regulations 2015.

Once the network service license is issued, the White Paper envisages Icasa licensing it with spectrum set aside for the licensee. This, however, is not permitted in terms of the current regulations. First, the regulations indicate that high demand spectrum will be awarded on a competitive basis. In addition, the regulations do not permit the awarding of spectrum to an entity which includes any entities that already have spectrum in the same range.

In conclusion, before the licensing of a WOAN can take place, the EC Act will have to undergo some changes. One might look at the amendments that were necessary to cater for the licensing of Broadband Infraco in 2007.

Existing Spectrum Licences

The White Paper is fairly brief in its treatment of existing spectrum assignments/licenses. It states that Icasa will be required to conduct an industry wide public consultation process to determine the terms and conditions, as well as the time frame, under which currently licensed high demand spectrum will be returned. It further states that the terms and conditions will take into account market developments and the projected extent of availability of open access networks. Icasa is called upon to make recommendations for the Minister’s approval, which will apply to currently assigned spectrum.

Of course, Icasa does conduct inquiries from time to time on issues relevant to the regulation of the industry and it could most likely conduct an inquiry into say, the duration of spectrum licenses and how they are renewed or not as the case may be. However, there are some provisions in the EC Act that may need to be amended if the idea is to amend or withdraw spectrum licenses.

For example, section 31(4) regarding spectrum licences provides as that Icasa may amend a licence for limited reasons, i.e., to implement a change in the radio frequency plan; in the interest of orderly radio frequency spectrum management; to effect the migration of licensees in accordance with a revised radio frequency plan or the transition from analogue to digital broadcasting; if requested by the licensee concerned to the extent that the request is fair and does not prejudice other licensees; or with the agreement of the licensee.

Furthermore, sections 31(8) provides the circumstance under which a spectrum licence may be withdrawn. It states that Icasa may withdraw a radio frequency spectrum licence when the licensee fails to utilise the assigned radio frequency spectrum in accordance with the licence conditions applicable to such licence.

Changing Roles

In addition to the issue of spectrum licensing, there are changes to the roles played by Icasa and the Minister that may require amendment to the EC Act. Some examples are set out in the table below.

Activity EC Act ICT Policy

Band Planning Icasa, approval of Minister Minister

Universal Service Icasa Icasa, approval of Minister
Obligations

Spectrum Fees Icasa Minister may waive fees

Spectrum Trading Icasa Minister

Spectrum Migration Icasa Minister

Determining High Icasa Minister, in consultation with Icasa
Demand Spectrum

National Integrated ICT Policy White Paper - Part 2

Tue, 22 Nov 2016 17:41:32 +0100

The National Integrated ICT Policy White Paper (White Paper) was published 26 September 2016. Although the White Paper deals with many issues, there appear to be three pillars upon which it rests. First, is the concept of open access. Second, is the issue of spectrum assignments. Third, is the rapid deployment policy dealing with how licensees acquire rights of ways.

In this part II of the series, we will look at the open access policy (excluding the issue of a wireless open access network, which will be looked at in the context of spectrum assignments). In particular, we will look at the policy in the context of regulating interconnection and facilities leasing dealt with in Chapters 7, 8 and 10 of the Electronic Communications Act (EC Act).

In the White Paper, the Minister correctly identifies problems with the EC Act. The policy itself, which does not amend the EC Act, will not fix the problems identified. However, the White Paper does indicate that the EC Act, inter alia, will need to be amended.

Chapters 7 and 8 of the EC Act - Interconnection and Facilities Leasing

Chapters 7 and 8 of the EC Act, appear to provide an open access regime, which obliges every licensee to interconnect upon request and every electronic communications network service (ECNS) licensee to provide access to electronic communications facilities upon request, unless the request is unreasonable.

Since the EC Act came into force in 2006, however, the Independent Communications Authority of South Africa (Icasa) has been unable to effectively regulate interconnection and facilities leasing. One of the reasons is because the provisions in chapters 7 and 8 were (arguably) linked to chapter 10, which requires market studies, inter alia, before appropriate remedies are imposed. In the 2014 amendments to the EC Act, sections 38(5) and 44(5) of the EC Act were delinked from chapter 10. However, sections 41 and 47, which go to the core issue, namely, price, were not. Icasa’s Interconnection and Facilities Leasing Regulations therefore do not deal with this issue.

Section 43 of the EC Act - Essential Facilities

Section 43 of the EC Act deals with “essential facilities”, calling upon Icasa to identify them and regulate them. However, the EC Act itself permits licensees the ability to deny or delay the provision of essential facilities on the grounds that the request is not “technically or economically feasible”. Unfortunately, the 2014 amendments to the EC Act did nothing to change this situation.

In addition, Icasa has not finalized essential facilities regulations, which were published for comment as far back as 2007.

Competition provisions - section 67 of the ECA

The 2014 amendments to the EC Act made great strides in clarifying the provisions in section 67. However, there are some remaining difficulties to the effective implementation to the provisions.

First, chapter 10 requires both an inquiry process and a rule making process, both of which take considerable time and resources. In this regard, the White Paper rightly points out that Icasa has been prevented from exercising regulatory interventions without conducting cumbersome, lengthy and expensive competition inquiries. In essence, there has been no effective regulation in terms of section 67 since its enactment in 2006.

The White Paper states-

“The process outlined for addressing significant market power requires a market review on a defined relevant market, a test of whether the market is competitive and thereafter, if the market is found to be uncompetitive, an analysis of an operator’s market power and its potential to behave in an anticompetitive manner, thus abusing such market power. After following these steps, regulatory interventions can be made.

“The current process is broadly aligned with global best practice, however, the manner in which the Act is drafted and the ensuing South African application of the practice has demonstrated obvious flaws.

“For example, the EC Act is overly prescriptive in the manner in which market reviews must be conducted and what information needs to be assessed. It takes what are considered ‘guidelines’ in other jurisdictions, including the European Union, and prescribes them in law.”

Open Access Policy

In spite of these difficulties with the EC Act, the MoTaPS sets out policy regarding interconnection and facilities leasing in the White Paper. The policy divides licensees into three categories, with different rules to be applied to each of the categories. These are set out in the table below.

Category Rules

All network licensees Effective access, transparency, and non-discrimination

Vertically integrated licensees As above, plus accounting separation

Licensees deemed by ICASA, to have - As above, plus -

significant market power in a market Cost based pricing
control of an essential facility Active infrastructure sharing

network constituting more than 25% of market Access to the network at Layer 3 and below
a scarce resource exclusively assigned Specific network and population coverage targets

The White Paper concludes the discussion on Open Access with reference to essential facilities. The White Paper declares that Layer 2 and Layer 3 broadband infrastructure constitutes essential facilities. The White Paper calls on Icasa to, in the short term, until the EC Act is amended, attend to the identification and regulation of essential facilities in line with the White Paper.

Icasa is also called upon to prioritize and develop wholesale open access regulations. Presumably, this entails the procedures to be carried out in terms of the existing provisions of chapter 10 of the EC Act.

Namibian High Court rules licence fee provision in Communications Act unconstitutional

Thu, 20 Oct 2016 14:21:49 +0100

The Namibian High Court in Windhoek has ruled that section 23(2)(a) of the Communications Act is unconstitutional. Section 23(1) permits the regulator, the Communications Regulatory Authority of Namibia (Cran), to make regulations setting out licence fees. Section 23(2) provides ways to do this. Section 23(2)(a) provides that Cran may tie the fees to the revenue of licensees.

The court ruled that section 23(2)(a) permits Cran to impose fees without carrying out a estimated costs of relegation (which is required by section 23(1)), and therefore held it to be unconstitutional.

The judgement is being appealed.

National Integrated ICT Policy White Paper - Part 1

Wed, 16 Nov 2016 21:01:16 +0100

The National Integrated ICT Policy White Paper, dated 26 September 2016, has been published. In this part 1 of a series, we will to set out the proposed new institutional structures for regulating the ICT industries. Subsequent parts in the series will deal with specific issues, such as spectrum, universal access, the deployment of infrastructure, and Internet governance.

It is worth noting that all of the existing regulatory structures, including ICASA, USAASA and the .za DNA will be replaced with new structures, while some regulatory functions will migrate to the Minister or other newly established Ministerial groupings.

Following are short descriptions of the various new structures.

Digital Transformation Inter-Ministerial Committee

Cabinet will establish the Digital Transformation Inter-Ministerial Committee, which will be answerable to the Executive. According to the White Paper, the Committee will do two things.

oversee the development of a detailed digital transformation plan and road map to realise and prioritise all policies included in White Paper
oversee the development of a detailed, integrated national digital government strategy and roadmap, based on a diagnostic assessment of the state of digital readiness across all spheres of government including an analysis of different capabilities and a review of the current systems and technologies.

Inter-Governmental Spectrum Working Group

Government will be responsible for spectrum policy-making, planning and allocation functions, and coordination of the roles of relevant stakeholders across all sectors. The Ministry will establish an Inter-Governmental Spectrum Working Group responsible for research, to develop country positions, and for allocation.

Rapid Deployment National Co-ordinating Centre

The Minister will establish the Rapid Deployment National Co-ordinating Centre and a Rapid

Deployment Steering Committee to oversee the Centre. The Centre will work together with the Strategic Infrastructure Programme 15 infrastructure established in terms of the Infrastructure Act. The responsibilities to the Centre are to support the rapid deployment of infrastructure and to interface with local municipalities to fast track rights of way and way-leave approvals.

New Consolidated / Economic Regulator

Regulation across the ICT value chain will be consolidated into one entity. The integrated regulator will have sole responsibility for overseeing and promoting Internet governance, licensing and regulation of networks, services, spectrum and other scarce ICT-related resources, such as numbers and domain names.

Broadcasting / Content Regulator

Specific broadcasting content regulation (such as licensing and regulation of broadcasting service licences) will not fall under the new Economic Regulator – pending the finalisation of the review of all broadcasting related policies which will consider the framework for policy and regulation of the audio and audio-visual content sector holistically.

ICT Regulatory Review Tribunal

An ICT regulatory review tribunal will be established to appeal decisions of the regulator and/or its committees.

Digital-Development Fund

The USAASA will be dissolved and the USAF will be transformed into a new Digital-Development Fund, overseen by a Board accountable to the Minister.