Electronic Communications Amendment Bill (Bill) was published for public comment on 17 November 2017. The Bill seeks to implement and give effect to the policy points set out in the
ICT White Paper, published in October 2016. Importantly, the Bill may result in far-reaching changes to the information technology and electronic communications industry.
We highlight below some key issues addressed in the Bill. Stakeholders have until 18 December 2017 to comment on the Bill.
Role of the Minister
The Bill expands on the powers of the Minister of Telecommunications and Postal Services (Minister) and gives the Minister the power to, inter alia:
- issue policy directions on a number of issues, including universal services, universal access and compliance with international obligations;
- require all regulations on radio frequency spectrum fees to be in accordance with any policy or policy directions issued by the Minister; and
- oversee the rapid deployment of electronic communications networks and facilities.
The right of access to property
The Bill expands on the rights of electronic communications network service (ECNS) licensees to enter upon, access and/or use property for the purposes of deploying electronic communications networks and facilities. However, the Bill also lists the specific obligations that ECNS licensees will be required to comply with when entering, or accessing any property for purposes of deploying communications networks and facilities. In addition, the Bill introduces the concept of an "adequately served" area. The Bill defines this as an area where electronic communications networks or facilities have already been deployed. The Bill states that where an area is adequately served, no further electronic communications networks or facilities may be deployed in that area, except with the approval of ICASA. The operator of the existing infrastructure in the adequately served area is required in terms of the Bill to operate its electronic communications networks or facilities on an open-access basis.
Wireless open access networks
The Bill envisages the establishment of a centralised authority known as the Wireless Open Access Network (WOAN), which will be tasked with providing wholesale ECNS on an open access basis to other persons licensed in terms of the Electronic Communications Act.
The Bill also creates a distinction between high demand radio frequency spectrum and non-high demand radio frequency spectrum, and states that all high demand spectrum which has not already been assigned must be assigned and managed by the WOAN. The WOAN must, in turn, make such spectrum available in compliance with the universal access and universal service obligations imposed by ICASA and in line with national policy objectives and priorities, which would include the directives issued by the Minister. Furthermore, the assignment of high demand spectrum is made subject to certain open access obligations and any other obligations that may be imposed by ICASA. Importantly, radio frequency spectrum licences will be renewable annually, despite the duration of the licence. Furthermore, ICASA will actively review a licensees compliance with the terms of the applicable radio frequency spectrum licence prior to renewal. Compliance is a condition for the renewal of a radio frequency spectrum licence. Significantly, the Bill has introduced the principle of "use it or lose it" in relation to radio frequency spectrum, providing that licensees that fail to use radio frequency spectrum allocated to them may (in certain instances) lose that radio frequency spectrum if such allocated radio frequency spectrum is not used for one year.
The Bill, subject to certain restrictions, permits the trading of non-high demand spectrum (which includes, among other things, the transfer of control, re-sale, leasing or subletting of radio frequency spectrum) and prohibits the trading of high demand spectrum. The Bill also makes provision for spectrum sharing (the use by different licensees of allocated spectrum in the same or adjacent bands) and spectrum refarming (the use of assigned frequency band for a different technology), subject to ICASA's approval. In addition, the Bill mandates ICASA to conduct a number of inquiries into the allocation of unassigned high-demand spectrum and the return of exclusively/individually assigned high demand spectrum (excluding high demand spectrum that has been assigned to the WOAN), taking into account policy, market developments and the extent of availability of open access networks.
Requirements of vertically integrated operators and deemed entities
The Bill has introduced further requirements pertaining to "vertically integrated operators" and "deemed entities". Vertically integrated operators, which are operators identified as such by ICASA, will be required to implement a system of accounting separation. A "deemed entity" is an ECNS licensee that has significant market power, controls an essential facility or a scarce resource, or has an electronic network that constitutes more than 25% of the total infrastructure in such a market. Deemed entities shall be required to implement a number of open access initiatives, including active infrastructure sharing, and cost-based pricing. Such entities will also be required to comply with specific network and population coverage targets.