On 23 June 2023, the Minister of the Department of Communications and Digital Technologies published an invitation to provide written comments on the Electronic Communications Amendment Bill, 2022. The purpose of the Bill is to amend the Electronic Communications Act, 2005 ("ECA") by introducing a new licence category for electronic communications facilities services, enabling spectrum sharing amongst licensees, effecting roaming regulations, improving the facilities leasing framework, and providing competition regulation principles, amongst other objectives.
The Bill introduces a number of new definitions, including:
- electronic communication facility service: which is defined as a service whereby a person makes available an electronic communication facility, whether by sale, lease or otherwise for use in electronic communication networks;
- high demand spectrum: which refers to spectrum
- the demand for access to the radio frequency spectrum resource exceeds supply; or
- radio frequency spectrum is fully assigned, as determined by the Independent Communications Authority of South Africa ("ICASA")
- radio frequency spectrum sharing: which means the simultaneous usage of a specific radio frequency or radio frequency spectrum band in a specific geographical area by different radio frequency licensees in order to enhance the efficient use of spectrum.
Electronic communication facility service licence
One of the significant changes that the Bill introduces is the creation of a new licensing category for individual and class electronic communications facilities services. This is to ensure that the provision of electronic communications facilities services are uniformly regulated under the ECA through the imposition of licensing conditions. It is not clear yet which electronic communications facility services will be regulated, but this may include masts (mobile towers), dark fibre infrastructure and even data centres, all of which are contained in the definition of an "electronic communications facility". These types of services were previously unregulated.
Spectrum trading and spectrum sharing
Spectrum sharing is currently dealt with under the Radio Frequency Spectrum Regulations, but in very wide terms. Spectrum sharing is currently only allowed with ICASA's prior approval. The proposed amendments under the Bill would permit radio frequency spectrum sharing amongst licensees, subject to ICASA's prior approval for high demand spectrum. Licence holders of non-high demand spectrum will only be required to notify ICASA when they share their radio frequency spectrum with other licensees.
Applications for high demand spectrum sharing may be refused if the spectrum sharing is likely to:
- have a negative impact on competition that is not offset by efficiencies or public interest benefits;
- amount to spectrum trading; or
- compromise emergency services and other services that meet public interest goals.
ICASA may also amend any radio frequency spectrum licence out of its own accord if a licensee fails to use the assigned radio frequency spectrum adequately for a period of two years in any under-serviced area. This amendment is based on the application of the "use it or share it principle" which will be applied in order to ensure universal service and to provide services in under-serviced areas in South Africa.
The proposed amendments to the ECA do not affect ICASA's stance on radio frequency spectrum trading, and spectrum trading will still be prohibited.
An electronic communications network service licensee with access to the International Mobile Telecommunications (IMT) radio frequency spectrum, that has national network coverage of 90% of the population, will be obligated to provide national roaming and mobile virtual network operator (MVNO) services upon request.
Once the Bill has been promulgated, ICASA will publish the national roaming and mobile virtual network operator services regulations, which will cover the following topics:
- the minimum quality, performance and level of service to be provided;
- the mobile technology generations to which access is mandated;
- maximum average wholesale rates;
- contractual dispute resolution procedures; and
- the framework for determining the feasibility of providing national roaming and mobile virtual network operator services access and principles of access.
Leasing of facilities
All electronic communications network service licensees and electronic communications facility service licensees must, on request, lease electronic communications facilities to other licensees and persons providing services that are subject to licence exemption, unless such request is unreasonable. Currently, facilities leasing are only required between licensees.
The lease and the terms of the lease agreement must be non-discriminatory as among comparable types of electronic communications facilities being leased. Such leasing must not be of a lower technical standard and quality than that provided by such electronic communications network service licensee or electronic communications facility service licensee to itself or to an affiliate.
The Bill also extends ICASA's obligations in promoting competition in the sector by permitting ICASA to impose appropriate pro-competition licence conditions on licensees. Pro-competitive licence terms and conditions may include:
- obligations in respect of interconnection and facilities leasing;
- penalties for failure to abide by the pro-competitive licence conditions;
- obligations to publish any information specified by ICASA, as requested; and
- rate regulation for the provision of specific services, including price controls on wholesale and retail rates as determined by ICASA, and matters relating to the recovery of costs.
The Bill also recognises that ICASA and the Competition Commission have concurrent jurisdiction and the Bill enables each regulator to enforce each others findings in order to promote and enhance competition in the telecommunications industry.
In conclusion, the Bill proposes a number of significant changes which will have a major impact on the telecommunications regulatory landscape in South Africa. It is still too early to predict the extent to which all the proposed amendments will eventually become law. Nonetheless, it is evident that some big changes to the ECA may be coming.
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