Under Chapter 4 of the ECA ECNS licensees have broad rights to enter upon land for the purpose of constructing and maintaining electronic communications facilities, subject to environmental and other applicable regulation.
In practise the exercise of these rights involves extensive negotiation with local government and agencies such as SANRAL, which operates South Africa’s national road network. Certain local government bodies have indicated their intention to pass by-laws regulating the access of electronic communications licensees to municipal property.
The Minister of Communications has not yet gazetted guidelines for the rapid deployment and provisioning of electronic communications facilities contemplated under the ECA. Such guidelines would centralise processes for obtaining way-leaves and permissions, facilitating infrastructure deployment and sharing.
The term “access” incorporates
- Facilities leasing, and
- Essential facilities.
Under Chapters 7 and 8 of the ECA, every licensee is obliged to interconnect upon request and every ECNS licensee must provide facilities, upon request, on terms negotiated, unless the request is unreasonable. ICASA may exempt licensees from their obligations, but only if they do not have significant market power (SMP).
Interconnection and facilities leasing agreements entered into between licensees must be filed with ICASA and require prior approval by the regulator before they can come into force. Under the ECA ICASA is required to finalise regulations which will give effect to Chapter 7 of the ECA (Interconnection) and Chapter 8 (Facilities Leasing & Essential Facilities and which will set out the manner in which disputes relating to the reasonableness of interconnection and facilities leasing requests.
Essential facilities are electronic communications network facilities which are of such a nature that they cannot reasonably be duplicated. These would include the local loop as well as international submarine cable landing stations and earth stations.
The setting of pricing principles governing interconnection and facilities leasing is highly contentious but essential in facilitating the entrance of competition into the market. Although there is some dispute in this regard, the majority view is that ICASA is required to have consideration to the provisions of Chapter 10 of the ECA before it can impose any kind of pricing regulation. This is discussed in further detail under Markets and Competition below.
RADIO FREQUENCY SPECTRUM
The Department of Communications (DoC) is responsible for interaction with the ITU and represents South Africa at the World Radio Communication Conferences convened by the ITU every four years. The Minister of Communications has the ultimate authority over the band plan which sets out the uses to which the various frequency bands can be put by the users thereof. South Africa falls within ITU Region 1 and the band plan will largely accord with that agreed to under the ITU’s auspices. The Minister also controls the use of frequency for security services and other Government uses.
ALLOCATION vs. ASSIGNMENT
An allocation of frequency is a stipulation as to the uses to which a particular band can be put. In order to promote efficiency bands can be allocated to different uses on a primary, secondary or licence-exempt basis, with the latter uses having a duty to mitigate any interference caused to the services of those using the band for its primary allocation. An assignment of frequency is the awarding of a radio frequency spectrum licence to a user in terms of Chapter 5 of the ECA.
ASSIGNMENT OF SPECTRUM
The awarding of frequency licences is a competence held by ICASA. To date ICASA has followed a first-come-first-served basis but it will shortly finalise regulations setting out the mechanisms to be employed in assigning frequency in bands where demand exceeds supply. It is anticipated that the regulator will seek to use beauty contests or auctions or a truncated methodology which combines the two. Such assignments will only occur after an ITA has been issued by ICASA. Spectrum is awarded on a technology neutral basis subject to the allocation set out in the band plan.
ICASA has issued regulations setting out bands which may be used without a frequency license, subject to certain technical restrictions. The most important of these bands for telecommunications purposes are the 2.4GHz ISM band and the 5.4GHz Outdoor Hiperlan band which are used extensively for the provision of Wi-Fi services in rural areas. http://www.ellipsis.co.za/licence-frequency-exemptions-amended/
SPECTRUM LICENSE FEES
ICASA is planning to employ Administrative Incentive Pricing (AIP) in order to try and promote the efficient use of spectrum under the ICASA Spectrum Licence Fee Regulations 2009 but the relevant regulations have not been finalised. Fees are currently paid in accordance with the Radio Regulations and are desperately in need of review.
South Africa does not currently allow any secondary trading in spectrum licenses.