On 22 April 2026, the Minister of Communications and Digital Technologies (Minister) tabled the Electronic Communications Amendment Bill, 2026 (Amendment Bill) in the National Assembly. As discussed below, the Amendment Bill seeks to amend the Electronic Communications Act 36 of 2005 (ECA) to, amongst other objectives, introduce the ’use it or share it’ principle for certain radio frequency spectrum (spectrum), impose obligations on certain licensees to provide national roaming and mobile virtual network operator (MVNO) services on request, enhance the facilities leasing framework for essential facilities, and provide for wholesale pricing rules and standards.
The Amendment Bill also reflects a shift in the proposed regulation of electronic communications facility service providers, such as tower companies. While the previous Amendment Bill, the Draft Electronic Communications Amendment Bill, 2023, proposed the introduction of a new licence category for electronic communications facility services, these provisions have been omitted from the current Amendment Bill. This means that electronic communications facility service providers continue, for the time being, to remain outside the licensing and regulatory framework of the ECA.
Notably, while it is currently possible for entities to register with the Independent Communications Authority of South Africa (ICASA) for a licence exemption for the provision of electronic communications services on a non-profit basis, the Amendment Bill proposes extending this exemption framework to the provision of electronic communications network services (ECNS).
The ’use it or share it’ principle (amendments to section 31 of the ECA)
While the ECA currently adopts the ’use it or lose it’ principle, the Amendment Bill introduces a ’use it or share it’ principle to promote efficient use of spectrum. In terms of this principle, ICASA, following an inquiry or investigation, may permit the sharing of unused spectrum between the relevant spectrum licensee (ie the primary licensee) and another network operator , (ie the secondary licensee, which will not be required to pay annual spectrum licence fees for the first 12 months of sharing). Such sharing arrangement must be preceded by an application process, in which ICASA is required to accord preference to community networks and SMMEs. The ’use it or share it’ principle will apply where:
- the spectrum was assigned between 10 December 2021 and the commencement date of the Electronic Communications Amendment Act(Amendment Act) (following the enactment of the Amendment Bill into law) and remains unused in any area for a period of two years after such commencement date; or
- the spectrum was assigned at any time after the commencement date of the Amendment Act and remains unused in any area for a period of two years after the date of assignment.
To implement the ’use it or share it’ principle, the Amendment Bill requires ICASA to prescribe regulations setting out the relevant processes, procedures and criteria. These regulations must include, but will not be limited to, how spectrum will be co‑ordinated and interference managed, and the process for concluding spectrum‑sharing agreements between the primary and secondary licensees.
If the unused spectrum is not assigned to a secondary licensee, ICASA is empowered by the Amendment Bill to withdraw such spectrum from the primary licensee. ICASA is also empowered to withdraw any spectrum granted to a secondary licensee if the primary licensee, on application to ICASA, demonstrates that it requires the unused spectrum to deploy its electronic communication network in the relevant area within the subsequent 12 months of such application.
Contrary to the current position in the Amendment Bill, the previous Amendment Bill proposed a new section to specifically regulate spectrum sharing. This included permitting spectrum licensees to share licensed spectrum subject to obtaining approval from ICASA, for high-demand spectrum, or making a notification to ICASA, for non-high-demand spectrum. This framework would have aligned with the spectrum-sharing objectives set out in the ’Next-Generation Radio Frequency Spectrum Policy for Economic Development’, published by the Minister in 2024, and arguably would have provided greater regulatory certainty and flexibility regarding spectrum sharing. Its omission from the Amendment Bill is a missed opportunity to provide a more comprehensive system that would have modernised the spectrum management regime.
Obligation to provide national roaming services and MVNO services (insertion of sections 42A and 42B into the ECA)
A potentially far-reaching aspect of the Amendment Bill, which remains aligned with the proposals in the previous Amendment Bill, is the proposed introduction of mandatory access obligations for so-called ’access providers’, being ECNS licensees assigned International Mobile Telecommunications spectrum that have mobile network coverage of at least 90% of the population.
In terms of the Amendment Bill, access providers must provide national roaming services and/or MVNO services to any licensee or licence‑exempt person, on their request. Depending on the nature of the access request, a national roaming and/or MVNO services agreement must be concluded between the access provider and the access seeker within 60 days of the request (which period may be extended, on agreement, by a further 60 days). ICASA is specifically empowered to request information from access providers on the ’underlying cost structure of the price of a service’ where this is in dispute.
To give effect to the obligations imposed on access providers in relation to national roaming services and MVNO services, ICASA must prescribe regulations to address the provision of access within 18 months of the commencement of the Amendment Act (which period may be extended by six months in certain specified circumstances). These regulations will include, but will not be limited to: relevant definitions (ie ’national roaming services’ and ’mobile virtual network operator’); the minimum quality, performance and level of service to be provided by the access provider; a reference offer or offers containing model terms and conditions; wholesale rate rules and standards; contractual dispute-resolution and termination procedures; and a determination of the identity of the access providers.
ICASA is further required to prescribe international roaming regulations relevant to the Southern African Development Community region and other specific countries or regions. The purpose of these regulations is to enable implementation of a framework for reciprocal roaming, where service providers in participating countries are required to provide services on reciprocal terms and conditions, including by offering similar tariffs.
The effect of these proposed provisions in the Amendment Bill is to facilitate market entry by entities seeking roaming arrangements and MVNOs that would otherwise be unable to compete with other operators due to the high costs associated with network deployment. As such, the intention of the Amendment Bill appears to be for national roaming services and MVNO services to promote service-based competition and increase consumer choices. The proposed amendments will expand ICASA’s role in overseeing access terms and pricing, with a view to ensuring that such arrangements are fair, reasonable, non-discriminatory and cost-oriented.
Amending the facilities leasing framework, including providing for wholesale pricing rules and standards
The Amendment Bill introduces a restructuring of the facilities leasing regime, coupled with the establishment of mandatory wholesale pricing rules and standards.
While the ECA already includes an obligation to lease electronic communications facilities and a requirement for ICASA to prescribe a list of essential facilities, the Amendment Bill requires that ICASA prescribe a list of essential facilities within 12 months of the Amendment Act coming into operation (with this list being reviewed once every three years). In turn, the Amendment Bill provides that an ECNS licensee is required to conclude a facilities leasing agreement within 60 days of receiving any request for leasing of such essential facilities, with the parties agreeing on non-discriminatory terms.
At the core of the proposed amendments is an attempt to strengthen access to network infrastructure, including towers, fibre, and other essential facilities, which have historically been controlled by dominant operators. The Amendment Bill revises the facilities leasing framework to ensure that access is no longer governed solely by commercial negotiation, but is rather subject to clearer statutory principles and regulatory oversight.
The Amendment Bill further requires ICASA to prescribe rules or standards applicable to different types of electronic communications facilities, including for essential facilities, and for roaming and MVNO services, within 18 months of the Amendment Act coming into operation (which period may be extended by a further six months under defined circumstances). These rules or standards must be fair and reasonable; non-discriminatory, unless there are pro-competitive or efficiency justifications that outweigh the negative impact of the discriminatory practice on competition; cost-orientated or reflect the benefits of sharing costs amongst uses sharing the facilities; and, for essential facilities, be reflective of costs plus a reasonable return.
Next steps
The Amendment Bill will likely be published in the Government Gazette by the Portfolio Committee on Communications and Digital Technologies for public comment in due course, with the accompanying notice setting out the applicable timeframes within which interested parties may submit comments and/or participate in public hearings.
Conclusion
The Amendment Bill reflects a legislative intent to entrench more structured, transparent, and pro-competitive access within the electronic communications sector. By curbing pricing discretion and strengthening regulated access to essential infrastructure, the Amendment Bill seeks to lower barriers to entry and stimulate effective competition. The success of the Amendment Bill will largely turn on the effectiveness of the accompanying regulations, which are to be developed by ICASA, and on the subsequent implementation by ICASA, including its ability to strike an appropriate balance between ensuring fair access for new entrants and preserving sufficient incentives for continued investment by incumbent operators.
