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South African: Spectrum trading and sharing: A new spectrum management regime

11 June 2024
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Overview

  • On 28 May 2024, the Minister of Communications and Digital Technology, Mondli Gungubele (Minister) published the Next Generation Radio Frequency Spectrum Policy for Economic Development (Spectrum Policy).
  • The publication of the Spectrum Policy follows the Minister’s invitation to interested parties to provide written comments on a previous draft of the Spectrum Policy, published in September 2022, which in turn sought to address the policy gaps and limitations that had been identified in the 2016 Integrated ICT White Paper policy.

Purpose of the Spectrum Policy

The Spectrum Policy serves to:

  • clarify the respective roles and responsibilities of the Minister and the Independent Communications Authority of South Africa (ICASA) in the context of spectrum management;
  • address gaps in the existing spectrum management regime;
  • address the current exclusive spectrum regime;
  • extend broadband access to include rural, remote, and underserved areas; and
  • address the failure to lower the cost of communications.

Spectrum trading and sharing provisions in the Spectrum Policy

In an effort to address perceived gaps in the current spectrum management regime, the Spectrum Policy now expressly permits the use of spectrum trading, spectrum sharing, dynamic spectrum access use, and spectrum ‘subletting’ and/or sharing between licensees, with the prior approval of ICASA. The Spectrum Policy requires that ICASA must set standard operating rules, terms and conditions applicable to the trading, sharing and sub-letting of spectrum. When developing this new regulatory framework for spectrum trading and sharing, ICASA will be required to consider public policy gains in the use of spectrum as well as the general promotion of economic development.

As a result of the new spectrum management regime, ICASA will be in a position to implement spectrum sharing in a manner that preserves all the rights of the licence holder, and at the same time unlock the potential of unused spectrum for sharing.

Furthering the proposals of the ECA Draft Amendment Bill

The spectrum sharing and trading provisions of the Spectrum Policy are aligned with the Draft Electronic Communications Amendment Bill, 2023 (Draft Amendment Bill), which proposes to amend certain aspects of the Electronic Communications Act 36 of 2005 (ECA). In particular, the Draft Amendment Bill, published on 23 June 2023, seeks to amend sections 30 and 31 of the ECA and insert a new section 31A, which will regulate spectrum sharing. These changes, if enacted into law, will permit the sharing of spectrum among licensees. The sharing of high demand spectrum will be subject to approval by ICASA, and the sharing of non-high demand spectrum will be possible on notification to ICASA. More information on the Draft Amendment Bill is accessible here.

The current spectrum sharing and trading regime

In respect of radio frequency spectrum, section 31(1) of the ECA provides that:

 ‘… no person may transmit any signal by radio or use radio apparatus to receive any signal by radio except under and in accordance with a radio frequency spectrum licence granted by [ICASA] to such person in terms of [the ECA].’

Spectrum sharing is currently dealt with under the Radio Frequency Spectrum Regulations, 2015, published under the ECA. In terms of these regulations, ICASA must approve all radio frequency spectrum sharing agreements entered into between licensees. However, these regulations are drafted very broadly, and have been deemed to be too vague, by industry players. Much of this criticism is due to the fact that there are no specific criteria that ICASA uses in determining whether or not spectrum sharing between licensees is permissible. As noted above, the Spectrum Policy seeks to remedy this by requiring ICASA to ‘set standard operating rules, terms and conditions applicable for the trading, sharing, and sub-letting of spectrum.’

Conclusion

While the Spectrum Policy liberalises spectrum sharing and trading in South Africa to an extent, and provides high-level parameters in that regard, there is little guidance as to how this will be regulated practically. Nevertheless, the Spectrum Policy may be instructive in future engagement between radio frequency licensees in relation to spectrum sharing, trading and pooling. It is also particularly relevant in light of the recent legal action taken by Vodacom against MTN regarding the spectrum sharing deals entered into between MTN and Liquid Intelligent Technologies, which have been approved by ICASA but criticised by Vodacom for giving MTN an unfair advantage and distorting competition in the market.