THE ICT WHITE PAPER: WHAT TO DO NEXT FOR A HOUSE BUILT ON SAND
This is a brief note on 5 main issues in relation to the treatment by the Minister of spectrum in the ICT White Paper:
The term white paper probably originated with the British government. White papers are considered to be a “… tool of participatory democracy … not [an] unalterable policy commitment.” White papers are a way the government can present policy preferences before it introduces legislation. Publishing a white paper tests public opinion on controversial policy issues and helps the government gauge its probable impact.
Several examples of white papers can be found at http://www.gov.za/documents/white-papers.
White papers have been regarded internationally as forming part of the process of making law. “The process of making a law may start with a discussion document called a Green Paper that is drafted in the Ministry or department dealing with a particular issue. This discussion document gives an idea of the general thinking that informs a particular policy. It is then published for comment, suggestions or ideas. This leads to the development of a more refined discussion document, a White Paper, which is a broad statement of government policy. It is drafted by the relevant department or task team and the relevant parliamentary committees may propose amendments or other proposals. After this, it is sent back to the Ministry for further discussion, input and final decisions.”
A white paper is not a Bill or a law in South Africa and in some white papers including the ICT White Paper, additional policy guidance or policy is contemplated either specifically or generally.
The introduction to the ICT White Paper states that it is made under section 85 of the Constitution:
“Executive authority of the Republic
(1) The executive authority of the Republic is vested in the President.
(2) The President exercises the executive authority, together with the other members of the Cabinet, by —
(a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the Constitution or in national legislation.”
The other white papers referred to above are also generally made under this section.
The ICT White Paper also refers to section 3 of the ECA. This section is headed “Ministerial policies and policy directions”. Subsection (1) deals with sector policy and subsection (2) deals with policy directions. The ECA remains the governing law of the sector, along with the ICASA Act (and broadcasting and postal laws).
Because the policy is made at a national level (see 5 below), it may be unnecessary to consider the provisions of section 3(1)(a) to (i) of the ECA, which limit the areas in which the Minister can make sector policy.
However this is not the case for policy directions which are specific to the ECA and which may be given to ICASA “in relation to –
This begs an answer to 3 questions –
In practical terms there is little difference. It was passed in accordance with national law and the Constitution although sector policy does not in fact require Cabinet approval and no Minister in this department has ever previously sought approval from Cabinet for a sector policy. However this policy reaches out beyond the ICT sector and claims to require input from, co-ordination and co-operation with, and implementation by, other departments at a national, provincial and municipal level. For this reason it is appropriate to have it passed at Cabinet level.
The limitations on the Minister in relation to what he may make policy on that are captured in section 3(1) of the ECA may therefore not apply. In any event, section 3(1)(a) refers to “the radio frequency spectrum”, subsection (1)(b) to “universal service and access policy”, and subsection (1)(e) to “guidelines for the determination by the Authority of licence fees and spectrum fees associated with the award of the licences contemplated in Chapter 3 and Chapter 5…”.
5.2 Second question: Is it competent for the Minister to issue a policy direction other than in terms of (a) to (e) above?
5.2.1 The ECA and ICASA Acts are still the sector laws and cannot be repealed or amended by a white paper. The ICT White Paper itself contemplates legislative changes in terms of a separate process. Therefore until that process has concluded, even this policy can only be given effect to under existing legislation.
5.3 Third question: Are there other reasons why the ICT White Paper may not have sufficient legal standing on its own for ICASA to implement it in relation to spectrum, if the answers to (i) and (ii) are positive?
5.3.1 Section 3(3) of the ECA provides that –
“No policy made by the Minister in terms of subsection (1) or policy direction issued by the Minister in terms of subsection (2) may be made or issued regarding the granting, amendment, transfer, renewal, suspension or revocation of a licence, except as permitted in terms of this Act”.
The Minister purports to require or direct ICASA to grant a licence to “a Wireless OAN (including both ECNS and spectrum licences)” at pages 79 to 80 of the gazette, and gives details about the composition of the licensee and licence terms. This would appear to be unlawful and unenforceable. This is repeated in more frightening detail, on page 95. This section requires all currently unassigned “high demand” spectrum (and it is not clear if the definition that the Minister is entitled to give to “high demand” would have to apply here first) must be awarded to the WOAN.
5.3.2 On the same page, the Minister requires ICASA to carry out an industry-wide consultation process to determine how spectrum currently licensed should be returned to the national plan. There is simply no basis in the current law for such a requirement at all. This does not constitute a valid policy direction.
Note that during the extensive consultation process on the Green Paper a number of options were raised in relation to spectrum. These were reflected in the subsequent Discussion Paper of 2014. The 6 options recorded in the Discussion Paper (the precursor to this White Paper) were as follows:
Option One: Spectrum provision for an open access network
An open access model is advocated in the SA Connect broadband policy to facilitate competition and ensure universal service and access is achieved. High demand spectrum should thus be set aside for an open network that will sell wholesale access to new and established operators.
Option Two: Must carry obligations for high demand spectrum recipients
All operators given access to the so-called “high demand spectrum” must be subjected to minimum obligations to allow other service providers to access their networks.
Option Three: Spectrum band harmonisation
Spectrum policy must provide for spectrum band harmonisation including the adoption of contiguous band assignments to promote sharing of spectrum.
Option Four: Competitive bidding
In terms of spectrum pricing, it is important for the price charged to reflect the true value of spectrum as a scarce resource. For this to take place, a competitive bidding process needs to be accommodated in the spectrum assignment model.
Option Five: More multiplexes to accommodate future terrestrial services
In order to accommodate future television technologies like High Definition, Ultra High Definition and 3D more multiplexes should be catered for during the digital migration phase
Option Six: Licence exempt spectrum
As can be clearly seen, not a single one contemplates that all high demand spectrum will go to a WOAN, or that a WOAN will take the form that the White Paper has described. In all the preceding consultations, no such directions were contemplated. Even if they could be said to be competent as to substance, there has been no consultation on the WOAN as presented in the White Paper or on the spectrum allocation to the WOAN as presented in the White Paper, which is required in terms of section 3(5) of the ECA.
5.3.3 The requirement that the Minister approve all universal service obligations before they are imposed on licensees is not lawful either for the same reasons. There is no provision anywhere in the ECA or ICASA Act for the Minister to approve or impose licence terms. Whilst Chapter 14 of the ECA deals in detail with universal service and the Minister’s obligations and authority, the Minister’s role is limited to taking recommendations from the (still existing) USAF on what constitutes “universal service” and “universal access” in terms of section 82, and the types of “needy persons” to whom assistance from the USAF may be given, in terms of section 88(4), again on the recommendation of the USAF.
On page 92 of the gazette the Minister of DTPS seems to want to extend his powers in relation to spectrum migration, to the imposition of a time limit on the process. There is no such power afforded him currently under the ECA. In any event, it is likely that the Minister of Communications would oppose this usurping of her rights in relation to the migration of broadcasters.
5.3.3 Page 93 of the gazette suggests that reports on spectrum usage should also be submitted to the Minister by licensees – this is not contemplated in the ECA.
5.3.4 There is a logical flaw which we mention only for completeness, in that the Minister purports to support his policy of centralising spectrum by linking the failure of universal service obligations in licences, to the award of spectrum on an exclusive basis, at page 83 of the gazette
There are in fact other legal flaws in the document, we have highlighted just these few by way of example. But even so, the policy directions in relation to spectrum would appear to be unlawful.
 Doerr, Audrey D. The Role of White Papers. In: Doern, G.B. and Peter Aucoin. The Structures of Policy-making in Canada. Toronto, MacMillan, 1971. pp. 179-203.
 The National Integrated ICT Policy, Discussion Paper, Options Paper. 14 October 2014. Accessed at http://www.dtps.gov.za/documents-publications/category/45-discussion-paper.html
 Section 220.127.116.11 on page 67 of the Discussion Paper.
This article is not legal advice. It is published for your interest only and to stimulate debate, and may not be relied upon or quoted without the author’s express permission.