February 10, 2022

IRASS Newsletter: Regulations in Small Island Nations

In this issue of Incyte’s quarterly newsletter, we look at: Universal service policy. Dr Jim Holmes argues that the necessary shift in universal service policy to a national all-of-Government approach could in some ways be easier in small island nations, but there remain significant challenges of scale and scope. Setting reasonable cost-based prices.  David Rogerson applies the economic theory of the “resource curse” to explain how the pricing of telecommunications services in small island nations needs to be carefully handled to create long-term economic growth. Building and maintaining network resilience. At a time when Tonga has suffered a communications failure following a devastating volcanic eruption and tsunami,  Harm Aben considers how small island nations can best build resilience into their communications infrastructure planning and discusses disaster recovery efforts to support telecommunications networks. IRASS Newsletter Issue 4 (Click to download PDF)
November 5, 2021

ICT Legal Policy and Practice: COVID and Climate Change.

Policy-making is usually reserved for government – it’s a high-level vision or mission statement.  However, to be capable of implementation, it needs to be firmly seated in the real world and be supported by the proper institutions, budget, and connected organisations.  In this month’s newsletter, Incyte Consulting and Kerron Edmunson consider some important elements of good policy in the context of the ICT sector and its relationship to COVID and climate change. IRASS Newsletter Issue 3 (01.11.21)1240 (Click To Download Full PDF)
July 13, 2021

POPI ACT – Don’t show me your private parts

This article is about the effect of the Protection of Personal Information Act, or the “POPI Act”, on ordinary activities.  It examines the ways in which our personal information might be at risk and should be protected and considers whether, in future, some changes may be needed to this Act to clarify how it will apply in social settings.  It was first published by Dentons in GoLegal.   https://lnkd.in/ggm9WAR
June 15, 2021


The ECA prohibits the provision of services by any person without a licence unless those services have been exempted under section 6.  Section 6 sets out a fairly detailed set of services and networks that ICASA may include in regulations for exemption, such as “…the Authority may prescribe the – (a)   type of electronic communications services that may be provided; (b)   type of electronic communications networks that may be operated; (c)   type of electronic communications network services that may be provided; and (d)   radio frequency spectrum that may be used, without a licence.” The list of services and networks (or network services) and spectrum set out in section 6 include: (a)   “electronic communications services provided on a not-for-profit basis; (b)   electronic communications services that are provided by resellers; (c)   private electronic communications networks used principally for or integrally related to the internal operations of the network owner.  Except that where […]
May 17, 2021


THE RIGHT TO PRIVACY POPIA or the POPI Act is a South African law that is intended to give effect to the Constitutional right to privacy.  The protection is specific to ‘personal information’ when it is ‘processed’.  However, POPI also brings South Africa closer to international requirements for the protection of data and privacy.  The most common benchmark is the General Data Protection Regulation or ‘GDPR’ which applies within the European Economic Area, and to data of its citizens that is processed outside of this area. PERSONAL INFORMATION Personal information is a wide category including names; addresses; identity and passport numbers; dates of birth; physical characteristics; marital status; sex; gender preference; mental health; biometric information; email addresses; personal views; education; criminal, financial and employment information. Personal information includes a subset called ‘special personal information’ for which specific consent use is required, in other words, for this information, the responsible party […]
May 3, 2021


INFRASTRUCTURE INVESTMENT IN TELECOMS Kerron Edmunson consults to Incyte’s Regulatory Advice and Support Service (IRASS).  Our first newsletter addresses 4 different aspects of infrastructure investment for telecoms – the business case for 5G in small nations; passive and active infrastructure-sharing; co-investment models for infrastructure investment; and facilitating competition in small island economies. IRASS Newsletter Issue 1 (19.04.21) (incyteconsulting.com)
April 14, 2021


FACT SHEET CONTROL AND EQUITY OWNERSHIP BY HISTORICALLY DISADVANTAGED GROUPS AND THE APPLICATION OF THE ICT SECTOR CODE ___________________________________________________________________________ SUMMARY Since 2006, ICASA has been obliged to comply with the objects of the ECA in its regulation of the telecoms and broadcasting sectors – objects such as the promotion of “broad-based black economic empowerment (BBBEE), with particular attention to the needs of women, opportunities for youth and challenges for persons with disabilities”[1] (the BEE obligation) and the determination of the percentage of equity ownership to be held by persons from “historically disadvantaged groups” [2] (the HDG obligation) when awarding, amending, transferring and renewing licences.  In this Regulation[3] ICASA states that its primary purpose is to “promote equity ownership by HDG and to promote BBBEE”.  It also states that the Regulation will “facilitate diversity and transformation in the ICT Sector…”.  ICASA has drawn on the ICT Sector Code[4] in formulating this […]
February 4, 2021


THE PURPOSE OF REGULATION Most regulatory authorities and regulatory structures exist to give effect to government policy objectives, but regulation is not an end in itself.  Regulation is the action that encourages (or enforces) compliance with a law, rule, or other directive prescribed by authority to regulate conduct. This is necessary to create order and protect citizens; sometimes it exists to promote fair competition. THE REGULATION OF ICT The Information, Communications and Technology or ICT sector – also known as telecoms and broadcasting, or audiovisual services and electronic communications – is a critical part of the economy.  It literally provides connectivity between citizens, citizens and government, and between governments.  The regulation of this sector is becoming more challenging because there are fewer boundaries between types of services and technologies, and it is more difficult to recognize and regulate types of behaviour according to categories of licence or other authorization, or […]
January 28, 2021


Department of Communications and Digital Technologies (Gazette 43797)  INTRODUCTION The broadcasting sector in South Africa has matured considerably since the days of the Triple Inquiry Report and the 1998 White Paper on Broadcasting Policy.  Despite the merger of the Independent Broadcasting Authority with the telecommunications regulator, SATRA, in 2000, there has not been any significant broadcasting policy published since 1998; and although the ECA devotes a chapter to broadcasting, this largely duplicates the position under the 1999 Broadcasting Act.  This is the first broadcasting-specific policy paper draft in 23 years.  The consultation closes on 15 February 2021.  This is a summary for your convenience, not legal advice.  POLICY GOALS AND REGULATION The policy refers often to the National Development Plan 2030 goals, and specifically access by all citizens to ICT services to ensure access to information.  It addresses broadcasting, audio and audiovisual content services (“AAVCS”), and video-sharing platform services (“VSPS”).  […]
December 2, 2020

Clarification by ICASA in response to submissions on ITA and WOAN

In this gazette, ICASA has set out its response to the clarification questions of interested parties in relation to the invitation to apply (ITA) for licences for high demand spectrum, and the licence to operate a wholesale open-access network (WOAN).  The auction of the spectrum is intended to take place in March 2021.  The WOAN licence process will take place in parallel. CLICK TO DOWNLOAD: Responses-to-stakeholder-enquiries-in-respect-of-the-IMT-and-WOAN-ITA
October 20, 2020


Types of licences available in RSA Licences are of 2 main categories – class (short term, for smaller areas, cheaper and less onerous) and individual (20 years for ‘telecoms’, 15 years for pay and FTA tv, 10 years for radio).  Within these 2 categories there are several types – electronic communications services (ECS), electronic communications networks (ECN), electronic communications network services (I-ECNS), broadcasting (BCS) (sound, TV, low power and community), and postal services. Separate licences are required for the use of spectrum (RF) for BCS and ECNS. Obtaining a licence National policy requires the Minister of Communications and Information Technology to determine if a new individual electronic communications network service (I-ECNS) licence may be awarded.  These licences are regarded as the most valuable since they confer the right to build infrastructure across land, and the most contentious for the same reason. ICASA otherwise has sole responsibility for licensing, and determining […]
October 6, 2020


ICASA is the primary regulatory authority for the ICT sector comprising telecoms, broadcasting and postal services.  It has, among other powers, the power to address competition in the sector under Chapter 10 of the ECA.  However, this is a limited power, applying only in relation to markets where there is ineffective competition.  ICASA’s powers of enforcement (called ex ante powers) are limited to imposing licence conditions of a particular type on licensees that have significant market power in that or those markets. The Competition Commission has concurrent jurisdiction (with ICASA) over the ICT sector by virtue of its national oversight over competition in the Republic.  The Commission’s jurisdiction covers mergers of regulated entities including the acquisition of control in some cases, and it can also address anti-competitive conduct by licensees (ex post powers).  ICASA must be consulted in all of these matters. Competition and the economy A healthy market could […]
June 11, 2020


REGULATION AND THE ICT SECTOR 2020 What is regulation? Regulation is intended to ensure the proper competitive functioning of certain markets or sectors of the national economy to benefit and protect both market players and consumers. A regulator typically aims to promote “fair” competition between market players by preventing anti-competitive conduct such as the abuse of market dominance and price manipulation, by ensuring that non-discriminatory rules are put in place; and by allocating scarce resources equally among market players on broadly similar conditions.  Market dominance is usually defined in law and may differ from one jurisdiction to another.  A dominant firm usually enjoys a substantial share within a particular market, also referred to as market power. The economic rationale for regulation tends to focus on optimising the functioning of a particular sector; promoting public confidence in the market by means of transparent and predictable regulatory (and licensing or authorisation) processes.  […]
June 11, 2020


COMPLIANCE AND COMPLAINTS 2020 The role of committees in the ICASA Act Complaints concerning anything within the jurisdiction of the Independent Communications Authority of South Africa (ICASA) may be made to ICASA (called “the Authority”) in the ICASA Act, 2000, (the Act) by any person including a licensee.  Complaints are to be dealt with by ICASA (through the managers of different units) or referred to a committee within ICASA.  This committee is called the Complaints and Compliance Committee or “CCC” and it has special but limited powers and duties in terms of section 17 of the ICASA Act, 2000. Sections 4 and 17 of the ICASA Act describe the powers of ICASA in relation to standing and special committees, and it is clear that a committee performs only those functions as may be delegated or assigned to it, and it must carry out those obligations that are imposed on it; […]
June 11, 2020


THE ART OF COMMUNICATION A TALK FOR WOMEN IN THE COMMUNICATION SECTOR 2014   Today, being a telecoms geek, I was excited to read online the budget speech of the newly appointed Minister of Telecommunications and Postal Services, Minister Siyabonga Cwele.  I can’t presume to compare this talk to his speech – and there are some other obvious differences between us – he is a man and I am a woman – but we do now share a common interest in communications. The art of communication – have we lost it, changed it forever, or do we still have it? And when I say communication, what do I mean? Do I mean the sending of abbreviated text messages with smileys to convey what happened to you before or during breakfast, on the way to school or work, or while you are in a meeting but focussing on what you are […]
June 11, 2020


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: General nature of a white paper; Explanation and examples in South Africa; The legal origins of the ICT White Paper; Making policy and giving policy directions under the ECA; Standing under the ECA of the policy and policy directions given under the ICT White Paper in relation to spectrum.   General nature of a 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.”[1]  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 […]
June 11, 2020


OVERVIEW OF THE ICT POLICY WHITE PAPER, 2016 INSTITUTIONAL FRAMEWORKS 2017   Introduction Chapter 13 of the White Paper, perhaps aptly so, sets out various high-minded principles and objectives for “institutional frameworks” related to or involved in the sector.  It notes three in particular: ICASA: “responsible for regulation and licensing of spectrum, numbering resources and electronic communications networks and services in line with national policy objectives. It is also mandated to regulate postal services and among other things, ensure fair competition in the ICT sector and the protection of users.”  Strangely nothing about broadcasting which section 192 of the Constitution specifically allocates to an independent regulatory authority, i.e. ICASA. .za Domain Name Authority (.zaDNA): “responsible for regulating and administering the .za namespace including licensing of .za registries and registrars” USAASA: “responsible for some aspects of regulation of universal service and access”. Well, not actually.  Its main function is to administer […]
June 10, 2020


Technology has revolutionised access to education, with online learning transforming the way people learn new skills and share knowledge. It’s particularly exciting to see the impact of this in developing countries like South Africa. Many of our top educational institutions are moving into this arena with relevant and top-quality content. We are also seeing a growing uptake of e-learning amongst people of all age groups, not just millennials. However, the traditionally cautious legal sector has been slower to adapt. This poses a challenge for busy (and ambitious) law professionals who are looking for convenient access to continuous professional development (CPD). While leading university law departments offer continuing legal education for lawyers, not much is available entirely online. In most instances, seminars and workshops, as well as short courses, may be supported by online platforms, but physical participation on site is still a requirement. This has to change. Not only because […]
June 10, 2020


During difficult times that require legislative action, lawmakers come under pressure to make difficult decisions. There are invariably competing interests in making or changing a law, some personal, some political, many simply practical. How much emphasis any one issue gets is often a question of how many people hold the same view, rather than whether or not that particular issue is the most important, deserving, or relevant. The national state of disaster declared in response to the global pandemic – the coronavirus causing COVID-19 – has resulted in unprecedented pressure to make rules. The principal reason for the rules is ostensibly the need to ensure public safety. The underlying reason is that if too many people get too ill, there are an insufficient number of hospitals with ventilators and staff who know how to use them, to make them widely available. As in other countries, difficult choices may have to […]