High Demand Frequency

On 28 May ICASA released a set of documents which will lead to the assignment of the remaining available radio frequency spectrum in the 2.6GHz and 3.5GHz bands.

The <a href=’https://www.ellipsis.co.za/wp-content/uploads/2010/05/Regulations-on-the-procedures-and-criteria-for-granting-radio-frequency.pdf’>High Demand Radio Frequency Spectrum Licensing Framework Regulations</a> (into force 28 May 2010) set out the procedures which ICASA will follow in assigning licences for this spectrum and for spectrum where there are competing applications (e.g. WiMAX and LTE) or where there is insufficient spectrum available to accommodate demand.

ICASA has published an accompanying <a href=’https://www.ellipsis.co.za/wp-content/uploads/2010/05/Reasons-document-on-spectrum-licensing-framework-regulations-and.pdf’>Reasons Document on the Spectrum Licensing Framework Regulations</a> which sets out the logic employed in deviating from the draft regulations previously published.

The available spectrum in the 2.6 and 3.5GHz will form the first exercise of the regulations and ICASA has issued out separate Invitations to Apply (ITAs) for the two bands.

<a href=”https://www.ellipsis.co.za/ita-2-6ghz-band/”>Invitation to apply for a radio frequency spectrum licence for the purposes of providing a mobile broadband wireless access service in the 2.6 GHz band</a>

<a href=”https://www.ellipsis.co.za/ita-3-5ghz-band/”>Invitation to apply for a radio frequency spectrum licence for the purposes of providing broadband wireless access service in the 3.5 GHz band</a>

Overview of the High Demand Radio Frequency Spectrum Licensing Framework Regulations

The regulations create the basis for ICASA to issue ITAs for frequency bands where demand outstrips supply. It is probably fair to say that this applies to almost all bands below 10GHz in South Africa.

Each ITA will set out a Designated Range to which it will apply and each Designated Range will then be divided up into Lots of unpaired or paired rasters or multiple Megahertz. The ITA will also stipulate any specific criteria applicable and the reserve price which will be set at any auction held.

Disqualifications
ICASA can disqualify an applicant where it:
1. Has submitted an application when it is an affiliate of another applicant or possesses an ownership or financial interest in another applicant within the same application process (an ownership interest is a direct or indirect ownership of issued share capital of more than 5%); or
2. Already has a radio frequency spectrum licence within the Designated Range unless the licensee has less than the maximum bandwidth made available in line with these regulations in which they will only be allowed to apply for additional spectrum which results in total assignment not exceeding the maximum bandwidth made available. In other words a licensee that holds 15MHz in the 2.6GHz range could apply for a further 15MHz to take their holding up to the maximum of 30MHz allowed under the ITA; or
3. Has submitted more than one application to ICASA for the grant of a radio frequency spectrum licence within the Designated Range; or
4. Has less than 30% direct ownership by Historically Disadvantaged Individuals (HDIs); or
5. Has submitted an application which contains false or misleading information; or
6. Is colluding or attempting to collude with another applicant with the intention to distort or manipulate information; or
7. Has obtained or acquired confidential information relating to another applicant or;
8. Has failed to notify ICASA of any changes as required by regulation 5(1) (which gives applicant seven days to notify ICASA of any changes to the information submitted as part of Schedule A to the ITA); or
9. Has failed to comply with the terms and conditions of the ITA; or
10. Has failed to comply with a request for supplementary information under regulation 6.

Selection process
This is extremely simple. ICASA will do the following to select those to whom licenses will be issued:
1. Select applicants on the basis of the evaluation criteria set out in the ITA and in the regulations; and
2. Thereafter it “may” invite applicants to participate in an auction in the event that there are more than the required numbers of qualifying applicants.

“Use it or lose it” principle
Licenses issued under the regulations will feature a “use it or lose it” clause. This is the first real benefit of the National Radio Frequency Spectrum Policy adopted by the Department of Communications earlier this year.

The ITA will set out an initial roll-out target to be achieved within two years of the date of issue of a licence at which stage the licensee will have to submit a report allowing ICASA to evaluate the extent to which this has been met.

Failure to meet 50% of the roll-out targets set out as part of the licence conditions prior to the second anniversary of the licence is considered a non-utilisation. In the event of non-utilisation ICASA is required to withdraw the licence.