Draft Electronic Communications Amendment Bill & implementation of the White Paper
The Minister provided an update on progress with the Bill and the implementation of the White Paper during the presentation of the Department’s R923 million budget in Parliament. Of note:
- Timelines are slipping: the Bill was meant to be introduced into Parliament in March and this is now scheduled for the second quarter of 2018 (being the second Parliamentary quarter 1 July 2018 – 30 September 2018).
- The wireless open access network (WOAN) remains a centrepiece of the Bill.
- The Minister outlined the accommodation reached with incumbent operators as follows:
- Operators would retain their current spectrum assignments with the quid pro quo that they take up 30% of WOAN capacity.
- Operators would gain access to spectrum surplus to the requirements of the WOAN – as established by the CSIR – in return for which the percentage uptake of capacity would increase to 50%.
- As noted in the last report, the CSIR study has been finalised and handed to the Minister and this will be published after conclusion of its consideration by Cabinet.
- There was a marked shift to rhetoric around promoting investor certainty and attracting infrastructure investment.
The Deputy Minister noted that a Digital Development Fund Bill – which will create a new fund to replace the Universal Service and Access Fund (USAF) – will be taken to Cabinet for approval of public consultations to commence. No timelines were provided.
Rapid deployment of electronic communications infrastructure
The Minister confirmed that there has been progress with implementing this intervention:
- The National Rapid Deployment Coordinating Centre is operational.
- Gauteng will launch a pilot of the new approach at Emfuleni Local Municipality using an automated wayleave system and GIS database of existing infrastructure, while the KZN Provincial Government “is utilising its coordinating structure with municipalities to facilitate rapid deployment”.
- An MOU with the South African Local Government Association (SALGA) is being finalised.
Right to deploy electronic communications networks
The interpretation of section 22 of the ECA – the right afforded to licensees to enter onto land for the purpose of deploying a network – has been the focus of a number of recent high court decisions. As a general statement it seems that industry optimism based on the Link Africa decision is being eroded by explicit rulings that licensees must comply with municipal law and that there is no conflict between section 22(1) rights and the obligation to comply with, for example, zoning and infrastructure bylaws. We have prepared a short note on the latest judgement in which Telkom came second to the City of Cape Town with costs. The excerpt below is the clearest statement yet of what is required to comply with applicable law when exercising section 22(1) rights:
 The Applicants submitted that Section 22 has been authoritatively interpreted so as to trump the fundamental right of ownership. I do not agree with this contention. It is my view that the Applicants are misinterpreting the Link Africa decision. Section 22 cannot operate in a vacuum. I agree with the Respondent’s contention that it has to co-exist in a web of other laws including municipal by-laws. I am therefore of the view that the Respondent’s zoning requirements do not conflict with Section 22(1) because before a licensee may exercise its right in terms of Section 22(1) of the ECA, the licensee must comply with all applicable law, including laws enacted by the municipality. As Section 22(2) clearly provides that “due regard must be had to applicable law and the environmental policy of the Republic”, it follows that apart from the municipality’s consent, which is required in terms of the By-law, the licensee is still required to obtain all other permits, licenses and authorisations required by law which do not constitute a ‘municipality’s consent’, such as rezoning or departure, building plan approval or exemption (which the First Applicant concedes is required), environmental authorisations, heritage authorisation, and civil aviation permits, amongst others. It is for these reasons that I am not in agreement with the Applicants’ contention that the By-law and the Mast Policy exceed the boundaries between spheres of planning law. I am not persuaded that it is the intention of the legislature to grant a licensee unqualified rights to conduct activities on land without obtaining any permit, license or authorisation required by any law from any authority. If this were so, the public would be without the protection of a range of constitutionally compliant laws which serve the public interest.
Telkom SA Soc Ltd v Kalu NO and Another (ZAWCHC 53 (10 May 2018) | The right to deploy networks and the obligation to obey applicable law (May 2018) | Cape Town by-laws will negatively impact service provision – Telkom
Cost to communicate
The Minister confirmed that the “cost of data in South Africa is still relatively high” due to “duopoly market dominance”. He pointed to the Competition Commission inquiry into the Data Services Market and ICASA’s priority market studies as processes in a cost to communicate programme that is “progressing well”.
“We have urged ICASA to prioritise the broadband data market so that DATA MUST FALL.”
Neither of the processes mentioned directly address the cost to communicate…
SA Connect National Broadband Network
The Minister announced further reductions in the targets for connecting government facilities in eight district municipalities under SA Connect, a direct result of delays and cross-government budget cuts for infrastructure spending. Broadband Infraco – the lead agency for the project – is to expand its fibre network by a further 1000km and increase its points-of-presence to 176. Altogether 570 sites of the 2 800 identified for phase 1 are to be connected by the end of 2018. The Minister acknowledged that phase 2 – basically covering the rest of the country – has no budget and that Treasury was being engaged to develop public-private partnership initiatives to fund this.
The Deputy-Minister of Telecommunications and Postal Services effectively elevated initiatives to establish community networks in South Africa to official policy during her budget vote speech.
“Honourable Members, The digital divide is most pronounced in rural South Africa. Citizens are still subject to low levels of connectivity, and at prices which are not affordable to them. To this end the department, through Broadband Infraco and SITA, will collaborate with the University of the Western Cape and its Non-Profit spin-off, Zenzeleni Networks Mankosi, to deliver affordable internet to rural communities in the Eastern Cape. As part of our SMME strategy, we will extend the current network in Mankosi, by initiating community-based ISP co-operatives, who will own and manage their own network. This community ownership model advances components of the ICT Development Index and development goals highlighted in the White Paper. The model further addresses the key barriers for universal access which the department’s Internet for All project seeks to address.”
Ellipsis has been involved with the initiative in Mankosi since its commencement: it is a fantastic project with real empowerment outcomes. Such an announcement is sufficient to disable, temporarily, even our cynicism….
End-user and Subscriber Service Charter Regulations
The Minister raised the finalisation of amendments to these regulations in his Budget Vote Speech. Interesting is the politician’s puffery:
Operators must allow customers to roll over their unused data, i.e. no more data expiry!
As the amendments are not prescriptive about data roll-over extension periods, data will continue to expire with terms and conditions applicable to roll-over likely to become a point of competitive differentiation in the market. The amendments to the regulations will come into effect on 7 June 2018, although many in industry are lobbying for an extension to this date to allow time to understand and comply with new requirements.
In the last report we noted that the USAASA CEO had been suspended for a litany of alleged misconduct and it appears that he will not go quietly. Court papers indicate the depth of the rift between board and CEO and the latter has also approached the Public Protector for urgent intervention. The DTPS appears to be taking the matter seriously and with a degree of frustration (USAASA have had 10 CEOs in their 21-year existence).
Fourth Industrial Revolution
The Minister stated that he is working closely with the presidency to establish a digital Industrial Revolution Commission comprising of government, the private sector, and civil society. The Commission will develop “action plans and interventions for South Africa to leverage on the benefits of the 4IR, focusing on developing a digital society, advanced manufacturing, innovation, research & development as well as skills for new job opportunities”.
Numbering for machine related services
ICASA has requested that all relevant licensees provide progress reports on the migration of machine related services to the 14-digit numbering block specified for this purpose in the interval leading up to the 28 September 2018 deadline. The update reports should be submitted by 16h00 on 31 May, 20 July and 7 September 2018, respectively. The reporting format is as per the Notice found at the accompanying link.
The Minister briefed the Portfolio Committee for Telecommunications and Postal Services on this Bill on 15 May 2018 and it is now formally before that Committee for consideration.
Cybercrime and Cybersecurity
Cybercrimes and Cybersecurity Bill 2017
The Portfolio Committee for Justice and Correctional Services is scheduled to restart its deliberations into this Bill on 22 May 2018.
Online Content Regulations
Film and Publications Amendment Bill
No update: the Bill remains before the National Council of Provinces (NCOP) – no date has been scheduled for its consideration.
Content regulation in Africa
Kenya’s President signed new legislation criminalising cybercrimes including fake news, cyberbullying and cyberespionage. The Computer Misuse and Cybercrimes Act 2018 is wide-ranging – including provisions criminalising “false publications” and the “publication of false information”.
22.(1) A person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.
(2) Pursuant to Article 24 of the Constitution, the freedom of expression under Article 33 of the Constitution shall be limited in respect of the international publication of false, misleading or fictitious data or misinformation that-
(a) is likely to-
(i) propagate war; or
(ii) incite persons to violence;
(b) constitutes hate speech
(c) advocates hatred that-
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or
(ii) is based on any ground of discrimination specified or contemplated in Article 27(4) of the Constitution; or
(d) negatively affects the rights or reputation of others
Publication of false information.
23. A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence and shall on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years, or to both.
The Act also seeks to regulate the use of blockchain technology, defined as “a digitized, decentralized, public ledger of all crypto currency transactions”. A committee is to advise the Government on security related aspects touching on matters relating to blockchain technology, critical infrastructure, mobile money and trust accounts.
In the Gambia, on the other hand, the Supreme Court ruled that a law criminalising false publication on the Internet was unconstitutional and ordered lawmakers to repeal it. The law on False Publication on the Internet criminalised use of the internet to spread false news against the government or public officials or to caricature, abuse or make derogatory statements against the person or character of public officials. A maximum fine of USD 63 800 and/or 15 years imprisonment could be imposed.