The move by the European Commission, through a new Digital Networks Act, of not imposing a fee that “over the top” (OTT) platforms such as YouTube and Netflix ought to pay to terrestrial mobile network operators for carrying high-volume data traffic, does not put an end to the so-called “Fair Share” debate.
According to Nomvuyiso Batyi, CEO of South African telecommunications industry lobby group the Association for Comms and Technology (ACT), Europe has done just the opposite by opening the door to further discussion regarding Fair Share. She has urged local regulators to follow suit by investigating the idea more deeply. ACT represents South Africa’s six largest telecoms operators, including Vodacom, MTN and Telkom.
“If you check the conclusion that European regulators have come to regarding Fair Share, it is in line with one of the proposals that we have put forward to government, saying there must be space allowed for negotiations between the operators and OTT players insofar as interconnection agreements and collaboration in that regard,” said Batyi.
“The EU has done the work from a policymaker point of view; they have taken questionnaires from industry and the public and facilitated the discussion. In order for regulators to talk to the issue of Fair Share, they need to understand the market – in South Africa that homework is yet to be handed in.”
Commercial arrangements
Despite not imposing an outright fee on big technology companies, the Digital Networks Act stipulates that network operators and OTT players must engage in negotiations leading to commercial arrangements regarding the carriage of data traffic. Furthermore, the act urges the Body of European Regulators for Electronic Communications (Berec) to develop a framework to govern dispute resolution if these negotiations break down.
Other markets like South Korea have taken a different approach, opting to impose an off-take fee on OTT players that’s paid to the mobile operators.
Batyi said ACT has presented a variety of mechanisms to South African regulatory authorities, including communications regulator Icasa, the communications department and the Competition Commission, but no action has been taken in response.
Read: ‘Fair Share’: Should Netflix pay to play in South Africa?
She urged local regulatory bodies not to follow the European – or any other – model for the mere sake of it, but rather to make the effort to study the South African market to determine what is best applicable to local conditions.
Petrus Potgieter, Unisa professor of decision sciences and an associate partner at telecoms consultancy Strand Consult, agreed with Batyi’s perspective on the Fair Share debate remaining open.
He argued that what the EU has legislated has been “overinterpreted” in some circles.
“The EU regulations at this point do not stipulate any cost recovery mechanism for telcos that deliver content, but they do specify that arrangements have to be on a commercial basis – there is a strong emphasis on that commercial aspect. The act neither outlaws nor mandates any cost recovery mechanism, but it does not ignore it either and definitely leaves the door open for that,” said Potgieter.
While supported by some, the move by EU regulators has been met with fierce opposition by others. In a statement, the European chapter of the Computer and Communications Industry Association (CCIA) criticised the so-called “voluntary conciliation” process as “regulation for regulation’s sake”.
It said cooperation between online service providers and telecoms operators is already a market reality, making the new framework redundant. CCIA argues that instead, the mechanism leaves the door open for legislative amendments or rulings by national regulatory authorities that could effectively resurrect “widely rejected” network fees.
The move will allow telecoms operators, which are already dominant, to extract “unjustified” revenues from popular online services.
Read: Andile Ngcaba: ‘Fair Share’ is not needed in South Africa
“This is not a conciliation procedure but one that will create new disputes. We are deeply concerned by the Digital Networks Act proposal’s ambiguous language, clearly opening the door to network usage fees,” said Maria Stecher, senior policy manager for connectivity and competition at CCIA Europe. – © 2026 NewsCentral Media
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