Telecommunications & postal services minister Siyabonga Cwele has unveiled a radical shake-up in the way South Africa’s ICT sector is managed, including a controversial change to the way so-called “high-demand” spectrum is allocated, along with the introduction of a dramatically overhauled regulatory regime.

The national integrated ICT policy white paper, approved by cabinet on Wednesday and to be published in the Government Gazette on Monday, looks set to generate enormous controversy — and legal challenges — as it looks to change fundamentally the way the industry has operated until now.

The most contentious changes introduced in the white paper, which will form the basis of future legislation, are around how spectrum is managed and allocated, but there are other chapters in the document that are set to ruffle industry feathers.

The white paper defines spectrum as an “important utility and a public good” and puts forward “measures to support a paradigm shift towards non-exclusive assignment of highly contested spectrum in bands where demand exceeds the amount of spectrum available”.

Cwele said at a press conference in Pretoria on Sunday: “Historically, spectrum for mobile has been assigned to individual licensees who are then given exclusive rights to it for a defined period in a defined geographic area. The new spectrum management regime set out in this policy encourages licensees to work together as far as it is practicable. This includes through the deployment of a wireless open-access network.”

The white paper defines open access as “wholesale access provided to electronic communications network infrastructure or services on terms that are reasonable, effective, transparent and non-discriminatory”.

“It is backed by principles of openness, transparency, equal access and non-discrimination, sharing and non-duplication and efficiency, standardisation and reasonableness,” Cwele said.

“The open-access principle is applicable to all networks and aims to, among other things, facilitate infrastructure sharing, address market dominance, and market concentration and competition. Entities that control critical resources will be obliged to provide access to essential facilities at regulated, cost-based prices.”

The minister said the policy is meant to lead to the more effective use of spectrum and the reduction in duplication of infrastructure while facilitating service-based competition.

All high-demand spectrum will be assigned on an open-access basis. “All currently unassigned high-demand spectrum will be set aside for assignment to the wireless open-access network…”

The policy also “clarifies” the roles of the minister and the regulator. This, Cwele said, is being done to “remove institutional inefficiencies such as gaps in the spectrum management regime with regard to the assignment between national universal service objectives and the licensing of frequency spectrum resources, the setting of spectrum fees, spectrum trading, sharing, re-farming and migration”.

The white paper proposes the establishment of two new regulators, which will replace agencies such as Icasa and the Film and Publication Board. The first of the new regulators will focus on telecoms and postal networks and services; the second will focus on content and audio-visual services.

All policy-related functions currently residing with underserviced area agency Usaasa will be transferred to the minister. Regulatory functions such as licence conditions to advance universal service and access and monitoring of roll-out of networks currently residing with Usaasa will be transferred to the new networks regulator.

The white paper contains a number of other significant changes to ICT policy in South Africa. These include:

A new “digital development fund” to manage the universal service funds and the roll-out of programmes to address the digital divide and ensure universal access to infrastructure and services.
Principles of open Internet and network neutrality “to ensure all lawful and legal Internet traffic is treated equally, without discrimination, restriction or interference, regardless of the sender, receiver, content, device, service or application”.

Cwele said the white paper is final and will be used as the basis to create new legislation to govern the sector. However, a new policy document on broadcasting is still being developed by the department of communications and will form part of the overall policy at a later date.