controlling the frequencies: some current regulatory realities

big(ger) picture explosion in demand Estimate around 120 – 150 new entrants seeking access as a result of licence conversion – mostly WISPs but some looking to use their ECNS licences and become telco access providers + large number of class licensees now registering and looking for regional allocations + very aggressive positions from incumbents, especially the mobile networks

big(ger) picture constriction in supply Current frequency management approach not geared to handle demand – massive pile of applications which are gathering dust + indications that ICASA / Govt. will look to the assignment of frequency to achieve policy goals relating to universal service and transformation + lack of transparency, esp. with regard to government use + mantra: spectrum is scarce

satfa ● Review of the South African Table of Frequency Allocations (SATFA) – Top-level frequency management document – Public hearings held in August 2009 – Will be a further draft and further opportunity to comment – Lengthy process closely aligned to ITU and World Radiocommunication Conferences (WRC) – Allocation: the uses to which specific bands may be put – Assignment: actual issuing of licences to those who qualify to use it

2.6 & 3.5 GHz ● ICASA has confirmed that demand exceeds supply in the 2.6 & 3.5 GHz bands ● July 2009: draft regulations and findings document released proposing beauty contest or auction or combination thereof as the market mechanism – 2.6GHz (2 500 – 2690MHz) Assigned on a national basis – there will be 4 assignments of 30MHz each, whether intended for FDD or TDD methods. ICASA will cause in- band migration where necessary (likely to affect Sentech / iBurst). – 3.5GHz (3 400 – 3 600MHz) Assigned with respect to geographic catchments areas which will be designated on the basis of population density. There will be a maximum of 28MHz assigned per catchments area whether intended for FDD or TDD methods ● According to ICASA this will take place Q4 2009

2.6 & 3.5 GHz ● Evaluation criteria relate to – structure of ownership and control – nature and extent of consumer benefits to be derived by the general public – business plan – technical plan – track record and expertise in the sector – BEE (At least 30% direct BEE ownership, i.e. disenfranchised prior to 1994) – employment equity ● There are a number of restrictions on who can obtain licensed frequency, including: – cannot be an affiliate or hold more than 5% in another applicant in the same band – cannot have already been granted a licence in the designated band (think Sentech, iBurst in 2.6 GHz & Telkom, Neotel, Sentech in 3.5GHz) – cannot have less than 30% direct BEE ownership.

demand exceeds supply?? ● Delays suggest politics and policy are at play – Trend towards greater role of state in provision of services ● Other bands where ICASA has indicated that there is excess demand – 2.3 GHz – 2.5 GHz – 5.8 GHz – Lower 7 GHz – 10.5 GHz ● All likely to be subject to some form of market-based mechanism for assignment

demand exceeds supply??? ● No transparency in the assignment of frequency in South Africa ● ICASA has referred to “permanent assignments” in the 2.6 and 3.5 GHz bands ● No public progress on auditing usage of existing frequency assignments – ICASA proposing to deal with this through pricing and competition provisions ● While demand in certain bands may exceed non- assigned frequency in those bands there is no available evidence of anything but administrative scarcity in supply ● Demand for information certainly does exceed supply

Use it or lose it... ● From the draft scarcity regulations: “The Authority has determined that in cases where the licenced radio spectrum remains unused for a considerable amount of time a principal of use it or lose it will apply.”...wish-washy and nobody should have any unmanaged expectations in this regard

co-ordination of usage ● No indication from ICASA with regard to the drafting of the regulations contemplated under section 33(3) of the ECA relating to frequency co-ordination 33. (1) Holders of a radio frequency spectrum licence must, in good faith, co-ordinate their respective frequency usage with other such licensees to— (a) avoid harmful interference among radio frequency spectrum licensees; (b) ensure efficient use of any applicable frequency band; and (c) allow for the provision of cost-efficient services. (2) Where radio frequency spectrum licensees are unable or unwilling to co-ordinate in good faith in terms of subsection (1), the Authority must intervene and resolve the dispute. (3) The Authority must prescribe regulations governing the co-ordination contemplated in subsection (1), which may include a process for the resolution of disputes among radio frequency spectrum licensees on an expedited basis.

licence exempt frequencies ● – GHz ISM allocated WLAN, wireless wideband systems, wireless wideband data transmission applications, with eirp of 100mW. Interference with Telkom licensed use a problem. ● Indoor Hiperlan allocated for Wireless Access Services / Radio Local Access Networks. Indoor use only with eirp of 200mW. DFS and TPC obligatory (to prevent interference with radar systems) ● Outdoor Hiperlan allocated for Wireless Access Services / Radio Local Access Networks. Indoor use & outdoor use with eirp of 1W. DFS and TPC obligatory (to prevent interference with radar systems – MHz). ● ISM currently allocated for non-specific short range devices with eirp of 25mW. ● 17.1 – 17.3G allocated for Wireless Access Services / Radio Local Access Networks – 100mW eirp.

5.8 GHz ● Enquiry into the use of the MHz band for wireless broadband access – launched on 8 March 2006 – Informal indications that will be allocated to FWA with an eirp of 4W Point-to-Multipoint and 200W Point-to-Point – But as at September 2009 no further progress appears to have been made. – Will probably be finalised in conjunction with the SATFA review

spectrum pricing ● Proposed adoption of Administrative Incentive Pricing (AIP) – Used successfully in the UK to promote efficiency of use, especially amongst government users – But not a regulatory tool for addressing spectrum hoarding as ICASA seems to think it is – In pricing formula propose sharing factor as an incentive to sharing (but prior process required) ● No progress on spectrum trading

regulatory interventions ● “Open” also refers to open management of frequency – OSA should promote transparency and best practise in managing for efficiency ● OSA should also actively seek to address information black holes and asymmetries in order to inform regulatory intervention – Promotion of Access to Information Act request for access to the database of frequency assignments – Information has to be provided to allow ECNS licensees to exercise their right to apply for frequency ● Participation in ICASA and DoC processes – urgent need for multi-disciplinary intelligence from outside the incumbents to be applied

thank you. corrections and suggestions most welcome.