EC Amendment Bill: Spectrum Management Agency

Memorandum said:

2.16 Amendment of sections 30 to 34 of Act 36 of 2005

a) This clause seeks to align the radio frequency spectrum issues in
Chapter 5 of the Act with the Cabinet approved National Radio
Frequency Spectrum Policy. It further seeks to introduce a Spectrum
Management Agency within the portfolio of the Minister of
Communications with overall responsibility for the country's
spectrum as contemplated in the White Paper on Broadcasting Policy,
1998.

b) The National Radio Frequency Spectrum Policy clarifies the Minister
and ICASA's role in respect of allocation and assignment as follows:

"2.1.3 The Minister of Communications ("The Minister") acts as the
custodian of the spectrum on behalf of the people of South Africa."

"2.5 Roles and Responsibilities

2.5.1 The Minister

The Minister represents South Africa in the ITU. This includes, inter
alia the allocation of the radio frequency spectrum to various radio-
communication services.

The Minister is responsible for all international spectrum matters
pertaining to South Africa, including Regional and sub-Regional spectrum
planning, all cases concerning international harmful interference and
international frequency co-ordination. The Department will liaise with
ICASA in such matters.

2.5.1.1 The Minister is responsible for issuing policies and policy
directions in relation to the radio frequency spectrum.

2.5.1.2 The Minister is responsible for the development of the South
African national allocation plan, and for the allocation of spectrum to the
different radio-communication services.

2.5.1.3 The Minister is required to allocate spectrum for the exclusive
use of the security services, and that such spectrum be included in the
national frequency plan.

2.5.1.4 The Minister is responsible for the co-ordination and approval
of any Regional radio frequency spectrum plans applicable to South Africa.

2.5.2 ICASA

2.5.2.1 ICASA is responsible for, administering and managing the usage
of the radio frequency spectrum, and for the licensing thereof.

2.5.2.2 In order to fulfil its functions ICASA issues National Radio
Regulations that must be adhered to by all the users of national spectrum.

2.5.2.3 ICASA is responsible for the implementation of this Policy.

2.5.2.4 ICASA is responsible for the assignment of radio frequency
spectrum to licensees and for the development of national assignment
plans."

c) The role and functions allocated to the Minister in the National
Radio Frequency Spectrum Policy should be assigned to the Spectrum
Management Agency with the exception that the Minister must approve
the national radio frequency policy 'as the custodian of the
spectrum on behalf of the people of South Africa'.

d) Accordingly, the Department will prepare a separate Bill to
establish the Spectrum Management Agency.

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Amendment of section 30 of Act 36 of 2005

16. The following section is hereby substituted for section 30 of the
principal Act:

"(1)[-]In carrying out its functions under this Act and the related
legislation, the Authority controls, plans, administers and manages the use
and licensing of the radio frequency spectrum except as provided for in
section 34.[/-]

(a) The Spectrum Management Agency is responsible, on behalf of the
State for-

(i) long term spectrum planning including the development of
the national radio frequency plan;

(ii) the allocation of radio frequency spectrum for both
government and non-government use; and

(iii) the assignment of the radio frequency spectrum for
government use.

(b) The Authority is responsible for the assignment of the radio
frequency spectrum for non-government use.

(2) In [-]controlling, planning, administering, managing and
licensing[/-] assigning the use of the radio frequency spectrum
for government and non government use, the Spectrum Management
Agency and Authority respectively must-

(a) comply with the applicable standards and requirements of the ITU
and its Radio Regulations, as agreed to or adopted by the Republic
as well as the national radio frequency plan;

(b) take into account modes of transmission and efficient utilisation
of the radio frequency spectrum, including allowing shared use of
radio frequency spectrum when interference can be eliminated or
reduced to acceptable levels as determined by the Spectrum
Management Agency or the Authority; and

(c) give high priority to applications for radio frequency spectrum
where the applicant proposes to utilise digital electronic
communications facilities for the provision of broadcasting
services, electronic communications services, electronic
communications network services, and other services licensed in
terms of this Act or provided in terms of a licence exemption;

[-](d) plan for the conversion of analogue uses of the radio frequency
spectrum to digital, including the migration to digital broadcasting
in the Authority's preparation and modification of the radio
frequency spectrum plan; and

(e) give due regard to the radio frequency spectrum allocated to
security services[/-].

[-](3) The Authority must, in performing its functions in terms of
subsection (1)-ensure that in the use of the radio frequency spectrum
harmful interference to authorised or licensed users of the radio frequency
spectrum is eliminated or reduced to the extent reasonably possible.

(4) The Authority must investigate and resolve all instances of harmful
interference to licensed services that are reported to it.[/-]

(3) The Spectrum Management Agency is responsible on behalf of the
State for all international radio frequency spectrum matters pertaining to
South Africa, including Regional and sub-Regional spectrum planning.

(4) The Spectrum Management Agency is responsible on behalf of the
State for the co-ordination and approval of any Regional radio frequency
spectrum plans applicable to South Africa.

(5) The Authority may ask for and receive from the Spectrum Management
Agency, assistance or advice on relevant proceedings of the Authority,
including proceedings under this Chapter.

(6) The Spectrum Management Agency may ask for and receive from the
Authority, assistance or advice on relevant proceedings of the Spectrum
Management Agency.

(7) The Spectrum Management Agency and the Authority must enter into an
Agreement governing the mutual cooperation contemplated in subsections (5)
and (6), within 3 months of the coming into operation of the Electronic
Communications Amendment Act, 2012.".

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Amendment of section 31 of Act 36 of 2005

17. The following section is hereby substituted for section 31 of the
principal Act:

"31. Radio frequency spectrum licence.-(1) Subject to subsections (5)
and (6), no person may transmit any signal by radio or use radio apparatus
to receive any signal by radio except under and in accordance with a radio
frequency spectrum licence granted by the Spectrum Management Agency or
the Authority to such person in terms of this Act.

(2) A radio frequency spectrum licence is required in addition to any
service licence contemplated in Chapter 3, where the provision of such
service entails the use of radio frequency spectrum and a service
licence is required in addition to any radio frequency spectrum licence
where the provision of such service entails the use of radio frequency
spectrum.

(2A) A radio frequency spectrum licence may not be let, sub-let,
assigned, ceded or in any way transferred, and the control of a radio
frequency spectrum licence may not be assigned, ceded or in any way
transferred, to any other person without the prior written permission of
the Spectrum Management Agency or the Authority.

(3) The Spectrum Management Agency and the Authority may, taking
into account the objects of the Act, prescribe procedures and criteria
for-

(a) [-]awarding[/-] radio frequency spectrum licences [-]for
competing applications or[/-] in instances where there is
insufficient spectrum available to accommodate demand;

(b) the amendment, transfer, transfer of control, renewal,
suspension, cancellation, and withdrawal of radio frequency spectrum
licences; and

(c) permission to let, sub-let, assign, cede or in any way transfer
a radio frequency spectrum licence, or assign, cede or transfer
control of a radio frequency spectrum licence as contemplated in
subsection 2A.

(4) The Spectrum Management Agency or the Authority may amend a
radio frequency spectrum licence-

(a) to implement a change in the radio frequency plan;

(b) in the interest of orderly radio frequency spectrum management;

(c) to effect the migration of licensees in accordance with a revised
radio frequency plan or the transition from analogue to digital
broadcasting;

(d) if requested by the licensee concerned to the extent that the
request is fair and does not prejudice other licensees; or

(e) with the agreement of the licensee.

(5) Subsection (1) does not apply to a person who utilises radio
frequency spectrum-

(a) in the course of making due and proper use, as a subscriber, of an
electronic communications service or electronic communications
network service, the provision of which is licensed in terms of
Chapter 3 or as a recipient of a service subject to a licence
exemption;

(b) in the course of making due and proper use of an electronic
communications service, the provision of which is licensed in terms
of Chapter 3 as part of his or her duties in the service of the
State or a local authority, including any military force, police
service or traffic authority, in instances of force majeure; or

(c) in accordance with the regulations contemplated in subsection

(6).

(6) The Spectrum Management Agency and the Authority may
prescribe-

(a) types of radio apparatus the use or possession of which; or

(b) the circumstances in which the use or possession of radio
apparatus, does not require a radio frequency spectrum licence,
including, but not limited to radio frequency spectrum allocated for
use in respect of radio astronomy and other scientific uses of radio
frequency spectrum that have been coordinated and agreed to by the
Spectrum Management Agency or the Authority.

(7) The Spectrum Management Agency and the Authority may, on its
own initiative, take appropriate action to ensure compliance with the
provisions of this Chapter.

(8) Subject to subsection (9), the Spectrum Management Agency and
the Authority may withdraw any radio frequency spectrum licence or
allocated radio frequency spectrum when the licensee fails to utilise
the allocated radio frequency spectrum in accordance with the licence
conditions applicable to such licence.

(9) Before the Spectrum Management Agency or the Authority
withdraws a radio frequency spectrum licence or allocated radio
frequency spectrum in terms of subsection (8), it must give the
licensee prior written notice of at least 30 days and the licensee must
have 7 (seven) business days in which to respond in writing to the notice
(unless otherwise extended by the Spectrum Management Agency or the
Authority) demonstrating that it is utilising the radio frequency spectrum
in compliance with this Act and the licence conditions.

(10) The Spectrum Management Agency or the Authority, based on
the written response of the licensee, must notify the licensee of its
decision to withdraw or not to withdraw the licence or allocated radio
frequency spectrum.".

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18. Section 32 of the principal Act is hereby amended by the insertion
after subsection (4) of the following subsection:

"(5) The Spectrum Management Agency may request the Authority to
perform any power or function mentioned in this section in respect of any
radio apparatus identified by the Spectrum Management Agency.".

Amendment of section 33 of Act 36 of 2005

19. The following section is hereby substituted for section 33 of the
principal Act:

"33. Frequency co-ordination.-(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 Spectrum
Management Agency or Authority must intervene and resolve the dispute.

(3) The Spectrum Management Agency and 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.

(4) The Spectrum Management Agency and Authority must, in performing
its functions in terms of this Chapter, ensure that in the use of the radio
frequency spectrum harmful interference to authorised or licensed users of
the radio frequency spectrum is eliminated or reduced to the extent
reasonably possible.

(5) The Spectrum Management Agency and Authority must investigate and
resolve all instances of harmful interference to licensed services that are
reported to it.

(6) The Spectrum Management Agency is responsible on behalf of the
State for all matters concerning international harmful interference and
international frequency co-ordination.".

Amendment of section 34 of Act 36 of 2005

20. The following section is hereby substituted for section 34 of the
principal Act:

"34. Radio frequency plan.-(1) The [-]Minister[/-]Spectrum
Management Agency, in the exercise of [-]his or her[/-] its
functions, represents the Republic in international fora, including the
ITU, in respect of-

(a) the international [-]allotment[/-] allocation of radio
frequency spectrum; and

(b) the international coordination of radio frequency spectrum usage,

in accordance with international treaties, multinational and bilateral
agreements entered into by the Republic.

(2) The Minister must approve the national radio frequency plan
developed by the Spectrum Management Agency [-]Authority[/-],
which must set out the specific frequency bands designated for use by
particular types of services, taking into account the radio frequency
spectrum bands allocated to the security services.

(3) The Spectrum Management Agency and Authority must assign
radio frequencies consistent with the national radio frequency plan for the
use of radio frequency spectrum by licence holders and other services that
may be provided pursuant to a licence exemption.

[-](4) The Authority must, within 12 months of the coming into force
of this Act, prepare the national radio frequency plan or make appropriate
modification to any existing radio frequency plan to bring it into
conformity with this Act.[/-]

(5) The national radio frequency plan must be updated and amended when
necessary in order to keep the plan current. When updating and amending
this plan due regard must be given to the current and future usage of the
radio frequency spectrum.

(6) The national radio frequency plan must-

(a) designate the radio frequency bands to be used for particular types
of services;

(b) ensure that the radio frequency spectrum is utilised and managed in
an orderly, efficient and effective manner;

(c) aim at reducing congestion in the use of the radio frequency
spectrum;

(d) aim at protecting radio frequency spectrum licensees from harmful
interference;

(e) provide for flexibility and the rapid and efficient introduction of
new technologies;

(f) aim at providing opportunities for the introduction of the widest
range of services and the maximum number of users thereof as is
practically feasible.

(7) In preparing the national radio frequency plan as contemplated in
subsection [-](4)[/-] (2), the [-]Authority[/-] Spectrum Management Agency-

(a) take into account the ITU's international spectrum
[-]allotments[/-] allocations for radio frequency spectrum
use, in so far as ITU allocations have been adopted or agreed upon
by the Republic, and give due regard to the reports of experts in
the field of spectrum or radio frequency planning and to
internationally accepted methods for preparing such plans;

(b) take into account existing uses of the radio frequency spectrum and
any radio frequency band plans in existence or in the course of
preparation; [-]and[/-]

(c) consult with the [-]Minister to-

(i) incorporate the radio frequency spectrum allocated by the
Minister for the exclusive use of the security services into
the national radio frequency plan;

(ii) take account of the government's current and planned uses
of the radio frequency spectrum, including but not limited
to, civil aviation, aeronautical services and scientific
research; and

(iii) co-ordinate a plan for migration of existing users, as
applicable, to make available radio frequency spectrum to
satisfy the requirements of subsection (2) and the objects of
this Act and of the related legislation.[/- Authority
on radio frequency spectrum for non-government use.

(7A) The Spectrum Management Agency or Authority must co-ordinate a
plan for migration of existing users, as applicable, to make available
radio frequency spectrum to satisfy the requirements of subsection (2) and
the objects of this Act and of the related legislation.

(8) The [-]Authority[/-] Spectrum Management Agency must give
notice of its intention to prepare a national radio frequency plan in the
Gazette and in such notice invite interested parties to submit their
written representations [-]to the Authority[/-] within such period as may
be specified in such notice.

(9) The [Authority] Spectrum Management Agency may, after
the period referred to in subsection (8) has passed, hold a hearing in
respect of the proposed national radio frequency plan.

(10) After the hearing, if any, and after due consideration of any
written representations received in response to the notice mentioned in
subsection (8) or tendered at the hearing, the [-]Authority[/-] Spectrum Management Agency must forward the national radio frequency
plan to the Minister for approval.

(11) The Minister must, within 30 days of receipt of the national radio
frequency plan, either approve the plan, at which time the plan must become
effective, or notify the [-]Authority[/-] Spectrum Management Agency that further consultation is required.

(12) Upon approval of the national radio frequency plan by the
Minister, the [-]Authority[/-] Spectrum Management Agency must
publish the plan in the Gazette.

(13) Any radio frequency plan approved in terms of this section and all
the comments, representations and other documents received in response to
the notice contemplated in subsection (8) or tendered at the hearing must
be-

(a) kept at the offices of the [-]Authority[/-] Spectrum Management Agency; and

(b) open for public inspection by interested persons during the normal
office hours of the Authority.

(14) The [-]Authority[/-] Spectrum Management Agency must, at
the request of any person and on payment of such fee as may be prescribed,
furnish him or her with a copy of the radio frequency plan.

(15) The provisions of subsections (6) to (14) apply, with the
necessary changes, in relation to any amendment made by the
[-]Authority[/-] Spectrum Management Agency to the radio frequency
plan.

(16) The Spectrum Management Agency and the Authority may, where
the national radio frequency plan identifies radio frequency spectrum that
is occupied and requires the migration of the users of such radio frequency
spectrum to other radio frequency bands, migrate the users to such other
radio frequency bands in accordance with the national radio frequency
plan[-], except where such migration involves governmental entities or
organisations, in which case the Authority-

(a) must refer the matter to the Minister; and

(b) may migrate the users after consultation with the Minister[/-]."

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