Licensing under the Electronic Communications Act

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The Electronic Communications Act No 36 of 2005 (“the ECA”) came into effect on 19 July 2006, replacing the Telecommunications Act of 1996 (“the Telecommunications Act”). While the licensing structure under the Telecommunications Act was complex and artificial, the proposed licensing regime under the ECA, is, by contrast, relatively simple and intuitive.

What follows is intended to provide a straightforward top-level overview of service licensing under the ECA (excluding broadcasting licences and frequency licences). Definitions of various terms taken from the ECA have been included as footnotes in the final post for the braver readers to delve into (I recommend ignoring them until at least the second reading).


//note that ICASA was required to publish a guide to how it is going to go about converting licence within 30 days of promulgation of the Act. At best for them 30 days = 6 weeks. So that is the first ECA deadline missed. Hopefully this document will be released imminently (but i thought it better not to wait)

if you want it all in one shot - http://downloads.nicciferguson.com/ECA_Licensing.pdf

 

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DISTINCTION # 1 – NETWORKS CARRY SERVICES

The ECA draws a clear distinction between
• Electronic communications networks – the physical network or infrastructure which is made up of a system of electronic communication facilities
and
• Electronic communication services – the services provided by the conveyance of electronic communications over electronic communications networks.

An entity which owns infrastructure will be operating an electronic communications network and, where this network is made available for use by itself and others, will be providing electronic communications network services . In order to do this it will require an electronic communications network service licence and will be known as an electronic communications network services licencee .
An entity providing a service carried by such infrastructure or network will be providing an electronic communications service requiring an electronic communications service licence and will be referred to as an electronic communications service licencee .

To illustrate: Telkom owns an electronic communication network (the Public Switched Telecommunications Network or PSTN) consisting of, amongst other things, undersea cables, wire, masts, antennae and radio apparatus (all of which are electronic communications facilities). It may make this infrastructure available for its own use or for use by others. In this sense it is providing electronic communication network services and will require an electronic communications network service licence.

Telkom also provides voice and data services (Public Switched Telecommunications Services or PSTS) to the public over its electronic communications network. In this sense Telkom is providing services, e.g. telephone services, and will require an electronic communications service licence.

 

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DISTINCTION # 2 – HOW IMPORTANT IS THE NETWORK OR SERVICE?

We have seen that the ECA introduces two basic classes of service licence –
• Electronic communications networks services licences, and
• Electronic communications services licences.

These two basic classes are themselves then divided, according to the features and importance of the network or service in question, into individual and class licences. In a nutshell individual licences will be appropriate for networks or services of significant importance to socio-economic development while class licences will be required for networks or services which are regarded as not having a significant impact on socio-economic development .

The result is that we now have four distinct licence categories
• Individual electronic communications networks services licences
• Class electronic communications networks services licences
• Individual electronic communications services licences
• Class electronic communications networks services licences.

So far so good.

There are also some activities which may be regarded as unimportant to the extent that no licence at all is required to perform them. ICASA has the power to declare certain services as licence-exempt , although it may still impose terms and conditions in respect of these services.

There is no list of services which ICASA may declare to be licence-exempt, although the ECA gives us a fairly good idea of the types of services which ICASA may consider declaring licence-exempt. These include:
• electronic communications services provided on a not-for-profit basis;
• electronic communications services that are provided by resellers;
• private electronic communications networks used principally for or integrally related to the internal operations of the network owner. Except that where the private electronic communications networks’ additional capacity is resold, the Authority may prescribe terms and conditions for such resale. This corresponds with the Private Telecommunications Network (PTN) licence category created by the Telecommunications Act;
• small electronic communications networks such as local area networks;
• uses of the radio frequency spectrum that were permitted without a licence prior to the coming into force of this Act and uses of the radio frequency spectrum that the Authority finds would not cause harmful interference with radio frequency spectrum licensees such as low power uses.

 

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HOW DO THE OLD LICENCES MAP ON TO THE NEW ONES?

Guidance as to how exactly the licence conversion process will work is due to be provided by ICASA in the near future. While we wait the following will give some indications of how the process is likely to work.
• Telkom currently holds a PSTN (Public Switched Telecommunications Network) licence which, as seen above, covers both its ownership of its network and the services which it provides over it. The PSTN licence will be accordingly need to be converted into two separate licences – an electronic communications network licence and an electronic communications service licence.
• Telkom also holds a Value Added Network Services (VANS) licence through its TelkomInternet subsidiary. As this is a service licence it will need to be converted into an electronic communications service licence.
• Given the national nature of the Telkom network and services and their undoubted socio-economic importance the licences to be awarded under the ECA will be individual licences.
• Vodacom, MTN and Cell C currently hold National Mobile Cellular Telecommunications Service (NMCTS) licences. As with Telkom’s PSTN licence these will be converted into two separate licences – an individual electronic communications network services licence and an individual electronic communications service licence.
• Under-Serviced Area Licencees (USALs) are likely, given the fact that they are authorised to provide a wide variety of services within a defined geographical area, to be awarded a class communications networks services licence and a class electronic communications services licence. Where a USAL uses numbers from the national numbering plan it may require instead an individual versions of the same licences.
• Value-Added Network Services (VANS) licencees may be awarded any one or more of the four licence types depending on the nature and scope of their operations. There are a number of extremely tricky issues regarding the current rights of VANS licencees to provide their own telecommunications facilities which will impact on the licence conversion process.
• Private Telecommunications Network licencees are likely to be exempted from all licensing requirements under the ECA. Note, however, that PTN licencees who wish o sell, lease or assign any spare capacity on their networks may be subject to specific terms and conditions in this regard.

 

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‘‘electronic communications’’ means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof by means of magnetism, radio or other electromagnetic waves, optical, electro- magnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct, but does not include content service;

‘‘electronic communications network’’ means any system of electronic communications facilities (excluding subscriber equipment), including without limitation—
(a) satellite systems;
(b) fixed systems (circuit- and packet-switched);
(c) mobile systems;
(d) fibre optic cables (undersea and land-based);
(e) electricity cable systems (to the extent used for electronic communications services); and
(f) other transmission systems, used for conveyance of electronic communications;

‘‘electronic communications facility’’ includes but is not limited to any—
(a) wire;
(b) cable (including undersea and land-based fibre optic cables);
(c) antenna;
(d) mast;
(e) satellite transponder;
(f) circuit;
(g) cable landing station;
(h) international gateway;
(i) earth station; and
(j) radio apparatus or other thing,
which can be used for, or in connection with, electronic communications, including where applicable—
(i) collocation space;
(ii) monitoring equipment;
(iii) space on or within poles, ducts, cable trays, manholes, hand holds and conduits; and
(iv) associated support systems, sub-systems and services, ancillary to such electronic communications facilities or otherwise necessary for controlling connectivity of the various electronic communications facilities for proper functionality, control, integration and utilisation of such electronic communications facilities;

‘‘electronic communications service’’ means any service provided to the public, sections of the public, the State, or the subscribers to such service, which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services;

‘‘electronic communications network service’’ means a service whereby a person makes available an electronic communications network, whether by sale, lease or otherwise—
(a) for that person’s own use for the provision of an electronic communications service or broadcasting service;
(b) to another person for that other person’s use in the provision of an electronic communications service or broadcasting service; or
(c) for resale to an electronic communications service licensee, broadcasting service licensee or any other service contemplated by this Act,
and ‘‘network services’’ is construed accordingly;

‘‘electronic communications network service licensee’’ means a person to whom an electronic communications network service licence has been granted in terms of section 5(2) or 5(4);

‘‘electronic communications network service licensee’’ means a person to whom an electronic communications network service licence has been granted in terms of section 5(2) or 5(4);

‘‘electronic communications service’’ means any service provided to the public, sections of the public, the State, or the subscribers to such service, which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services;

‘‘electronic communications service licensee’’ means a person whom an electronic communications services licence has been granted in terms of section 5(2);

Section 5(3) Electronic communications network services, broadcasting services and electronic communications services that require an individual licence, include, but are not limited to—
(a) electronic communications networks of provincial and national scope operated for commercial purposes;
(b) commercial broadcasting and public broadcasting of national and regional scope whether provided free-to-air or by subscription;
(c) electronic communications services consisting of voice telephony utilising numbers from the national numbering plan;
(d) any electronic communications network service, broadcasting service or electronic communications service where a state entity (directly or indirectly) holds an ownership interest of greater than twenty-five (25%) percent of the share capital of the person providing such service; and
(e) such other services as may be prescribed that the Authority finds have significant impact on socio-economic development.

Section 5(5) Electronic communications network services, broadcasting services and electronic communications services that require a class licence, include, but are not limited to—
(a) electronic communications networks of district municipality or local municipal scope operated for commercial purposes;
(b) community broadcasting and low power services whether provided free-to-air or by subscription;
(c) such other services as may be prescribed, that the Authority finds do not have significant impact on socio-economic development.

6. (1) Subject to subsection (2), the Authority may prescribe the—
(a) type of electronic communications services that may be provided;
(b) type of electronic communications networks that may be operated;
(c) type of electronic communications network services that may be provided; and
(d) radio frequency spectrum that may be used,
without a licence.