Fibre monopolies at complexes and estates in South Africa

Many complexes and estates in South Africa limit residents to a single Internet service provider (ISP), giving them no choice in the pricing of their fibre packages.

According to BBM Attorneys director Marina Constas, this constitutes anti-competitive behaviour.

South Africa’s Internet Service Providers’ Association (ISPA) also believes estates and complexes should reject fibre installations that don’t allow for competition at an ISP level.

“ISPA’s view is that closed networks — or entering into an exclusive arrangement with one provider — are contrary to the ideal of a level internet services playing field that values innovation and competition,” ISPA told MyBroadband.

“South Africans must refuse second-best and continue to evangelise the principle of open access FTTH where they live.”

It adds that while it is impossible to provide exact numbers of complexes and estates using closed networks in South Africa, ISPA says anecdotal evidence suggests that there are many.

ISPA says many residential estates are now tied into exclusive fibre arrangements at an infrastructure and ISP level.

It believes this is due to a lack of understanding of what open access is, combined with estates rushing to get any fibre laid.

Constas previously said the Community Schemes Ombud Service (CSOS) has attempted to address such practices. However, she added that it isn’t the correct entity to approach.

“CSOS only has delegated authority to deal with certain remedies, and dealing with fibre and this kind of thing is not one of those,” she said.

Even if the area in which an estate is located only has coverage from a single fibre network operator (FNO), different Internet service providers (ISPs) will offer different pricing based on their wholesale agreements with FNOs.

Limiting the choice of ISPs means customers can’t look for the best pricing or service to meet their needs.

Alternatively, they are forced to explore options like fixed-wireless connections if they are unwilling to use the fibre ISP.

Constas said South Africa should make it mandatory for body corporates to allow residents a choice of ISP.

“Owners should be allowed to find themselves the best deal,” she said. “Unfortunately, in South Africa at the moment, it’s not under any act.”

“There are sometimes complexes or trustees that might be getting a good deal or be promised certain things by fibre providers who are recommending that they only use one ISP.”

She added that she believes this kind of practice would fall foul of the competition board.

Constas noted that countries like Australia have legislation in the Telecommunications Act prohibiting this anti-competitive behaviour.

Her thoughts come after ISPA warned complexes and estates that allowing only one ISP is doing their residents an injustice.

ISPA chair Sasha Booth-Beharilal believes body corporates should also allow for competition at an FNO level to enable non-exclusive fibre connectivity.

However, she noted that this isn’t always possible, in which case, homeowners’ associations, body corporates, and property developers should reject any fibre installation that won’t allow for a choice of ISP.

ISP choice a requirement in South Africa

Giving customers a choice of ISP when buying Internet access has been a key requirement of the National Integrated ICT Policy White Paper since 2016.

However, as Constas mentioned, it has never been legislated under an act.

“With open and shared networks as a feature of the new policy environment, competition will be focused at the service level — ISPs, mobile virtual network operators, and other service providers to provide high-quality and innovative products and services to South Africans — at affordable rates,” the paper reads.

It adds that this will facilitate universal service and access, allowing for broadband access for all South Africans.

ISPA has called for open-access fibre installations on several occasions in the past, and according to Booth-Beharilal, body corporates that commit to open-access providers must put such assurances in writing.

“Clauses to this effect must always be inserted in any written agreements with planned fibre providers,” she said.

“Open access commitments must be kept on body corporate meeting agendas, and residents must scrutinise fibre rollout agreements within communities before trenching begins.”