By Kathy Gibson – The proposed Electronic Communications Amendment (ECA) Bill has come under fire from almost all the parties it will affect, and will likely embroil the industry in years of litigation if it is passed into law.
Free Market Foundation (FMF) executive director Leon Louw is emphatically critical of the bill, and believes that it wouldn’t pass constitutional muster as it stands.
The ECA Act will have implications for the ICT White Paper, which was vigorously opposed by most ICT industry players. Now, the FMF explains that industry believes the Bill does not reflect the good faith agreements that were reached with the Minister of Telecommunications and Postal Services.
“This bill affects every South African,” Louw points out. “There are more cell phones in South Africa than people, and 80% of South Africans have a cell phone.”
The FMF has consulted with senior counsel about challenging the law if it is passed, although Louw believes there will be no shortage of organisations that will launch their own legal challenges.
He points out that the ECA Bill fails legal muster on a number of fronts, including being void for vagueness.
The Wireless Open Access Network (WOAN) called for in the bill is undefined in any coherent way, Louw points out. “And there is even deeper confusion following comments from the director-general of the Department of Telecommunications and Postal Services (DTPS), who admits there is no definition.”
In fact, many of the terms used in the ECA Bill are vague, open to interpretation or “effectively unknowable”, he says.
Terms like wholesale open access, wireless open access are general open access are used, presumably to describe the single wholesale open access network (WOAN) being recommended by the Bill.
In addition, the Bill recommends cost-based pricing for high-demand spectrum, while leaving out clarity on how costs are determined or what high-demand spectrum is, Louw says.
Indeed, it is vague about spectrum overall, as well as the powers or obligations of virtual entities, which are themselves not defined.
Louw and the FMF also believe the reasoning put forward for creating a WOAN are flawed, in that South African wireless networks currently cover 98% of the population.
Where the Bill seeks to redress barriers to entry, Louw believes those barriers are largely regulatory. And, while it claims to promote service-based competition, this flies in the face of the robust competition that already exists in the connectivity industry.
Recent comments on the ECA Bill saw 43 submissions and 30 presentations, the majority of which were unfavourable. “There is essentially industry consensus,” Louw says.
A number of Internet service providers (ISPs) are in favour of the Bill as it stands, but Louw doesn’t believe it will be good for their businesses either. “The ISPs are probably mistaken in being in favour of it: I don’t it will help to promote a 5G rollout.”
Louw says the FMF is committed to opposing the ECA Bill as it stands.
“Mobile communications is South Africa’s most spectacular post-Apartheid success,” he says. “There is noting that competes with the success of our mobile technology, where we have wider coverage than many first world countries.
There could in space to tweak here and there, but to mess with it is crazy.”
He adds that the WOAN model has been tried in only one country so far, Rwanda, where it wasn’t successful. Mexico has tried to implement a WOAN, but has now outsourced the project to Nokia, Louw points out.
“So there is global consensus that no-one does this; everyone wants competing network providers.”
He adds that stifling competition in the mobile space will likely result in less investment from the telcos, which currently invest R10-billion a year, and a total of about R100-billion so far. This would probably result in the existing network falling into disrepair as investment in maintenance tapers off too.
And this would inevitably result in rising data prices, Louw points out – the opposite of what the Bill aims to achieve.
The Institute of IT Professionals of South Africa (IITPSA) has also come out strongly against the ECA Bill.
Programme director Adrian Schofield says the industry body made recommendations on the Bill, calling particular attention to the difference between what the industry understood had been agreed versus what was eventually published.