What does an ECNS licence amount to anyway?

The last two posts on the recent Altech rulings referred to “network” licences. I used the phrase to avoid the cumbersome Electronic Communications Network Service licence of the Electronic Communications Act, the legislation which governs telecommunications (and broadcasting), which has another category of licence, an Electronic Communication Service licence.

Michael’s comment on the most recent post asked what entitlements a ‘network’ licence would give to Altech anyway. Does Altech have the same rights as Telkom and Neotel?

The Electronic Communications Act describes a an electronic network service as

“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,”

Holders of network licences can build and run their own networks; cables, switches etc. Altech is entitled to build their own network, just like Telkom, Neotel etc.

But building a network means using either solid conductors like fibre, or sending radio signals. Sending radio signals requires a frequency spectrum licence, or a frequency spectrum exemption (like the exemption for wifi). Spectrum is limited so the regulator, in this case ICASA must try to optimise its use, ensuring that a wide variety of uses and users can use the spectrum. A spectrum licence is required in addition to any network licence.

Building a large scale fibre network requires laying cable across land owned by other people. Telkom was able to do this under previous legislation which gave it rights of way to lay cable. Eskom and Transnet also have rights of way next to rail lines and power cables.Without rights of way a network operator would have to negotiate with every landowner across which cables are laid.

In urban areas municipalities control rights of way alongside roads. Even though the municipality does not own the land designated as sidewalk (what many South Africans refer to as the pavement) it has certain powers over that land.Section 22 of the Electronic Communications Act gives network licensees the rights to construct their networks on other people’s land, but this subject to the law of the Republic. Section 21 gives the Minister the power to set down guidelines for the rapid deployment of networks. Outside of those guidelines its not clear whether a network licensee can simply build its network across others land.

Network licencees can apply for frequency spectrum licences and cannegociate with municipalities for rights of way, both of these are constraints which arise from technology, and the application of technology unlike the Minster of Communications constraints intended to limit the number of players in the market. These constraints provide technology related barriers to entry to the market, but managing them does not necesarily require imposing arbitrary limits on the number of entrants to a market.

The Electronic Communications Act also suggests that there can be class licences for network licences, and provincial or national licences. Will ICASA use these to try to limit the kinds of licences given to Altech and other former VANS licencees?