I recently had a fiber to the home (FTTH) line installed at my new residence in Johannesburg, and so far, I’ve been very pleased! My service provider is affordable to me as a first-time employee, and the package I am getting is – to me – quite unprecedented, in that I am on an uncapped, virtually unthrottled account. I have never experienced this level of internet freedom before.
However, while on the surface, technological expansion and development seems to be continuing apace, the unseen reality is that a dark future awaits internet freedom in South Africa.
Last year, the Department of Telecommunications and Postal Services (DTPS) published their National Integrated Information and Communication Technologies (ICT) Policy White Paper. The White Paper is mind-numbing 160 pages long, which is likely why very few people have bothered to take notice. The curious thing is that nothing in the White Paper will jump out as grave threat to internet freedom. Instead, if you managed to read through it all, you will either not remember what you have read, or, as is more likely, you will be completely bewildered.
The White Paper is confusing, ambiguous, and the consequences of its translation into legislation and regulation, are mostly unpredictable.
Contrast this with the proposed Hate Speech Bill. It is, for the most part, perfectly understandable, and its consequences are mostly predictable (the total destruction of freedom of expression). It is badly drafted, but assuming the drafters intended what they wrote, you know more or less what you’re getting.
This leaves us with the bizarre state of affairs where the Hate Speech Bill is ‘better law’ than the proposed new telecommunications legal regime. While the Hate Speech Bill is totalitarianism incarnate, the ICT Policy White Paper’s consequences are so unpredictable that it is safer to simply adopt unambiguous, draconian Apartheid legislation instead.
What can be gleamed from the White Paper – although it is unclear – is the following:
- The government will establish a new monopoly, or it might not
- The government will engage in price control, or it might not
- The government will expropriate radio frequency spectrum, or it might not
Radio frequency spectrum (or simply ‘spectrum’) is the lifeblood of the international telecommunications industry. Spectrum is a limited resource, and consists of frequency bands (something we’ve all seen, such as ‘800 Mhz’) over which the radio signals which enable things such as radio, television, and internet, travel. The more spectrum an internet service provider is assigned, therefore, the greater its capacity for expansion will be, and, potentially, the better its service will be – less throttling, cheaper packages, etc.
In the White Paper, the government has made its intention known to establish what looks like a new monopoly. It is known as the Wireless Open Access Network (WOAN), and will apparently be owned by a joint public-private consortium. Government, being the ‘custodian’ and allocator of spectrum, will now assign all high demand spectrum to the WOAN. High demand spectrum are those spectrum bands which have a higher demand than there is availability of. In other words, the government has seen what the private sector needs, and has decided that it will appropriate it for itself. This is akin to a monopoly grocery store owner opting to keep all the caviar his store has in stock, to himself.
Unallocated spectrum will go to the WOAN, and the government appears to intend to not renew the licenses of service providers which currently lease spectrum – since it’s unownable – and then use that spectrum for the WOAN as well. While technically this is not ‘expropriation’, it is quite akin to it, because it has become an industrial custom for government to renew spectrum licenses. This is the same as government simply deciding to no longer let anyone out of the country at border posts. It is under no explicit obligation to let people in or out, but it is expected that it will do so. It goes without saying that if the high demand spectrum of existing service providers is not renewed, those service providers will likely be forced out of business, or, equally bad, forced to merge with other service providers.
The Electronic Communications Act, which has been in force since 2005, allows ICASA (the Independent Communications Authority) to engage in price control; however, the White Paper goes further. The government will now enforce cost-based pricing on service providers. This means that prices for services will no longer be determined competitively or according to market forces, but based mostly on the cost the company incurred in providing the service in the first place. This also reinforces the White Paper’s commitment to so-called ‘service-based’ competition, whereby service providers will compete on quality of service alone, rather than price or infrastructure.
The ICT industry is perhaps the industry most needing of a free market, given how quickly things change with the developmental pace of technology. However, with the government’s micromanaging of price policy and its clampdown on spectrum allocation, we stand to see our internet freedom evaporate.
Neil Emerick and I recently co-authored a monograph on the ICT White Paper, called The Real Digital Divide: South Africa’s Information and Communication Technologies Policy, wherein we explore existing South African telecommunications law – which, unfortunately, is not great either – as well as the problems with the proposed new policy.
But we also write extensively about how ICT is not always what it seems on the surface. Take, for instance, ‘net neutrality.’ A few years ago this became a controversial topic in ICT circles, with most people thinking it’s simply an obligation on internet service providers to treat all traffic equally. While this is true on the superficially, technological development, especially the internet of things, has complicated matters, which makes pursing net neutrality as the White Paper does, dangerous.
Imagine, for instance, remote medical surgeries and self-driving cars. Should someone who is trying to watch cat videos on YouTube and someone who is having a remote heart surgery done deep in the Congo really have their connections treated equally? What about rush-hour traffic, where thousands of people are busy on their cellphones on the internet. Should the self-driving cars in the vicinity be treated as ‘equal’? Surely not! Things like surgeries and self-driving cars should have priority over other connections. The White Paper does not take the nuance of ICT into account.
The book is available, for free, here.
I leave you with the blurb which I wrote for the book: “South Africa has had a tumultuous history since apartheid central planning ended in 1994. Unemployment has skyrocketed and economic growth has recently come to a virtual standstill. However, one of South Africa’s few success stories has been its ICT industry, which is widely regarded as being of first world quality, with 98% mobile coverage and the recent speedy rollout of fiber. The South African government, however, with its new telecommunications policy, stands to reverse this progress, by seeking to re-introduce a monopoly into the sector and placing burdensome obligations on an industry which has only now begun to see a healthy proliferation of small and emerging service providers.
In this monograph the authors tell of the success of the ICT industry and how government regulations should not act as a barrier to what has become the most viable vehicle for socio-economic transformation in South Africa.”