Electronic Communications Act, 2005 (Act No. 36 of 2005)ICASARadiocommunication Frequency Migration Plan 2019Part 2 : Radio Frequency Migration Plan 20192. Review of Legislation and Regulations |
| 2.1 | Electronic Communications Act |
| 2.1.1 | Section 34 - Radio Frequency Plan |
Section 34 of the Act deals with the National Radio Frequency Plan and as part of this, radio frequency migration.
Subsection (2) essentially contains the key statement:
...............national radio frequency plan developed by the Authority, which must set out the specific frequency bands designated for use by particular types of services................
Referring specifically to matter of migration:
| ▪ | Section 34(7)(c)(iii), states that the Authority must: |
Co-ordinate a plan for migration of existing users, as applicable, to make available radio frequency spectrum to satisfy the requirements of subsection (2) and the objects of this Act and of the related legislation.
| ▪ | Section 34(16) states that: |
The Authority may, where the national radio frequency plan identifies radio frequency spectrum that is occupied and requires the migration of the users of such radio frequency spectrum to other radio frequency bands, migrate the users to such other radio frequency bands in accordance with the national radio frequency plan, except where such migration involves governmental entities or organisations, in which case the Authority—
| (a) | must refer the matter to the Minister; and |
| (b) | may migrate the users after consultation with the Minister |
It is clear that ICASA has the obligation and authority to plan and implement the migration of users, subject to the approval of the Minister with respect to government entities.
| 2.1.2 | Section 31 - Radio Frequency Spectrum Licence |
Section 31 of the Electronic Communication Act (2005) deals with the radio frequency spectrum licences.
| ▪ | Section 31 (4) states that: |
| (4) | The Authority may amend a radio frequency spectrum licence— |
| (a) | to implement a change in the radio frequency plan; |
| (b) | in the interest of orderly radio frequency spectrum management; |
| (c) | to effect the migration of licensees in accordance with a revised radio frequency plan or the transition from analogue to digital broadcasting; |
| (d) | if requested by the licensee concerned to the extent that the request is fair and does not prejudice other licensees; or |
| (e) | with the agreement of the licensee. |
This section clearly establishes that the ICASA has the right to amend a radio frequency licence to cater for instances listed in section 31(4)(a)-(e) of the Act.
| 2.1.3 | Chapter 3 – Licensing Framework |
Chapter 3 of the Act which in principle deals with the award of licences for individual and class licences for the provision of services. It also refers to the use of the radio frequency spectrum. This is consistent with the provisions of Section 31(1) and (2) of the Act dealing with the radio frequency spectrum licence in that a person cannot provide services, in terms of chapter 3, which requires the use of the radio frequency spectrum without a radio frequency spectrum licence.
| 2.1.4 | Spectrum Licence Duration |
The process of migrating users will not have an impact on the duration of their radio frequency spectrum licences, however the license will be amended accordingly to effect the migration.
| 2.2 | Review of Regulations |
| 2.2.1 | Radio Frequency Spectrum Regulations |
The Final Radio Frequency Spectrum Regulations in Government Gazette 38641 (Notice 279 of 2015) do not elaborate further (than the Act) on the issue of migration or the related issue of the amendment of a radio frequency spectrum licence initiated by the authority.
Regulation 17 deals with the duration of a radio frequency spectrum licence
| • | Regulation 17 (1) stipulates that; The granting of a radio frequency spectrum licence must not be construed as conferring upon the holder a monopoly for the use of or a right of continued tenure of the radio frequency spectrum; |
| • | Regulation 17 (2) stipulates that, unless otherwise specified in a radio frequency spectrum licence, a radio frequency spectrum licence shall run parallel to and not exceed the duration of a service licence contemplated in Chapter 3 of the Act, issued to the person in possession of a radio frequency spectrum licence. |
| • | Regulation 17 (3) stipulates that, the duration of a radio frequency spectrum licence, without a corresponding service licence contemplated in Chapter 3 of the Act, except those mentioned in sub regulation (4), is a year (i.e. from 1 April until 31 March) and such a licence will expire on the due date of the then current licence year. |
| • | Regulation 17 (4) stipulates that, where a radio frequency spectrum licence is issued in the Amateur Radio, Aeronautical Band, Marine Band, Citizen Band Radio for Ski Boats, the licence shall remain valid from 1 April of the year in which it was issued and is thereafter renewable by payment of the prescribed licence fee before or on the due date in the year it is set to expire. |
| 2.2.2 | Terrestrial Broadcasting Frequency Plan |
The Final Terrestrial Broadcasting Frequency Plan in Government Gazette 36321 (Notice 298 of 2013) and the Update to the Terrestrial Broadcasting Frequency Plan in Government Gazette 38005 (Notice 801 of 2014) deals with the re-planning of the broadcast bands in South Africa including the Digital Terrestrial Television Migration programme and the vacation of broadcast channels.
This was developed taking into consideration the International Telecommunications Union (ITU) Radio Regulations (RR), Provision Number 5.1.2 of the Geneva 2006 (GE06) Agreement, and the World Radiocommunication Conference (WRC) Resolution 224, Resolution 232 (WRC-12) and the results of activities undertaken by the within ITU Region 1 (African Region). The migration of Broadcasting service in the frequency band 790 to 862 MHz frequency band following the 2006 regional radio conference in Geneva (GE06).
This plan reflected the WRC-07 and WRC-12 resolutions with respect to the migration of broadcast channels from the 694 to 790 MHz and 790 to 862 MHz bands respectively.
The plan took into consideration "End of the transition period to digital broadcasting set forth by the GE06 Agreement, that is, the Regional Agreement, Geneva 2006 for the planning of the digital terrestrial broadcasting service in parts of Regions 1 and 3, in the frequency bands 174-230 MHz and 470-862 MHz, set forth as 17 June 2017, and notified through Administrative Circular CR/375.
The Multiplexes in the latest updated version of the Terrestrial Broadcasting Plan 2013 has been coordinated in terms of the GE06 Agreement and meets the conformance requirements of the Plan. The frequencies on this version have been successfully notified to the ITU-R Bureau and have been included in the Master International Frequency Register.
This plan essentially deals with the conversion of analogue to digital Television and the subsequent migration of the existing TV channels to a new spectrum location that is 470 to 694 MHz.
The Broadcasting Spectrum Assignments for the frequency band above 694 MHz, in the affected areas as stipulated in the Terrestrial Broadcasting Frequency Plan (Notice No. 298 of 2013 in Government Gazette No. 36321 and Notice No. 801 of 2014 in Government Gazette 38005 or the latest version), are to be used subject to meeting the conformance requirements in line with the GE06 Plan and are to be phased out during the performance period.
The key issues of interest are that there is a period during which broadcasts continue simultaneously in analogue and digital until the analogue channels are switched off.
| 2.3 | Overview of rights and responsibilities |
| 2.3.1 | Radio frequency spectrum rights |
Neither in the Act nor in the regulations are there any rights on the parts of users to retain spectrum. The spectrum licence is currently valid as specified in a radio frequency spectrum licence and a spectrum assignment can be revoked at any time. This is not unique to South Africa and many administrations retain the ultimate right to decide on the use of the spectrum at any time, notwithstanding the procedures for withdrawal, amendment or suspension of a licence.
The process for spectrum migration shall include the following:
| ▪ | a consultation process, |
| ▪ | consideration of the economic lifetime of the equipment, |
| ▪ | the identification of alternative frequencies for users who have to be migrated out of a |
| ▪ | frequency band, |
| ▪ | advance planning along with an adequate time frame, |
| ▪ | consideration of the duration of the radio frequency spectrum licence, |
| ▪ | consideration of the duration of a broadcast licence. |
| 2.3.2 | Responsibilities |
The Authority is the responsible body for frequency migration planning. The Authority has the obligation to consult with the Minister5 on various issues, notably where migration involves government entities and organisations.
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| 5 | Section 34 (16) of the Act |