A Spectrum Management Agency for South Africa
The Department of Communications (DOC) proposes in an amendment to the Electronic Communications Act, 2005 (ECA Bill), to form a new Spectrum Management Agency (SMA) responsible for all spectrum allocations, while actual assignments of frequencies will be divided between the SMA and ICASA. ICASA will assign spectrum for non-government and the SMA for government use. The establishment of the SMA will require co-operation and co-ordination of this scarce national resource with ICASA. The DOC is to be commended for this initiative which will create a more sensible framework for spectrum allocations and assignments than currently exists by creating a clearer demarcation between policy making and policy implementation.
The SMA structure is a hybrid between the structures for spectrum allocations and assignments that exist in the US and France with its own South African flavour. This analysis does not reflect the results of an exhaustive search for global best practices. Rather two foreign countries have been chosen for comparison because they represent two contrasting examples that provide useful insights into the challenges of spectrum management.
For many years in the US the National Telecommunications and Information Administration (NTIA), located within the cabinet-level Department of Commerce, has handled spectrum allocation and assignments for the Federal Government, while the sector regulator (Federal Communications Commission (FCC)) has been responsible for allocations and assignments for all other spectrum including state and local governments as well as broadcast, commercial and private users. The majority of spectrum is shared between Federal and non-Federal users, so the need for coordination of spectrum policy between the FCC and the NTIA is critical. In contrast France has one Spectrum Management Agency (Agence nationale des fréquences (ANFR)), separate from the sector regulator (L'Autorité de régulation des communications électroniques et des postes (ARCEP)) which like the proposed SMA is responsible for all spectrum allocations. However frequency assignments in France are handled through three different procedures for (i) government, (ii) telecommunications operators regulated by ARCEP, and (iii) broadcasters, regulated by the Conseil supérieur de l'audiovisuel (CSA).
This article examines the advantages, disadvantages, risks and conditions for success associated with these various approaches. There is merit in the separation of spectrum policy as in France and the proposed SMA from the sector regulator in order to be consistent with the principle that the regulator is responsible for implementing and enforcing policy but not for setting it. The fragmentation in responsibility for spectrum policy that is inherent in the US structure runs the risk of lengthy delays and ineffectiveness in the productive allocation and assignment of spectrum unless there is timely and efficient coordination and cooperation between the two spectrum management agencies with joint jurisdiction. The track record of cooperation between the FCC and NTIA is not encouraging. Furthermore the roles of the FCC in spectrum policy (albeit partial) and of ICASA today have the consequence of putting or keeping the regulator in the firing line of short term oriented, frequently ill-informed politicians susceptible to lobbying by special interests, since this structure implicitly gives the regulator significant policy making responsibility that best practice suggests should fall within the purview of the legislative and executive branches of the Government.
Spectrum Management in the US
The Communications Act assigns joint jurisdiction for spectrum management to the FCC and the NTIA at the Department of Commerce. The FCC is responsible for non-Federal users (e.g. broadcast, commercial, public safety, and state and local government users, etc.) while the NTIA is responsible for Federal users. The majority of spectrum is shared between Federal and non-Federal users, so the FCC and NTIA must coordinate spectrum policy. Coordination can be complex and very controversial as illustrated in the recent (and still ongoing) battle about LightSquared’s plan to obtain an ATC (Ancillary Terrestrial Component) waiver in order to deploy a terrestrial LTE network in its MSS (Mobile Satellite Services) L-band (1.6 GHz) frequencies. This waiver was granted by the FCC on a provisional basis but withdrawn about a year later in early 2012 following a flood of protests from the GPS industry and many users in the Government and private sectors. Opponents of the waiver claimed that the operation of this terrestrial network by LightSquared would disrupt GPS-based services in adjacent spectrum which were either commercially very valuable or essential for public safety agencies and Federal users such as the Department of Defense and the Federal Aviation Administration. The NTIA is responsible for GPS spectrum and it is unclear to say the least whether there was adequate coordination with the FCC before the provisional ATC waiver was granted.
A recent report (November 2011) by the General Accounting Office (GAO) highlighted coordination challenges between the NTIA and FCC as one of four factors contributing to delays in efforts to repurpose spectrum for new commercial uses. Efforts to repurpose spectrum require that NTIA and FCC coordinate to determine what spectrum is suitable for new commercial uses, and the extent to which Federal agencies will be affected by efforts to relocate or modify their current spectrum assignments. While NTIA and FCC have taken steps to improve coordination and are collaborating on efforts to make spectrum available for wireless broadband, the extent to which they are effectively coordinating and will be able to quickly meet growing demands for spectrum is unclear due, in part, to a lack of transparency in their joint planning efforts.
In 2003, NTIA and FCC signed a Memorandum of Understanding (MOU) , superseding the MOU that dated from 1940. This MOU stated that the Assistant Secretary for Communications and Information at NTIA and the Chairman of FCC would meet twice a year to conduct joint spectrum planning activities, as required by the NTIA Act, to ensure spectrum is used for its “highest and best purpose”. According to the MOU, the joint spectrum planning is to include considerations of the future spectrum requirements of public and private users, with the goal of promoting efficient use of spectrum that reflects the economic and national security interests of the nation. However, according to NTIA and FCC officials, these meetings did not occur regularly during one prior FCC Chairman’s term. FCC officials also stated that the results of these meetings are not publicly available because they contain pre-decisional information. In addition, NTIA and FCC have not jointly developed a strategic spectrum plan encompassing Federal and non- Federal spectrum use, despite statutory requirements and a 2004 Presidential Memorandum to do so. In fact, when GAO asked which documents comprise the national spectrum strategy, NTIA and FCC officials identified different documents.
Spectrum Management in France
In France management of the entire spectrum is entrusted to a state agency, the ANFR. In addition to this role of technical management the ANFR represents France in international and European conferences on topics dealing with radio frequency spectrum. The ANFR prepares and presents the national table of frequency allocations to the Prime Minister who then authorizes the allocations of frequency bands to ministerial departments and to two independent authorities or regulators (ARCEP for civil radio communications and CSA for broadcasting) after approval by the ANFR’s Board. Frequencies are assigned by 8 government departments and ARCEP and the CSA (known collectively as affectataires or band managers).
In order to carry out these tasks ANFR relies on its technical departments and consultative committees which associate technical directorates of the affectataires, the wireless industry (operators and suppliers) and independent experts who strive to find consensus. The latest example of this process is the work on “digital dividend” spectrum (800 MHz band) made available after the transition to digital broadcasting. The goal of this organizational structure is to enable dialogues between all spectrum stakeholders, thereby facilitating inputs from the market and its needs including estimates of demand, as well as enabling the resolution of delicate issues of spectrum refarming to meet growing demands for more civil spectrum allocations.
France is an example of the successful allocation and assignment (in 2011) of frequencies in the 800MHz and 2.6GHz bands which are of prime interest to South Africa. In contrast the UK has been bogged down in years of delay in awarding these frequencies due to several rounds of still unresolved disputes between the regulator Ofcom and UK mobile operators at a time when the UK government has expressed dissatisfaction with Ofcom’s remit. So instead of being the first European country to make these new frequencies available for mobile broadband deployment the UK will be among the last.
This structure for spectrum allocation and assignment is very much in line with France’s centuries-old tradition of highly centralized government. As such it runs the risk of suffering from the disadvantages of over-centralization if the process is captured by a few powerful, politically well-connected entities which are in a position to exclude new or innovative ideas in order to protect their established interests. In practice this undesirable outcome seems to have been avoided in this critical sector of the French economy, thanks (or so it may be hypothesized) to the significant role of objective technical expertise in decision making, as well as a strong regulator able to stand up to negotiate effectively with major operators in its efforts to sustain and even strengthen market competition in wireless markets.
Spectrum Management Agency in South Africa
The proposed SMA will be responsible, on behalf of the State for:
- Long term spectrum planning including the development of the national radio frequency plan;
- The allocation of radio frequency spectrum for both government and non-government use; and
- The assignment of the radio frequency spectrum for government.
The amended definitions of the terms “allocation” and “assignment” in the ECA Bill are fully consistent with the definitions of these terms by the ITU (see http://life.itu.ch/radioclub/rr/art01.htm ).
The sector regulator ICASA will retain responsibility for the assignment of the radio frequency spectrum for non-government use. The SMA may allocate some of its functions to ICASA. In any case coordination between the SMA and ICASA will be essential if this new spectrum management framework is to work effectively and efficiently.
The effectiveness of coordination between the SMA and ICASA as well as with other public sector bodies and the private sector will have a critical impact on the overall effectiveness and efficiency of this new spectrum management framework. It will depend among other factors on the quality of the governance of the SMA.
According to the ECA Bill the Board of the SMA will comprise one executive Chief Executive Officer (CEO), appointed by the Board with the approval of the Minister after inviting applications for this post by publishing advertisements in the media, as well as seven non-executive members who will be appointed by the Minister on recommendations made by a nominating committee to be formed. A variety of qualifications and grounds for disqualification of the CEO and non-executive Board members is included in the Bill. However as is usually the case the devils (if any) and /or the angels (if any) will lie in the details and the implementation. The best outcome would be a Board that includes a diverse mix of knowledge and experience in business, public policy and regulation as well as technical and operating expertise in networks including in particular wireless networks. It should include members who can be objective in their thinking on behalf of the national interest and are not unduly beholden to special interests.
It is unclear from the ECA Bill whether spectrum will be assigned to the SOE Sentech by the SMA (as government spectrum) or by ICASA (as civil spectrum). On one hand it may be argued that the SMA should handle spectrum assignments to Sentech since its role is primarily determined by government and should give priority to the needs of government users such as schools and health facilities. On the other hand Sentech will possibly or even probably share major bands, notably 2.6GHz and 800MHz (the ‘digital dividend’) with commercial mobile operators, and offer wholesale services to them. In this perspective it would make sense for one ‘assigner’, namely ICASA to handle all frequency assignments within these bands, including those for Sentech. Furthermore commercial operators will also and should be encouraged to provide services to government buildings and institutions. So the term “government spectrum” should arguably only be applied to spectrum that is destined for the exclusive or dedicated use of government users such as the Ministries of Defence and Transport. It should not cover spectrum that will be used by government as one group of customers among many others. Whatever choice is made in this regard, it is one of the topics (assignment of spectrum that may be shared between government and non-government users) that underscores the need for clear, regular and effective coordination between the SMA and ICASA.
The formation of the new SMA that has now been proposed in the modified ECA is at least in theory and appearance a distinct improvement over the current situation for which the DOC deserves some commendation. It establishes a clear line of demarcation between policy making (the SMA) and policy implementation (ICASA). However whether this new framework turns out in practice to be a significant improvement over the current situation will nevertheless depend on the quality of the governance of the SMA and on positive and mutually supportive communication, collaboration, and cooperation between ICASA and the SMA as well as between government users, and across government and non-government users of spectrum. For example the SMA's Board could/should include representatives from ICASA and key government users of spectrum as well as from the private sector, including telecommunications operators and their customers and objective outside experts. It should also be clarified whether spectrum assignments to the SOE, Sentech, will be treated as government spectrum, and therefore fall under the purview of the SMA, or will remain the responsibility of ICASA.
Authors: Dr Matrtyn Roetter and Tim Parle Senior - Consultants BMI-TechKnoweldge