CMS Expert Guide to 5G regulation and law

A global overview

5G regulation and law in South Africa

1 | 5G regulation and law in South Africa

Table of contents

1 What is the state of 5G deployment in your country?

2 Are telecoms companies monetising 5G investments - or are the services provided to
consumers at similar prices to 4G?
3 Has 5G been launched for industrial purposes? For which sectors?
4 What is being done to ensure that a wide range of operators and industrial companies,
from small to large, have access to frequencies?
5 What public tenders have awarded spectrum licences?
5.1 What were the criteria for awarding each of the tenders?
5.2 What are the conditions of the spectrum licence?
5.3 What is the price and how is it calculated?
6 Is there a long-term spectrum plan or announcements for future tenders?
7 If 5G specific rules are drafted, what do they say?
8 What focused 5G network or spectrum sharing regulation exists?
9 Are 5G network sharing or spectrum sharing agreements in place?
10 What are or will be the rules for granting competitors access to new 5G networks once
they are deployed?
11 What comments have been made regarding 5G cyber-security and possible use of
Chinese technology, including regulation?

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1. What is the state of 5G deployment in your country?
In April 2020, the Independent Communications Authority of South Africa (ICASA), approved the temporary
allocation of high-value 4G and 5G spectrum frequencies to mobile operators to meet increased traffic on their
networks, and to assist with increased demand by consumers of spectrum due to the effects of the Covid-19
pandemic.

In October 2020, ICASA stated that it would auction high-value spectrum assets in March 2021. In this regard, it
issued an invitation to apply a 2020 ITA notice to invite applications for the radio frequency spectrum licences in
the following bands: 700 MHz, 800 MHz, 2600 MHz and 3500 MHz, for the provision of national broadband
wireless access services. The ITA was issued in terms of regulations 6 and 7 of the Radio Frequency Spectrum
Regulations 2015, read with section 31(3) of the Electronic Communications Act, 2005. The licences will come
with universal service and access obligations.

The following developments have taken place in connection with the deployment of 5G services:

MTN, Africa’s largest mobile network operator, announced the launch of its 5G network in South
Africa, with the initial deployment of 100 5G sites. The company has deployed 58 5G sites in
Johannesburg, Cape Town and Bloemfontein using the 3.5 GHz band. Further, it has deployed 35 sites
using spectrum in the 2100 and 1800 MHz bands. Additionally, it has deployed 5G sites on 2100 MHz
in Johannesburg and Port Elizabeth. Lastly, MTN has deployed five 5G sites using 700 MHz spectrum in
Port Alfred, Hopetown, Virginia Queenstown and Tsantsabane, while initial 5G coverage in Hatfield
(Pretoria), Edenvale and Durban is provided via sites using the 28 GHz band.
ICASA allocated temporary spectrum to Vodacom, South Africa’s biggest mobile network operator,
including one 50 MHz channel in the 3.5 GHz band. In May 2020, Vodacom launched a 5G mobile
network in Johannesburg, Pretoria and Cape Town, which will support both mobile and fixed wireless
services, and is currently available on 20 live 5G sites.
Liquid Telecom, a fixed-line and broadband operator, has previously announced that it was building a
5G network that would be available from early 2020. Liquid Telecom received 4 MHz in the 3.5 GHz
band, in addition to the 56 MHz it already held. Liquid Telecom, which will use its own spectrum in the
3.5 GHz band, has stated that it would allow other mobile operators to use this infrastructure to
provide 5G technology. Vodacom has entered into a roaming agreement with Liquid Telecom to use
its 5G technology.
Rain South Africa, a mobile broadband provider of data services, was allocated 30 MHz in the 2.6 GHz
band. Rain South Africa already provides 5G data services to its customers in major centres such as
Cape Town and Johannesburg. It has a roaming agreement with Vodacom. Telkom, the state-owned
telecommunications company, has lodged a complaint with the competition authority into the legal
validity of this roaming arrangement, alleging that this constituted a notifiable merger. This challenge
could impact how telecommunications companies engage with each other when entering into 5G
roaming agreements.

All the above mentioned operators have already deployed non-standalone and commercial-standalone 5G in
South Africa.

2. Are telecoms companies monetising 5G investments -

or are the services provided to consumers at similar
prices to 4G?

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The leading telecom operators are in the early stages of 5G network development. So far, the limited 5G services
have prices similar to 4G.

3. Has 5G been launched for industrial purposes? For

which sectors?
5G has not yet been launched for industrial purposes.

4. What is being done to ensure that a wide range of

operators and industrial companies, from small to large,
have access to frequencies?
The 2020 ITA is the first step towards improving access to spectrum. The roll-out of broadband services is a part
of the South African National Development Plan. However, past spectrum roll-outs have not progressed at the
pace desired by mobile network operators, industries and the government.

5. What public tenders have awarded spectrum licences?

On 2 October 2020, ICASA issued an Invitation to Apply Notice on the Licensing Process for International Mobile
Telecommunications to provide mobile broadband wireless access services for urban and rural areas using the
complimentary bands, IMT700, IMT800, IMT2600 and IMT3500 (2020 ITA ).

5.1 What were the criteria for awarding each of the tenders?

The 2020 ITA invites operators to apply to take part in the auction scheduled for March 2021. Applicants may bid
up to the following spectrum caps:

Sub-1 GHz safeguard cap of 2x21 MHz (including existing sub-1 GHz spectrum holdings).
An overall spectrum cap of 184 MHz (including existing assigned spectrum holdings).

The four-stage award process will consist of the publication of this invitation to apply, qualification, auction and
licensing stages.

This criteria applies to these stages:

After responding to the 2020 ITA, applicants will then move onto the qualification stage. There is an
application fee of SAR 3,000,000 at the qualification stage.
Applicants must have an existing individual ECNS licence issued by ICASA.
Applicants must provide a bank guarantee of SAR 10,000,000 during the qualification stage.
Applicants must have no less than 30% equity ownership by HDSA and a minimum Level 4 contributor
BBBEE status.
During the qualification stage, the applicants will be assessed on critical efficiency factors such as
spectral efficiency, bandwidth efficiency, functional efficiency and economic efficiency.
The format for the auction stage is a simultaneous multiple round ascending auction. The auction may
consist of one or more rounds. It will continue until there is a round in which no new bids are placed,

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 and no waivers are used. In each round, bidders may place bids on any of the available lots, providing
those bids do not break the spectrum caps.
The auction fee must be paid within 30 days of ICASA’s public announcements of the award process
outcomes.

The licensing stage will include an administrative process to issue the licences.

5.2 What are the conditions of the spectrum licence?

A licence is valid for 20 years from the date of issue taking into consideration the residual analogue
and digital television broadcasting service migration below 694 MHz band timescales. All licences will
be issued on a technology-neutral basis, and there is no requirement for such licences to be used
exclusively for 5G. Annual licence fees are payable by all spectrum licensees (as published by ICASA
from time to time).
A minimum downlink single user throughput of 5Mbps at the edge of the cell (particularly in Batch 3
classified municipalities) for all national wholesalers awarded radio frequency spectrum licences on
spectrum band(s) IMT700 and/or IMT800 within five years of licence issue.
Coverage levels depend on the lot purchase, and may be as high as 99.8% of the country over a five-
year period.
Tier 1 network operators must offer site access to any licensee requesting site access. Licensees that
are granted access from Tier 1 providers must open access to MVNOs with at least 51% ownership by
persons from Historically Disadvantaged South Africans.
Applicant to procure that a minimum of 30% national capacity from the wireless open access network
(WOAN)) collectively as soon as it is operational.
A licensee assigned spectrum through this process shall zero-rate all the mobile content provided by
Public Benefit Organisations including “.gov.za” websites;
If spectrum is not fully utilised by the licensee within five years of issuance of the licence, ICASA will
initiate the process for the licensee to share unused spectrum or surrender it.
A licensee must, within 12 months of being issued with a radio frequency spectrum licence, reach a
Level 1 contributor BBBEE status.

5.3 What is the price and how is it calculated?

Applicants are eligible to bid for any of the lots set out here:

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6. Is there a long-term spectrum plan or announcements
for future tenders?
There have been no announcements of future tenders.

During June 2019, the Communications and Digital Technologies Department published its Policy on High
Demand Spectrum and Policy Direction on Licensing of a Wireless Open Access Network (Communications
Department Spectrum Policy). Under the policy, the Minister of Communications may direct a portion of
unallocated high-demand spectrum first to be assigned to a network category of licensees known as WOAN and
the remainder must then be assigned to other eligible licensees. In terms of the Communications Department
Spectrum Policy, licensees will, as a consequence, be able to either apply for radio frequency spectrum from
ICASA in relation to unallocated radio frequency spectrum made available by ICASA for this purpose, or licensees
may seek to enter into a commercial relationship with a WOAN to utilise radio frequency spectrum licensed to a
WOAN by ICASA.

7. If 5G specific rules are drafted, what do they say?

No 5G-specific rules have been drafted.

8. What focused 5G network or spectrum sharing

regulation exists?
In terms of the Radio Frequency Spectrum Regulations 2015, any assignment, cession or transfer of a licence is
subject to approval by ICASA. The regulator may also grant two or more licences for the same frequency
assignment. Two or more groups may enter into an agreement to share a spectrum assignment, subject to the
prior consent of ICASA.

9. Are 5G network sharing or spectrum sharing

agreements in place?
Rain South Africa, which roams on Vodacom’s network, is offering customers 5G-focused data services as part of a
sharing agreement This is subject to a legal complaint by a competitor.

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10. What are or will be the rules for granting competitors
access to new 5G networks once they are deployed?
See response to question 5.2 (licence conditions).

11. What comments have been made regarding 5G cyber-

security and possible use of Chinese technology,
including regulation?
The government has not made any formal steps to investigate and/or sanction Chinese technology firms for any
actual or threatened cybersecurity breaches. Chinese technology firms are present in the telecommunications
infrastructure market.

In March 2019, ICASA issued a position paper on cybersecurity, saying it would focus on research and
development in cybersecurity and would not actively regulate this until the completion of national legislation such
as the Cybersecurity and Cybercrimes Bill, and guidance from the International Telecommunication Union.

Authors

Deepa Vallabh Sihle Bulose

Partner Partner
Johannesburg Johannesburg

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Key contacts

Deepa Vallabh
Johannesburg

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