Welcome to the fifth issue of ENSafrica's TMT ENSight, focusing on topics, news and analysis of novel and interesting developments in the technology, media and telecommunications space. In this edition:

  • Our featured article looks at the benefits and pitfalls of blockchain.
  • Back to basics, on the importance of termination provisions in master agreements.
  • Telecommunications, a roundup of recent developments in the telecoms sector.
  • In the news, a curation of topical events in the technology and telecommunications industry.

Featured article

  • Block by block: the ups and downs of blockchain
    • Rakhee Dullabh and Priyanka Naidoo consider both the benefits and challenges of blockchain.
    • Read the article here.

Back to basics

  • Clear termination provisions are a must for master agreements 
    • Kayla Ferreira explains the importance of having clear termination provisions in contracts to avoid unnecessary disputes later on.
    • Read the article here.

Telecommunications

  • GG G46031: Proposed Amendment of Policy on High Demand Spectrum and Policy Direction on the Licensing of a Wireless Open Access Network
    • On 11 March 2022, the Department of Communications and Digital Technologies announced that the minister intends to amend the Policy on High Demand Spectrum and Policy Direction on the Licensing of a Wireless Open Access Network ("WOAN") (GG42597 on 26 July 2019).
    • The minister noted that the available spectrum for licensing on the WOAN does not meet the viability threshold as determined in the study conducted by the Council for Scientific and Industrial Research on behalf of the Department of Communications and Digital Technologies.
    • The minister stated that the policy objectives that were intended to be achieved by licensing the WOAN, will only be fully realised using the Next Generations Radio Frequency Spectrum policy that is currently being finalised for public consultations.
    • The proposed amendments to the policy aim to clarify that the policy objectives also include promoting competition within the ICT sector.
    • The minister recognises that there are over 400 players that hold electronic communications network service licences but cannot access spectrum due to its scarcity, and this has had an adverse effect on competition within the sector.
    • The amendments will also open up high demand spectrum in the 700 MHz, 800 MHz and the 2600 MHz bands for assignment to electronic communications network service licensees.
    • Written comments and representations on the proposed amendments of the Policy on High Demand Spectrum and Policy Direction on the Licensing of a WOAN, must be submitted to ICASA by 26 April 2022. Representations must be addressed to the Director-General, Department of Communications and Digital Technologies. For the attention of Mr. T Ngobeni, Deputy Director-General: ICT Infrastructure Support, at mrathokolo@dtps.gov.za.
  • GG46050: Draft Regulations Regarding Standard terms and conditions for Individual Licences under Chapter 3 of the Act
    • On 16 March 2022, the Independent Communications Authority of South Africa ("ICASA") published its Draft Regulations Regarding Standard terms and conditions for individual Licences ("Draft Regulations") under Chapter 3 of the Electronic Communications Act, 2005 ("ECA").
    • If implemented, the Draft Regulations will require licensees to seek prior approval from ICASA before any changes to the shareholding of an entity are made.
    • The process will be guided and subject to provisions in the Process and Procedure Regulations for Individual Licences. ICASA has published a draft amendment of the Process and Procedure Regulations.
    • The Draft Regulations will also extend the time period for notification of change in licensee details and information from seven to 14 days.
    • The failure to submit written notice within this period will result in the licensee having to pay a fee/fine. ICASA will determine and publish the fee in due course.
    • The Draft Regulations propose a limitation on any changes to the name and/or trading name of the Licensee. A name change will not be effected, it may conflict or be confused with the name and/or trading name of another licensee.
    • A licensee will be required to notify ICASA about the inability to provide services due to circumstances beyond the control of the licensee from 12 hours to six hours. Moreover, the licensee will be expected to request an exemption to comply with the licence terms and conditions and applicable regulations from ICASA within two days, where a licensee will not be able to provide services for seven days.
    • Regulation 9(5) provides more clarity regarding the failure to provide ICASA with requested information. The previous wording of "reasonable attempt" has been changed to "after 3 (three) attempts".
    • Licensees will be required to commence operation of the licensed service within 24 months from the effective date and the failure to commence operations within the specified periods will constitute non-compliance. The failure to comply will be referred to the Complaints and Compliance Committee, which will make a recommendation to ICASA regarding the cancellation of the licence.
    • Licensees will also be expected to provide end-users and ICASA the charge, fee or other compensation unless as well as the terms and conditions for the services, prior to effecting the pricing.
    • Licensees will also have to notify ICASA five days prior to the provision of services (and, seemingly, prior to the amendment or termination of services) of:
      • the name of the new product/service, amendment, or termination being notified to ICASA;
      • the objective and reason(s) of launching a new product/service, amendment or termination of a product/service;
      • the effective date of the new product/service, amendment or termination of a product/service; and
      • the price(s), and all other fees applicable to the product/service.
    • Written comments and representations on the Draft Regulations Regarding Standard Terms and Conditions for Individual Licences must be submitted to ICASA by no later than 16h00 on 5 May 2022 by post, hand delivery or electronically at Independent Communications Authority of South Africa, 350 Witch-Hazel Avenue, Eco Point Office Park, Eco Park, Centurion, Gauteng, 0169. Marked for the attention of Mr. Pascalis Adams, whose email address is padams@icasa.org.za.

To read the full insight, please click here.

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