Authors: Rakhee Bhoora, Godfrey Malesa and Lucrecia Sadhaseevan – Fasken
The World Health Organisation declared Covid -19 a global pandemic. In a blink of an eye, the world was turned upside down. Businesses and governments across the globe were brought to a standstill. Like most countries worldwide, South Africa has to adhere to strict lockdown-type measures. Amidst this crisis, Covid-19 has proven to be a significant catalyst in supporting digital transformation on a global scale. Countries such as China and the United States are deploying robotics and drone technologies to support medical staff while they attend to infected patients, whereas Spain is utilising laser sensor technologies to detect the virus at the earliest point of infection from a saliva or nasal swab in minutes.
Similarly, South Africa is also at the forefront of the Covid-19 digital transformation as it has turned to digital technology to fight Covid-19. For example, health technology companies such as Epione.net constructed a pre-screening symptom checker application which enables patients to monitor their symptoms as well as receive options for screening and appointing doctors to treat them. The Western Cape Education Department also launched an e-portal which consists of over 14400 resources such as video and audio clips, digital documents and lesson plans to enable home schooling. Another exemplary example of the use of digital technology in the fight against Covid-19 sits with, the Greater Tzaneen Municipality, which is using drones to monitor lockdown compliance and as a tool to educate people about Covid-19 prevention in local languages as well as monitoring potential hotspots.
To strengthen South Africa’s digital response to the crisis, the Independent Communications Authority of South Africa (ICASA) and the Department of Communications and Digital Technologies (Department) developed a Covid-19 telecommunications and information and communications technology (ICT) regulatory framework. Through the lens of this regulatory framework, this article will unpack 4 main measures adopted by ICASA and the Department to guarantee that digital services are available immediately and easily accessible during the period of national disaster as a result of Covid-19.
Prioritisation of radio frequency spectrum (spectrum)
What is spectrum and why is it important during the period of national disaster?
Spectrum is used to carry information wirelessly for a vast number of everyday services ranging from television and radio broadcasting; mobile phones; Wi-Fi and GPS; amongst others. Spectrum is divided into frequency bands, which are then allocated to certain services. The wider the frequency bands, the more information that can be passed through them. These frequency bands are measured in the unit, ‘hertz’ (Hz), in the categories of kilohertz (KHz), megahertz (MHz) and gigahertz (GHz).
ICASA is responsible for regulating access to spectrum through a licensing framework by issuing licenses to telecommunications and broadcasting service providers to use specific frequency bands in particular areas. Access to spectrum is foundational during a period of national disaster because it alleviates network challenges, eases congestion and ensures good quality services for consumers. Simply stated, it plays a critical role in keeping society functional in a time of lockdowns and quarantines.
What measures have been implemented by ICASA to ensure the availability of spectrum during the period of national disaster?
The provision of high demand spectrum
On 26 March 2020, the Minister of Communications and Digital Technologies published the Electronic Communications, Postal and Broadcasting Directions (Directions). The purpose of the Directions is to facilitate the availability and use of digital technologies to combat the spread of Covid-19 in South Africa, through amongst others, enabling electronic communications service licensees and other service providers to rapidly deploy networks and facilities as contemplated in the Electronic Communications and Transactions Act 36 of 2005 (ECT), thus increasing the demand and usage of electronic communications services and removing obstacles associated with the rapid deployment of electronic communications services.
Significantly, the Directions require ICASA, for the period of national disaster to prioritise the regulatory framework applicable to the management and licensing of spectrum that would enable implementation of the Directions on an urgent basis. Under the Directions, to the extent possible, ICASA must relax spectrum regulations to enable the temporary licensing of all available spectrum bands including the unassigned high demand spectrum for the period of national disaster.
Having given consideration to the Directions, on 3 April 2020, ICASA published the Information and Communications Technology Covid-19 National Disaster Regulations (Regulations). A critical measure introduced by these Regulations is the temporary release of additional spectrum. The following frequency bands, in high demand, were made available for licensing during the period of national disaster: 700MHz; 800MHz; 2300MHz; 2600MHz and 3500 MHz. The Regulations make provision that during the period of national disaster, any licensee may apply to ICASA to dispense with the prescribed licensing procedures for the licensing of spectrum, including high demand spectrum, in order to enable it to deal with the anticipated rise in demand for network capacity or data services. Any prescribed fees that would have applied to the bands identified above, is waived.
Subsequently, on 17 April 2020, ICASA announced that it considered applications from telecommunications/ICT companies for temporary spectrum assignments in the high demand frequency bands, in an effort to ensure connectivity for all during the period of national disaster. Only those companies that were able to implement and use spectrum on an expeditious basis were considered. Some of the successful applicants who were assigned spectrum include Telkom, Vodacom and MTN.
Enabling spectrum sharing through the use of ‘white space technology’ and spectrum sharing agreements
Spectrum sharing is essential to allow community networks in rural and underserved areas. An example of spectrum sharing is using the “unused” spectrum in television bands, known as Television White Spaces (TVWS) to provide internet access. Put simply, usually television networks leave gaps or spaces filled with unused spectrum between channels for buffering purposes. This unused spectrum has the potential to improve internet access for many users and enable developing technologies to expand this type of spectrum access to other frequencies and services in order to maximise spectrum usage, almost like a “WI-FI network on steroids”.
The Regulations enable telecommunications/ICT companies to apply for the use of TVWS during the period of national disaster. In addition to considering the applications for temporary spectrum assignments, ICASA announced that it also considered applications for the use of TVWS. ICASA has granted Mthinte Communications, Levin Global and Morai Solutions authorisation to use TVWS during the period of national disaster in the 470 – 694 MHz band, subject to certain conditions being imposed. One of the conditions is that applicants must obtain approval from the Council for Scientific and Industrial Research (CSIR), in conjunction with ICASA, with respect to Geo-Location Secondary Database (GLSD) connectivity for compliance with the use of TVWS in South Africa. In line with ICASA’s request, the CSIR has invited interested TVWS network operators approved by ICASA to use its Secondary Geo-Location Spectrum Database (S-GLSD) services free of charge.
Spectrum sharing can take also place through the use of spectrum sharing agreements where two or more licensees agree to share a specific frequency band. The Regulations allow licensees to submit spectrum sharing agreements to ICASA for approval, provided that licensees ensure that spectrum sharing agreements are implemented efficiently and in a manner that does not compromise the quality of services provided by licensees and the functioning of the electronic communications networks of other licensees.
Easing regulatory compliance
Significantly, the regulations ease the burden of regulatory compliance for telecommunications/ICT companies when submitting authorisations, certificates, applications and registrations in terms of the ECT, the Broadcasting Act 4 of 1999 and the Postal Services Act 124 of 1998 during the period of national disaster. Some of the processes which have been made easier are provided below:
Submission of type approval applications
Type approval is a certificate granted by ICASA to a telecommunications/ICT company to certify that a telecommunications/ICT or any digital product meets a minimum set of regulatory, technical and safety standards in South Africa. The regulations exempt applicants from paying the necessary type approval application fees.
Lodging of tariff approvals
In terms of Schedule 3 regulation 9 of the Standard Terms and Conditions for Individual Licenses Regulations, telecommunications/ICT companies are not allowed to provide services for a specified tariff (i.e. a charge, fee or other compensation) without obtaining approval from ICASA that such services can be provided at that specified tariff. Tariff approvals must be lodged at-least seven days prior to the provision of telecommunications/ICT services. The Regulations, however, allow telecommunications/ICT companies to lodge tariff approvals one day prior to their launch or commencement, and any lodgment in this respect will constitute adequate notification.
Compliance with programming requirements
The Regulations also exempt certain telecommunications/ICT companies, particularly television and sound broadcasting service companies, from compliance with programming requirements in terms of license conditions.
It is important to note that these exemptions will automatically cease upon expiry of a period of three months from termination of the period of national disaster.
Services that are zero-rated are not subject to value added tax due to their social importance or personal necessity. These services are subject to a tax rate of zero with no additional taxes levied on them. The impact of Covid-19 across South Africa has required an urgent prioritising of zero-rated services in the health and education sectors.
Under the Directions, electronic communications service licensees are required to provide zero-rated access to local educational content websites. Moreover, under the amended Directions gazetted on 6 April 2020, electronic communications service licensees and electronic communications network service licensees with access to high demand spectrum are required to make available connectivity to 152 virtual district classroom platforms with minimum speeds of 10Mbs to support virtual learning during the period of national disaster. Electronic communications service licensees and electronic communications network service licensees are also required to zero-rate all Covid-19 websites as identified by the Department of Health.
In addition, the Regulations make provision for the connection of district virtual classroom platforms to support virtual teaching for the period of national disaster, which must be connected by all successful licensees for temporary spectrum assignments with access to high demand spectrum.
The objective is to ensure that zero-rating covers as many affected parties as possible. Network operators such as Vodacom and MTN have agreed to zero-rate various educational websites to allow users to access them at no cost and have also expanded zero-rated offerings to all public schools, universities and T-Vet colleges across the country to ensure that students enrolled at these institutions will be able to access relevant information free of charge.
Track and trace technologies
One of the invaluable uses of digital technologies in responding to Covid-19 is the adoption of geolocation solutions to track and trace infected individuals. The Directions acknowledge the importance of track and trace technologies by obliging telecommunications/ICT companies to provide location-based services to support the government in combating the spread of Covid-19.
In the amended Disaster Management Regulations gazetted on 2 April 2020 (Amended Regulations), the government has detailed the approach to be taken by the Department of Health to develop and maintain a national database (Covid-19 Tracing Database) to allow the tracing of individuals who are known or reasonably suspected to have come into contact with individuals who are known or reasonably suspected to have contacted Covid-19. The Covid-19 Tracing Database which must be kept confidential, include details of individuals who have been tested for Covid-19 and importantly, the details of their known or suspected contacts.
Under the Amended Regulations, the Director-General of the Department of Health has the power to direct telecommunications service providers such as Vodacom, MTN, Telkom and Cell C to provide the location and movement of any individual known or reasonably suspected to have contacted Covid-19 between 5 March 2020 and until the period of national disaster has terminated. This allows the Department of Health to access information from mobile network operators about individuals’ movements.
The South African Post Office, on the other hand, is also obliged to make available its national address system and any applicable database to assist the authorities to track and trace individuals that have been infected and other individuals that may have been in direct contact with infected individuals.
Digital transformation is not a new phenomenon, but Covid-19 has underlined the need and urgency to accelerate it. The opportunity to build and improve digital platforms has never been greater. South Africa’s efforts to leverage the benefits of technology in-order to combat Covid-19 are indeed remarkable and commendable. It is clear that the government in collaboration with ICT industry stakeholders are embracing a flexible, progressive and dynamic approach.
Looking ahead, investment in digital transformation is likely to ensure an equitable and sustainable future for all. However, as the pandemic evolves, additional regulatory measures may need to be implemented in the digital space for effective and efficient disaster management, to ensure a smooth post-disaster recovery. Technology is our new norm: it is that which is going to make society more resilient in the facing the pandemic. Will 5G technology be a curse or a cure? Will the Tampere Convention be the next best thing? Find out in Part 2!