Icasa signals no Starlink entry without law change

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JEREMY MAGGS: Communications Minister Solly Malatsi is heading for a direct collision, it seems, with the communications regulator, the Independent Communications Authority of South Africa, after Icasa effectively rejected attempts to create a workaround to South Africa’s BEE (black economic empowerment) ownership laws that could have opened the door for Starlink to operate locally without changing legislation.

Now the regulator, as I understand it, says the law is clear, unless parliament changes the Electronic Communications Act (ECA), the 30% historically disadvantaged ownership requirement remains in place. Well, let’s explore this now in a little more detail.

Mothibi Ramusi is with me, chair of the Independent Communications Authority. Mothibi, welcome to you, and has government now created a policy mess where it wants investment but can’t deliver a legal pathway for it? How does Icasa see it?

MOTHIBI RAMUSI: Yeah, perhaps, Jeremy, my starting point would be when you are in a regulated and a policy-driven environment, it’s always important that as and when technology evolves, new emerging trends evolve, you need to go back to your originating documents to see how aligned are you to these new changes.

We’re dealing with a situation where our Electronic Communications Act, in its current format, is almost 20 years old. As an authority, we have in many instances proposed and communicated a need for a review.

Now, the reason for a review is to acknowledge and take into effect some of the new changes that are happening, not necessarily even maybe in our sector, but other adjacent sectors which have got an impact on us as Icasa dealing with telecommunications, broadcasting and postal.

I’m raising this because in terms of what is being proposed, we have a legislative framework well defined that says if Jeremy wants to provide a telecommunication service in South Africa, there are requirements upfront that are required.

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One, in your structure, you need to have a reflection of a 30% HDG (historically disadvantaged groups). It’s a term which somebody might say, I normally hear people talking [about] BEE but why are you still talking [about] HDG? But it’s a terminology that has always been enshrined within the ECA.

So your first port of call would be adherence to that regulation in terms of the requirement, and it’s enshrined within the ECA.

So what we have then advised the minister, which is something that we are discussing, we have noted, obviously, a need for us to identify other legislative frameworks, which perhaps we could align to.

But what we have advised is to say that given the status of our Electronic Communications Act in its current format, the only way to introduce any other new measure of somebody who wants to participate in our sector, you would need to introduce that through an amendment of your founding legislation, which is currently the ECA.

So we are dealing with a situation where the limitation that we have as an authority, whilst we support new investors in South Africa, whilst we support participation of everyone in the country in our telecoms and broadcasting and postal [sectors], we have a limitation, which is a legislative limitation at the moment.

Read: Icasa licences: An alternative to the 30% black ownership rule?

I think you might have seen that even when we talk about BEE, for us, it’s a question of saying if there are any other methods, equity equivalent, for example, we have noted that equity equivalent would normally talk to only those companies that are providing products but not providing a service, and there’s a total difference between the applicability of those two frameworks.

JEREMY MAGGS: Let me ask you this, where is the line between the law and pragmatism? There is the argument that this decision can deepen the digital divide by keeping high-speed satellite internet out of underserved areas.

MOTHIBI RAMUSI: Well, currently, Jeremy, we do have satellite operators that are providing services in the country through their local identified partners. You’ve seen the likes of our MNOs (mobile network operators), including Liquid Intelligent Technologies.

So when you talk about expansion of our networks, in 2022 what we have done as an authority, noting that we need to accelerate connectivity to the unconnected, we have availed spectrum.

As an authority at the moment, we are engaging with all the licensees to make sure that the spectrum that was awarded and assigned, it’s important that they accelerate connectivity.

Working closely with the ministry, you might have known that we’ve had a programme called SA Connect. It was another complementary programme to make sure that we go to those underserved areas, provide Wi-Fi connectivity, reliable and meaningful connection.

So the issue around high speed, it can still be attained with the current framework. However, we acknowledge that there are other new platforms that one could look into. As we are talking about, the low earth orbit (LEO) satellites, it’s new platforms.

At the moment, we are busy with a licensing regime.

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We are doing a review of the licensing framework to make sure that even when we talk about a LEO, issues of data sovereignty, issues of security in the country, issues of spectrum pricing, for any new platform that gets introduced, it must align to our regulatory environment.

To answer your question, we are mindful of the fact that we need high-speed connectivity methods of other infrastructure. But where we are today, what I can safely say to your listeners and yourself, is we are already providing services, but there’s an accelerated programme.

As I’ve indicated, we have open spectrum. Even now we are dealing with dynamic spectrum application, where we’re opening bands for SMMEs (small, medium and micro enterprises) so that we can go to townships and rural areas and accelerate to make sure that by 2030 …

JEREMY MAGGS: But is that accelerated programme enough, though? Effectively, does this not give Starlink a convenient excuse to walk away from South Africa now?

MOTHIBI RAMUSI: Yeah, I think, Jeremy, I’m going to be very careful here. We’re not talking about a company. I think let’s talk about providers of low earth orbit satellites. We already have …

JEREMY MAGGS: Of which Starlink is a major player here.

MOTHIBI RAMUSI: Well, I want us to be very careful because I wouldn’t want you and the listeners to think that we are talking about one company. The LEO operators, we do have multiple of those, and, as I said, what we encourage is anyone who’s got an appetite to come to this country, there’s a way that one has to follow.

You partner with locals.

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If the ITA (invitation to apply) process has not been open, which is the case now, the minister has not yet even issued a policy direction to the authority to open an invitation to apply for individual licences.

So it’s a process that even when you talk about a new applicant, any company, anyone who comes tomorrow and says, I would want to provide a LEO in my own individual capacity, then that process will have to be subjected to an ITA. But if you want to participate with those who already have services, you can do it today or tomorrow.

I think that’s very important to know, that Icasa in its current format, we are not saying no to any person to come into the country.

But we are saying in this current format, the only best method to participate and provide services is through a local partner, up until the window where we are inviting people to apply for new licences, then you can come, but you will still be subjected to the 30% up until there’s an amendment of the legislation.

I think that’s how I can summarise it.

JEREMY MAGGS: Do you think the minister has been politically naive then, in trying to solve this issue through policy for something that, it seems to me, can only be solved through legislation?

MOTHIBI RAMUSI: Jeremy, unfortunately, I can’t comment on that. But as I’ve indicated, when we read the policy direction, there are obviously motivational statements that talk about accelerating connectivity, identifying perhaps new methods of connecting South Africans. But I wouldn’t comment about the political intention. I think it would be irresponsible for me to do that for now.

JEREMY MAGGS: Do you think it’s going to end up in court?

MOTHIBI RAMUSI: No, I don’t think so. I think what we have seen, if you read the minister’s budget vote speech, there’s a statement where the minister acknowledges that there’s definitely a need to review our legislative framework when you talk about EIP (environmental implementation plan), which gives me comfort as an authority because as an independent institution, we’re not influenced by any other thing except what South Africans need and what the global world seeks us to do.

Read: Musk’s Starlink licence decision up to South African regulator

So that statement in the budget vote speech seeks to tell me that there’s an appreciation that what needs to be done, there’s definitely a need to go back to the founding document, which is the ECA.

As I’ve indicated, it’s a 20-year-old document, it needs to be recalibrated so that it aligns to the current status of our sectors that we regulate.

JEREMY MAGGS: Thank you very much indeed. Mothibi Ramusi is the chair of the Independent Communications Authority of South Africa.