Spectrum agency: old wine in new skins?

The department of communications has proposed a new Spectrum Management Agency to manage scarce radio frequency spectrum. BMI-TechKnowledge senior consultants Martyn Roetter and Tim Parle look at international precedent and ask whether the move makes sense.

The recently published Electronic Communications Amendment Bill proposes the creation of a new Spectrum Management Agency responsible for all spectrum allocation in SA. Assignment of frequencies will be divided between the new agency and the sector regulator, the Independent Communications of Authority of SA (Icasa).

Icasa will assign spectrum for nongovernment use and the new agency will do the same for spectrum that will be used by government. A new spectrum agency will require it to cooperate carefully over this scarce national resource with Icasa.

The new agency 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 nongovernment use.
• The assignment of the radio frequency spectrum for government.

Icasa will retain responsibility for the assignment of the radio frequency spectrum for nongovernment use. The spectrum agency may allocate some of its functions to Icasa. In any case, coordination between the two agencies will be essential if this new spectrum management framework is to work effectively and efficiently.

The proposed structure is a hybrid between the structures for spectrum allocation and assignment that exist in the US and France, with its own SA flavour. These two foreign countries have been chosen for comparison because they represent two contrasting examples that provide useful insights into the challenges of spectrum management.

There are many other models to consider, but France and the US have particular bearing on the implementation of the Spectrum Management Agency model.

US
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, the Federal Communications Commission (FCC), has been responsible for allocation and assignment of spectrum involving state and local governments as well as broadcasting, 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 crucial.

France
In contrast, France has one spectrum management agency, Agence nationale des fréquences, separate from the sector regulator, L’Autorité de régulation des communications électroniques et des postes (Arcep), which, like SA’s proposed spectrum agency, is responsible for all spectrum allocation.

However, frequency assignment in France is handled through three different procedures: one for government, another for telecommunications operators regulated by Arcep, and a third for broadcasters, which are regulated by the Conseil supérieur de l’audiovisuel.

Upsides and risks
There are advantages, disadvantages, risks and conditions for success associated with all these approaches.

There is merit in the separation of spectrum policy, as in France. Separating SA’s proposed spectrum agency from the sector regulator would create consistency 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.

In the US, 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-orientated, frequently ill-informed politicians susceptible to lobbying by special interests. This is because 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 government.

The formation of a new Spectrum Management Agency is at least in theory a distinct improvement over the current situation and is a proposal for which the department of communications deserves some commendation. It establishes a clear line of demarcation between policy making (the spectrum agency) and policy implementation (Icasa).

However, whether or not this new framework turns out in practice to be a significant improvement on the current situation will depend on the quality of the governance of the new agency and on positive and mutually supportive communication, collaboration, and cooperation with Icasa as well as between government users, and across government and nongovernment users of spectrum.

For example, the new agency’s board could and should include representatives from Icasa and key government users of spectrum, not to mention representatives from the private sector, including telecoms operators and their customers and objective outside experts.

It should also be clarified whether spectrum assignments to the state-owned enterprise Sentech will be treated as government spectrum, and therefore fall under the purview of the new agency or will remain the responsibility of Icasa.

Apparently, the French have been producing their wine since the 6th century and the Americans have been producing theirs for some 300 years. SA wines sit with one foot in the old world and one in the new. Much the same can be said for our regulatory approach.

As for the Spectrum Management Agency as the next innovation, perhaps, as with the Pinot Grigio of 2013, the grapes are on the vine. As to how well government as cultivar blends the season’s harvest remains to be seen. Certainly, we don’t want the old wine of Icasa simply in the new skins of a new agency.

• This is a summarised version of a new BMI-T paper, the full text of which can be found on the BMI-T website

• Image: Devopstom