dISCUSSION pAPER ON Draft framework FOR DYNAMIC AND OPPORTUNISTIC SPECTRUM MANAGEMENT
REPRESENTATIONS BY M-Net AND ORBICOM
18 December 2015
2
Introduction
1 M-Net and Orbicom thank the Authority for the opportunity to comment on the Discussion Paper on the Draft Framework for Dynamic and Opportunistic Spectrum Management, 2015 ("the Discussion Paper")[1] which the Authority gazetted on 19 October 2015for public comment.
2 The Discussion Paper proposes regulations that would enable broadband services on a secondary user assignment basis in the 470 – 694MHz band currently utilised exclusively for terrestrial broadcasting services (i.e. in the UHF TV broadcasting band below 694MHz ("the sub-band")) ("TV white spaces").[2]
3 The Discussion Paper invites comments on the regulatory perspective and, in particular, on the specific approaches, requirements, challenges and concerns that would have to be addressed in introducing such spectrum regulatory reform.[3]
4 Whilst we support, in principle, initiatives to use frequency spectrum more efficiently and to increase broadband access and usage, we are concerned that the Discussion Paper's proposals in respect of the UHF band below 694MHzare premature, legally impermissible, exceed the Authority's statutory powers and contravene the Republic of South Africa's international obligations.
5 In addition, the Discussion Paper's proposals would inhibit optimal spectrum use by broadcasters during the dual illumination period, are not practically feasible and would hamper a smooth and successful migration to DTT.
6 For all of these reasons, the Authority should put this process on hold and commence with it afresh after all of the legal pre-requisites have been met and with due regard to all of the practical implications involved.
7 We elaborate on this below.
International and legislative context
8 The Discussion Paper fails to appreciate the international context arising out of South Africa's membership of the ITU[4]and the Ministers' role in respect of frequency allocation and ITU representation, and the relevant legislative context.
9 The Ministers of Communications and of Telecommunications and Postal Services ("the Ministers") represent the Republic in international fora, including the ITU, in respect of the international allocation of radio frequency spectrum, the international co-ordination of radio frequency spectrum usage, and the coordination and approval of any regional radio frequency spectrum plans applicable to the Republic, in accordance with international treaties and multinational and bilateral agreements entered into by the Republic.[5][6]
10 It is only after the use of a band has been determined at ITU level and adopted by the Republic (represented by the Ministers) that the Authority may proceed to control, plan, administer and manage the use and licensing of that spectrum.
11 The Authority must implement the plans adopted by the Republic (represented by the Ministers). The Authority's functions in controlling, planning, administering and managing the use and licensing of the radio frequency spectrum must always be in accordance with the bilateral agreements or international treaties entered into by the Republic.
12 More specifically, the Authority –
12.1 must control, plan, administer and manage the use and licensing of the radio frequency spectrum in accordance with bilateral agreements or international treaties entered into by the Republic;[7]
12.2 must, in controlling, planning, administering, managing, licensing and assigning the use of the radio frequency spectrum, comply with the applicable standards and requirements of the ITU and its Radio Regulations, as agreed to or adopted by the Republic, as well as with the national radio frequency plan contemplated in s34 of the ECA;[8]
12.3 must develop, update and amend the national radio frequency plan, subject to the provisions of the ECA, the related legislation and the bilateral agreements or international treaties entered into by the Republic;[9] and
12.4 must assign radio frequencies consistent with the national radio frequency plan for the use of radio frequency spectrum by licence holders and other services that may be provided pursuant to a licence exemption.[10]
13 The national radio frequency plan developed by the Authority and having received Ministerial approval must -
13.1 designate the radio frequency bands to be used for particular types of services;
13.2 ensure that the radio frequency spectrum is utilised and managed in an orderly, efficient and effective manner;
13.3 aim at protecting radio frequency spectrum licensees from harmful interference;
13.4 provide for flexibility and the rapid and efficient introduction of new-technologies; and
13.5 aim at providing opportunities for the introduction of the widest range of services and the maximum number of users thereof as is practically feasible.[11]
14 Furthermore, in preparing the national radio frequency plan as contemplated in s34(4), the Authority must take into account the ITU’s international spectrum allocations for radio frequency spectrum use, in so far as ITU allocations have been adopted or agreed upon by the Republic, and give due regard to the reports of experts in the field of spectrum or radio frequency planning and to internationally accepted methods for preparing such plans.[12][13]
15 When updating and amending the national radio frequency plan, due regard must be given to the current and future usage of the radio frequency spectrum.[14]
Discussion Paper's proposals are premature and unlawful
16 As the Authority itself recognises, the sub-band below 694MHz is currently utilised exclusively for terrestrial broadcasting services.[15] To our knowledge, this sub-band has not been allocated to mobile telecommunications either on a coprimary basis with broadcasting services or at all.[16]
17 It is therefore impermissible for the Authority to allocate the sub-band below 694MHz for use by broadband services until such time as such allocation and use has been determined and agreed to at ITU level and adopted by the Republic (represented by the Ministers).[17]
18 It is premature to determine a framework for TV white spaces in this sub-band before all of the technical and regulatory conditions have been determined at ITU level and adopted by the Republic.
19 Given that these prerequisites have not been met, the Discussion Paper's proposals fall foul of the Republic's obligations under the GE06 Agreement and ITU Regulations. The use of the sub-band for services other than broadcasting is legally impermissible and would be reviewable on the ground of unlawfulness. The Authority can only deviate from the current allocation if the Ministers approve a deviation from the ITU Table of Allocations and such deviations would have to be coordinated with the neighbouring countries.
20 After all of the pre-requisites have been met, the Authority must then act in accordance with the bilateral agreements or international treaties entered into by the Republic, including all applicable technical and regulatory conditions in respect of the sub-band.
21 For all of these reasons, the Authority should put this process on hold and commence with it afresh after all of the legal pre-requisites have been met and with due regard to all of the practical implications involved.
Impact on existing terrestrial television services and digital migration
22 The Discussion Paper's proposals would inhibit optimal spectrum use by broadcasters during the dual illumination period and are not practically feasible.
23 As the Authority is aware, the digital migration process has not yet commenced. When it does commence, it will take place in a phased manner and, during the dual illumination period, terrestrial television services will broadcast in both analogue and digital format. It is only at the end of the dual illumination period that analogue broadcasting will cease and the digital dividend be realised.
24 From the commencement of the dual illumination period until analogue switch off, there will be a shortage (rather than a surplus) of spectrum, given that broadcast transmissions will be duplicated in both analogue and digital formats.
25 Moreover, existing analogue terrestrial television services currently operating in the 700MHz and 800MHz bands will have to be migrated to the sub-band below 694MHz. Whilst a plan exists to plan clear the 800MHz band, we are not aware of any detailed plans to clear the 700MHz band and migrate existing television broadcasting services below 694MHz.
26 During the dual illumination period, as much spectrum as possible is required in order to allow maximum flexibility to move existing terrestrial television broadcasting services into the sub-band below 694MHz.
27 Until such time as a full technical plan has been done on how to move all of the existing terrestrial television broadcasting services below 694MHz, the introduction of any other services (such as broadband) into the sub-band will disrupt the digital migration process, impede orderly spectrum management and hamper the migration to DTT.
28 It should be borne in mind in this regard that the movement of broadcasting services from one band to another is very disruptive.
29 The migration from one frequency to another in the broadcasting context is different from migrating a telecommunications service from one frequency to another. In the broadcasting context a change in frequency means that viewers could automatically lose reception when the change in frequency happens. It is incumbent on the viewer to rescan their television to be able to continue to view the channel at the new frequency. In some cases consumers would require a new antenna to cover the new frequency band used.
30 The frequency change is therefore a very disruptive process that needs to be carefully managed to minimise the impact on viewers. Communication campaigns will need to be launched to notify viewers/subscribers, new transmitters and new combiners will have to be acquired and installed, and the migration to a different frequency could result in transmission disruptions lasting anything from two days to a week (depending on the transmitter affected), resulting in inconvenience to viewers and adversely impacting on advertisers.
31 In conducting frequency changes in the broadcasting context, a number of important issues need to be taken into account, such as -
31.1 the current frequency that transmit the analogue service, and the band it occupies;
31.2 the designated frequency for migration from analogue to digital;
31.3 the earmarked from frequency to a frequency below 694 MHz;
31.4 the transmitting site antenna specification;
31.5 the combiners specification and flexibility to retune to a different frequency;
31.6 the receive antennas used by the viewing public and their ability to receive transmission below 694 MHz;
31.7 the off-air period to retune transmitters and combiners to frequency below 694 MHz;
31.8 the prior marketing required to educate and inform the public of the pending frequency changes in the area;
31.9 the number of households that would require a new antenna to be installed in order to receive transmissions from frequencies below 694 MHz;
31.10 the number of installers that would be required to assist households with installing new antennas, and the amount of time it will take to do the installation for the affected households;
31.11 the costs associated with the signal distribution network and the households and who bears responsibility for the funding of these costs; and
31.12 the impact on advertisers on the services that are effecting frequency changes, and who will bear responsibility for losses incurred from loss in advertising.
32 Prior to allocating frequency in the UHF band to broadband services, a complete re-plan of the national DTT network, co-ordination of all sites within SADC and beyond, and the retuning of national transmission networks will be required.
33 For all of these reasons, maximum flexibility is required in order to move existing terrestrial television broadcasting services into the sub-band below 694MHz. This is another reason why the Discussion Paper is premature.
34 The Discussion Paper's proposals would limit flexibility during the dual illumination period, inhibit orderly spectrum management and would not be practically feasible, all of which would contravene s34(6)(e), (a) and (f) of the ECA. It also fails to have due regard to the current and future usage of the spectrum concerned, as required by s34(5) of the ECA. Moreover, it is common practice that services that are currently occupying a band should enjoy protection from services being introduced in the band. However, the Discussion Paper's proposals would compromise the existing services in the band.
International Context
35 We are sure that a number of submissions will point to successful roll-out of white space cognitive radio in the United States of America to support arguments for implementation in South Africa. It is useful therefore to point out that the circumstances are very different. In the USA the switchover from full power analogue to digital broadcasting was completed by 12 June 2009. It was only after the digital migration was completed that the Federal Communications Commission released a Memorandum Opinion and Order that determined the final rules for the use of white space for unlicensed wireless devices.[18] Similarly, in the United Kingdom OFCOM plans for introducing white space technology were only commenced in 2011 when it was clear that broadcasting digital migration, which commenced in October 2007, would be completed in October 2012. In sharp contrast digital broadcasting migration has yet to even commence in South Africa.
36 Current circumstances also indicate that FCC, in the USA, should have more adequately considered future usage of spectrum, as they are now contemplating a Digital Dividend 2.0 where further spectrum in the UHF band is to be freed up for telecommunication use. This Digital Dividend 2.0 scenario will be complicated by the fact that there is wide spread use of white space devices in this identified spectrum which will impact adversely on any future telecommunication providers licensees in this earmarked spectrum. This is because white space devices are designed to operate on a secondary basis in a broadcasting environment, which has different characteristics to a telecommunications environment and will cause harmful interference to telecommunication services in same band.
CONCLUSION
37 For all of these reasons, it is not permissible, lawful or practically feasible to utilise the TV white spaces for broadband in the sub-band below 694MHz at this point in time.
38 We therefore recommend that the Authority put the current process on hold and re-commence this process afresh after all of the legal pre-requisites have been met and with due regard to all of the practical implications involved.
39 We request an opportunity to make oral representations if the Authority holds hearings in this process.