On 20 April 2026, the Department of Communications and Digital Technologies introduced the Electronic Communications Amendment Bill of 2026 (the "Amendment Bill") in the National Assembly, which proposes amendments to the Electronic Communications Act 36 of 2005 (the "ECA"). The Amendment Bill aims to, amongst other things: (i) enable the Minister responsible for local government to make a national standard by-law on rapid deployment of electronic communications networks; (ii) introduce the "use it or share it" principle for radio frequency spectrum assigned after December 2021; (iii) require International Mobile Telecommunications ("IMT") spectrum holders to provide roaming and mobile virtual network operator services ("MVNO"); (iv) amend the facilities leasing framework and provide for wholesale pricing rules and standards; and (v) strengthen competition regulation by ICASA, including by providing specifically for concurrent jurisdiction between the Independent Communications Authority of South Africa ("ICASA") and the Competition Commission.
Section 21A of the Amendment Bill enables the Minister responsible for local government to create a national standard by-law for a uniform wayleave application and approval process for the roll-out of electronic communications networks and facilities. A standard by-law will hopefully facilitate the rapid deployment of electronic communications networks and facilities nationally by removing barriers to deployment, including differing approaches to granting access to land, unreasonable costs for wayleaves, and limited access to municipal property and infrastructure. The content of the by-law must provide for a uniform wayleave process, terms and conditions for sharing of municipal property and infrastructure with electronic communications network service licensees upon request, cost-based fees, and other incidental matters that encourage uniformity of wayleave applications. The by-law must be reviewed at least once every five years.
The Amendment Bill contemplates the introduction a "use it or share it" principle. Where radio frequency spectrum assigned after December 2021 remains unused in any area for a period of two years, ICASA may permit another network operator to share the unused spectrum. ICASA is required to prescribe regulations setting out the processes, procedures, and criteria for the implementation of the "use it or share it" principle, including how spectrum will be coordinated, the process for concluding spectrum-sharing agreements, and how interference will be managed. Any interested person may inform ICASA of areas where spectrum is suspected to be unused, for investigation. Preference for the assignment of unused spectrum must be given to community networks – defined by the Amendment Bill as electronic communications network services provided by non-profit organisations – and SMMEs. No spectrum fees are payable by a secondary licensee for the first twelve months from the date of assignment.
ICASA may withdraw a licence granted to a secondary licensee if the primary licensee demonstrates to ICASA's reasonable satisfaction that it requires the unused spectrum to deploy its electronic communications network in the relevant area within the next twelve months. ICASA must provide the secondary licensee with at least twelve months' written notice of its intention to withdraw the licence. If the unused spectrum is not assigned to a secondary licensee, ICASA may withdraw the spectrum from the primary licensee.
The Amendment Bill proposes to impose new obligations on IMT spectrum-holders that cover at least 90% of the population (referred to as "access providers" in the Amendment Bill). IMT spectrum licensees will be required to provide national roaming and MVNO services on request. Similar to the current ECA requirements regarding interconnection and facilities leasing, access providers will be required to conclude roaming and MVNO agreements within certain timeframes and ICASA has a dispute resolution function. Unlike the existing access regimes for interconnection and facilities leasing, the Bill doesn’t include any reasonableness qualification in relation to the provision of roaming and MVNO services. In other words, on the basis of the current draft, an access provider must provide roaming and MVNO services in all cases. ICASA is required to prescribe regulations within 18 months of the Amendment Bill coming into operation, addressing the minimum requirements for both national roaming and MVNO service agreements, wholesale rate rules and standards, minimum quality and performance levels, and the mobile technology generations to which access must be granted. The Amendment Bill also enables ICASA to prescribe international roaming regulations relevant to the Southern African Development Community region and other countries, conditional on reciprocal terms and conditions being imposed on electronic communications service providers of the relevant country or region.
The Amendment Bill also aims to improve the facilities leasing framework for essential facilities. Essential facilities are those which are difficult to duplicate or gain access to without regulatory intervention, and access to which has a direct effect on the costs borne by competitors. The Amendment Bill requires ICASA to prescribe a list of essential facilities within 12 months of the Amendment Bill coming into operation. These are likely to include, but are not limited to, high sites, cable landing stations, backhaul, earth stations, ducts within road and rail reserves, access to municipal infrastructure, and internet peering points. Once a facility is determined to be an essential facility, it must be leased upon request, and the parties must agree on non-discriminatory terms within 60 days. There is already a general obligation in the ECA at present to lease any electronic communications facilities on request unless the request is unreasonable. Such leases must be entered into on a non-discriminatory basis, although ICASA has exempted operators that don’t have significant market power in relevant markets. As such, it isn't entirely clear what the proposed amendments regarding essential facilities will add to the existing regime. The list of essential facilities must be reviewed at least once every 36 months.
Section 47 of the Amendment Bill requires ICASA to prescribe wholesale pricing rules or standards applicable to different types of electronic communications facilities, including essential facilities, roaming, and MVNO services, within 18 months. These pricing rules must be fair and reasonable, non-discriminatory, cost-oriented or reflective of the benefits of sharing costs amongst users, and, for essential facilities, reflective of cost plus a reasonable return. The relationship between these wholesale pricing rules and the process that ICASA has to follow before imposing pro-competitive conditions (including rate regulation) is not entirely clear. Presumably the intention is that the pricing rules will impose general requirements that licensees must adhere to when setting wholesale prices, but ICASA will retain the power to directly regulate actual rates (both wholesale and retail) through the imposition of pro-competitive conditions.
The Amendment Bill aims to strengthen ex ante competition regulation in the electronic communications sector by changing the process that ICASA has to use when conducting market inquiries and imposing pro-competitive remedies on an ex ante basis. Section 67 of the ECA is proposed to be amended to enable ICASA to conduct market inquiries on its own initiative or upon receiving a complaint, where it has reason to believe that any feature or combination of features of a market or market segment impedes, distorts, or restricts competition. Where ICASA identifies such features, it must determine which licensees are contributing to or benefitting from them and take proportionate action to remedy, mitigate, or prevent the adverse effect on competition. Such action may include amending licences or making regulations applicable to all licensees within a particular category or imposing pro-competitive conditions on specific licensees in relation to, amongst other things, rate regulation, accounting separation, functional separation, and obligations to accommodate reselling and distribution of services. Where ICASA is unable to remedy an adverse effect, it may make recommendations to the relevant institution, including recommending that the Competition Commission investigate a suspected abuse of dominant position. A new section 67A formalises the requirement for a concurrent jurisdiction agreement between ICASA and the Competition Commission, which must address mechanisms for consultation, the sharing of information (including confidential information), and the management of competition-related assessments, market inquiries, complaints, mergers, and overlapping jurisdiction. Notably, the Amendment Bill also provides that ICASA and the Competition Commission may implement, give effect to, or enforce each other's findings, provided they fall within their respective mandates.
The Amendment Bill is to be dealt with under the procedure in section 75 of the Constitution. Once the Minister of Communications and Digital Technologies introduces the Amendment Bill to the National Assembly, and after the Amendment Bill is referred to the relevant Portfolio Committee for deliberation, the Amendment Bill will be open for a public hearing and public comment. A notice in the Government Gazette will be issued outlining the timeframe for interested parties, such as network operators and businesses in the electronic communication sector, to submit a comment on the Amendment Bill. After the hearing, the Portfolio Committee submits the Amendment Bill, together with the public comments, to the National Assembly for debate and vote. If the National Assembly passes the Amendment Bill, it is referred to the National Council of Provinces, where it may pass, amend, or reject the Amendment Bill.
The Amendment Bill promotes competition and enhances access to electronic communications services while also providing benefits to consumers through more cost-effective services and improved coverage. Businesses in the electronic communications sector should take note of the proposed amendments and, in particular, assess the implications of the "use it or share it" principle for any unused radio frequency spectrum, wholesale pricing regulation, the new obligations applicable to IMT spectrum holders to provide roaming and MVNO services, and the amended competition regulation framework.
