Telecoms lawyer discussion on ECA

  • To the best of my knowledge nobody has an ECS or ECNS licence yet and VANS are no longer issued the whole question of boundaries is largely now irrelevant under the ECA

P.28/110 of the ECA makes clear that this is not the case. You should quote the actual legislation to motive your position.

  • There is a DRAFT regulation covering the WUG scenario operating on a mesh network basis in the unlicensed bands where two or more "hotspots" overlap...this does not cover laying fibre....both the ECN and the ECS running over it will be licence exempt where the service is non-profit [NB. This remains to be finalised]

True, p.28/110 gives Icasa wide ranging powers and flexibility to legalize a situation they are powerless to stop. Under act.96 all boundaries crossing were illegal for Wi-fi/fiber/copper and shall remain illegal under the ECA until Icasa makes a ruling. Since the won't prosecute anybody for running a private fiber link from Cape Town to Tzaneen it is largely irrelevant what Icasa rules, the NPA don't take instructions from Icasa. The only real teeth Icasa has is to confiscate non-licensed equipment in terms of the Icasa amendment act. See Act.96 still in force with the ECA

The Icasa Amendment Act gives Icasa the right to inspect or confiscate a fiber cable. But such confiscation can only be done if the judge allows Icasa to do it, which I seriously doubt the judge would allow.

If a court would only ever allow Icasa to inspect a fiber cable but not confiscate it then Icasa will never be able shut our fixed-wired networks down. Such an inspection/confiscation will only be allowed for the purposes of presenting a case to the NPA for a prosecution. Lets presume Icasa does get a confiscation order then they can only pull the fiber out from under one house, they can't raid and entire street - our constitution forbids this as ICASA Bloemfontein manager Herman explained to me. It would be ridiculous to confiscate 40meters of cable running the length of 1km and then the next day another house. No court would consent to such a farce. No, Icasa will only be given the right to inspect a fiber/copper cable and thus Icasa won't even apply for such a court order knowing full well that the NPA will ignore any report presented to them by Icasa.

Any court order allowing Icasa confiscation or inspection must be done in the spirit of the constitution. The sole purpose of inspection or confiscation is to present evidence of wrong doing to the NPA. The reasonable man would argue that "inspection" alone by Icasa would be sufficient evidence for a prosecution. The "reasonable man" principle is the bedrock of our legal system. It would be unreasonable for Icasa to get 25 court orders and on 25 separate days confiscate 40m of fiber for the sole purpose of actually destroying the network. It would be more reasonable to take a small section of the network as a sample.

There is lots of loose talk from lawyers, Icasa, Vodacom, MTN about how "illegal" it is for communities to run their own fiber network. From a strictly legal point of view this can only be established by the courts but the courts will never be given the oppertunity by the NPA to decide on the matter.

  • WAPA have not signed anything admitting to illegality?

And even if they did, you can't force the NPA to prosecute you, do you understand this factuality concerning our legal system dominic? If all you had to do was sign a form admitting you are illegally running fiber over the road then MTN/vodacom/telkom would have paid somebody a long, long time ago R1 000 000 to go do exactly that, get prosecuted and establish a precedent. Once that precedent like with theft is established the NPA would have no choice but to prosecute all such cases.

  • the court case referred to about crossing a public boundaries is to the best of my knowledge fiction

The also don't know about any such cases nor pending cases.

  • there is no such thing as an ECN licence

Whatever, its not really the point what you call this license. What matters is that technically in terms of the ECA nobody , neither a Vans has been given any right to send data across any boundary using any license free medium wi-fi,fiber,copper other than Neotel, Telkom,cell companies until such a time as Icasa makes a ruling. Wapa(many members has a vans), jawug, private road cutters are violating the law from a legal point of view if they send data across a boundary. But the NPA doesn't care what the law says they won't enforce it if you are using legal mediums. You will only get into trouble if you use 900mhz for example.

  • problem here is ICASA cannot enforce in the unlicensed bands. firstly they have admitted that they will only act on complaints from licensed users and secondly they do not have the capacity to do any of their own investigations or follow through on them.

Yes, Icasa can in terms of the Icasa amendment act get a court order to confiscate and/or inspect so as to present evidence to the NPA but Icasa can't fine or prosecute anybody.

  • as a legal person in this space i can confirm that it is incredibly difficult to prosecute.

As a legal person you have a remarkable ability to obfuscate the issues. All legislation that has any sort of criminal penalty must always be interpreted in the light of what the has written here: In terms of section 20 of the National Prosecuting Authority Act, No 32 of 1998, the power to institute and conduct criminal proceedings on behalf of the State (and to discontinue criminal proceedings) vests in the national prosecuting authority. In practice, decisions in most courts on a day-to-day basis are taken by prosecutors with delegated authority from the National Director. In more important or difficult matters, the decision is taken by the various provincial directors or the investigating directors in consultation with the relevant provincial director and subject to the control and directions of the National Director. In some cases, the National Director himself will be involved in the decision-making process and he may even make the decision himself.

  • if a guy has no licensing at all it has to go to the criminal courts & even though this is straightforward there is little to no enforcement here.

If the NPA refuses to take roadcutters, ampers and wugs to court then who else has the power ? Certainly not the SAPS, they can criminally charge somebody who refuses to relicense his gun, but they can't prosecute him. Your old firearm license remains valid for life or until a court decides it doesn't, but since nobody will be taken to court we will never find out. What is straightforward is what the ECA says: No data can cross boundaries without a license. It is also straightforward what the Firearms control act says: You must relicense or you can be prosecuted. The laws gives the NPA the right to prosecute, something they will not do in either cases as explained here:

  • if you are trying to prove that a guy has mod'd equipment beyond its type-approved status so that the EIRP limits are set this is impossible at present.

No, its not impossible it just that John Welch from the NPA has got better things to do with his time. The ANC who wants all the white farmers land for example is making a huge fuss about the FCA, just think how taking the guns of farmers will help "land reform". The SAPS especially have on numerous times threated people I know that they must relicense their guns or the police will prosecute them, which is factually, legally, technically wrong: They can charge you not prosecute you. They can take a statement from you and even if you write on the statement: The NPA is "bang vir die boere", you still can't force the NPA to prosecute you.

  • how do we go about cleaning up the spectrum? all ideas welcome (rational please and accepting that there needs to be room for commercial and non-commercial use). WAPA and others have represented to ICASA that 2.4 be reserved strictly for non-commercial usage by WUGS and private individuals. In 5.4 and 5.8 WAPA is trying to clean up the space and get rid of the ampers and cowboys etc.

We clean up the spectrum by running a fiber/DSLAM combination in the North/South direction down the middle of say Waterkloof in a straight line for 10km. Every CommunityBlockNetwork on this backbone becomes a MeshNetworking hotspot. These hotspots in turn links the houses in a 5km radius to this backbone. This allows the network to scale to any size, which is how MTN/vodacom builds their exchanges using 900mhz instead of 2.4 and 5.8ghz. The community backbones will be linked using WiMax. Multiple backbones are laid in the North/South direction separated by 10km the entire length of Gauteng. Thousands of hot-spots are created in this manner enabling mobile video,voice and data.

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